MATTER OF P-A-

APPEAL OF VERMONT SERVICE CENTER DECISION

Non-Precedent Decision of the Administrative Appeals Office

DATE: JAN. 16, 2019

PETITION: FORM 1-360, PETITION FOR AMERASIAN, WIDOW(ER), OR SPECIAL IMMIGRANT

The Petitioner seeks immigrant classification as an abused spouse of a U.S. citizen under the Violence Against Women Act (VA WA) provisions codified at section 204(a)(l )(A)(iii) of the Immigration and Nationality Act (the Act), 8 U.S.C. § l 154(a)(l)(A)(iii). The Petitioner filed a Form 1-360, Petition for Amerasian, Widow(er) or Special Immigrant (VAWA petition). The Director of the Vermont Service Center initially approved the VA WA petition, but subsequently revoked approval, upon notice. On appeal, the Petitioner submits a brief and additional evidence as well as copies of previously submitted documents. Upon de nova 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 a United States citizen spouse in good faith and that during the marriage, the petitioner was battered or subjected to extreme cruelty perpetrated by the petitioner's spouse. Section 204(a)(l)(A)(iii)(I) of the Act; 8 C.F .R. § 204.2( c )(1 )(i). In addition, a petitioner must show that he or she 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)(Il) of the Act; 8 C.F.R. § 204.2( C )(1 )(i).

A VA WA petition may not be approved if the petitioner previously received, or sought to receive, immediate relative status as the spouse of a U.S. citizen by attempting, conspiring, or entering into a marriage for the purpose of evading the immigration laws. Section 204( c) of the Act. The Director will deny an immigrant visa petition where there is "substantial and probative" evidence of an attempt or conspiracy to enter into a marriage for the purpose of evading immigration law. 8 C.F .R. § 204.2(a)(l)(ii). 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).

Pursuant to section 205 of the Act, 8 U.S.C. § 1155, the Director may revoke the approval of any petition approved under section 204 of the Act, "at any time, for what [she] deems to be good and sufficient cause." The regulations provide for both automatic revocation and revocation upon notice

Matter of P-A-

to the petitioner "when the necessity for the revocation comes to the attention" of the Director. 8 C.F.R. § 205.1; 8 C.F.R. § 205.2.

The burden of proof is on a petitioner to demonstrate eligibility by a preponderance of the evidence. Matter of Chawathe, 25 I&N Dec. 369, 375 (AAO 2010). U.S. Citizenship and Immigration Services (USCIS) shall consider any credible evidence relevant to the VA WA petition. However, the definition of what evidence is credible and the weight given to such evidence is within the sole discretion ofUSCIS. Section 204(a)(l)(J) of the Act; 8 C.F.R. § 204.2(c)(2)(i).

II. ANALYSIS

The record before the Director showed that after the Petitioner and J-B- 1 married, J-B- filed a Form 1-130, Petition for Alien Relative, on behalf of the Petitioner in September 2007. The couple divorced in 2011, with the divorce certificate reflecting a separation date in 2006, prior to the filing of the 1-130 petition. The Petitioner subsequently withdrew his related Form 1-485, Application to Register Permanent Residence or Adjust Status, and J-B-'s 1-130 petition was denied due to abandonment in 2012. In 2014, J-B- was interviewed by immigration officers regarding her marriage to the Petitioner, and she signed a sworn statement describing their marriage as fraudulent.2

The Petitioner subsequently married A-W-, who filed a Form 1-130 on his behalf but later withdrew the 1-130 petition in 2013 because the relationship "was breaking down." In 2015, the Petitioner filed the instant VAWA petition based on his marriage to A-W-. Although the VAWA petition was initially approved, in 2017 the Director issued a Notice of Intent to Revoke (NOIR) based on evidence that the Petitioner's prior marriage to J-B- was entered into to evade immigration laws. In response, the Petitioner submitted a brief, a self-affidavit, and supporting documents, including affidavits from family alleging that the couple resided together during their marriage, copies of documents previously submitted in support of J-B's 1-130 petition, and additional documents in support of the claimed relationship between J-B- and the Petitioner.

In the brief submitted in response to the NOIR, the Petitioner argued that the Director did not establish good and sufficient cause to revoke and deny the approved VA WA petition because there was evidence in the record that his marriage to J-B- was bona fide. In his self-affidavit in response to the NOIR, the Petitioner contended that his prior marriage to J-B- was in good faith. He argued

1 Initials used throughout the decision to protect the identities of the individuals. 2 The Director provided the Petitioner with a summary of J-B-'s sworn statement prior to revocation of his VA WA petition: "[J-B-] claims that it was strictly a business arrangement and that she never resided with you. She claims that you had coached her on what to say for your interview with USCIS and that her testimony that she provided at the time of your interview was not true. [J-B-] further testified that you forged her signature on her Form 1-130 and Form G-325. Also, you submitted a forged lease as evidence of your cohabitation, and she was not aware of any utilities or bank accounts in her name." The record also reflects that J-B- admitted in her sworn statement, "I understood he wanted to get married for him to stay in the U.S. legally. It was a marriage of convenience to help him stay in the U.S. I wouldn't have otherwise married him. He promised to help me out financially whenever I needed it and to pay for the divorce."

