Case Analysis Marriage Fraud

On October 30, 2020, the Board of Immigration Appeals (“BIA”) issued a decision in Matter of Jongbum Pak, Beneficiary of a visa petition filed by Jacklyn Hyonk Lee, Petitioner, 28 I&N Dec. 113 (BIA 2020).

In this case, the BIA held that where there is “substantial and probative evidence” that a person’s prior marriage was fraudulent and entered into for an immigration benefit, a subsequent visa petition is properly denied “even if the first visa petition was denied because of insufficient evidence of a bona fide marital relationship.”

This is an interesting decision in that there is no requirement that there must be an actual finding of fraud in the first visa petition. Section 204(c) of the Immigration and Nationality Act (“INA”) says that no petition shall be approved if the Attorney General has determined that the foreign spouse has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws.

A finding of marriage fraud is huge. If a couple cannot prove that they have a valid and legitimate marriage, then in the future, neither of them will be able to have another visa petition approved.

In Mr. Pak’s case, he and his first spouse attended an immigration interview where they had discrepancies in their answers relating to courtship, marriage and family members. An immigration officer conducted a site visit and found out that Mr. Pak’s wife did not live at the claimed Portland, Oregon address. Mr. Pak explained that his wife was working in Salem, Oregon as a babysitter.

The immigration officer contacted Mr. Pak’s wife by phone. She said that she worked as a cashier and not as a babysitter in Salem, Oregon. She said that she was in the process of moving from Salem to Portland (even though she stated on the immigration forms that she and Mr. Pak were living together at the Portland address). The immigration service denied Mr. Pak’s permanent resident application because there was insufficient proof that the marriage was valid but there was no finding of marriage fraud.

Unfazed, Mr. Pak married spouse #2 and filed another visa petition. At the interview with spouse #2, the immigration officer requested proof of the validity of the marriage with spouse #1. Any photos of the couple together? No, because wife #2 deleted records and pictures of the former couple from the beneficiary’s cell phone and computer out of jealousy. What about Mr. Pak’s inconsistent testimony? Well, he submitted a psychological report, in which a clinical psychologist determined that the he has significant memory problems as a result of a traumatic brain injury he suffered when he was 5 years old. Petition by spouse #2 denied!