Section 204(c) of the Immigration and Nationality Act bars a petition from being approved where the petition beneficiary previously participated in a fraudulent marriage. This significant penalty applies even if the individual never actually received an immigration benefit through the fraudulent marriage. But what if an I-130 filed by your client’s previous spouse was denied due to insufficient evidence? When your client now seeks to immigrate through an I-130 filed by a new U.S. citizen spouse, can USCIS re-examine the first marriage and now determine it was fraudulent? And then deny the second petition based on 204(c)?

According to the recent Board of Immigration Appeals, or BIA, decision in Matter of Pak, 28 I&N Dec. 113 (BIA 2020), the answer is yes. In Pak, a U.S. citizen appealed the denial of an I-130 she filed on behalf of her husband, who had been the beneficiary of a petition filed by his ex-spouse some years earlier. That earlier petition had been denied due to insufficient evidence, following a USCIS determination that there were substantial discrepancies between the answers each spouse gave about their marriage and whether they lived together. In addition, investigators making a home visit to the marital address determined that there was no evidence that the petitioning spouse lived there.

Although the denial of the first I-130 was not based on a determination of marriage fraud, the bona fides of the beneficiary’s first marriage were the focus of the adjudication of the subsequent I-130 filed by the current spouse. Following an interview with the petitioner and beneficiary, USCIS issued a Request for Evidence, and then a Notice of Intent to Deny, all addressed to concerns about the validity of the beneficiary’s first marriage. In response, the petitioner submitted her own statement, a statement from the beneficiary, a letter from a pastor who officiated at the beneficiary’s first marriage and observed the beneficiary and his first spouse living together, and a psychological report addressing the beneficiary’s memory problems stemming from a childhood brain injury. Unpersuaded by this additional evidence, USCIS denied the I-130 based on a finding that the beneficiary’s first marriage was fraudulent, thereby barring the approval of the petition filed by the beneficiary’s second spouse.

On appeal, the Board rejected the petitioner’s argument that the 204(c) bar should not apply where the prior petition was not denied based on a formal determination of marriage fraud. Per the Board, “the broad phrasing and the absence of a temporal requirement suggest that section 204(c) may be applied based on a marriage fraud finding whenever it becomes evident that there is substantial and probative evidence of an attempt or conspiracy to enter into a marriage for the purpose of evading the immigration laws” Pak at 117.

The Board also rejected the petitioner’s argument that the evidence did not support a finding that the beneficiary’s first marriage was fraudulent. Citing Matter of P. Singh, 27 I&N Dec. 598 (BIA 2019), the Board stated that evidence of marriage fraud must be “substantial and probative,” meaning that the determination must involve consideration of all relevant evidence in its totality, and establish that it is “more than probably true that the marriage is fraudulent. Singh at 607. And in the Board’s view, the evidence of marriage fraud developed in the adjudication of the first I-130 was not overcome by the additional evidence presented with the second I-130. It further noted that affidavits alone, not supported by objective documentary evidence to support the assertions made, will generally not be enough to overcome evidence in the record of marriage fraud.

Ultimately the question of the bona fides of a marriage turn on the facts of your client’s case and the evidence presented to support the petitioner’s burden of proof. But the Pak decision is an alert that marriage fraud concerns remain in the picture even if it was not the stated basis of a prior petition’s denial. To read the full decision, click here.