Matter of Jongbum PAK, 28 I&N Dec. 113 (BIA 2020)
A new decision by the US Board of Immigration Appeals reminds us that couples must be careful when filing for US marriage visas or green cards. An immigration officer can deny a petition when the information or documentation is insufficient to show the marriage is genuine. Left unchallenged, such a finding can open the door to a claim of marriage fraud down the road.
INA 204(c) states, in part that “no petition shall be approved if:
(1) the alien has previously been accorded, or has sought to be accorded, an [immigration benefit as a spouse] by reason of a marriage determined by the Attorney General to have been entered into for the purpose of evading the immigration laws, or
As such, a new marriage visa or green card application cannot move forward when the foreign spouse was previously married for the purpose of evading US immigration laws. An exception applies for couples who refile after that marriage is deemed fraudulent. Matter of Isber, 20 I&N Dec. 676, 678–79 (BIA 1993).
Matter of Jongbum PAK
The Board took up this case where a prior marriage by the beneficiary was NOT deemed to be fraudulent. Instead, the USCIS officer denied the green card application on grounds that the married couple provided insufficient evidence that the marriage was in good faith. In other words, the officer essentially said, “I’m not saying that this marriage is fraudulent, but you didn’t come with enough evidence to convince me otherwise. Jongbum PAK did not challenge the denial.
Problems Down the Road
Years later, Jongbum PAK married a different US citizen petitioner and the couple filed for a marriage visa. The USCIS officer went back into the old case and asked questions about it. This new officer decided there was in fact marriage fraud in the prior case, and denied the new green card application under INA 204(c), marriage fraud. On appeal, the BIA affirmed the USCIS decision because INA 204(c) does not include a time at which an officer may no longer look back into the history of a case before it.
Warning for Married Couples
Couples who marry and want to pursue a marriage visa or green card should tread lightly. Most of the marriage fraud findings occur at the time of the visa or green card interview. Immigration officers often ask tough questions and look for inconsistencies in your answers. Sometimes, couples are caught by surprise and do not expect the questions. They answer awkwardly or can’t remember in the moment, so they make a guess. It happens that couples will state things incorrectly. We all make mistakes.
A reasonable immigration officer is fair minded and considers thoughtfully when problems are spotted in the documentation or at an interview. The sharp ones have good BS detectors based on experience. It also happens that you might get an immigration officer who is unreasonable for some reason. When your answers don’t match, that officer records inconsistencies in the file and denies the case. I’ve seen cases that seem so unfair. In the event of a denial like that, you need to respond and pursue matters because that denial decision will follow you into the future.