Interim Decision #2856

MATTER OF BARSAI

In Visa Petition Proceedings
CIN N 4855
Decided by Regional Commissioner March 2, 1981
(1) A business firm which is a branch of a foreign government qualifies as an "affiliate"
within the meaning of section 101(a)(15)(L) of the Immigration and Nationality Act, 8
U.S.C. 1101(a)(15)(L), so long as the requisite business affiliation exists between the
foreign firm and the petitioning United States firm.
(2) An employee of a foreign firm, even a firm which is a branch of a foreign government,
can qualify as an intra-company transferee within the meaning of section 101(a)(16)(L)
of the Act.
ON BEHALF OP PbililONER:

Judith G. Landt
2800 Prudential Plaza
Chicago, Illinois 60601

This matter is before me on appeal from the District Director's decision of August 5, 1980, denying the petition to classify the beneficiary as
an intra-company transferee under section 101(a)(15)(L) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(15)(L), as amended. The
appeal will be sustained.
The petitioner, a Delaware corporation with its principal place of
business in Columbus, • Ohio, is , engaged in the sale and service of
Hungarian-made X-ray equipment and medical products. 'It has three
full-time employees and a gross annual income of $500,000. The petitioner is a wholly-owned subsidiary of a Hungarian firm which serves as
supplier to the petitioner. The beneficiary is a 51-year-old native and
citizen of Hungary who has been employed by the petitioner's Hungarian

parent firm for the last 30 years. During the past 6 years he has served
as chief executive of the firm's development department for X-ray
equipment. The petitioner seeks to employ the beneficiary as its corporate president at a salary of at least $35,000 per year.
An intra-company transferee is defined by section 101(a)(15)(L) of the
Act as:
an alien who, immediately preceding the Wm of his application for admission into the
United States, has been employed continuously for one year by a firm or corporation or
other legal entity or an affiliate or subsidiary thereof and who seeks to enter the United

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Interim Decision. #2856
States temporarily in order to continue to render his services to the same employer or a
subsidiary or affiliate thereof in a capacity that is managerial, executive, or involves
specialized knowledge.. .

It is undisputed that the beneficiary has the requisite 1 year continuous employment abroad and is coming to the United States to render his
executive and managerial services to the petitioner. However, the District Director determined that the petitioner's Hungarian parent firm is
owned and operated by the Hungarian Government thus making the
beneficiary an employee of the Hungarian Government. The District
Director concluded that the "L-1" classification was not designed to
include employees for foreign governments- and, therefore, he denied
the petition.
The District Director's analysii fails to recognize the form of commercial activity conducted within a communist, economic, and political
System. Generally, ownership of the means of production in a communist system is held by the country's central government. Nevertheless,
the record shows that the direction and management of such enterprises
are primarily conducted independently from the government; they constitute separate legal persons which are free to operate in a basically
profit-maximizing manner. Even if it could be said that the petitioner's
Hungarian parent is nothing more than a branch of the Hungarian
Government, this would not belie the fact that it remains the legal and
whole owner of the petitioning corporation, thereby creating the requisite business affiliation between the two. In any event, the fact that
business organizations in communist-bloc countries exist in a somewhat
different formal and theoretical structure is no reason for refusing to
bring these bona fide commercial firms within the provisions of section
101(a)(I5)(L) of the Act. Indeed, the situation here presents the very
type of personnel interchange, cross-fertilization of ideas, and fostering
of international trade which, in part, the statute was intended to promote.
Based upon the foregoing, I find that the petitioner and the beneficiaves Hungarian employer possess the requisite affiliation and that
the beneficiary qualifies as an eligible transferring executive/managerial
employee within the meaning of the statute. Accordingly, the District
Director's decision will be reversed and petition approved.
ORDER The appeal is sustained and the petition approved.

14


Interim Decision #1895

MierrEn or Urrrymterrr or

CALIFORNIA

In Visa Petition Proceedings
SFR—N-7711
Decided by District Director July 24,1968
A visiting geology professor of distinguished merit and ability coming to the
United States for 8 months as a regent's professor to conduct facility seminars
in a field of geology In which he possesses specialized knowledge, is coming to
perform "temporary services" within the meaning of section 101(a) (15) (H)
(i) of the Immigration and Nationality Act.

Discussion : The University of California has submitted a petition
to accord Brian H. Raker classification under section 101(a) (15) (H)
(i). The University wishes to bring the beneficiary to the United States
for a period of three months as a regent's professor to conduct faculty
seminars in geology as it particularly relates to the East African
rift system.
There are five basic requirements for approval of a petition. to accord a. beneficiary a clasiification under section 101(a) (15) (H) (i)
of the Immigration and Nationality Act. Three requirements relate to
the beneficiary and two to the services it is proposed that he perform.
As to the beneficiary, he must be :
(1) An alien having a residence in a foreign country which he has
no intention of abandoning;
(2) Of distinguished merit and ability; and
(3) Coming to the 'United States temporarily to perform services of
an exceptional nature.
As to the services, they must be :
(1) Of an exceptional nature requiring the special merit and ability
of the beneficiary; and
(2) Temporary.
Mr. Brian is presently employed as a professor of geology by the
University of East Africa, University College, Nairobi, Kenya. He
received the bachelor of science with honors degree in geology from
the University of Birmingham, Birmingham, England, on July 2,
1949. From 1949 to 1962, he was employed by the Government of
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Interim Decision. #1895
Kenya as a geologist. During that time he participated in the Mount
Kenya Expedition during the international geophysical year. In 1962
he was the chief geologist involved in the geological survey of Kenya.
In 1963 he served as Commissioner of Mines in geology, Ministry of
Natural Resources, Government of Kenya. Mr. Brian is of distinguished merit and ability. Evidence has been presented that he has
no intention of abandoning his residence or position abroad.

Mr. Brian will provide the permanent faculty members with benefits
of his studies of the East African rift system and his experience as a
geologist and Commissioner of Mines for the Government of Kenya.
In this regard his duties may be readily distinguished from those of
the permanent faculty member. It is concluded that the &Ai& specified in the petition of the University of California require Mr. Brian's
specialized knowledge and background and are temporary within the
meaning of the applicable statute. The petition will be approved.
ORDER: It is ordered that the 'petition to classify the beneficiary
under section 101(a) (15) (H) (i) of the Immigration' and Rationality
Act be and is hereby approved.

0

839


MATTER OF C

S

L

In DEPORTATION Proceedings
A-11132697
Decided by Board

ehIll-e

15, 1959

Misrepresentation—By nonimmigrant student as to finances is within section
212(a)(19) of 1952 act.
A nonimmigrant student who represented in his visa application that he had
sufficient funds to finance his education in the United States when in fact
he had only his passage money was clearly not qualified for student status
at the time he applied for his nonimmigrant visa. Hence, h is misrepresentation was a violation of section 212(a) (19) of the act and he is deportable
under section 241(a) (1). (Cf. Matter of S C , 7 I. & N. Dec. 76,
and Matter of C—T
P
, A-10344385, Int. Dec. No. 953.)
CHARGE:

Order : Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)1—Excludable
at entry as an alien who obtained a visa by fraud or willfully misrepresenting a ins terial fact, contrary to section 212(a) i19) 1.8
U.S.C. 1182 ( a ) (19)].

BEFORE THE BOARD

Discussion: This case is before us on appeal from a decision of
the special inquiry officer, dated March 24, 1959, holding the alien
deportable and denying voluntary departure. Respondent, a 31-yearold native and citizen of China, last entered the United States at.
Seattle, Washington, on June 16, 1957, as a nonimmigrant student,
for a period of one year. At that time he presented a nonquota
immigrant visa issued by the American Consulate at Taipelt, Taiwan
(Formosa).
The charge arose as a result of certain false statements concerning
respondent's financial responsibility, made in connection with his
visa application. Respondent described himself as "self-financed"
and on the back of Certificate of Acceptance by the University of
Michigan, it was stated that he had $3200 on deposit in banks in
the United States. This information was supported by written statements to the same effect from four American banks.
Respondent later stated that he "borrowed" the sums of money
from four friends in the United States, although promptly after the
record of deposits were made he indorsed withdrawal slips back to
the "lenders." As an actual fact, respondent had only money to
cover his transportation to the United States and upon arrival im

394

mediately began working to pay his first semester's tuition. Thereafter, on November 4, 1957, respondent received Immigration Service
permission to work a maximum of 20 hours per week and has since
maintained himself.
The special inquiry officer held that since sufficient fends to finance
a student in the United States is a requirement for the issuance of
a nonquota immigrant student's visa (22 CFR 41.81(a) (4)) and
respondent gave false information that he was self sustaining, respondent's statements constituted a willful misrepresentation of his
assets, citing Matter of G—G--, 7 I. & N. Dec. 161 (B.I.A.,
1956). As to whether these statements were material, the special
inquiry officer stated:
* * * The State Department regulation is clear cut and emphatic in its
-

language requiring a showing of assets sufficient to defray the costs of a
temporary stay in the United States while pursuing an education. To construe this requirement as satisfied by someone in respondent's circumstances
would obfuscate, if not extirpate, the true meaning and purpose of the regulation. Hence, it is found that the respondent's misrepresentation concealed
facts which "might well have prompted a final refusal of the visa" (_flatter of
C T P , A-10344385, Int. Dec. No. 953). It is concluded that he is
subject to deportation as charged in the order to show cause by reason of his
willful misrepresentation of a material fact in the procurement of his nonimmigrant student visa.

