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< Back to current issue of Immigration Daily

The Issues of a "Bona Fide Marriage" & "Meritorious In Fact" for a Jointly Filed I-751 Petition to Remove the Conditions of Residence

by Joseph Whalen

Matter of JARA-RIERO and JARA-ESPINOL, 24 I&N Dec. 267 (BIA 2007) held:

    An alien seeking to establish eligibility for adjustment of status under section 245(i) of the Immigration and Nationality Act, 8 U.S.C. 1255(i) (2000), on the basis of a marriage-based visa petition must prove that the marriage was bona fide at its inception in order to show that the visa petition was "meritorious in fact" pursuant to 8 C.F.R. 1245.10(a)(3) (2007).

This 2007 BIA decision was addressing the bona fides of a marriage upon which lawful permanent resident status was sought. The father and his son sought to be grandfathered for adjustment of status under INA 245(i) based on the father's unproven (and seemingly fake) marriage to a prior petitioning spouse. The prior I-130 was denied for failing to demonstrate that the first marriage was "not fraud" in the face of a lack of evidence of its validity and conflicting stories during interviews.

The statutory and regulatory provisions as well as the underlying benefit request forms were different than the those in a case pending in the U.S. District Court in the Eastern District of Michigan regarding an I-751 filed "jointly" more than a full year after divorce paperwork was filed. The concept as to the marriage having been "meritorious in fact" as well as the evidence needed to prove the "bona fide" nature of the marriage are applicable to both cases. The CR-1 spouse entered the U.S. and the divorce papers were filed after only a few months. Over a year later the estranged couple filed a joint I-751 that was apparently supported by fraudulent evidence of a bona fide and continuing marriage. The I-751 was approved without an interview mere days before the divorce was finalized. The apparent fraud came to light years later when the LPR filed a form N-400 seeking naturalization. The case clearly involves a re-assessment as to whether or not the joint I-751 was "meritorious in fact" or bogus (as in fraudulent). The relevant evidence came to the attention of USCIS years after the fact and they acted upon it expeditiously.

The best and most recent discussion of the pertinent concept is case of Jara -Riero & Jara -Espinol, supra, as follows:

"The term "approvable when filed" is defined in the regulations as follows:

Approvable when filed means that, as of the date of the filing of the qualifying immigrant visa petition under section 204 of the Act or qualifying application for labor certification, the qualifying petition or application was properly filed, meritorious in fact, and non-frivolous ("frivolous" being defined herein as patently without substance). This determination will be made based on the circumstances that existed at the time the qualifying petition or application was filed. A visa petition that was properly filed on or before April 30, 2001, and was approvable when filed, but was later withdrawn, denied, or revoked due to circumstances that have arisen after the time of filing, will preserve the alien beneficiary's grandfathered status if the alien is otherwise eligible to file an application for adjustment of status under section 245(i) of the Act.

8 C.F.R. 1245.10(a)(3) (emphasis added).[FN1] In order for a visa petition to be "approvable when filed," therefore, the visa petition must have been (1) properly filed, (2) meritorious in fact, and (3) not frivolous. Inasmuch as the record indicates that the visa petition was properly filed and there is no evidence that it was patently without substance, the dispositive issue in this case is whether the visa petition was "meritorious in fact."

There is little case law construing the terms "approvable when filed" or "meritorious in fact." However, as a matter of first impression, we agree with the United States Court of Appeals for the First Circuit that in order for a visa petition to be "approvable when filed" in this context, there must be a showing that the marriage on which it is based was bona fide. See Lasprilla v. Ashcroft, 365 F.3d 98 (1st Cir. 2004). It is not enough to show merely that a marriage existed. Furthermore, in order to be "meritorious in fact," the visa petition must be based on a genuine marriage in which the parties intended to share a life as husband and wife, not a marriage of convenience designed solely to confer an immigration benefit on one of the parties. This is confirmed by the explanation of the "approvable when filed" standard in the Federal Register, which provides as an example that a visa petition is not approvable when filed if it "is fraudulent or if the named beneficiary did not have, at the time of filing, the appropriate family relationship or employment relationship that would support the issuance of an immigrant visa." Adjustment of Status To That Person Admitted for Permanent Residence; Temporary Removal of Certain Restrictions of Eligibility, 66 Fed. Reg.16,383, 16,385 (Mar. 26, 2001) (Supplementary Information). In the marriage context, a "fraudulent" visa petition would include one where the marriage was not entered into in good faith."

[FN1] We note that the situation presented in this case does not fall within the parameters of the last sentence of 8 C.F.R. 1245.10(a)(3). That sentence addresses changes in circumstances arising after the filing of an initially approvable visa petition that cause the petition to be withdrawn, denied, or revoked. The lead respondent has not demonstrated that his petition meets the "changed circumstances" exception. See 8 C.F.R. 1245.10(a)(4)."

Jara -Riero & Jara -Espinol at pp. 268-269.

Regardless of the actual errors within the written decisions issued by USCIS in the Michigan District Court case of Vismalou and Franciso Uy Ben Dee, the underlying sequence of events bears out the ultimate conclusion. The so-called marriage failed but the joint petitioners did not disclose this critical fact. It was uncovered much later and has come back to haunt them.

Another important case addressing the concept of "meritorious in fact" which also sheds light on the approach that is needed in re-assessing the merits of the original case comes from the Fourth Circuit when it also had to consider an alien's denied request for adjustment under INA 245(i). However, in the Fourth Circuit case the underlying petition was an employment-based I-360 for a 4th preference religious worker.

