Matter of Pak

Cite as 28 I&N Dec. 113 (BIA 2020) Interim Decision #3998

引用为 28 I&N Dec. 113 (BIA 2020) 临时决定第3998号

Decided October 30, 2020

2020年10月30日裁定

U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals

美国司法部 移民审查执行办公室 移民上诉委员会

Where there is substantial and probative evidence that a beneficiary’s prior marriage was fraudulent and entered into for the purpose of evading the immigration laws, a subsequent visa petition filed on the beneficiary’s behalf is properly denied pursuant to section 204(c) of the Immigration and Nationality Act, 8 U.S.C. § 1154(c) (2018), even if the first visa petition was denied because of insufficient evidence of a bona fide marital relationship.

如果有大量且具有证明力的证据表明受益人的先前婚姻是欺诈性的，且系为规避移民法而缔结，则根据《移民与国籍法》第204(c)条，8 U.S.C. § 1154(c) (2018)，代表受益人提交的后续签证申请应被适当拒绝，即使第一份签证申请是因真实婚姻关系证据不足而被拒绝。

FOR PETITIONER: Samuel William Asbury, Esquire, Fairview, Oregon

申请人代理律师：Samuel William Asbury 律师，俄勒冈州费尔维尤

FOR THE DEPARTMENT OF HOMELAND SECURITY: Margaret A. Rosenast, Associate Counsel

国土安全部代理律师：Margaret A. Rosenast，副法律顾问

BEFORE: Board Panel: GREER, O’CONNOR, and WILSON, Board Members.

审理法官：委员会合议庭成员 GREER、O’CONNOR 和 WILSON。

WILSON, Board Member:

WILSON，委员会成员：

In a decision dated May 1, 2018, 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 immediate relative status as her husband pursuant to section 201(b)(2)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1151(b)(2)(A)(i) (2018). The petitioner has appealed from that decision, arguing that the Director erred in finding that approval of the visa petition is barred by section 204(c) of the Act, 8 U.S.C. § 1154(c) (2018), on the ground that the beneficiary’s prior marriage was fraudulent and entered into for immigration purposes, because the visa petition filed on his behalf by his first wife was denied for “insufficient evidence of a bona fide marital relationship.” The appeal will be dismissed.

在2018年5月1日的决定中，外地办事处主任（“主任”）拒绝了美国公民申请人代表受益人提交的外籍亲属申请（I-130表格），该申请旨在根据《移民与国籍法》第201(b)(2)(A)(i)条，8 U.S.C. § 1151(b)(2)(A)(i) (2018)，授予受益人作为其丈夫的直系亲属身份。申请人已对该决定提出上诉，主张主任错误地认定签证申请的批准因《移民与国籍法》第204(c)条，8 U.S.C. § 1154(c) (2018) 而被禁止，理由是受益人的先前婚姻是欺诈性的且系为移民目的而缔结，因为其第一任妻子代表他提交的签证申请是因“真实婚姻关系证据不足”而被拒绝。上诉将被驳回。

I. FACTUAL AND PROCEDURAL HISTORY

I. 事实与程序历史

A. Beneficiary’s First Marriage

A. 受益人的第一次婚姻

On December 30, 2011, the beneficiary’s former wife, a United States citizen, filed a visa petition on his behalf. In a Notice of Intent to Deny issued

2011年12月30日，受益人的前妻，一名美国公民，代表他提交了签证申请。在2012年10月4日发出的拒绝意向通知中，

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on October 4, 2012, the Director identified discrepancies in the answers given by the beneficiary and his first wife regarding their courtship, marriage, and family members during their visa interview on July 2, 2012. He also concluded that the petitioner had provided insufficient documentary evidence to establish a good faith marriage. Most significantly, the Director indicated that a September 21, 2012, site visit by officials of the United States Citizenship and Immigration Services (“USCIS”) revealed that the beneficiary’s first wife did not reside with him at the claimed marital address in Portland, Oregon, and that they had given significantly inconsistent details about their living arrangements and life together. More specifically, the beneficiary’s former wife was not present at the residence during the site visit, and a visual inspection of the premises indicated there were no items belonging to a female. The beneficiary told the officers that she was working in Salem, Oregon, as a babysitter for her cousin. The beneficiary also claimed that he worked on weekdays as a janitor from 10:00 p.m. to 4:00 a.m. at his father’s grocery store.1 After leaving the shared residence, the USCIS officers contacted the beneficiary’s wife by telephone. When asked why she resided in Salem, she stated that her family lived there and she only stayed there on weekends. She further indicated that she was in the process of moving her possessions from Salem to the Portland marital address, despite the fact that she had claimed on the Form G-325A (Biographic Information) to have been living at the marital residence since December 2011. She also indicated that she was employed as a cashier at a grocery store owned by the beneficiary’s father, not as a babysitter in Salem. In a decision entered on November 8, 2012, the Director found the former wife’s responses insufficient to resolve the issues raised in the Notice of Intent to Deny, and he denied the visa petition, concluding that she had not demonstrated that her marriage to the beneficiary was bona fide. The beneficiary and his first wife were divorced on June 13, 2013.