Concerning respondent's request for voluntary departure, the special inquiry officer felt that although there was no question of respondent's earnestness in seeking a higher education in the United
States, "the means respondent used to effectuate his purpose cannot
be condoned" in the light of the deceit practiced upon the American
consul. The special inquiry officer also felt that respondent in his
various statements to the Immigration Service spoke in half truths
and equivocation. For these reasons, the special inquiry officer concluded that respondent lacked the good moral character required
and was, consequently, statutorily ineligible for discretionary relief
in the form of voluntary departure. However, even if considered
eligible for this relief, the special inquiry officer concluded that the
same reasons were "sufficiently derogatory to justify denial."
Counsel contends that the record fails to establish that a ground
of inadmissibility probably existed (rather than a mere possibility
of such inadmissibility) at the time respondent made the false statements in connection with his visa application, citing Matter of C
, A-10344385, Int. Dec. No. 953 (B.I.A., 1958). AlP
supro., is pertinent in a general
Matter
of C
though
way to the problem at hand, we feel that Matter of S—C—, 7
I. N. Dec. 76 (Atty. Gen., 1956), is more responsive to the question before us.
On the other hand, the Immigrant Service contends that respondent was not an eligible nonimmigrant student [section 101(a) (15)
,

395

(F), (26)] at the time he applied for a nonimmigrant visa, in the
light of the requirements of 22 CFR 41.81(a) (4), requiring that
he have sufficient funds in his possession to cover his expenses while
in the United States as a student or that other appropriate arrangements have been made to provide for these expenses, and, therefore,
respondent's concealment was fatal as a violation of section 212(a)
(19).
While counsel for respondent also attempts to advance the theory
that respondent was actually not requested to submit the financial
information by the American consul and that the proof submitted
was based on information received from other official sources, we
feel that the record does not support this claim and that it - is tangential to the main issue in this case.
In the Matter of S
C
, supra, the Board, in considering the
problem of misrepresentations and section 212(a) (19), commented
as follows:
* * * the rule is that a misrepresentation which cuts off all inquiry will
invalidate a visa even though the alien could have secured a visa had he
given his true identity, but that a misrepresentation which cuts off some inquiry will not invalidate the visa unless it concealed a ground of inadmissibility to the United States.

Hence, the question turns on whether respondent was entitled by
law to enter the United States as a nonimmigrant student had the
true facts been revealed. According to 22 CFR 41.81 (Burden of
proof and evidence of student status), An alien applying for a
visa as a nonimmigrant under the provisions of section 101(a) (15)
(F) of the act shall not only have the burden of establishing that
he is entitled to classification as a student within the meaning of
that section of the act, but also that he is not ineligible to receive
a visa as a nonimmigrant" and is specifically required to establish,
among other things, that "he is in possession of sufficient funds to
cover his expenses" [(a) (4)].
Since respondent was not in possession of cash, neither in the hand
nor in the bank, sufficient to cover his expenses while in this country
and other arrangements not having been made, he was clearly unqualified for student status at the time he applied for his nonimmigrant visa. Hence, respondent's false representation of the facts
" relevant to his right to obtain a visa constituted misrepresentation
of a material fact and a violation of section 21:2(a) (10).
Because respondent's counsel has not contested the special inquiry
officer's conclusion of ineligibility for voluntary departure and denial
of this relief, we will affirm this conclusion in the light of all the
surrounding facts. Deportability is supported and the appeal must
be dismissed.
Order: It is hereby directed that the appeal be. dismissed.
396


Interim Decision #1928

MATTER OF M/V HALCYON WAVE

In Fine Proceedings
NYC-10/52.1402

Decided by Board December 3, 1968
Where 4 alien crewmen who had not been issued conditional landing permits

were on board when the vessel left port but shortly thereafter were found
missing, along with a lifeboat which was subsequently located on a nearby
beach, fine lies under section 254(a) (2) of the Immigration and Nationality Act for failure to detain on boards however, since the parties responsible for the vessel's operation exerted all reasonable precautions to detain
the crewmen on board, fine is mitigated to the extent of a remaining penalty of $200. per crewman.
BASIS FOR FINES: Act of 1952—Section 254(a) (2) [8 U.S.C. 1284].
Ix BE: M/V Halcyon Wave, which arrived at the port of New York from
foreign on April 1, 1968. Alien crewmen involved: Man Mau Yuen
Chi, Chang Chun Piu, Chau Yun Fan and Miu Yuen Shing.
ON BEHALF OF APPELLANT: Thomas M. McCaffrey, Esquire
c/o Theodore F. Turner
21 West Street
New York, New York 10006

The District Directot: at New York, in a decision dated September 1'7, 1968, held that Simpson, Spence & Young, Inc., as agents
for the vessel, had incurred liability to administrative penalties
totaling $4,000, $1,000 as to each of the alien members of the
crew named above, for failure to detain them aboard the vessel at
all times despite the fact that they had not been granted conditional landing privileges. However, said official found present
herein factors which, in his opinion, merited mitigation of the
fines to the extent of $1,600, $400 per crewman. Thus, he permitted to stand a total penalty of $2,400, $600 per crewman.
It appears from the record before us that the following material facts exist without substantital controversy. Immigration
inspection, which was accorded the crew of this vessel immediately upon its arrival in the United States, resulted in the denial

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Interim Decision # 1928
of conditional landing privileges to 34 Chinese' alien members of
the crew, including the four named above. Having anticipated
that some of the vessel's crew members would be refused conditional landing privileges upon arrival, the parties responsible for
its operation had arranged to and did have five professional
guards and one supervisor on duty at all times while the vessel
was in port to prevent any and all detainees from leaving the
ship and making their way ashore in the United States. The professional guards checked all the detainees just before the ship left
the dock when it was sailihg foreign, and all were on board. The
four alien crew members named above, and a lifeboat, were found
to be missing from the ship shortly after it had sailed foreign.
This was reported promptly to the Service, and the detainees'

crewman's papers were subsequently made available to the Immigration and Naturalization Service. A copy of a report of the
New York City Police Department shows that one of the vessel's
lifeboats was found just off South Beach, Staten Island, New
York Bay, apparently the day after the vessel's foreign sailing.
The element essential to the establishment of liability to a fine
under this section of the law is the "landing" of the crewman or
crewmen involved. We are satisfied that the evidence of record, as
hereinbefore recited, demonstrates the existence of this crucial
factor here. The carrier has not introduced any evidence to the
contrary and, in fact, has not challenged its liability to the fines.
Accordingly, we will affirm the District Director's decision to impose a penalty.
However, contrary to the District Director's opinion, we feel
that the maximum mitigation permissible under the statute, to
wit: dawn to $200 per crewman, is warranted in these premises.
It is our judgment that the parties responsible for this vessel's

operation exerted all possible and reasonable precautions to the
end that their absolute statutory duty of detention existing as to
these crewmen might be met.
Professional guards were hired in sufficient number to prevent
the landing of the detainees while the vessel was tied up in port.
The record shows that the detainees were all on board at the time
the vessel left its berth. Because of the problems inherent in
clearing the port and getting under way to sea, we do not think it
can seriously be argued that the parties responsible for the vessel's operation were lax in failing to prevent the escape of these
four detainees in the manner outlined. Absent any evidence to the
contrary, and we find none herein, we so hold.
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Interim Decision #1928
ORDER: It is ordered that the District Director's decision of
September 17, 1968, be modified to provide for mitigation of the
fines to the extent of $3,200, $800 per crewman, and that as so
amended the decision of said official be and the same is hereby affirmed. The penalty permitted to stand is $800, $200 per crewman.

94


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Interim Decision #3995

Matter of A-C-A-A-, Respondent
Decided by Attorney General September 24, 2020
U.S. Department of Justice
Office of the Attorney General
(1) In conducting its review of an alien’s asylum claim, the Board of Immigration Appeals
(“Board”) must examine de novo whether the facts found by the immigration judge
satisfy all of the statutory elements of asylum as a matter of law. See Matter of R-A-F-,
27 I&N Dec. 778 (A.G. 2020).
(2) When reviewing a grant of asylum, the Board should not accept the parties’ stipulations
to, or failures to address, any of the particular elements of asylum—including, where
necessary, the elements of a particular social group. Instead, unless it affirms without
opinion under 8 C.F.R. § 1003.1(e)(4)(i), the Board should meaningfully review each
element of an asylum claim before affirming such a grant, or before independently
ordering a grant of asylum. See Matter of L-E-A-, 27 I&N Dec. 581, 589 (A.G. 2019).
(3) Even if an applicant is a member of a cognizable particular social group and has
suffered persecution, an asylum claim should be denied if the harm inflicted or
threatened by the persecutor is not “on account of” the alien’s membership in that group.
That requirement is especially important to scrutinize where the asserted particular
social group encompasses many millions of persons in a particular society.
(4) An alien’s membership in a particular social group cannot be “incidental, tangential,
or subordinate to the persecutor’s motivation . . . [for] why the persecutor[] sought to
inflict harm.” Matter of A-B-, 27 I&N Dec. 316, 338 (A.G. 2018) (citations omitted).
Accordingly, persecution that results from personal animus or retribution generally does
not support eligibility for asylum.

BEFORE THE ATTORNEY GENERAL
Pursuant to 8 C.F.R. § 1003.1(h)(1)(i) (2020), I direct the Board of
Immigration Appeals (“Board”) to refer this case to me for review of its
decision. With the case thus referred, I hereby vacate the Board’s decision
and remand this case for review by a three-member panel.
In Matter of A-C-A-A- (BIA Nov. 6, 2019) (“BIA Op.”), the Board
dismissed an appeal by the Department of Homeland Security (“DHS”)
challenging, as relevant here, the immigration judge’s determination that the
respondent had established a nexus between her membership in a particular
social group (“Salvadoran females”) and past persecution by her parents.
The Board devoted a mere sentence to the merits of the respondent’s asylum
claim, stating that it could “discern no clear error in the Immigration Judge’s
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Interim Decision #3995

determination that the respondent established persecution on account of her
membership in a particular social group.” Id. at 2.
In recent decisions, former Attorney General Sessions and I have
emphasized that the Board must review de novo both questions of law and
the immigration judge’s application of the law to the facts. These decisions
recognize that the respondent must present evidence to establish the
existence of a particular social group and a nexus between the respondent’s
membership in that group and the asserted persecution. Based on the
elements necessary to establish these components of a valid asylum claim,
we have explained that victims of private violence, including domestic
violence, will not usually satisfy the requirements for asylum on the basis of
those particular circumstances. In this case, the Board neither analyzed in
any depth whether the evidence presented by the respondent established the
nexus requirement, nor reviewed the immigration judge’s ultimate
determination that the respondent was eligible for humanitarian asylum. On
remand, the Board should consider whether the respondent carried her
burden to prove her asylum claim consistent with applicable precedents and
the instruction that such questions must be subject to meaningful review. In
particular, the Board must consider whether the respondent has established
that her past mistreatment was “on account of” a protected ground such as
membership in a particular social group, rather than on account of
individualized private circumstances not connected to any statutory basis for
asylum relief.

