Matter of Patel

• Decision Date: 25 October 1988
• Docket Number: A-27714297.,Interim Decision Number 3083
• Citation: 19 I&N Dec. 774
• Parties: MATTER OF PATEL. In Visa Petition Proceedings.
• Court: U.S. DOJ Board of Immigration Appeals

19 I&N Dec. 774

MATTER OF PATEL.

In Visa Petition Proceedings.

Interim Decision Number 3083

A-27714297.

Board of Immigration Appeals.

Decided by Board October 25, 1988.

(1) Section 204(a)(2)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1154(a)(2)(A) (Supp. IV 1986), applies retroactively to a spousal second-preference petition which was pending adjudication when the Immigration Marriage Fraud Amendments of 1986, Pub. L. No. 99-639, 100 Stat. 3537, became law.

(2) Section 204(a)(2)(A) of the Act sets forth a presumption of a fraudulent prior marriage in any visa petition in which fewer than 5 years will have elapsed between the time a petitioner acquired lawful permanent resident status based on that prior marriage and the time his visa petition for a subsequent spouse is adjudicated.

(3) In order to rebut the presumption of a fraudulent prior marriage set forth in section 204(a)(2)(A) of the Act, the petitioner has the burden of establishing by clear and convincing evidence that the prior marriage was not entered into for the purpose of evading any provision of the immigration laws.

(4) The clear and convincing standard of proof, which requires more than the preponderance of the evidence standard but less than the beyond a reasonable doubt standard, is that degree of proof, though not necessarily conclusive, which will produce in the mind of the trier of fact a firm belief or conviction.

(5) The evidence submitted by a petitioner in an attempt to rebut the presumption of a fraudulent prior marriage set forth in section 204(a)(2)(A) of the Act should not be presumed to be false or contrived, but rather should receive the same fair and reasonable evaluation as that given to evidence in any other visa petition proceeding.

(6) Although a rapid sequence of events in a case arising under section 204(a)(2)(A) of the Act may suggest a lack of bona fide intent at the time of a petitioner's prior marriage, the sequence of events in the instant case was not so rapid as to indicate unequivocally a lack of bona fide intent, and the petitioner has provided evidence which adequately explains the sequence of events in this case.

ON BEHALF OF PETITIONER: John William Brent, Esquire 400 Perimeter Center Terrace, N.E. Suite 195 Atlanta, Georgia 30346

ON BEHALF OF SERVICE: Terry C. Bird District Counsel

David B. Hopkins Acting Appellate Counsel

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

The petitioner appeals from the decision of the district director denying the visa petition filed on behalf of the beneficiary as his spouse under section 203(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1153(a)(2) (1982). The appeal will be sustained.

The petitioner is a 30-year-old native of Kenya. He acquired lawful permanent resident status in the United States on February 3, 1985, as the spouse of a lawful permanent resident whom he had married on June 23, 1983. The petitioner and his first wife were divorced on November 25, 1985. The beneficiary is a 29-year-old native and citizen of India. The petitioner and the beneficiary were married on March 6, 1986. On June 12, 1986, the petitioner filed a visa petition on behalf of the beneficiary as his spouse.

On February 9, 1987, the district director denied the petition on the ground that the petitioner had failed to comply with section 204(a)(2)(A) of the Act, 8 U.S.C. § 1154(a)(2)(A) (Supp. IV 1986), which requires that the petitioner establish by clear and convincing evidence that his prior marriage was not entered into for the purpose of evading any provision of the immigration laws.

At the time he filed his appeal to the Board, the petitioner also filed a motion to reopen and/or reconsider with the district director. He argued that he had failed to comply with section 204(a)(2)(A) of the Act because that provision did not exist at the time he filed his visa petition. He pointed out that section 204(a)(2)(A) of the Act was not enacted into law until November 10, 1986, with the signing of the Immigration Marriage Fraud Amendments of 1986, Pub. L. No. 99-639, 100 Stat. 3537 ("Amendments"), 5 months after the filing of his visa petition. With his motion, the petitioner attached documentary evidence in an attempt to show that his marriage to his first wife was bona fide.

