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MATTER OF C-C-N-

APPEAL OF VERMONT SERVICE CENTER DECISION

Non-Precedent Decision of the Administrative Appeals Office

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DATE: JUNE 15,2017

PETITION: I

FORM I-360, PETITION FOR AMERASIAN, WIDOW(ER), OR SPECIAL IMMIGRANT

The Petitioner seeks immigrant classification as an abused spouse of a U.S. citizen. See Immigration and Nationality Act (the Act) section 204(a)(1)(A)(iii), 8 U.S.C. § 1154(a)(l)(A)(iii). Under the Violence Against Women Act (VAWA), an abused spouse may self-petition as an immediate relative rather than remain with or rely upon an abuser to secure immigration benefits.

The Petitioner is a citizen of Zimbabwe and last entered the United States as a visitor. 1 She married her third spouse, H-W-,2 a U.S. citizen, in 2004 and they later divorced. The Petitioner subsequently married K-N-, a U.S. citizen, and filed the instant Form I-360, Petition for Amerasian, Widow( er), or Special Immigrant (VA W A petition), based on their marriage.3

The Director of the Vermont Service Center denied the VA W A petition, concluding that the Petitioner entered into her prior marriage with H-W- for the purpose of evading the immigration laws, and that approval of the VA W A petition was barred under section 204( c) of the Act.

On appeal, the Petitioner submits a personal (statement, a supplemental affidavit from H-W -, and a brief. She asserts that the record establishes her eligibility.

Upon de novo review, we will dismiss the appeal.

I. LAW

A petitioner who is the spouse of a United States citizen may self-petition for immigrant classification if the petitioner demonstrates that he or she entered into the marriage with the United States citizen spouse in good faith and that during the marriage, the petitioner or his or her child was battered or subjected to extreme cruelty perpetrated by the petitioner's spouse. In addition, a petitioner must show that he or she

' 1 The Petitioner admitted to using different identities to enter the United States in 2000 and 2003. 2 Initials are used in the decision to protect the identities of the individuals. 3 The Petitioner's current marriage is her second marriage to K-N-.

Matter ofC-C-N-

is eligible to be classified as an immediate relative under section 201(b)(2)(A)(i) of the Act, resided with the abusive spouse, and is a person of good moral character. Section 204(a)(l )(A)(iii)(II) of the Act.

A VA W A petition cannot be approved if the petitioner has previously entered into or conspired to enter into marriage with a U.S. citizen for the purpose of evading the immigration laws. Section 204(c) of the Act; 8 C.F.R. § 204.2(c)(l)(iv). The Director must deny a petition for immigrant visa classification if there is substantial and probative evidence of such an attempt or conspiracy, regardless of whether the petitioner received the visa. 8 C.F.R. § 204.2(a)(l)(ii). The evidence of the attempt or conspiracy must be contained in the petitioner's file. !d.

The burden of proof is on a petitioner to demonstrate eligibility by a preponderance of the evidence. Matter ofChawathe, 25 I&N Dec. 369, 375 (AAO 2010). A petitioner may submit any evidence for us to consider; however, we determine, in our sole discretion, the credibility of and the weight to give that evidence. Section 204(a)(l)(J) of the Act; 8 C.F.R. § 204.2(c)(2)(i).

II. ANALYSIS

Section 204( c) of the Act bars approval of the VA W A petltwn because the record contains substantial and probative evidence that the Petitioner married her third spouse, H-W-, for the purpose of evading the immigration laws, and she does not present sufficient evidence to overcome this finding. A decision that section 204( c) of the Act applies must be made in the course of adjudicating a subsequent visa petition. Matter of Rahmati, 16 I&N Dec. 538, 539 (BIA 1978). United States Citizenship and Immigration Services (USCIS) may rely on any relevant evidence in the record, including evidence from prior USCIS proceedings involving the petitioner. !d. However, the adjudicator must come to his or her own, independent conclusion and should not ordinarily give conclusive effect to determinations made in prior collateral proceedings. !d.; Matter ofTawfik, 20 I&N Dec. 166, 168 (BIA 1990).

Where there is reason to doubt the validity of a marital relationship, a petitioner in an alien relative petition must present evidence to show that the marriage was not entered into for the primary purpose of evading the immigration laws. Matter of Phillis,. 15 I&N Dec. 385, 386 (BIA 1975). Evidence that a marriage was not entered into for the primary purpose of evading the immigration laws may include, but is not limited to, proof that the beneficiary of the alien relative petition has been listed as the petitioner's spouse on insurance policies, property leases, income tax forms, or bank accounts, and testimony or other evidence regarding courtship, weddi~g ceremony, shared residence, and experiences together. !d. at 387.

During a USCIS investigation into the bonafides of the marriage between the Petitioner and H-W-, H-W- testified under penalty of perjury that he married the Petitioner for "convenience," because "her visa was about to expire," that she would visit him but did not reside with him, and that she helped him pay his bills. He also told the investigators)hat another woman and her children were living with him during his marriage to H-W.

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An admission by a former spouse that the prior marriage was entered into to obtain immigration benefits may be sufficient to bar approval of a visa petition. Ghaly v. INS, 48 F. 3d 1426,1432 (7th Cir. 1995); Ogbolumani v. Napolitano, 557 F.3d 729, 732 (7th Cir. 2009). Accordingly, the burden shifts to the petitioner to establish the bona fides of her prior marriage. Matter of Kahy, 19 I&N Dec. 803, 806 (BIA 1988).