I.
The Immigration and Nationality Act (“INA”) establishes that an alien
applying for relief or protection from removal has the burden of proof to
establish that she “(i) satisfies the applicable eligibility requirements; and (ii)
with respect to any form of relief that is granted in the exercise of discretion,
that the alien merits a favorable exercise of discretion.” INA § 240(c)(4)(A),
8 U.S.C. § 1229a(c)(4)(A). Accordingly, if an alien fails to satisfy the
eligibility requirements or fails to demonstrate that she merits a favorable
exercise of discretion, her application must be denied.
One form of relief that the INA authorizes the Attorney General to grant
is asylum, which may be granted to an alien who establishes that she is a
refugee, meaning that she is unable or unwilling to return to her country of
origin because of persecution or a well-founded fear of persecution on
account of the five protected grounds of “race, religion, nationality,
membership in a particular social group, or political opinion.” INA
§ 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A); INA§ 208(b)(1)(A), (B)(i),
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Interim Decision #3995

8 U.S.C. § 1158(b)(1)(A), (B)(i). Consistent with the general burden in
removal proceedings, the INA further specifies that it is the alien’s burden to
demonstrate that she is a refugee within the statutory definition. INA
§ 208(b)(1)(B); see also 8 C.F.R. § 1208.13(a) (stating that the burden of
proof is on the alien to establish that she is a refugee). “To establish that the
applicant is a refugee . . . the applicant must establish that race, religion,
nationality, membership in a particular social group, or political opinion was
or will be at least one central reason for persecuting the applicant.” INA
§ 208(b)(1)(B)(i).
An alien may establish eligibility for asylum in two different ways. First,
an alien may establish a “well-founded fear” of future persecution by
showing that a reasonable person in her circumstance would fear persecution
on one of the five protected grounds if she were to return to her home country.
Matter of Mogharrabi, 19 I&N Dec. 439, 445 (BIA 1987). Alternatively, an
alien may satisfy asylum requirements by establishing that she has suffered
past persecution, creating a presumption that she will face a well-founded
fear of persecution upon her return. Matter of H-, 21 I&N Dec. 337, 346–47
(BIA 1996); 8 C.F.R. § 1208.13(b)(1). But that presumption may be rebutted
where there has been a “fundamental change in circumstances such that the
applicant no longer has a well-founded fear of persecution” from that original
source. 8 C.F.R. § 1208.13(b)(1)(i)(A); see also, e.g., Matter of N-M-A-,
22 I&N Dec. 312, 318 (BIA 1998) (“[I]f the record reflects that country
conditions relating to the past persecution have changed to such an extent
that the applicant no longer has a well-founded fear of harm from his original
source of persecution, the evidentiary presumption is extinguished[.]”).
Even if the Attorney General determines that, as a result of a “fundamental
change in circumstances,” an alien who is otherwise eligible for asylum is
not likely to face future persecution on account of a protected ground, he has
discretion to grant asylum for humanitarian reasons on one of two grounds.
By regulation, the Attorney General may grant humanitarian asylum where
(1) the alien has “demonstrated compelling reasons for being unwilling or
unable to return to the country arising out of the severity of the past
persecution,” or (2) the alien “has established that there is a reasonable
possibility that he or she may suffer other serious harm upon removal to that
country.” 8 C.F.R. § 1208.13(b)(1)(iii)(A)–(B); see also Matter of L-S-,
25 I&N Dec. 705, 710–11 (BIA 2012) (clarifying that “an asylum applicant
. . . bears the burden of proof to show that either form of humanitarian asylum
is warranted”). Humanitarian asylum is nonetheless appropriate only “in rare
instances,” Ben Hamida v. Gonzales, 478 F.3d 734, 740 (6th Cir. 2007)
(citation omitted), and is available only to those asylum applicants who have
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Interim Decision #3995

demonstrated that they suffered past persecution on account of a protected
ground, see Mejia-Lopez v. Barr, 944 F.3d 764, 768 (8th Cir. 2019).
The respondent here, a native and citizen of El Salvador, entered the
United States illegally in 2012 and was placed in removal proceedings in
2013. After conceding removability in 2018, the respondent sought asylum
and other immigration protection on the basis that she had suffered past
persecution at the hands of her parents on account of her membership in a
particular social group of “Salvadoran females.” The respondent also
asserted that she had a well-founded fear of future persecution on account of
being a woman in El Salvador, by her former romantic partner, gang
members, or the Salvadoran police. The immigration judge concluded that
the respondent had established that she had suffered past persecution at the
hands of her parents, but because there had been a fundamental change in the
respondent’s circumstances—the respondent was now twenty-nine years old
and likely would not reside with her parents upon her return—the
immigration judge concluded that the respondent no longer had a
well-founded fear of persecution by her parents. Nevertheless, the
immigration judge found the respondent eligible for a humanitarian grant of
asylum, after determining that she had established that she would face “other
serious harm” were she to return to El Salvador.
On appeal, DHS challenged the immigration judge’s finding that the
respondent was credible and that she had established a nexus between her
membership in a particular social group and past persecution. The Board
affirmed, deferring to the immigration judge’s credibility finding and
concluding, in a one-sentence discussion of the merits of the respondent’s
asylum claim, that it could “discern no clear error in the Immigration Judge’s
determination that the respondent established persecution on account of her
membership in a particular social group.” BIA Op. at 2.

II.
By regulation, the Board “function[s] as an appellate body charged with
the review of those administrative adjudications under the Act that the
Attorney General may by regulation assign to it.” 8 C.F.R. § 1003.1(d)(1).
I recently explained that, “[a]lthough the Board reviews an immigration
judge’s factual findings for clear error, it reviews de novo ‘questions of law,
discretion, and judgment and all other issues in appeals,’ including the
application of law to fact.” Matter of R-A-F-, 27 I&N Dec. 778, 779 (A.G.
2020) (citing 8 C.F.R. § 1003.1(d)(3)(i), (ii)); see also Board of Immigration
Appeals: Procedural Reforms to Improve Case Management, 67 Fed. Reg.
54878, 54888–89 (Aug. 26, 2002) (“[T]he Board members will retain their
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Interim Decision #3995

‘independent judgment and discretion,’ subject to the applicable governing
standards, regarding the review of pure questions of law and the application
of the standard of law to those facts.”). The Board certainly “has no duty to
write an exegesis on every contention” presented in each case, but it must
“consider the issues” and “announce its decision in terms sufficient to enable
a reviewing court to perceive that it has heard and thought and not merely
reacted.” Scorteanu v. INS, 339 F.3d 407, 412 (6th Cir. 2003). 1
The elements of an asylum claim are well established. In Matter of
M-E-V-G-, 26 I&N Dec. 227 (BIA 2014), the Board explained in detail what
applicants who, like the respondent, claim to have suffered past persecution
on account of their membership in a particular social group must establish to
prove their eligibility for asylum. More recently, in Matter of A-B-, 27 I&N
Dec. 316 (A.G. 2018), Attorney General Sessions “reiterate[d] that an
applicant for asylum on account of her membership in a purported particular
social group must demonstrate: (1) membership in a particular group, which
is composed of members who share a common immutable characteristic, is
defined with particularity, and is socially distinct within the society in
question; (2) that her membership in that group is a central reason for her
persecution; and (3) that the alleged harm is inflicted by the government of
her home country or by persons the government is unwilling or unable to
control.” Id. at 320.
As Matter of A-B- also explained, the Board must meaningfully review
each of these elements when presented with an appeal from a grant of asylum.
Id.; see also id. at 340 (“The respondent must present facts that undergird
each of these elements [of an asylum claim], and the asylum officer,
immigration judge, or the Board has the duty to determine whether those
facts satisfy all of the legal requirements for asylum.”). Matter of
A-B- criticized the Board for analyzing elements “in a conclusory fashion,”
for “citing the standard of review” but “not apply[ing] it,” and for relying on
“summary reasoning.” Id. at 343. DHS’s decision not to expressly challenge
a particular element of an asylum claim did not relieve the Board from its
need to review the immigration judge’s determination as to that element. See
id. at 339 (overruling a decision in which “the Board recognized that it had a
duty to evaluate any claim regarding the existence of a particular social group
in a country in the context of the evidence presented regarding the particular
circumstances in the country in question, but it did not adequately observe
1

The Board need not provide such an explanation when it affirms without opinion under
8 C.F.R. § 1003.1(e)(4)(i). In such a case, the reviewing court will look to the immigration
judge’s decision in connection with its review. See Dia v. Ashcroft, 353 F.3d 228, 240 (3d
Cir. 2003).

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that duty” and instead “accepted, with little or no analysis, DHS’s
concessions to the contrary on nearly every legal issue” (citations and
alterations omitted)); Matter of L-E-A-, 27 I&N Dec. 581, 589 (A.G. 2019)
(explaining that “a cursory analysis of a question that was either uncontested,
or not dispositive to the outcome” does not “undermine the Board
requirement” to ensure that asylum applicants establish all the elements of
their claim through “the thorough, case-specific analysis . . . that the Board’s
precedents generally require”). 2
In conducting this review, the Board also must examine whether the facts
found by the immigration judge satisfy those elements as a matter of law.3
This requirement is consistent with the INA’s placing the burden upon the
alien regarding applications for relief—the alien either carries her burden or
she does not.

2

If the Board finds that “an alien’s asylum application is fatally flawed in one respect, . . .
the Board need not examine the remaining elements of the asylum claim.” Matter of A-B-,
27 I&N Dec. at 340; see also, e.g., De Pena-Paniagua v. Barr, 957 F.3d 88, 92 (1st Cir.
2020). But in such a case, the Board should not affirmatively endorse a particular social
group, or other elements of an asylum claim, if it later finds that the respondent is ineligible
for asylum because she failed to satisfy a different statutory element. See Matter of L-E-A-,
27 I&N Dec. at 42–43.
3
Meaningful review may, in some cases, take the form of “a statement that the Board’s
conclusions upon review of the record coincide with those which the immigration judge
articulated in his or her decision,” so long as, in making such a statement, the Board has
“rel[ied] upon [its] own independent judgment in deciding the ultimate disposition of the
case.” Matter of Burbano, 20 I&N Dec. 872, 873–74 (BIA 1994). In such a case, “the
Board’s final decision may be rendered in a summary fashion; however, such summary
treatment of a case does not mean that [the Board] ha[s] conducted an abbreviated review
of the record or ha[s] failed to exercise [its] own discretion.” Id. at 874. As courts of
appeals have recognized, “where the BIA cites its decision in Burbano and does not express
disagreement with any part of the IJ’s decision, the BIA adopts the IJ’s decision in its
entirety,” and where “the BIA intends to constrict the scope of its opinion to apply to only
one ground upon which the IJ’s decision rested, the BIA can and should specifically state
that it is so limiting its opinion.” Abebe v. Gonzales, 432 F.3d 1037, 1040 (9th Cir. 2005);
see also, e.g., Bondarenko v. Holder, 733 F.3d 899, 906 (9th Cir. 2013); Gishta
v. Gonzales, 404 F.3d 972, 980 (6th Cir. 2005); Paripovic v. Gonzales, 418 F.3d 240, 244
(3d Cir. 2005). Where the Board has cited Matter of Burbano, the summary affirmance
differs from an affirmance without opinion under 8 C.F.R. § 1003.1(e)(4)(i). In the latter
situation, the Board adopts only the results of the immigration judge’s decision, deeming
any error harmless or nonmaterial, whereas a Burbano affirmance reflects the Board’s
adoption of the results and the reasoning of the immigration judge. Abebe, 432 F.3d at
1041.

