The Board of Immigration Appeals (BIA) held that an immigration judge may inquire into the bona fides of a marriage when considering an application for adjustment of status, even when the underlying I-130 petition has been approved by U.S. Citizenship and Immigration Services (USCIS). Matter of Kagumbas, 28 I&N Dec. 400 (BIA 2021). In this case the BIA looked to the statutory requirements for adjustment of status under INA § 245(a), as well as the regulations at 8 CFR § 1245.2(a)(1)(i), (ii), which generally provide the immigration judge exclusive jurisdiction over applications for adjustment of status filed by those in removal proceedings. The Board also noted that an applicant for adjustment of status has the burden of proving eligibility for the requested relief. Under the statute, an immigration judge must determine whether the applicant’s testimony is credible and weigh that testimony, along with other evidence of record, to determine whether the respondent has met the burden of proof in a particular case.  INA § 240(c)(4)(A)(i); INA § 240(c)(4)(B). Based on this statutory and regulatory authority, the BIA held that the immigration judge was permitted to determine the applicant’s eligibility for adjustment of status; approval of the I-130 visa petition did not transform this assessment into simply a “ministerial act.”

The Board also affirmed the importance of a complete and accurate transcript in order to be able to adjudicate an appeal that turns on witness testimony. Because there were many indiscernible portions of the transcript as it related to witness testimony, and because the immigration judge’s decision denying relief turned on the credibility of the witnesses, the Board remanded the matter for entry of a new decision.

Facts and Immigration Court Proceedings
Mr. Kagumbas, a native and citizen of Kenya, was admitted to the United States as a nonimmigrant on an F-1 student visa in 2006. His student status was terminated, and he was placed into removal proceedings and charged with deportability under INA § 237(a)(1)(B) (remaining in the United States longer than permitted). He conceded the charge of deportability and applied for adjustment of status as relief from removal based on an approved I-130 petition filed by his U.S. citizen wife. A merits hearing was held, during which Mr. Kagumbas, his wife and his mother-in-law testified in support of his application. Following the hearing, the immigration judge issued a written decision finding the witnesses not credible based on inconsistencies in their testimony, specifically as to the date they married, how long they lived together and the address where they lived. The judge also noted that Mr. Kagumbas and his wife failed to provide corroborative evidence of their marriage. As a result of the inconsistent testimony and lack of corroborating evidence, the judge determined that Mr. Kagumbas was statutorily ineligible for adjustment of status because his marriage was not bona fide.

BIA Decision 
The Board looked to the statute and regulations to determine whether an immigration judge has the authority to determine the bona fides of a marriage. While noting that immigration judges lack the authority to cancel or revoke an I-130 petition, the BIA found that they do have the authority to determine when an applicant has met his or her burden of proof to show eligibility for relief from removal. The Board noted that an approved I-130 visa petition is relevant and may constitute “some evidence of the validity of the marriage,” but it is not the sole consideration. Therefore, the judge may consider other evidence in making his or her determination, including the testimony of the witnesses and other corroborating evidence submitted by the parties.

The Board pointed to its own prior precedent in Matter of Bark, 14 I&N Dec. 237, 240 (BIA 1972), rev’d on other grounds by Bark v. INS, 511 F.2d 1200 (9th Cir. 1975), which held that the visa petition procedure does not entitle the individual to lawful permanent resident status. The Board noted that while Matter of Bark focused on whether the applicant warranted a favorable exercise of discretion—an issue that the immigration judge did not reach in Kagumbas—the authority to deny an application was not limited to the exercise of discretion. The Board also pointed to two courts of appeals that have considered this legal issue and have both held that the immigration court may properly consider the bona fides of the underlying marriage. Wen Yuan Chan v. Lynch, 843 F.3d 539, 541 (1st Cir. 2016); Agyeman v. INS, 296 F.3d 871, 879 n.2 (9th Cir. 2002).