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that her sworn statement was untrue and he claimed she was not an honest person. He further alleged that he was initially unaware that J-B- filed for divorce in 2011 and he contended that the date of separation she provided on the divorce order was incorrect. He further contended that he was not served with notice because J-B- did not record his complete address on the complaint, which prevented him from attending the divorce proceeding. The Director considered the Petitioner's legal arguments and evidence submitted, and nonetheless determined that there was substantial and probative evidence that the marriage to J-B- was entered into to evade immigration laws.

On appeal, the Petitioner argues that the Director's decision to revoke the VA WA petition was incorrect because J-B-'s 2014 sworn statement is not substantial and probative evidence of marriage fraud, and he submits a 2018 statement from J-B- recanting her 2014 sworn statement. He also alleges that the Director did not include a specific statement of facts to support the revocation. The Petitioner cites Matter of Tawfik, 20 I&N Dec. 166 (BIA 1990), that evidence of a fraudulent marriage "must be documented in the alien's file and must be substantive and probative." He further states that because he did not receive J-B-'s complete sworn statement to review, USCIS abused its power and violated the Sixth Amendment of the U.S. Constitution.

The Board of Immigration Appeals (the Board) has held that the "good and sufficient cause" standard in revocation is met where a NOIR includes a specific statement of the facts and supporting evidence underlying the proposed action. Matter of Estime, 19 I&N Dec. 450, 452 (BIA 1987); see also Oddo v.Reno, 17 F. Supp. 2d 529 (E.D. Va. 1998) (holding that the immigration service did not err in revoking a petition's approval under section 204(c) of the Act where a beneficiary's spouse told officers that the marriage was entered into for immigration purposes). Here, the Petitioner was provided with a summary of the derogatory information and he was given an opportunity to respond. USCIS is not required to provide a petitioner with an exhaustive list or documentation of the derogatory information as long as it advises the petitioner of that information and provides an opportunity to respond in the NOIR. See 8 C.F.R. § 103.2(b)(16)(i) (if an adverse decision will be based on derogatory information unknown to the petitioner, USCIS shall advise the petitioner of the adverse information and offer an opportunity to explain or rebut); see also Ogbolumani v. Napolitano, 557 F.3d 729, 735 (7th Cir. 2009) (explaining that 8 C.F.R. § 103.2(b)(16)(i) does not require USCIS to exhaustively list all information found regarding marriage fraud when a notice of intent to deny gave plaintiffs sufficient notice and opportunity to respond to derogatory information). Additionally, the Petitioner's allegation of a Sixth Amendment violation is without merit because the amendment applies solely to criminal prosecutions, and matters before USCIS are civil in nature.

The Petitioner also argues that there is no evidence indicating "at the time the decision was issued" the petition should have been denied, and cites Matter of Estime, 19 l&N at 450. However, the Petitioner misstates the holding of the Board in Es time, which held that good and sufficient cause for a NOIR is determined based on evidence in the record at the time the NOIR was issued, not the underlying decision. Id. at 451. Further, section 205 of the Act provides that the Director may revoke an approved petition "at any time, for what [ she] deems to be good and sufficient cause." Meanwhile, the regulations provide for revocation "when the necessity for the revocation comes to the attention" of the Director. 8 C.F.R. § 205.2(a).

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The Petitioner's statement on appeal is substantially similar to his statement submitted in response to the NOIR. He alleges that he married J-B- for love, that their marriage was bona fide, and that he did not marry her solely to obtain a green card. Although his statement provides some details concerning their courtship, it does not provide probative details of their life together, other than general descriptions of the effects of her substance abuse.

The Petitioner also expresses confusion as to why USCIS determined that their marriage was not bona fide. He states that J-B- did not file an immigrant petition for him until 2007, two years into their marriage, and cites his affirmative withdrawal of his related 1-485 as evidence that he did not seek to gain an immigration benefit through J-B-. However, delayed filing of a petition and withdrawal of an application is nonetheless evidence that he sought to obtain an immigration benefit, even if it was never obtained. See section 204( c) of the Act ( a VA WA petition may not be approved if the petitioner previously received, or sought to receive, immediate relative status as the spouse of a U.S. citizen by attempting, conspiring, or entering into a marriage for the purpose of evading the immigration laws).