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III.
A.
Matter of A-B- not only reiterated the standard by which the Board should
review asylum claims but also involved a legal claim similar to the claim at
issue in this case. In Matter of A-B-, a victim of domestic violence alleged
that she had been abused by her ex-husband in El Salvador and “was eligible
for asylum because she was persecuted on account of her membership in the
purported particular social group of ‘El Salvadoran women who are unable
to leave their domestic relationships where they have children in common’
with their partners.” 27 I&N Dec. at 321. Matter of A-B- vacated the Board’s
order to grant the respondent asylum pending the completion of background
checks, primarily because the Board’s “cursory analysis of the respondent’s
social group” failed to demonstrate that A-B- had established a cognizable
particular social group as a matter of law. Id. at 340. The Board had “cited
no evidence that [A-B-’s] husband knew any such social group existed, or
that he persecuted [his] wife for reasons unrelated to their relationship,” id.
at 343, suggesting that the alien had not demonstrated that any such
persecution was on account of A-B-’s membership in a particular social
group. And it likewise concluded that the Board “erred in finding . . . that El
Salvador was unable or unwilling to protect A-B-” by relying only on
evidence of “the persistence of domestic violence in El Salvador.” Id. at 344.
In addition, Matter of A-B- overruled Matter of A-R-C-G-, which had held
that “‘married women in Guatemala who are unable to leave their
relationship’” constituted a particular social group within the meaning of the
INA. Matter of A-B-, 27 I&N Dec. at 331 (quoting Matter of A-R-C-G-,
26 I&N Dec. 388, 392 (BIA 2014)). The Attorney General concluded that
the Board in Matter of A-R-C-G- had failed to establish that this group was
“defined with particularity,” Matter of A-B-, 27 I&N Dec. at 335, or that the
group “‘exist[ed] independently’ of the harm asserted in an application for
asylum,” id. at 334 (quoting Matter of M-E-V-G-, 26 I&N Dec. at 236 n.11,
243). Because “[t]he Board’s scant analysis did not engage with these
requirements or show that A-R-C-G-’s proposed group was ‘defined by
characteristics that provide a clear benchmark for determining who falls
within the group,’” Matter of A-B- overruled Matter of A-R-C-G-. Id. at 335
(quoting Matter of M-E-V-G-, 26 I&N Dec. at 239). While Matter of
A-B- did “not decide that violence inflicted by non-governmental actors may
never serve as the basis for . . . asylum,” it did state that “in practice such
claims are unlikely to satisfy the statutory grounds for proving group
persecution that the government is unable or unwilling to address.” Id. at
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320; cf. id. at 317 (“[T]here may be exceptional circumstances when victims
of private criminal activity could meet these requirements[.]”).
In this case, the Board committed many of the same errors that were at
issue in Matter of A-R-C-G-. Here, the immigration judge concluded that the
respondent had suffered past persecution through physical and psychological
abuse by her parents on account of her being a “Salvadoran female[].”
Matter of A-C-A-A-, at 7–8 (Immig. Ct. S.F. May 20, 2019) (“IJ Op.”). And
the Board erred by affirming the grant of asylum without meaningfully
considering any of the elements of the respondent’s asylum claim. Indeed,
the Board indicated only that it saw no “clear error” in the immigration
judge’s conclusions about whether the respondent had suffered persecution
on account of her membership in a particular social group, misapplying the
appropriate standard of review, which required that the Board review de novo
that conclusion and its underlying legal determinations. See 8 C.F.R.
§ 1003.1(d)(3)(ii); Matter of R-A-F-, 27 I&N Dec. at 779. On remand, the
Board must consider whether the respondent established the existence of the
particular social group of “Salvadoran females,” and a nexus between the
respondent’s membership in that group and the asserted persecution. 4
B.
In this case, the nature of the respondent’s asserted particular social group
makes the Board’s failure to meaningfully review the immigration judge’s
nexus analysis especially problematic. The Board should have carefully
considered whether the respondent’s membership in the particular social
group of “Salvadoran females” was truly “‘one central reason’” for her
persecution at the hands of her parents. Matter of A-B-, 27 I&N Dec. at 338
4

Although I do not decide the matter in this case, I note that there has been disagreement
among the courts of appeals about whether gender-based groups may constitute a particular
social group within the meaning of the INA. Compare, e.g., Amezcua-Preciado v. U.S.
Att’y Gen., 943 F.3d 1337, 1344–45 (11th Cir. 2019) (“[W]hile the members of
Amezcua-Preciado’s proposed social group arguably share the immutable characteristic of
being women, that characteristic alone is insufficient to make them cognizable as a
particular social group under the INA.”), with, e.g., De Pena-Paniagua, 957 F.3d at 93–94,
96 (“[I]t is not clear why a larger group defined as ‘women,’ or ‘women in country X’—
without reference to additional limiting terms—fails either the ‘particularity’ or ‘social
distinction’ requirement.”). Furthermore, the Board should remember on remand that
“conclusory assertions of countrywide negative cultural stereotypes . . . neither contribute
to an analysis of the particularity requirement nor constitute appropriate evidence to
support such asylum determinations.” Matter of A-B-, 27 I&N Dec. at 336 n.9. The
respondent has the burden to prove the existence of a particular social group and all other
relevant factors of an asylum claim.

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(quoting 8 U.S.C. § 1158(b)(1)(B)(i)). Even if an applicant is a member of
a cognizable particular social group and has suffered persecution, an asylum
claim should be denied if the harm inflicted or threatened by the persecutor
is not “on account of” the alien’s membership in that group. That
requirement is especially important to scrutinize where, as here, the asserted
particular social group encompasses millions of Salvadorans. “‘Although
the category of protected persons [within a particular group] may be large,
the number of those who can demonstrate the required nexus is likely not.’”
Id. (quoting Cece v. Holder, 733 F.3d 662, 673 (7th Cir. 2013) (en banc)).
As Attorney General Sessions has explained, the nexus requirement is
“‘where the rubber meets the road’” for many asylum claims. Id. (quoting
Cece, 733 F.3d at 673). And as the Board has observed, in performing an
appropriately thorough analysis of the nexus requirement in an asylum case,
“[t]he question of a persecutor’s motive will involve a particularized
evaluation of the specific facts and evidence in an individual claim. . . .
While some scenarios will present a clear answer, others will require a more
nuanced evaluation.” Matter of L-E-A-, 27 I&N Dec. 40, 44 (BIA 2017).
An alien’s membership in a particular social group cannot be “incidental,
tangential, or subordinate to the persecutor’s motivation . . . [for] why the
persecutor[] sought to inflict harm.” Matter of A-B-, 27 I&N Dec. at 338
(citing Matter of J-B-N- & S-M-, 24 I&N Dec. 208, 214 (BIA 2007), and INS
v. Elias-Zacarias, 502 U.S. 478, 483 (1992)). Accordingly, persecution that
results from personal animus or retribution generally does not establish the
necessary nexus. See Zoarab v. Mukasey, 524 F.3d 777, 781 (6th Cir. 2008)
(“Asylum is not available to an alien who fears retribution solely over
personal matters.”). The reasoning for this is straightforward: “When private
actors inflict violence based on a personal relationship with a victim, then the
victim’s membership in a larger group may well not be ‘one central reason’
for the abuse.” Matter of A-B-, 27 I&N Dec. at 338–39; see, e.g.,
Gonzales-Veliz v. Barr, 938 F.3d 219, 225 (5th Cir. 2019) (holding that
substantial evidence supported the BIA’s conclusion that the nexus
requirement was not satisfied where “the BIA found that [asylum
applicant’s] ex-boyfriend was ‘motivated only by retribution after she sued
him,’” not by her membership in the particular social group of “Honduran
women unable to leave their relationship”). “If the persecutor would have
treated the applicant the same if the protected characteristic . . . did not exist,
then the applicant has not established a claim on this ground.” Matter of
L-E-A-, 27 I&N Dec. at 43–44.
Furthermore, if the persecutor has neither targeted nor manifested any
animus toward any member of the particular social group other than the
applicant, then the applicant may not satisfy the nexus requirement. In
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Matter of R-A-, for instance, “the record d[id] not reflect that [the applicant’s]
husband bore any particular animosity toward women who were intimate
with abusive partners, women who had previously suffered abuse, or women
who happened to have been born in, or were actually living in,
Guatemala. . . . On the basis of this record, [the Board] perceive[d] that the
husband’s focus was on the respondent because she was his wife, not because
she was a member of some broader collection of women, however defined,
whom he believed warranted the infliction of harm.” 22 I&N Dec. 906, 921
(BIA 1999) (emphasis added); Matter of A-B-, 27 I&N Dec. at 339; see also,
e.g., Margarita O-O v. Att’y Gen. U.S., 742 F. App’x 676, 681 & n.7 (3d Cir.
2018) (“[W]hile [respondent] presented some evidence that there is targeted
violence against women in El Salvador for reasons including . . . ensuring
gang control, this does not establish a nexus between the harm [the
respondent] suffered and her status as a ‘Salvadoran single female head of
household responsible for the household’s support.’ . . . [the respondent]’s
belief is undermined by the fact that the gang members targeted both men
and women.”); Jacobo-Melendres v. Sessions, 706 F. App’x 724, 725–26 (2d
Cir. 2017) (holding that, even assuming “unmarried women who refuse the
advances of gang members” in Guatemala could constitute a particular social
group, respondent had not satisfied the nexus requirement where she
“testified that she was harassed, stalked, and attacked because a gang
member was interested in having a relationship with her, but she did not
assert that he or anyone else targeted her based on her membership in a group
of similarly situated individuals who had refused the advances of gang
members” (emphasis added)).
As I explained last year in Matter of L-E-A-, the Board has a duty to
conclude that the respondent has satisfied all of the statutory requirements to
qualify for asylum before affirming an immigration judge’s grant of asylum.
27 I&N Dec. at 596. Here, even though DHS specifically challenged the
immigration judge’s determination that her membership in the particular
social group of “Salvadoran females” was at least one central reason for her
persecution at the hands of her parents, the Board’s decision gave no
indication that it gave this question more than fleeting consideration.
A closer examination of the immigration judge’s conclusion, in light of
the record, would have raised questions concerning the nexus requirement.
For instance, the immigration judge did not cite any evidence that the
respondent’s parents themselves had ever said or done anything to express
hostility to “Salvadoran females” in general, as opposed to having made
statements and taken actions based upon their personal feelings about the
respondent, their daughter. See Matter of A-B-, 27 I&N Dec. at 338
(describing the need for evidence that the persecutor is aware of and hostile
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to the particular social group). The Board did not explore whether there was
any evidence that the respondent’s parents bore animosity toward other
“Salvadoran females” or that her parents—including her mother, who would
have been a member of the group as well—perceived all “Salvadoran
females” as a distinct social group. Compare id. at 339 with IJ Op. at
10 (quoting respondent’s declaration, which averred that her father told her
“I am the man of this house and I am in charge. You’re my daughter and you
have to do what I say!” (emphasis added)). Indeed, it seems unlikely that the
respondent will be able to demonstrate that she suffered persecution based
on membership in a social group as broad as all “Salvadoran females,”
because of the need to establish that the private violence reflected a general
animus against a broad social group rather than the personal animus arising
from the relationship between the purported persecutors and the asylum
applicant.
As in Matter of A-B-, I need not, and do not, hold here that there are no
circumstances where an applicant’s membership in a gender-based particular
social group may be “one central reason” for an applicant’s persecution. See
Grace v. Barr, 965 F.3d 883, 906 (D.C. Cir. 2020) (“The only general rule
that Matter of A-B- articulates . . . is that asylum officers have to go through
the steps for analyzing particular-social-group claims,” which is “perfectly
consistent with” the instruction that “claims be analyzed on a case-by-case
basis.” (internal quotation marks and alterations omitted)). 5 But the record
here raises serious questions about whether the applicant may carry that
burden, and the Board did not satisfy its duty to analyze whether the
respondent could establish that the nexus requirement had been satisfied or
to review the immigration judge’s legal conclusions de novo.