While concluding that the immigration judge has the authority to consider the bona fides of a marriage, the Board remanded the matter after finding that it could not meaningfully review the appeal due to significant problems with the court transcript. The Board noted that the written transcript of proceedings is created only after an appeal is filed and that the immigration judge does not see or review the transcript before issuing a decision. The Board noted that a transcript does not need to be “perfect.” If only a few words are indiscernible or the indiscernible testimony is not critical to the outcome of the case, then a remand may not be necessary. However, the Board noted “significant problems” with the transcript as it related to the testimony of Mr. Kagumbas’ wife. The Board noted that her testimony is essential to the case because it was the primary reason that the judge concluded the marriage was not bona fide. The Board remanded the matter for entry of a new decision and noted the possibilities available to the immigration judge on remand, including: 1) looking at the transcript and revising her decision to clarify what she relied upon or did not rely upon when making her decision; 2) obtaining input from the parties to clarify the record; or 3) conducting a portion of the hearing again.

Implications for Practitioners 
The Board’s decision that the immigration judge has the authority to determine the bona fides of a marriage, even with an approved I-130 petition, is not surprising. In addition to the precedent that the Board cites in its decision, the Board also issued a decision earlier this year in Matter of Mensah, 28 I&N Dec. 288 (BIA 2021), which also provided the factfinder expansive authority to look beyond decisions made by USCIS regarding approved visa petitions. In Mensah, the Board considered the case of a noncitizen seeking to readjust her status based on a second, approved I-130 petition filed on her behalf by a U.S. citizen spouse. The noncitizen had obtained conditional permanent resident status based on her first marriage, which was terminated when USCIS determined that the noncitizen could not show she had entered into a good faith marriage with her first husband. However, a subsequent I-130 petition filed by her second husband was approved, and USCIS did not assert the INA § 204(c) bar. Based on the approved visa petition, the noncitizen argued that the immigration judge was precluded from determining that she was inadmissible for fraud for misrepresentations made during her USCIS interview concerning her first marriage, which had taken place several years earlier. The Board disagreed and upheld this finding, despite the fact that USCIS had made no formal 204(c) finding to bar approval of the subsequent petition. It noted that in this context the noncitizen has the burden of showing her admissibility to the United States. This language is very similar to that used by the Board in Kagumbas, as it focused on the burden of proof that an applicant in removal proceedings has to show eligibility for the requested relief.

Practitioners should therefore understand that both the immigration judge and a USCIS officer have the authority to inquire into the bona fides of a marriage, even when the I-130 petition has been approved. Indeed, the Board re-affirmed the authority of USCIS to do so as well, noting that there is “no credible claim that the approved I-130 visa petition prohibited the DHS from considering the bona fides of the marriage as part of the adjustment of status application.” Therefore, whether the adjustment of status application is being considered by the immigration court or by USCIS, practitioners are advised to submit updated evidence of the bona fides of a marriage to the adjudicator, including copies of jointly filed tax returns, proof of shared residence, proof of shared bank accounts, birth certificates of children they have in common and updated photographs. Practitioners should also prepare their clients for additional questioning at either the USCIS interview or immigration court hearing as to the bona fides of the marriage.

The Board’s decision also has important implications for practitioners seeking to challenge a problematic transcript on appeal. The Board makes clear that a remand will not be required in every case where portions of the transcript are indiscernible. The Board emphasizes that the matter will be remanded only if the indiscernible testimony is critical to the outcome of the case.  Therefore, a practitioner must draw the connection between the indiscernible testimony and the outcome in a particular case. In Kagumbas, the testimony of the respondent’s wife was the main reason the immigration judge found the marriage was not bona fide, yet that testimony was often indiscernible and left the Board without the ability to properly review the case. In order to make a claim based on a defective transcript, practitioners should carefully review the transcript of proceedings when preparing a brief on appeal and be prepared to establish the link between any indiscernible testimony and the immigration judge decision.

Finally, while not a holding of the case, the Board also discussed in a footnote that the parties are permitted to agree to dismiss proceedings so that a respondent may pursue adjustment of status before USCIS. The Board cites to the Attorney General decision in Matter of S-O-G- & F-D-B, 27 I&N Dec. 462, 466-67 (A.G. 2018) (stating that IJ has no authority to terminate proceedings except in limited circumstances, but that DHS may move for dismissal after proceedings have commenced). In this particular case, Mr. Kagumbas chose to proceed in court because it offered him a faster decision. Given that many practitioners are now filing joint motions to dismiss to allow their clients to pursue adjustment of status with USCIS rather than with the immigration court, this case offers support for their legal authority to do so.