The Petitioner alleges that J-B-'s 2014 sworn statement should not be considered credible because of her "heavy [m]eth addiction in combination with her mental health issue," and describes her as a "loose cannon," stating that "it is almost impossible for her to go through a single day without having a mental break down." He contends that the 2018 statement from J-B- renouncing her 2014 statement should be given greater weight than the 2014 sworn statement. He states that J-B­"developed an intense hatred towards me over the last [ten years]." He believes he was the only person in her life to try to end her drug abuse, and states that "anyone familiar with drug addiction would know that that basically means going to war on a daily basis with the addict." He contends that when he began to stop responding to her problems she began to resent him. He also claims that J-B- is not truthful, and submits evidence of her 2015 misdemeanor shoplifting conviction, as well as several traffic offenses. He states that the 2014 interview by USCIS gave J-B- an "opportunity" to hurt him. The Petitioner further alleges that J-B's 2014 sworn statement is inconsistent with information in the record related to the 1-130 petition and interview and it is untimely because it was obtained some years after their separation and is therefore not substantial and probative evidence of marriage fraud. In our de nova review, we take notice of the time that has passed since the Petitioner's marriage to J-B-; however, as discussed below, the Petitioner does not provide persuasive or detailed evidence that the marriage was entered into in good faith. Additionally, the Petitioner does not sufficiently explain, given his claims of J-B-'s untruthfulness, why J-B-'s 2018 statement should be given greater weight than her 2014 sworn statement.

The Petitioner claims that the evidence in the record demonstrates his marriage to J-B- was in good faith. He argues that the submitted lease agreements from 2006 to 2009 show that they lived together in . However, the lease agreement dated November 2009 to September 2010 contradicts the Petitioner's allegation that the couple separated in 2009 and he does not provide an

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explanation.3 He denies that J-B-'s signatures on the leases are forged because J-B- retracted her 2014 allegation in her 2018 statement. However, a review of the leases shows that J-B-'s signatures on the 2007 and 2008 leases do not appear to be from the same person, and the 2009 lease includes typewritten signatures for both of the parties in the signature field. As such, limited evidentiary weight is afforded the leases.

The Petitioner further claims that the three bank records from Commonwealth Bank demonstrate a valid joint bank account; however, some of the documents submitted are not consistent with the claimed dates of their relationship. One of the notices is dated October 2010, almost one year after their claimed separation. Another notice is dated February 2018 and reflects that the account was opened in 2012, several years after the claimed date of separation in 2009. The remaining notices are from August and September 2008, list J-B- and the Petitioner as account holders with the

address, and reflect the account was opened in September 2005.4 He also cites a joint utility account for the residence and provides verification of account activity from September 2008 until May 2012. He references the tax returns from 2006 and 2007 showing that they filed married filing separately. However, the 2006 tax return lists a different address for J-B­than the Petitioner, and he does not explain the discrepancy with his testimony that they began residing together in 2004. The inconsistent evidence regarding the alleged dates of joint residence detracts from the weight of the evidence. In light of these deficiencies, the documents do not establish by a preponderance of the evidence that the Petitioner and J-B- resided together following the 2006 separation date listed on the divorce certificate, and they also do not support his claim of a good-faith marriage.

J-B-'s 2018 statement submitted on appeal disavows her 2014 sworn statement to immigration officers. Specifically, she states that their "marriage was for love, not for another reason. Our previous marriage was bona fide. [The Petitioner] did not marry me to obtain a green card." She further relates, "I was in shock that USCIS would abuse their discretion and power and seek me out three years after we were divorced ... It seems USCIS is trying to build a case against [the Petitioner] that never existed." The Petitioner states that she never stated that her marriage to the Petitioner was fraudulent or that he paid her. Instead, J-B- states that she told the officer that the Petitioner did not pay her, that they "did not have a business arrangement," and that the Petitioner never forged her signature on any documents.

In language similar to the Petitioner' s statement, J-B- also reports that she suffers from a severe bipolar disorder that causes her to go into manic episodes and she is dependent on medication. She indicates that the Petitioner was the first person in her life to intervene and try to get her off of drugs; however, she relapsed several times, and she and the Petitioner "have been feuding for almost [ten] years now."

3 While the Petitioner denies separation in 2006, neither he nor J-8- provide a specific date or month of separation in 2009. 4 The Petitioner erroneously states that the bank notices are dated September 200 I and April 2008.