IV.
5

In Grace v. Barr, the D.C. Circuit reversed a district court decision calling into question
some aspects of Matter of A-B- and a guidance document subsequently issued by U.S.
Citizenship and Immigration Services (USCIS). See USCIS, Guidance for Processing
Reasonable Fear, Credible Fear, Asylum, and Refugee Claims in Accordance with Matter
of A-B-, PM-602-0162 (July 11, 2018). The court of appeals held that “parts of both A-Band the Guidance make clear that asylum officers must ‘analyze each case on its own merits
in the context of the society where the claim arises.’ In other words, the record in this case
does not support the asylum seekers’ argument that USCIS and the Attorney General have
erected a rule against asylum claims involving allegations of domestic and/or gang
violence.” Grace, 965 F.3d at 906 (citation omitted); see also Gonzales-Veliz, 938 F.3d at
233 (“[T]he Attorney General’s A-B- decision did not create a blanket preclusion for groups
based on domestic violence,” but rather explained that “the applicants ‘must satisfy
established standards when seeking asylum’” (quoting Matter of A-B-, 27 I&N Dec.
at 317)).

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This case involves an additional issue beyond whether the respondent
suffered persecution on account of membership in a particular social group.
Here, the immigration judge determined that, even though the respondent had
suffered such persecution, she had not demonstrated a well-founded fear of
future persecution on that basis, given that she was now twenty-nine years
old and unlikely to live in her parents’ home were she to return to El
Salvador. The regulations, however, provide that even an alien who is unable
to demonstrate that she fears future persecution of the sort she had suffered
in the past may be granted asylum on a “humanitarian” basis. See 8 C.F.R.
§ 1208.13(b)(1)(iii). The immigration judge determined that the respondent
was entitled to asylum on that basis because she had demonstrated that she
would be at risk of “other serious harm” if she were to return to El Salvador.
IJ Op. at 12–13.
I do not consider here whether the respondent has established that she is
entitled to a discretionary grant of humanitarian asylum under 8 C.F.R.
§ 1208.13(b)(1)(iii)(B). See Asylum Procedures, 65 Fed. Reg. 76,121,
76,127 (Dec. 6, 2000) (defining “other serious harm” as harm that is “is so
serious that it equals the severity of persecution,” but that is not inflicted on
account of the protected grounds of race, religion, nationality, membership
in a particular social group, or political opinion). The Board here neglected
to mention this issue or analyze whether the immigration judge’s conclusions
were consistent with the regulation and Board precedent about this form of
humanitarian asylum. See Matter of L-S-, 25 I&N Dec. at 714 (discussing
the appropriate “other serious harm” inquiry). The question of humanitarian
asylum arises only when an alien has established past persecution on account
of a statutorily protected ground but is unable to demonstrate a well-founded
fear of future persecution. Here, the Board’s antecedent analysis of the
respondent’s alleged past persecution was critically flawed. Thus, on
remand, not only must the Board meaningfully analyze the respondent’s
alleged past persecution on account of her membership in a particular social
group, but, if necessary, the Board must also consider whether the respondent
merits humanitarian asylum—including by reviewing the determination of
“other serious harm.”
* * * * *
For the reasons discussed above, I vacate the Board’s decision and
remand this case for review by a three-member panel in accordance with this
opinion. On remand, the Board should meaningfully assess whether the
respondent qualifies for asylum, and not affirm the immigration judge’s
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decision unless the Board concludes that the respondent has met her burden
and has satisfied each of the three Matter of M-E-V-G- elements: her
membership in a particular social group, a nexus between such a group and
her persecution, and the unwillingness or inability of the government of El
Salvador to protect her. The Board should also determine whether DHS has
sufficiently rebutted the presumption that, should the respondent
successfully establish that she has suffered past persecution on account of
her membership in a particular social group, she faces a well-founded fear of
persecution on the same basis. If DHS has not rebutted that presumption, the
Board should determine whether DHS has established the feasibility of
internal relocation. Finally, should the Board find, as the immigration judge
did, that DHS has rebutted that presumption, it should review the
immigration judge’s subsequent conclusion that the respondent is eligible for
a humanitarian grant of asylum.

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Matter of P. SINGH, Beneficiary of a visa petition
filed by Riwaj Anand Singh, Petitioner
Decided August 23, 2019
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) The standard of proof necessary to bar the approval of a visa petition based on marriage
fraud under section 204(c) of the Immigration and Nationality Act, 8 U.S.C. § 1154(c)
(2012), is “substantial and probative evidence.”
(2) The degree of proof necessary to constitute “substantial and probative evidence” is
more than a preponderance of evidence, but less than clear and convincing evidence;
that is, the evidence has to be more than probably true that the marriage is fraudulent.
(3) The nature, quality, quantity, and credibility of the evidence of marriage fraud
contained in the record should be considered in its totality in determining if it is
“substantial and probative.”
(4) The application of the “substantial and probative evidence” standard requires the
examination of all of the relevant evidence and a determination as to whether such
evidence, when viewed in its totality, establishes, with sufficient probability, that
the marriage is fraudulent.
(5) Both direct and circumstantial evidence may be considered in determining whether
there is “substantial and probative evidence” of marriage fraud under section 204(c) of
the Act, and circumstantial evidence alone may be sufficient to constitute “substantial
and probative evidence.”
FOR PETITIONER: Marc Prokosch, Esquire, Bloomington, Minnesota
FOR THE DEPARTMENT OF HOMELAND SECURITY: Scott J. Langerman, Associate
Counsel
BEFORE: Board Panel: MALPHRUS, MANN, and CREPPY, Board Members.
CREPPY, Board Member:

In a decision dated September 23, 2013, the Field Office Director
(“Director”) denied the Petition for Alien Relative (Form I-130) filed by the
United States citizen petitioner on behalf of the beneficiary to accord him
status as a parent pursuant to section 201(b)(2)(A)(i) of the Immigration and
Nationality Act, 8 U.S.C. § 1151(b)(2)(A)(i) (2012). The petitioner has
appealed from that decision. We requested supplemental briefs, which both
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parties have submitted. The petitioner’s request for oral argument is denied.
8 C.F.R. § 1003.1(e)(7) (2019). The appeal will be dismissed.

I. FACTUAL AND PROCEDURAL HISTORY
The petitioner is the son of the beneficiary, who was married to the
petitioner’s maternal grandmother in 2005. The beneficiary’s wife filed a
visa petition on his behalf, which the Director denied on November 30, 2009,
finding that the marriage was entered into solely to obtain an immigration
benefit for the beneficiary. 1 On March 13, 2012, the petitioner filed a visa
petition on behalf of the beneficiary. The Director issued a notice of intent
to deny on August 16, 2013, informing the petitioner of her intention to
deny the visa petition based on the conclusion that the beneficiary married
the petitioner’s maternal grandmother for the purpose of evading the
immigration laws. After considering the petitioner’s response to the notice
of intent to deny, the Director found, based on the record, that because the
beneficiary entered into his marriage solely to obtain an immigration benefit,
it is a fraudulent marriage that bars the approval of the current visa petition
filed by his son. The Director denied the visa petition pursuant to section
204(c) of the Act, 8 U.S.C. § 1154(c) (2012). 2
In making this determination, the Director noted that prior to the
beneficiary’s marriage, he was involved in a long-term relationship with his
spouse’s daughter, with whom he has three children. The petitioner is the
oldest of the children, who were born in 1990, 1993, and 1999. The Director
also relied on information from a June 5, 2009, Fraud Detection and National
Security Office (“FDNS”) report that documented a site visit to the marital
residence of the beneficiary and his spouse.
According to the report, the beneficiary’s wife was alone at the time of
the visit, and she provided conflicting statements about who lived in the
home. At first, she stated that she and the beneficiary and her daughter (the
1

That decision was appealed. We remanded the case to the Director, who denied the visa
petition again on March 16, 2012, finding that the marriage was a sham. We dismissed the
appeal from that denial, concluding that the beneficiary’s wife did not meet her burden to
prove that her marriage to the beneficiary was bona fide for immigration purposes.
2
Section 204(c) of the Act states, in pertinent part:
[N]o petition shall be approved if (1) the alien has previously been accorded, or has
sought to be accorded, an immediate relative 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.