2012年10月4日，主任（Director）认定受益人和他的第一任妻子在2012年7月2日签证面谈中关于其恋爱、婚姻及家庭成员的答复存在不一致之处。他还认定申请人提供的书面证据不足以证明存在善意婚姻。最重要的是，主任指出，美国公民及移民服务局（“USCIS”）官员于2012年9月21日进行的实地走访显示，受益人的第一任妻子并未与其居住在其所声称的俄勒冈州波特兰婚姻住址，且二人就其居住安排和共同生活给出的细节存在重大不一致。 更具体而言，实地走访期间，受益人的前妻不在该住所，且对房屋的目视检查显示没有任何属于女性的物品。受益人告诉官员，她在俄勒冈州塞勒姆为其表亲做保姆工作。受益人还声称，他工作日在其父亲的杂货店担任清洁工，工作时间为晚上10：00至凌晨4：00。1 离开共同住所后，USCIS官员通过电话联系了受益人的妻子。当被问及她为何居住在塞勒姆时，她表示其家人住在那裡，她只在周末待在那里。她还表示，她正在将个人物品从塞勒姆搬到波特兰的婚姻住址，尽管她曾在G-325A表格（履历信息）上声称自2011年12月起一直居住在婚姻住所。她还表示，她受雇于受益人父亲拥有的一家杂货店担任收银员，而非在塞勒姆做保姆。 在2012年11月8日作出的决定中，主任认定前妻的答复不足以解决拒绝意向通知中提出的问题，并拒绝了该签证申请，结论是她未能证明其与受益人的婚姻是真实的。 受益人和他的第一任妻子于2013年6月13日离婚。

B. Beneficiary’s Current Marriage

B. 受益人的当前婚姻

The petitioner and the beneficiary married on September 9, 2014, and she filed a visa petition on his behalf on December 6, 2016. The couple appeared

申请人和受益人于2014年9月9日结婚，她于2016年12月6日代表他提交了签证申请。这对夫妇于

1 The beneficiary told the officers that he drove his wife to work each weekday morning and returned to his residence, and that in the evening he picked her up in Salem and they would both return home. The beneficiary also stated that he paid $690 per month to rent an apartment in Salem, where his wife stayed when she was working as a babysitter. When the officer inquired why she would need an apartment in Salem if she just worked there on a daily basis, the beneficiary changed his answer and stated that she resided in Salem on the weekends.

1 受益人告诉官员，他每个工作日早上开车送妻子上班然后返回住所，晚上他在塞勒姆接她，然后两人一起回家。受益人还表示，他每月支付690美元在塞勒姆租了一套公寓，他的妻子在做保姆工作时住在那里。当官员询问如果她只是每天在那里工作，为什么需要在塞勒姆有一套公寓时，受益人改变了回答，称她周末居住在塞勒姆。

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for an interview in connection with the visa petition on June 26, 2017, during which the beneficiary was asked about the specific concerns relating to his prior marriage. The next day, the Director issued a request for evidence to show that the beneficiary’s first marriage was valid and was not entered into for immigration purposes. In response, the petitioner submitted a letter stating that she and the beneficiary were friends during the time he and his first wife were married, that she saw him wearing a wedding ring, and that he once introduced her to his then-wife at a restaurant. She further claimed that after the beneficiary and his first wife divorced and she began to date him, she deleted records and pictures of the former couple from the beneficiary’s cell phone and computer out of jealousy. The petitioner also presented a letter in which the beneficiary described his relationship with his first wife and stated that he had not taken the process of applying for lawful permanent residence seriously while he was with her. Finally, the petitioner provided a letter from the pastor who officiated at the beneficiary’s first wedding. The pastor said that the wedding involved a simple ceremony because of financial considerations and that he had later observed the couple living as husband and wife when visiting them. The Director thereafter issued a Notice of Intent to Deny, in which he called attention to the issues raised during the pendency of the first wife’s visa petition. In addition, he noted that the answers the beneficiary gave to questions about his prior marriage during the interview with the petitioner were inconsistent and lacking in detail. The Director also stated that approval of the visa petition appeared to be barred under section 204(c) of the Act. To explain why the beneficiary was unable to provide consistent testimony or respond to certain questions about his first marriage, the petitioner submitted a psychological report, in which a clinical psychologist determined that the beneficiary has significant memory problems as a result of a traumatic brain injury he suffered when he was 5 years old. Finding the petitioner’s response inadequate, the Director determined that although the beneficiary’s current marriage to the petitioner is bona fide, approval of the visa petition is barred under section 204(c) of the Act because the record contains substantial and probative evidence that the beneficiary’s former marriage was fraudulent.