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J-B- also addresses the evidence submitted by the Petitioner in support of their marriage. She claims the Petitioner did not forge the lease agreements for the residence because "the lease agreements in the record verify[] our cohabitation," but she does not address the Director's allegation that her signatures on the leases and the G-325A do not appear to be hers,5 and she does not describe any details of their claimed joint residence in She also cites their tax returns from 2006 and 2007 listing one another as married as evidence that their marriage was not a business relationship. She does not, however, address her 2014 statement regarding their residence or joint accounts and does not address the discrepancies noted by the Director. Her statement is therefore insufficient to establish the veracity of the supporting documents submitted by the Petitioner.

Additionally, J-B- states that they in separated sometime in 2009, that the 2006 date of separation on the divorce petition was "a mistake," and that her 2014 sworn statement that the marriage was fraudulent was "not true." She does not elaborate in her current statement how she made a mistake in providing the date of separation, nor does she explain why she did not notify the Petitioner that she filed for divorce. She also does not provide any description of their courtship, marriage, or life together. Her mere allegation that USCIS misrepresented her 2014 statements to investigators is therefore not persuasive. We afford more weight to her sworn statement under oath to USCIS investigators than her unsworn affidavit submitted on appeal, which contains several unexplained discrepancies.

The previously submitted affidavits from K-A-, the Petitioner's brother, and F-F-, his sister-in-law, generally relate that the Petitioner and J-B- appeared happy at the beginning of their marriage but that J-B- ' s addiction to meth and her bipolar diagnosis led to the end of the marriage. K-A- related in a declaration that during their courtship, the Petitioner drove J-B- to work, but he did not otherwise describe their courtship or decision to marry. He also did not describe their residence or their activities as a married couple in any detail. The statement from F-F- similarly described the Petitioner's relationship to J-B- in general terms and as it related to J-B- 's drug addiction and mental health challenges but did not provide further probative details. F-F- stated that J-B- ' s allegations that the Petitioner offered to pay her money to file for permanent residency is "absolutely false" and she does not know why J-B- would do this to the petitioner when he "only looked out for her over the years." She related that J-B's "character is very questionable considering her drug abuse history." Also submitted below was an undated and nonnotarized letter from a maintenance worker at the property, L-W-. He claims to have lived next to the Petitioner and J-B- during the years 2007 and 2008 and that he occasionally performed maintenance on their building. He states that it is "absolutely untrue" that J-B- did not live with the Petitioner, that he was aware that J-B- has problems in the past, and that based on her allegation they did not live together she appears to still have "some major issues." We afford minimal weight to these supporting statements because they do not provide probative details of the couple's relationship or living arrangement.

5 The Fonn 1-130 contains two signatures for J-8-; one appears to match her actual signature while the other appears to have been written by someone else.

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Upon review of the record in its entirety, there is substantial and probative evidence that the Petitioner's prior marriage to J-B- was entered into primarily to evade immigration laws. The Director provided notice of this derogatory information to the Petitioner and the Petitioner does not provide an explanation for the discrepancies. The evidentiary weight of J-B-'s 2014 sworn statement outweighs the Petitioner's response, which includes two self-affidavits, two legal briefs, supporting affidavits from J-B-, K-A-, F-F-, L-W-, and financial and legal documents. The Petitioner's statement did not include detailed and probative descriptions of his marriage to J-B-, nor did he address any of J-B-'s specific allegations from her 2014 sworn statement other than to say they were not true. While the Petitioner submitted some primary evidence in support of a bona fide marriage, the evidentiary weight of those documents is significantly reduced due to the inconsistencies cited above, as well as the Petitioner's lack of a reasonable explanation for the discrepancies. These inconsistencies detract from the Petitioner's credibility and his explanation that he married J-B- in good faith. Accordingly, approval of the instant VA WA petition is barred pursuant to section 204( c) of the Act.

III. CONCLUSION

The Director acted consistently with the section 205 of the Act and 8 C.F.R. § 205.2(a)-(c) by issuing a NOIR to the Petitioner regarding the basis for revocation and providing him with an opportunity to respond. In revoking approval of the Petitioner's VA WA petition, the Director referred to the record, including the Petitioner's statement, his legal brief, and the evidence submitted in support of his claimed good faith marriage to J-B-.

Upon full review of the record, we find that the Director's revocation of the Petitioner's approved VA WA petition was for good and sufficient cause. The Petitioner did not overcome the Director's ground for revocation that he entered his prior marriage with J-B- for the sole purpose of obtaining an immigration benefit and that he is subject to the marriage fraud bar under section 204(c) of the Act. Accordingly, the appeal will be dismissed and approval of the VAWA petition will remain revoked.

ORDER: The appeal is dismissed.

Cite as Matter of P-A-, ID# 02147011 (AAO Jan. 16, 2019)