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beneficiary’s former partner) resided in the house. She also explicitly stated
that no children lived in the home. Once inside, however, she stated that only
she and the beneficiary lived there. The officers reminded her that she had
previously said her daughter lived in the home, to which she offered no
response. When she was asked who owned the house, she stated that she and
the beneficiary were co-owners of the property. When asked again to
confirm who lived in the home, she stated that she and the beneficiary live
there with the beneficiary’s three children, and she denied that her daughter
lived in the home, directly contradicting her earlier statements.
The FDNS report also stated that although the beneficiary’s wife claimed
to share the master bedroom with the beneficiary, an inspection of the room
undermined that claim. For example, mail found in that room was addressed
to her husband and her daughter jointly or only to her daughter. When the
beneficiary’s spouse was asked to find anything in the room that belonged to
her, she was unable to do so. She then told the officers that her daughter
sometimes stays overnight in the master bedroom and that during those visits,
she sleeps in the basement. When she was asked if she sleeps alone in the
basement on those occasions, she responded that she did. However, when
asked where the beneficiary sleeps during her daughter’s visits, she changed
her answer to say that he also sleeps in the basement bedroom. She was
unable to explain why she and the beneficiary would move to the basement
to allow her daughter to sleep in the master bedroom during her visits. The
officers then asked to see the basement bedroom, where they found items
belonging solely to the beneficiary’s wife, including plaques and certificates
in her name on the wall, indicating that she was the sole occupant.
The officers told the beneficiary’s spouse that they were aware that her
daughter and the beneficiary co-owned the home, and they advised her of the
ramifications of committing marriage fraud. 3 At that point, according to the
report, she admitted that she married the beneficiary as a favor to her
daughter to allow him to remain in the United States. She also admitted that
she misrepresented her family’s sleeping arrangements, stating that she lives
in the basement, while the beneficiary and her daughter share the master
bedroom. As the officers were leaving the home, they noticed a photo of the
beneficiary and his wife’s daughter in an “intimate pose.”
In response to the notice of intent to deny, the petitioner submitted an
affidavit from the beneficiary’s wife, in which she denied admitting that her
marriage was a sham. The petitioner also provided a statement from his
mother, who claimed that she has no ongoing relationship with the
3

The record contains county property records verifying that the claimed marital home
was purchased by the beneficiary and his wife’s daughter in 2007. There are also State
motor vehicle records indicating that a vehicle is registered jointly to the beneficiary and
his wife’s daughter at that address.

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beneficiary, that her mother’s marriage to the beneficiary is legitimate, and
that she bought the house with the beneficiary as a way to help provide for
their children. In addition, the petitioner submitted utility bills, tax returns,
bank statements, and affidavits from acquaintances of the beneficiary and his
wife to support his contention that their marriage is bona fide. The record
reflects that the beneficiary and his wife are still married.
The Director considered the petitioner’s response to the notice of intent
to deny, as well as the documentary evidence of a joint life between the
beneficiary and his spouse, but she concluded that it was insufficient to
overcome the “substantial and probative evidence” of marriage fraud. The
petitioner contests this determination on appeal, arguing that the Director
improperly found that the evidence of fraud was “substantial and probative,”
which should be a high standard of proof that requires the evidence to be
“clear, unequivocal, and convincing.” The Department of Homeland
Security (“DHS”) counters that “substantial and probative evidence” is a
standard of review and that the standard of proof in the context of marriage
fraud cases should be “substantial evidence,” which requires less than a
preponderance of the evidence of fraud to trigger section 204(c) of the Act.

II. ANALYSIS
A fraudulent or sham marriage is one that, despite its validity under the
formal requirements of the law, was “entered into for the primary purpose of
circumventing the immigration laws.” Matter of Laureano, 19 I&N Dec. 1,
2 (BIA 1983); see also United States v. Elzahabi, 517 F. Supp. 2d 1121, 1124
(D. Minn. 2007) (noting that “regardless of the formal validity of the
underlying marriage, [the defendant] entered into a sham marriage to
fraudulently secure a green card”). The “central question” in determining
whether a sham marriage exists is whether the parties “intended to establish
a life together at the time they were married.” Matter of Laureano, 19 I&N
Dec. at 2–3 (citing Bark v. INS, 511 F.2d 1200, 1201 (9th Cir. 1975)); Matter
of McKee, 17 I&N Dec. 332 (BIA 1980) (differentiating between nonviable
and sham marriages). Such a determination requires an examination of the
conduct of the parties before and after the marriage to ascertain their intent,
but “only to the extent that it bears upon their subjective state of mind at the
time they were married.” Matter of McKee, 17 I&N Dec. at 334 (quoting
Bark, 511 F.2d at 1202); see also Lutwak v. United States, 344 U.S. 604, 617
(1953). If the marriage is valid at its inception, it is valid for immigration
purposes. Matter of Boromand, 17 I&N Dec. 450, 454 (BIA 1980).
A. Standard of Proof

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In deciding if a marriage is a sham, the Director must examine the record
to determine if there is substantial and probative evidence of fraud to warrant
the denial of a visa petition under section 204(c) of the Act. The phrase
“substantial and probative evidence” has never been included in section
204(c) since its enactment. 4 The term first appeared in Matter of Agdinaoay,
16 I&N Dec. 545, 546 (BIA 1978), where we held that “[a] finding that
section 204(c) does apply to an alien must be based on evidence that is
substantial and probative.” Citing Matter of Agdinaoay, we next applied the
term in Matter of Tawfik, 20 I&N Dec. 166, 167 (BIA 1990), holding that
evidence of an attempt or conspiracy to evade the immigration laws must be
“substantial and probative.” We concluded there that although “any relevant
evidence” could be considered in assessing marriage fraud, “a reasonable
inference” of fraud is not sufficient to meet the “substantial and probative
evidence” standard. Id. at 168. Although we did not clearly define the term
“substantial and probative evidence,” the facts in Tawfik illustrate the
difference between a “reasonable inference” of fraud and “substantial and
probative evidence.”
In that case, the Director revoked the approval of a visa petition filed by
the beneficiary’s United States citizen spouse, finding that the beneficiary’s
prior marriage had been entered into for the purpose of evading the
immigration laws. The revocation was based on the fact that, at the time of
the denial, the beneficiary and the petitioner were living in different cities
and on the Director’s determination that the beneficiary was living with his
first wife. As we noted in our decision, “No evidence beyond these
conclusions is contained in the record.” Id. at 169.
We held that although these factors may raise an inference of fraud, the
inference was insufficient to constitute “substantial and probative evidence”
that the couple intended to evade the immigration laws at the time of their
marriage. We explained that the “mere fact that, at the time of the visa
petition denial, the petitioner was living separate from the beneficiary is not
evidence of an attempt or conspiracy . . . to enter into a marriage for the
purpose of evading the immigration laws.” Id. We also noted that the record
did not contain evidence to support the conclusion that the beneficiary was
living with his former wife when the visa petition was denied.

4

Section 204 of the Act was amended in 1965 to add the marriage fraud provision at
section 204(c). Act of October 3, 1965, Pub. L. No. 89-236, §4, 79 Stat. 911, 915. Section
204(c) has subsequently been amended twice. Immigration and Technical Corrections Act
of 1988, Pub. L. No. 100-525, § 9(g), 102 Stat. 2609, 2620; Immigration Marriage Fraud
Amendments of 1986, Pub. L. No. 99-639, § 4(a), 100 Stat. 3537, 3543. The legislative
history of section 204(c) does not indicate what evidentiary standard Congress intended to
apply; nor does it explain why Congress did not specify a standard.

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Thus, the evidence in that case was not substantial in quantity or quality.
Nor was it probative of the couple’s intent at the time they married, which is
the central issue in marriage fraud cases. Therefore, the Director’s inference
of fraud did not constitute the “substantial and probative evidence” required
to bar approval of a visa petition under section 204(c) of the Act. Id. at 170.
Several years after we issued Matter of Tawfik, the regulations for section
204(c) at 8 C.F.R. § 204.1(a)(2)(iv) (1992) were reorganized and amended
to add the “substantial and probative evidence” language:
Section 204(c) of the Act prohibits the approval of a visa petition filed on behalf of
an alien who has attempted or conspired to enter into a marriage for the purpose of
evading the immigration laws. The director will deny a petition for immigrant visa
classification filed on behalf of any alien for whom there is substantial and probative
evidence of such an attempt or conspiracy, regardless of whether that alien received
a benefit through the attempt or conspiracy. Although it is not necessary that the
alien have been convicted of, or even prosecuted for, the attempt or conspiracy, the
evidence of the attempt or conspiracy must be contained in the alien’s file.

8 C.F.R. § 204.2(a)(1)(ii) (1993) (emphasis added). 5
Thus, we set forth “substantial and probative evidence” as the standard of
proof that would be commensurate with the consequences of a finding of
marriage fraud, namely, a permanent bar to the approval of any visa petition.
In turn, the regulations incorporated and codified it as the standard of proof
required to establish marriage fraud under section 204(c). Since our decision
in Matter of Tawfik and the 1993 amendment to the regulations that adopted
the “substantial and probative evidence” standard, we have not published any
precedent decision that specifically addresses the type and extent of evidence
necessary to meet that standard or that applies Matter of Tawfik’s “reasonable
inference” prohibition.
The Supplementary Information to the final rule of this regulation explains why this
language was added:

5

Thirty-five commenters suggested that the Service clarify the type and extent of the
evidence necessary to substantiate a denial under 8 CFR 204.2(a)(1)(ii) for prior
marriage fraud. The Service is currently required by regulation to notify the
petitioner of any derogatory information contained in the record which will be used
to support such a denial; however, there is room for further clarification based upon
recent precedent decisions. Accordingly, the final rule will be amended to reflect
that such evidence must be “substantial and probative,” in accordance with the
standard articulated in Matter of Tawfik, 20 I&N Dec. [166 (BIA 1990)].
Petition To Classify Alien as Immediate Relative of a United States Citizen or as a
Preference Immigrant, 57 Fed. Reg. 41,053, 41,054 (1992) (final rule) (Supplementary
Information).