2017年6月26日就该签证申请接受了面谈，期间受益人被问及与其先前婚姻有关的具体问题。次日，主任发出证据请求，要求证明受益人的第一次婚姻是有效的且并非为移民目的而缔结。 作为回应，申请人提交了一封信，称在受益人与第一任妻子婚姻期间她与受益人是朋友，她看到他戴着结婚戒指，他还曾在餐厅将她介绍给他的当时的妻子。她进一步声称，在受益人与第一任妻子离婚后她开始与他约会时，出于嫉妒，她从受益人的手机和电脑中删除了这对前夫妇的记录和照片。申请人还提交了一封信，受益人在信中描述了他与第一任妻子的关系，并表示他与她在一起时没有认真对待申请合法永久居民的过程。最后，申请人提供了一封来自主持受益人第一次婚礼的牧师的来信。牧师说，由于经济考虑，婚礼仪式很简单，他后来探望他们时观察到这对夫妇以夫妻身份生活。 此后，主任发出了拒绝意向通知，其中提请注意第一任妻子签证申请待决期间提出的问题。此外，他指出受益人在与申请人面谈时对有关其先前婚姻问题的回答不一致且缺乏细节。主任还表示，签证申请的批准似乎因《移民与国籍法》第204(c)条而被禁止。 为解释受益人为何无法提供一致的证词或回答有关其第一次婚姻的某些问题，申请人提交了一份心理报告，其中临床心理学家认定受益人因5岁时遭受的创伤性脑损伤而存在显著的记忆问题。主任认定申请人的回应不充分，裁定尽管受益人与申请人当前的婚姻是真实的，但签证申请的批准因《移民与国籍法》第204(c)条而被禁止，因为记录中包含大量且具有证明力的证据表明受益人的先前婚姻是欺诈性的。

II. ANALYSIS

II. 分析

The petitioner argues that the Director’s section 204(c) ruling is improper. She points out that, although the visa petition filed by the beneficiary’s first wife was denied because of insufficient evidence of a bona fide marital relationship, there was no finding of a fraudulent marriage. In response, the Department of Homeland Security argues that the Director properly reviewed

申请人主张主任根据第204(c)条作出的裁定不当。她指出，尽管受益人第一任妻子提交的签证申请因真实婚姻关系证据不足而被拒绝，但并未认定存在欺诈性婚姻。对此，国土安全部主张主任在确定申请人未满足 Matter of Tawfik, 20 I&N Dec. 166, 167–68 (BIA 1990) 下的举证责任时适当审查了

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the entire record in determining that the petitioner has not met her burden of proof under Matter of Tawfik, 20 I&N Dec. 166, 167–68 (BIA 1990) (requiring that, before applying the section 204(c) bar, a District Director must make an independent judgment, based on evidence in the file, that an alien’s prior marriage was fraudulent). As with all questions arising in appeals from decisions of USCIS officers, we review this question de novo. See 8 C.F.R. § 1003.1(d)(3)(iii) (2020). We begin our analysis with the language of the governing statute and regulations. Section 204(c) of the Act provides:

在认定申请人未履行其在Matter of Tawfik, 20 I&N Dec. 166, 167–68 (BIA 1990)案下的举证责任时，审查了全部记录（该案要求，在适用第204(c)条禁止规定之前，地区主任必须基于卷宗中的证据独立判断外国人的先前婚姻具有欺诈性）。如同对USCIS官员决定提起上诉时产生的所有问题一样，我们对这一问题进行重新审查。见8 C.F.R. § 1003.1(d)(3)(iii) (2020)。 我们从适用法规和条例的语言开始分析。该法第204(c)条规定：

Notwithstanding the provisions of subsection (b) no petition shall be approved if (1) the alien has previously been accorded, or has sought to be accorded, 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.2

尽管有(b)款的规定，任何申请均不得批准，如果(1)该外国人此前曾因司法部长认定其为规避移民法而缔结的婚姻，作为美国公民的配偶或合法永久居民外国人的配偶而被授予或寻求被授予直系亲属或优先身份，或(2)司法部长认定该外国人曾试图或共谋为规避移民法而缔结婚姻。2

The regulation at 8 C.F.R. § 204.2(a)(1)(ii) states:

8 C.F.R. § 204.2(a)(1)(ii) 的条例规定：

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.