Ogundipe v. Mukasey, 541 F.3d (4th Cir. 2008) stated, in pertinent parts:

(1) "a visa petition is meritorious in fact for purposes of grandfathering under 8 C.F.R. 1245.10 if, based on the circumstances that existed at the time the petition was filed, the beneficiary of the petition qualified for the requested classification."

(2) "An alien seeking to adjust his status may prove that a previously denied visa application was meritorious in fact by making an appropriate factual showing in removal proceedings, subject to any applicable evidentiary and procedural rules."

(3) "We find nothing in the applicable statutes or regulations that prevents an IJ in removal proceedings from considering other evidence that a petition was approvable when filed, even if that evidence was never submitted in conjunction with the original petition." [As noted by dissent on review of the majority opinion, but this would be qualified by the last phrase of (2) above.]

(4) "This provision contemplates that evidence other than that actually submitted in support of the petition might be considered for purposes of determining whether an alien is grandfathered."

In the preceding case:

"The government [argued] that only the evidence on record at the time of the initial filing may be considered, and thus the actual denial of the HCF petition by the INS forecloses any finding that it was meritorious in fact and therefore approvable when filed."

That argument did not prevail in that case and will not stand up if a petitioner and/or beneficiary makes such an argument in order to avoid being held accountable for an earlier deception. Nor will arguments that boil down to assertions that a particular legal or procedural error by the government is too old to serve as a basis to reopen a case granted erroneously when the circumstances involved an apparently successful fraud. INA 205 empowers the government to revoke any visa for good and sufficient cause at any time. There is no statute of limitations to shield one from the consequences of an earlier seemingly successful immigration fraud.

INA 205 [8 USC 1155] REVOCATION OR APPROVAL OF PETITIONS

The Secretary of Homeland Security may, at any time, for what he deems to be good and sufficient cause, revoke the approval of any petition approved by him under section 204. Such revocation shall be effective as of the date of approval of any such petition.

8 CFR 205.2 Revocation on notice.

    (a) General. Any Service officer authorized to approve a petition under section 204 of the Act may revoke the approval of that petition upon notice to the petitioner on any ground other than those specified in 205.1 when the necessity for the revocation comes to the attention of this Service.

    (b) Notice of intent. Revocation of the approval of a petition of self-petition under paragraph (a) of this section will be made only on notice to the petitioner or self-petitioner. The petitioner or self-petitioner must be given the opportunity to offer evidence in support of the petition or self-petition and in opposition to the grounds alleged for revocation of the approval.

    (c) Notification of revocation. If, upon reconsideration, the approval previously granted is revoked, the director shall provide the petitioner or the self-petitioner with a written notification of the decision that explains the specific reasons for the revocation. The director shall notify the consular officer having jurisdiction over the visa application, if applicable, of the revocation of an approval.

    (d)Appeals. The petitioner or self-petitioner may appeal the decision to revoke the approval within 15 days after the service of notice of the revocation. The appeal must be filed as provided in part 3 of this chapter, unless the Associate Commissioner for Examinations exercises appellate jurisdiction over the revocation under part 103 of this chapter. Appeals filed with the Associate Commissioner for Examinations must meet the requirements of part 103 of this chapter.

There are certain specific circumstances that warrant an "automatic revocation" pursuant to 8 CFR 205.1 that are inapplicable to the present discussion.

There are some apparent temporal restrictions when an individual attains lawful permanent resident status via the adjustment of status process pursuant to INA 245 rather than through entry with an actual immigrant visa. Rescission of adjustment of status pursuant to INA 246 is relatively easy but is limited to five years from date of approval. If the alien challenges the rescission, (s)he may request a hearing before an IJ and then get a right to appeal to the BIA. If the recession is accepted or simply not challenged then there is no appeal available. The statute of limitations does not prevent the commencement of Removal Proceeding under INA 240 which would also allow for an appeal to the BIA.

Matter of Ho, 19 I&N Dec. 582 (BIA 1988) held, in pertinent part:

    (1) The petitioner bears the burden in visa petition revocation proceedings of establishing that the beneficiary qualifies for the benefit sought under the immigration laws. Matter of Cheung, 12 I&N Dec. 715 (BIA 1968), reaffirmed.

The principle stated above is akin to the termination of status that results when an I-829 for EB-5 conditional residents or an I-751 for marriage-based conditional residents is denied.

Lastly, if the Government recognizes an error or learns of new facts and/or evidence suggesting error or fraud it may make Motions to Reopen and/or Reconsideration pursuant to 8 CFR 103.5(a)(5):

    (ii) Service motion with decision that may be unfavorable to affected party. When a Service officer, on his or her own motion, reopens a Service proceeding or reconsiders a Service decision, and the new decision may be unfavorable to the affected party, the officer shall give the affected party 30 days after service of the motion to submit a brief. The officer may extend the time period for good cause shown. If the affected party does not wish to submit a brief, the affected party may waive the 30-day period.

I can find no statute of limitations on a Government Motion and even if there were then Removal Proceedings are still an option.


About The Author

Joseph P. Whalen is not an attorney. He is a former government employee who is familiar with the INA. His education is in Anthroplogy with a concentration in Archaeology and has both a BA (from SUNY Buffalo) and an MA (from San Francisco State University) in Anthroplogogy. He previously worked as an Archaeologist for the U.S. Forest Service before becoming an Adjudicator with INS which became USCIS.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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