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The Federal court cases that have addressed marriage fraud do not clearly
differentiate between the “substantial evidence” standard of judicial review
and the “substantial and probative evidence” standard of proof we apply in
section 204(c) cases. Although the courts have acknowledged that a finding
of marriage fraud must be supported by “substantial and probative evidence,”
they have defined that standard by reference to cases that applied the
“substantial evidence” standard of judicial review. For example, in Zemeka
v. Holder, 989 F. Supp. 2d 122 (D.D.C. 2013), the court recognized the
standard for determining marriage fraud as “substantial and probative
evidence,” but defined that standard as “more than a scintilla, but . . .
something less than a preponderance of the evidence,” the judicial standard
by which the circuit courts review factual findings underlying decisions of
the Board and the district courts. Id. at 129–30 (citation omitted). See also,
e.g., Omokaro v. Hamilton, No. CV H-15-2465, 2016 WL 4192058, at *3
(S.D. Tex. Aug. 9, 2016); Simko v. B.I.A., 156 F. Supp. 3d 300, 310 (D. Conn.
2015); Rojas v. Johnson, No. 8:13-CV-2474-T-35TGW, 2014 WL
12527213, at *4 (M.D. Fla. Nov. 26, 2014). These cases are therefore of
limited value in defining “substantial and probative evidence” in the
marriage fraud context.
B. Position of the Parties
The DHS argues that “substantial and probative evidence” in the context
of marriage fraud cases is not a standard of proof, but is, instead, a standard
of review employed by the courts. The DHS therefore urges us to adopt the
“substantial evidence” definition in section 204(c) marriage fraud cases,
which requires only that there be more than a scintilla but less than a
preponderance of evidence of fraud in the record. 6 We are unpersuaded that
we should do so.
First, “substantial and probative evidence” cannot be a standard of review
in section 204(c) cases, because 8 C.F.R. § 1003.1(d)(3)(iii) clearly states
that the Board applies a de novo standard of review to all questions of fact
and law in any appeal from the denial of a visa petition.
6

The DHS cites the “reasonable, substantial, and probative” evidence standard in
Woodby v. INS, 385 U.S. 276 (1966), to support its argument that the “substantial and
probative evidence” language in the marriage fraud regulation refers to a standard of review
rather than a standard of proof. The Supreme Court expressly stated in Woodby that the
“reasonable, substantial, and probative” standard in former section 106(a)(4) of the Act,
8 U.S.C. § 1105a(a)(4) (1994), “relates exclusively to judicial review,” id. at 282–83, and
held that the burden of proof in deportation proceedings is “clear, unequivocal, and
convincing evidence,” id. at 286. Thus, that case provides little guidance in determining
the meaning of “substantial and probative evidence” in the marriage fraud context.

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The DHS also argues that “substantial and probative evidence” cannot be
a standard of proof, because in visa petition proceedings, the only standard
of proof is a preponderance of the evidence, under which the burden always
lies with the petitioner and never shifts to the U.S. Citizenship and
Immigration Services (“USCIS”). See section 291 of the Act, 8 U.S.C.
§ 1361 (2012); Matter of Rehman, 27 I&N Dec. 124, 125 (BIA 2017).
However, there are statutory provisions and regulations that impose a
standard of proof other than a preponderance of evidence in the visa petition
context. For example, under section 204(a)(2)(A) of the Act, a lawful
permanent resident who obtained that status through marriage and who
submits a petition for an alien based on a second marriage within 5 years of
acquiring permanent residence is subject to a presumption of fraud. See
Matter of Patel, 19 I&N Dec. 774, 783 (BIA 1988). In order to rebut the
presumption, the petitioner bears the burden of establishing by clear and
convincing evidence that the prior marriage was not entered into for purposes
of evading the immigration laws. Id.; 8 C.F.R. § 204.2(a)(1)(i)(A)(1), (C).
This is consistent with the Act’s treatment of other marriages that carry a
presumption of fraud. For example, where a marriage occurs during the
pendency of removal proceedings, fraud is presumed under section 204(g) of
the Act. In such cases, the presumption will not apply if the alien establishes
by clear and convincing evidence that the marriage is bona fide`. Section
245(e)(3) of the Act, 8 U.S.C. § 1255(e)(3) (2012); Matter of Velarde,
23 I&N Dec. 253, 256 (BIA 2002). Moreover, in regard to where the burden
lies for purposes of section 204(c)(1), we have held that “where there is
evidence in the record to indicate that the beneficiary has been [involved] in
a marriage fraud conspiracy, the burden shifts to the petitioner to establish
that the beneficiary did not seek nonquota or preference status based on a
prior fraudulent marriage.” Matter of Kahy, 19 I&N Dec. 803, 806–07 (BIA
1988) (emphasis added).
In sum, the petitioner has the initial burden to prove the bona fides of the
marriage by a preponderance of the evidence. Where the record contains
evidence of fraud, the USCIS must advise the petitioner of any derogatory
evidence, which the petitioner must rebut by the appropriate standard of
proof. See 8 C.F.R. § 103.2(b)(16)(i) (2019); see also Zemeka, 989 F. Supp.
2d at 130 (“Upon receiving the [notice of intent to deny], the burden shifts to
the petitioner to rebut USCIS’s finding of fraud and establish that a prior
marriage was not ‘entered into for the purpose of evading immigration
laws.’” (citation omitted)). If the USCIS denies the petition under section
204(c) of the Act based on marriage fraud, the record must contain
substantial and probative evidence of such fraud. See Saleh v. Holder,
54 F. Supp. 3d 1163, 1169 (D. Nev. 2014) (“[T]he Government has the

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burden of providing substantial and probative evidence that the prior
marriage was a sham.” (citation omitted)).
In support of the petitioner’s argument that “substantial and probative
evidence” of fraud means “clear, unequivocal, and convincing evidence,” he
cites to our statement in Matter of Tawfik, 20 &N Dec. at 168, that although
the Director should not ordinarily give conclusive effect to determinations
made in a prior proceeding, an exception may apply “where the beneficiary
has previously been found deportable based on a determination, supported
by clear, unequivocal, and convincing evidence, that that beneficiary became
a party to a fraudulent marriage for the purpose of entering the United States
as an immigrant.” However, the import of that statement was not that this
was the level of proof necessary to meet the substantial and probative
evidence standard. Rather, as we explained, a finding of deportability
requires a high standard of clear, unequivocal, and convincing evidence, so
such a finding would necessarily be sufficient to establish substantial and
probative evidence of marriage fraud without any further evidence.
We have specifically stated that evidence of marriage fraud for purposes
of section 204(c) must be “substantial and probative,” and the drafters of the
regulations incorporated that standard. See Matter of Tawfik, 20 I&N Dec.
at 167–68; 8 C.F.R. § 204.2(a)(1)(ii). If there had been an intent to require
proof of fraud by “clear, unequivocal, and convincing evidence,” that
standard would have been adopted instead.
In further support of his argument that substantial and probative evidence
should be interpreted to be a high standard of proof, the petitioner points to
several cases in which direct evidence of fraud, such as written confessions
and proof of payment to marry, were found to constitute substantial and
probative evidence. However, the fact that such evidence was sufficient to
meet the substantial and probative evidence standard of proof does not
necessarily mean that it would be required in all cases. Thus, we reject the
petitioner’s argument that substantial and probative evidence means “clear,
unequivocal, and convincing evidence.”
For these reasons, we hold that the “substantial and probative evidence”
language in Matter of Tawfik that is codified at 8 C.F.R. § 204.2(a)(1)(ii)
refers to the standard of proof required to establish marriage fraud, not to the
standard of review.
C. Degree of Proof Required
The “substantial and probative evidence” standard of proof required by
8 C.F.R. § 204.2(a)(1)(ii) refers to the quality and quantity of competent,
credible, and objective evidence. See Matter of Tawfik, 20 I&N Dec. 168;
Matter of E-M-, 20 I&N Dec. 77, 80 (Comm. 1989) (stating that “the purpose
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of evidence is to ascertain the truth” and the “[t]ruth is to be determined not
by the quantity of the evidence alone, but by its quality”). Whether the
evidence in any given case is sufficiently substantial and probative to support
a finding of marriage fraud will depend upon the factual circumstances of
each case. Matter of E-M-, 20 I&N Dec. at 79.
Given that the consequence of engaging in marriage fraud under section
204(c) of the Act is a permanent bar to the approval of any future visa
petition, the evidence of fraud must be relatively high to trigger the bar. We
conclude that the degree of proof required for a finding of marriage fraud
sufficient to support the denial of a visa petition under section 204(c) of
the Act should be higher than a preponderance of the evidence and closer
to clear and convincing evidence. Thus, we hold that to be “substantial and
probative,” the evidence must establish that it is more than probably true that
the marriage is fraudulent. 7 In clarifying the degree of proof required under
section 204(c), we note that this is consistent with the standard we currently
employ in adjudicating visa petitions involving marriage fraud.
D. Substantial and Probative Evidence of Marriage Fraud
The application of the “substantial and probative evidence” standard
requires the examination of all of the relevant evidence and a determination
as to whether such evidence, when viewed in its totality, establishes, with
sufficient probability, that the marriage is fraudulent. Matter of E-M-, 20
I&N Dec. at 80. “Direct evidence” is “[e]vidence that is based on personal
knowledge or observation and that, if true, proves a fact without inference or
presumption.” Evidence, Black’s Law Dictionary (11th ed. 2019). A sworn
statement by the parties admitting that the marriage is fraudulent, that money
changed hands, and that the couple did not intend to live together or
consummate the marriage is direct evidence of fraud that is “substantial and
probative.” See, e.g., Ali v. United States, 849 F.3d 510, 512 (1st Cir. 2017);
Eid v. Thompson, 740 F.3d 118, 121 (3d Cir. 2014); Oddo v. Reno, 175 F.3d
1015 (4th Cir. 1999) (per curiam) (unpublished table decision); Ghaly v. INS,
48 F.3d 1426, 1427–28 (7th Cir. 1995). But see Ching v. Mayorkas, 725 F.3d
1149, 1154–56 (9th Cir. 2013).