The first document submitted with the motion is the petitioner's own affidavit. In that affidavit, the petitioner describes how his marriage to his first wife was arranged by their parents, but he notes that they were free to accept or reject the arrangement. He states that he decided to marry his first wife because he fell in love with her and wanted to spend the rest of his life with her. The petitioner avers that they were married on June 23, 1983, in an Indian religious ceremony in Murfreesboro, Tennessee, attended by 700 to 1,000 guests. He states that his family spent about $5,000 for the ceremony but that he does not know how much money was spent by his first wife's parents. The petitioner further advises that he and his first wife were very happy and took trips together to visit relatives in South Carolina, Alabama, and Tennessee. He avers that his first wife eventually filed for divorce because she found it difficult to adjust to life in LaFayette, Georgia, where they were the only Indian nationals. He explains that because she had lived in India for many more years than he had, her ties to traditional Indian culture were stronger than his. He says that she missed the relatives, friends, and Indian cultural functions she had left behind in Murfreesboro.

The petitioner also submitted an affidavit from his first wife, who avers that she and the petitioner married because they were in love and were planning to spend their lives together. She states that they were married in an Indian religious ceremony in Murfreesboro attended by more than 700 relatives from as far away as Oregon and California, and that the wedding cost their parents over $10,000. She further asserts that she was very happy living with the petitioner at the beginning of their marriage and mentions their trips to visit relatives in nearby states. The petitioner's first wife also advises, however, that she began to miss her family and friends in Murfreesboro. She indicates that she and the petitioner lacked a social life in LaFayette, where they were the only Indian nationals. She says that although they entered into their marriage "in the best of faith," she became depressed about their marriage and filed for divorce on September 18, 1985.

In addition, the petitioner attached an affidavit from the former owner of a LaFayette appliance company who avers that he knows the petitioner and his first wife because he used to service the appliances, plumbing, and heating and air conditioning units at the petitioner's motel in LaFayette. He states that he ate meals with them in their home on six to eight occasions and thought that they had a good, solid marriage, although the petitioner once mentioned to him that his wife did not like life in a small town like LaFayette.

The petitioner further submitted affidavits from a cousin, who describes in detail an interstate trip he took with the petitioner and his first wife and the recreational stops they made while traveling; a life insurance salesman, who avers that he made several business calls on the petitioner and his first wife at their home, discussed life insurance for the petitioner's wife, and ate Indian food they served to him; and two older male relatives of the petitioner, each of whom states that he has known the petitioner since his birth, that he attended the large June 1983 wedding of the petitioner and his first wife, that he entertained the petitioner and his first wife in an overnight visit they made to his home during 1984 and they seemed to have a happy marriage, and that he went to LaFayette in an effort to resolve their marital problems when he heard that they were considering a divorce.

Among the other documents submitted by the petitioner with his motion were an ornate greeting card in a foreign language which refers in English to an event at the Elk's Lodge in Murfreesboro; 15 photographs which show many guests attending a ceremony at an Elk's Lodge featuring a young couple; copies of 3 Christmas cards with inscriptions to the petitioner and his first wife; copies of 1983 and 1984 federal and Georgia joint income tax returns for the petitioner and his first wife which are accompanied by form cover letters from their accountant containing instructions on how to sign and mail the returns; a June 4, 1984, letter to the petitioner and his first wife from the Internal Revenue Service regarding the refund of an overpayment of tax on their 1983 return; and copies of a $5,000 corporate bond and Daily Passport Cash Trust account statements in the names of both the petitioner and his first wife.

Finally, the petitioner submitted copies of the divorce decree terminating his first marriage and the property settlement agreement referenced in the decree. In the divorce decree, the petitioner's first wife is identified as the complainant. The property settlement agreement reflects that she executed a quitclaim deed to all of the petitioner's personal and real property, including the motel property which he and a third party had purchased in March 1982. The agreement further indicates that the petitioner and his first wife conveyed to each other all of their interest in the other's personal property.

In a decision dated March 25, 1987, the district director denied the petitioner's motion to reopen and/or reconsider. He nonetheless proceeded to consider each document submitted by the petitioner individually. He characterized the petitioner's affidavit as "self-serving" and offering no evidence which was not available to the petitioner previously and, citing Seihoon v. Levy, 408 F. Supp. 1208 (M.D. La. 1976), asserted that the...