In the record of proceedings before the Director, the Petitioner submitted copies of jointly tiled tax returns, Forms W-2, and payroll stubs for 2004 - 2007. She also provided joint bills from: (October 2006); (July 2007); (September 2007); (October 2007); (December 2007);

(December 2007- June 2008); (January 2008 -December 2008); and bank statements (various months from December 2004 - April 2008). The brevity of the joint

telephone service, and life and health insurance, lessens the probative value of these documents, e.g., notice from that the account was referred for collection six months after account opened, purchase of health insurance one month prior to the Petitioner's separation from H-W-, and the

policy termination one month after it opened.

The Petitioner stated in a letter to the Field Office Director that she met H-W- at church, they dated, married, and were happy in the beginning. Later in the marriage, they argued and had disagreements about whether to have children and H-W-'s extramarital affairs. The Petitioner explained that after most arguments, she would leave the apartment until the air cleared. D-W -, a friend, attested that he visited the apartment where the Petitioner and H-W- resided as a couple, and that they had barbeques and social outings together. The statements of the Petitioner and D-W- did not provide sufficient information about the Petitioner's relationship with D-W -. The Petitioner did not state, for example, how long she stayed away or the effect on the marriage of her intermittent, but regular departures from the apartment. D-W- did not describe, for example, the couple's claimed marital residence, his observations of their relationship, or any particular social occasion or event he shared with them.

In a statement submitted to the Field Office Director, H-W- explained that the investigators came to his worksite two years after he and the Petitioner divorced and accused him of entering into a fraudulent marriage. He said that the investigators intimiqated and pressured him, that he did not want to lose his job, and that he signed his sworn statement attesting that the marriage was one of convenience to get rid of them.4 However, H-W- did not deny the facts related in his sworn statement, which are corroborated in the record, showing that the Petitioner and H-W- shared their claimed joint residence with his girlfriend and her children. The Director determined that the relevant evidence was insufficient to overcome her finding that the Petitioner entered into marriage with H-W- to circumvent the U.S. immigration laws.

On appeal, the Petitioner declares that when she met H-W-, her self-esteem was low and that he gave her a sense of belonging and family. She recounts that while dating, they went out to eat, to movies,

4 H-W- adds on appeal that he had already fallen in love with someone else and wanted to get the Petitioner out of his life permanently.

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and on long drives to talk. They grew fond of one another, eventually fell in love, and married at the courthouse. She explains that their problems developed when she spent time away from the house to go to school, and because H-W- had extramarital affairs, brought his girlfriend and her children into the apartment, and became verbally abusive. Despite the difficulties, she says she was ecstatic to get pregnant, but miscarried at eight weeks in September 2004. She explains that the pregnancy further strained their marriage because H-W- did not want children. Nonetheless, the Petitioner claims that "[H-W-] was a good provider, he was a good husband in the first few years, and he was present and attentive to all my needs."5 This claim is inconsistent with her statement to the Field Office Director that their marriage was "already troubled" at the time of her miscarriage.

H-W- describes in his affidavit on appeal his admiration for the Petitioner's traditional qualities and simple tastes, and states that he "was blown away and spinning in love." This statement is inconsistent with the Petitioner's claim that the relationship developed slowly. H-W- explains that they were initially happy, but that problems developed when she neglected her chores and pressured him about having_ a child. H-W-' s affidavit contains few specifics about their shared experiences, such as social occasions or events, residential routines, or other information sufficient to establish that the marriage was bona fide and overcome his prior admission that he married the Petitioner for convemence.

The evidence is also inconsistent with respect to the couple's claimed joint residence. Both of the Petitioner's biographic information sheets reflected that she moved to an address on m February 2005, and that she resided at an address on beginning in 2003. This information is inconsistent with the Petitioner's sworn statement to the Field Office Director to the effect that she began living with H-W- on beginning six months prior to their moving together to in August 2004.

The Petitioner claims she married H-W- in good faith and submitted evidence that she and H-W­jointly filed taxes and briefly shared utilities accounts and insurance policies. This evidence is insufficient to overcome H-W-'s admission that they married for "convenience" because the Petitioner told him "her visa was going to expire" and that they did not reside together as husband and wife. The record shows the Petitioner's authorized stay as a visitor to the United States expired shortly after they married, she did not reside with H-W-, and H-W-'s girlfriend and her children resided with H-W- at the claimed marital address. When viewed in its entirety, the record of proceedings shows with substantial and probative evidence that the Petitioner entered into marriage with H-W- for the purpose of evading the immigration laws. Accordingly, section 204(c) of the Act bars approval of the VA WA petition pursuant to the regulation at 8 C.F.R. § 204.2(a)(l)(ii).

The Petitioner is also not eligible for immediate relative classification as section 204(a)(l)(A)(iii)(II)(cc) of the Act requires because she has not complied with section 204(c) of the Act, as 8 C.F.R. § 204.2(c)(l)(iv) requires.

5 The Petitioner married H-W- in 2004 and they separated in February 2008.

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III. CONCLUSION

The Petitioner entered a prior marriage to evade the immigration laws and section 204( c) of the Act consequently bars approval of her VA W A petition. Consequently, the Petitioner also is not eligible for immediate relative classification. Accordingly, the VA W A petition must be denied.

ORDER: The appeal is dismissed.

Cite as Matter ofC-C-N-, ID# 00334459 (AAO June 15, 2017)

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