Matter of E-M-, 20 I&N Dec. at 80, explained the relevant degrees of proof as follows: “[W]hen
something has to be proved by clear and convincing evidence, the proof must demonstrate
that it is highly probably true. But, when something is to be established by a preponderance
of the evidence it is sufficient that the proof only establish that it is probably true.” Our
standard for section 204(c) cases is higher than a preponderance of the evidence but less
than clear and convincing evidence, which we refer to as “more than probably true.”

7

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By contrast, “circumstantial evidence” is “[e]vidence based on inference
and not on personal knowledge or observation.” Black’s Law Dictionary,
supra. We have explained that “any relevant evidence” can be considered in
establishing marriage fraud, but the evidence relied upon must create more
than a “reasonable inference” of fraud. Matter of Tawfik, 20 I&N Dec at 168.
Notably, we did not expressly require “direct” or “affirmative” evidence of
fraud. In fact, neither the statute, the regulation, nor our own precedent
prohibits us from relying on circumstantial evidence, which may alone be
sufficient to constitute “substantial and probative evidence” of marriage
fraud under section 204(c). That is, in certain cases, the quality and quantity
of the circumstantial evidence may be sufficient to create such a strong
inference of fraud that it rises to the level of substantial and probative.
Most of the Federal court cases addressing marriage fraud under section
204(c) of the Act involve direct evidence of fraud, often a sworn statement
admitting to the fraud that has not been credibly refuted or rebutted.
However, an admission or other such direct evidence is not necessary to
establish marriage fraud. See Atieh v. Riordan, 797 F.3d 135, 140 (1st Cir.
2015). In addition to Atieh, other courts have found that circumstantial
evidence alone is sufficient to establish fraud under section 204(c).
For example, in Omokoro v. Hamilton, 688 F. App’x 263, 264 (5th Cir.
2017) (per curiam), the United States Court of Appeals for the Fifth Circuit
held that a beneficiary’s marriage to a United States citizen was fraudulent
based on the facts that her husband married two other women during the first
year of their marriage and that she filed her taxes as a single person while
she was married to him. Moreover, the couple failed to provide evidence that
they ever lived at the same address or combined their finances, and there
were inconsistencies in the record regarding their wedding date. In addition,
there was “no substantive effort to negate the USCIS’ finding” that the prior
marriage was a sham—just the bald assertion that the marriage was entered
into in good faith. Id.; see also Dinh v. United States, 670 F. App’x 505, 506
(9th Cir. 2016) (finding substantial and probative evidence of marriage fraud
where the couple first met on the day of the wedding, which was arranged by
a broker; the beneficiary left the State on the day of the wedding and never
saw her spouse again; and the beneficiary was not mentioned on any joint
bank accounts, insurance, or leases). Thus, both direct and circumstantial
evidence may be considered in determining whether there is “substantial and
probative evidence” of marriage fraud under section 204(c) of the Act.
There are a number of factors that should be considered in determining
whether the “substantial and probative” evidence standard has been met.
Significant inconsistencies coupled with minimal documentary evidence of
a shared life may support a conclusion that a petitioner has not met his or her
burden to establish the bona fides of the marriage. See, e.g., 8 C.F.R.
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§ 204.2(a)(1)(iii)(B) (setting forth evidence to establish the bona fides of a
marriage). Where there are some minor inconsistencies and the documentary
evidence is limited, they should be considered in assessing whether there is
fraud, but these factors, without more, would not likely be sufficient to satisfy
the substantial and probative evidence standard for marriage fraud.
However, evidence that the parties knowingly and deliberately attempted
to mislead or deceive immigration officials regarding their cohabitation, joint
finances, or other aspects of the marriage strongly indicate fraud. Detailed
reports from on-site visits and field investigations are especially important
pieces of evidence that may reveal the presence of fraud. Evidence that the
parties have other romantic partners, with whom they may have children, is
also a significant consideration, especially when these facts are either not
disclosed or are deliberately concealed. Statements from family members,
employers, or acquaintances indicating they do not know about the marriage
or that the parties told them the marriage is a sham are additional indicia of
fraud. Other circumstantial evidence that may support a finding of marriage
fraud includes evidence that one or both parties have been filing taxes as
single persons during the marriage or otherwise holding themselves out to be
single while representing to immigration officials that they are still married.
Official Government documents indicating fraud carry more evidentiary
weight than informal evidence of a bona fide marriage, such as insurance
policies or bank account statements.
Moreover, although section 204(c) of the Act applies only where the
beneficiary is found to have engaged in fraud, actions of a petitioning spouse
may be relevant to the inquiry. For example, where there is evidence that the
petitioner has been married to several beneficiaries, especially if a connection
between the petitioner and a former spouse has continued through joint
property ownership, finances, or benefits, the likelihood of the beneficiary’s
involvement in a fraudulent scheme should be considered. In assessing
whether a beneficiary’s denial of involvement in fraud is credible, the
Director should consider if a United States citizen petitioner might have a
motive “to defraud the United States on [the beneficiary’s] behalf without
[his or her] knowledge.” Zemeka, 989 F. Supp. 2d at 131 (citation omitted).
Furthermore, affidavits alone will generally not be sufficient to overcome
evidence of marriage fraud in the record without objective documentary
evidence to corroborate the assertions made by the affiants. 8 C.F.R.
§ 204.2(a)(1)(i)(B)(5) (“Affidavits should be supported, if possible, by one
or more types of documentary evidence . . . .”); Matter of Patel, 19 I&N Dec.
at 786 (deeming the affidavits in that case to be “credible and worthy of
considerable weight because they are detailed, internally consistent, and
plausible; they include explanations of how the affiants acquired knowledge
of the facts set forth; and they are corroborated by historical evidence”).
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In isolation, these factors may not necessarily be sufficient to constitute
substantial and probative evidence of marriage fraud. However, “even if
particular facts ‘may not [be] sufficient individually to establish a finding of
fraud,’ those same facts, when taken together, may provide ‘ample support’
for an agency to infer a fraudulent marriage.” Atieh, 797 F.3d at 140 n.4
(citation omitted). In determining if the evidence of marriage fraud is
substantial and probative, that is, whether it establishes that it is more than
probably true that the marriage is fraudulent, the nature, quality, quantity,
and credibility of the evidence in the record should be considered in its
totality. This assessment may be based on either direct or circumstantial
evidence.
E. Application to the Petitioner
The record in this case supports the Director’s determination that
approval of the visa petition is barred under section 204(c) of the Act. The
record contains “substantial and probative evidence” of marriage fraud by
the beneficiary. 8 C.F.R. § 204.2(a)(1)(ii). The admission of the
beneficiary’s wife during the site visit that her marriage to the beneficiary is
a sham is the most direct evidence of fraud. Although the beneficiary’s wife
has subsequently denied making this statement, her admission was recorded
by Government officials in the course of conducting an investigation, and
the petitioner has not overcome the presumption that such officials properly
discharge their duties in good faith. See United States v. Armstrong, 517
U.S. 456, 464 (1996) (holding that “in the absence of clear evidence to
the contrary, courts presume that [Government officials] have properly
discharged their official duties” (citation omitted)); Matter of Grijalva,
21 I&N Dec. 27, 37 (BIA 1995).
Moreover, other evidence in the record supports the reliability of the
admissions made by the beneficiary’s wife. Her multiple inconsistent
statements regarding who lived in the home, and in which bedrooms,
undermine her credibility and reflect an attempt to mislead the officers into
believing that she was in a marital relationship with the beneficiary. During
the site visit, a number of physical discrepancies were noted. The officers
noticed a photo of the beneficiary and his wife’s daughter in an “intimate
pose,” and the master bedroom contained no evidence that it was inhabited
by his wife. To the contrary, the evidence found there related solely to the
beneficiary and his wife’s daughter.
In addition, articles belonging to the beneficiary’s spouse were found in
a basement bedroom. There has been no explanation why her daughter,
rather than the beneficiary’s spouse, occupied the master bedroom, a point
conceded by the petitioner on appeal. The record also contains documentary
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evidence that the beneficiary and his wife’s daughter jointly own the house,
contrary to his wife’s claim that she owned the home during the site visit. 8
These factors, coupled with the highly improbable circumstance of the
beneficiary marrying the grandmother of his children, are sufficient to
constitute substantial and probative evidence that the marriage was entered
into to evade the immigration laws. The Director properly gave greater
weight to the site visit report than to other evidence of record, including the
evidence submitted in response to the notice of intent to deny, and she
reached her own independent conclusion based on the evidence before her.
See Matter of Tawfik, 20 I&N Dec. at 168.
The petitioner argues on appeal that the record contains no evidence of
fraud “other than the disputed statement” by the beneficiary’s spouse that she
married the beneficiary as a favor to her daughter. That contention is
demonstrably untrue. Even disregarding the disputed admission, the
remaining evidence creates a strong inference that the marriage between the
beneficiary and his spouse is a sham. This constitutes substantial and
probative evidence that the purpose of the marriage was to evade the
immigration laws. Furthermore, the fact that the beneficiary and his spouse
remain married and have submitted some documentary evidence of a joint
life does not overcome the substantial and probative evidence of fraud in this
case. 9 The question is not whether a couple currently resides together, but
whether they intended to establish a life together as husband and wife at the
time they were married. Matter of McKee, 17 I&N Dec. at 334; see also Roe
v. INS, 771 F.2d 1328, 1331 (9th Cir. 1985); Matter of Boromand, 17 I&N
Dec. at 454.

IV. CONCLUSION
In light of the substantial and probative evidence of marriage fraud, we
conclude that the record supports the Director’s decision that the beneficiary
entered into a sham marriage for the purpose of procuring an immigration
benefit. Approval of the visa petition is therefore barred by section 204(c)
of the Act. Accordingly, the petitioner’s appeal will be dismissed.
ORDER: The appeal is dismissed.
8

The summary of findings by the FDNS also notes that the tip-line received a tip stating
that the beneficiary married his spouse to “get his papers.”
9
The petitioner argues that the validity of the beneficiary’s marriage is evidenced by the
fact that he could have adjusted his status by marrying his spouse’s daughter, a lawful
permanent resident, instead of marrying the petitioner’s grandmother. However, absent
other facts, including the availability of visas under a different category or her ability to
confer immigration status, this assertion is speculative and does not support the claim that
the beneficiary’s marriage is bona fide.

611