Matter of Kahy, Interim Decision Number 3086

• Decision Date: 23 November 1988
• Docket Number: Interim Decision Number 3086,A-28379516.
• Parties: MATTER OF KAHY. In Visa Petition Proceedings.
• Court: U.S. DOJ Board of Immigration Appeals

19 I&N Dec. 803

MATTER OF KAHY.

In Visa Petition Proceedings.

Interim Decision Number 3086

A-28379516.

Board of Immigration Appeals.

Decided by Board November 23, 1988.

(1) Section 204(c) of the Immigration and Nationality Act, 8 U.S.C. § 1154(c) (Supp. IV 1986), as amended by the Immigration Marriage Fraud Amendments of 1986, Pub. L. No. 99-639, 100 Stat. 3537, applies to aliens who have conspired to enter into a fraudulent marriage or who have sought to obtain an immigration benefit based on a fraudulent marriage.

(2) Where the record contains evidence that a visa petition was previously filed seeking nonquota status for an alien based on a fraudulent marriage, the burden then shifts to the petitioner to prove that the alien did not seek to be accorded nonquota status based on the prior marriage. Section 204(c)(1) of the Act, 8 U.S.C. § 1154(c)(1) (Supp. IV 1986).

(3) A visa petition may be denied pursuant to section 204(c)(2) of the Act, 8 U.S.C. § 1154(c)(2) (Supp. IV 1986), where there is evidence in the record to indicate that an alien previously conspired to enter into a fraudulent marriage.

ON BEHALF OF PETITIONER: Gordon W. Sacks, Esquire 68 Court Street Buffalo, New York 14202.

ON BEHALF OF SERVICE: John B. Reid General Attorney.

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members.

The United States citizen petitioner has applied for immediate relative status for the beneficiary as her spouse under section 201(b) of the Immigration and Nationality Act, 8 U.S.C. § 1151(b) (1982). In a decision dated November 17, 1987, the district director denied the visa petition. The petitioner has appealed from that decision and requested oral argument. The appeal will be dismissed. The request for oral argument is denied. 8 C.F.R. § 3.1(e) (1988).

The petitioner is a 21-year-old United States citizen. The beneficiary is a 24-year-old native and citizen of Lebanon. The beneficiary entered the United States as a nonimmigrant student on August 9, 1985. He married Colleen M. O'Neill, a United States citizen, on August 8, 1986. On October 27, 1986, an immediate relative visa petition Form I-130 (Petition to Classify Status of Alien Relative for Issuance of Immigrant Visa), was filed on the beneficiary's behalf; that visa petition included the name "Colleen M. Kahi" on the signature line.

In a sworn statement made to an investigator of the Immigration and Naturalization Service on November 28, 1986, Ms. O'Neill stated that she had agreed to marry the beneficiary in exchange for $1,000 so that the beneficiary could remain in this country. Ms. O'Neill also stated in her affidavit that she had not filed a visa petition on the beneficiary's behalf, and that the signature on the visa petition filed on October 27, 1986, was not hers. Ms. O'Neill and the beneficiary were subsequently divorced on May 1, 1987.

The petitioner and the beneficiary were married on May 9, 1987. On May 26, 1987, the petitioner filed the instant petition on the beneficiary's behalf. On October 9, 1987, the district director issued a notice to the petitioner that he intended to deny the petition. The petitioner responded to this notice by letter dated October 27, 1987. On November 17, 1987, the district director issued his decision denying the visa petition pursuant to section 204(c) of the Act, 8 U.S.C. § 1154(c) (Supp. IV 1986). This appeal followed.

Section 204(c) of the Act provides:

Notwithstanding the provisions of subsection (b) no petition shall be approved if (1) the alien has previously been accorded, or has sought to be accorded, a nonquota or preference status as the spouse of a citizen of the United States or the spouse of an alien lawfully admitted for permanent residence, by reason of a marriage determined by the Attorney General to have been entered into for the purpose of evading the immigration laws, or (2) the Attorney General has determined that the alien has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws.

Section 204(c) of the Act was amended by the Immigration Marriage Fraud Amendments of 1986, Pub. L. No. 99-639, 100 Stat. 3537, which specified that the amended section 204(c) would be applicable "to petitions filed on or after" November 10, 1986.¹ Id. § 4(b), 100 Stat. 3543.

The district director based his conclusion that the beneficiary had previously entered into a marriage for the purpose of evading the immigration laws on the statements made by Ms. O'Neill in her affidavit. Ms. O'Neill explained that a "Jake Khoury" had introduced her to the beneficiary in June 1986. She stated that in early August 1986, "Jake" invited her to his house, and she went there and spoke with him and the beneficiary. According to Ms. O'Neill, "Jake" and the beneficiary both told her that they wanted her to marry the beneficiary so that he would not have to return to Lebanon. Ms. O'Neill was then offered $1,000 to marry the beneficiary, and she agreed to do so. "Jake" and the beneficiary told her never to tell anyone that she had received money for marrying the beneficiary.

Ms. O'Neill stated further in her affidavit that on August 8, 1986, "Jake" and the beneficiary gave the $1,000 to her at her mother's house. She was paid before the wedding ceremony, which occurred that same day. Ms. O'Neill stated that, right after the ceremony, she, the beneficiary, and "Jake" went to have photographs taken for the immigration forms that they needed to file. She said that the beneficiary paid for the photographs, which were developed while they waited. Finally, Ms. O'Neill stated that she never resided with the beneficiary at the address which was listed as their shared residence on the Form I-130.

The results of a handwriting analysis which was performed on the first visa petition filed on behalf of the beneficiary are included in the record. The forensic document analyst concludes that Ms. O'Neill did not sign the Form I-130 which was filed with the Service on October 27, 1986. The analyst also concludes that "it is highly unlikely" that the person who actually signed the form could be identified because the signature is a simulated one.

In a statement attached to her Notice of Appeal (Form I-290A), the petitioner makes the following reference to the beneficiary's marriage to Ms. O'Neill:

The previous marriage of [the beneficiary] was not entered into in an attempt to evade the law; rather it was entered into because of a strong desire to remain in a free country at peace. He did not and does not want to return to Lebanon due to the war, which he previously fought in, and constant unrest.²

We find the evidence in this case to be clear and convincing that the beneficiary's marriage to Ms. O'Neill was a sham from its inception. No evidence has been submitted to rebut Ms. O'Neill's statements that she married the beneficiary so that he could remain in this country, that she was paid $1,000 for doing so, and that she never resided with the beneficiary after...