《移民与国籍法》第204(c)条禁止批准代表曾试图或共谋为规避移民法而缔结婚姻的外国人提交的签证申请。对于有大量且具有证明力的证据表明存在此类试图或共谋的任何外国人，主任将拒绝代表其提交的移民签证分类申请，无论该外国人是否通过该试图或共谋获得了利益。尽管不要求该外国人已被定罪、甚至已被起诉该试图或共谋，但该试图或共谋的证据必须包含在该外国人的档案中。

The plain language of the statute and the regulation does not foreclose the application of the section 204(c) bar in cases where the prior visa petition filed on the beneficiary’s behalf was denied based on failure to establish a bona fide marital relationship, but the marriage had not been determined to

法规和条例的明确语言并不排除在以下情况下适用第204(c)条禁止：代表受益人提交的先前签证申请因未能证明真实婚姻关系而被拒绝，但该婚姻尚未被认定

2 Pursuant to section 1517 of the Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135, 2311 (codified at 6 U.S.C. § 557 (2018)), any reference to the Attorney General in a provision of the Act describing functions that were transferred from the Attorney General or other Department of Justice official to the Department of Homeland Security “shall be deemed to refer to the Secretary” of Homeland Security. See also 6 U.S.C. § 542 note (2018); 8 U.S.C. § 1551 note (2018). The Secretary of Homeland Security has delegated that authority to Field Office Directors. 8 C.F.R. § 100.1 (2020).

2 依据《2002年国土安全法》第1517条，Pub. L. No. 107-296, 116 Stat. 2135, 2311（编纂于6 U.S.C. § 557 (2018)），该法任何条款中凡提及司法部长且该条款描述的是从司法部长或其他司法部官员移交至国土安全部的职能，“应视为指”国土安全部部长。另见6 U.S.C. § 542 note (2018)；8 U.S.C. § 1551 note (2018)。国土安全部部长已将该权限授予各外地办事处主任。8 C.F.R. § 100.1 (2020)。

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be fraudulent.3 See Matter of R.I. Ortega, 28 I&N Dec. 9, 12 (BIA 2020) (stating that “[u]nder settled rules of statutory construction, we look first to the plain meaning of the language”). Instead, the broad phrasing and the absence of a temporal requirement suggest that section 204(c) may be applied based on a marriage fraud finding whenever it becomes evident that there is substantial and probative evidence of an attempt or conspiracy to enter into a marriage for the purpose of evading the immigration laws. Our prior precedent further supports this interpretation. In Matter of Kahy, 19 I&N Dec. 803, 804–05 (BIA 1988), we considered whether the District Director properly denied a subsequent visa petition under section 204(c) of the Act where the beneficiary’s ex-wife had indicated in a sworn statement that she agreed to marry him for $1,000 so he could remain in the United States, but she never actually sought an immigration benefit based on the fraudulent marriage because an unidentified person had forged her signature on the visa petition. Even though the beneficiary had not pursued an immigration benefit, we held that “where there is evidence in the record to indicate that the beneficiary has been an active participant 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.” Id. at 806–07. Since the petitioner did not rebut the charge, we affirmed the denial of the visa petition. We similarly addressed the breadth of section 204(c) of the Act and the absence of a specific timeline for its imposition in Matter of Tawfik, 20 I&N Dec. at 168–69. In that case, the District Director revoked approval of the petitioner’s subsequent visa petition on the ground that the beneficiary had previously attempted to be accorded immediate relative status as the spouse of a United States citizen by reason of a fraudulent marriage. Id. at 166–67. In reviewing this determination, we stated that “[n]either section 204(c) of the Act nor the regulations specify . . . at what point” the determination of whether an alien has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws may be made. Id. at 168. We also concluded that the Director “should not give conclusive effect to determinations made in a prior proceeding, but, rather, should reach his own independent conclusion based on the evidence before him.” Id. In that regard, we held that the approvability of the subsequent visa petition “will depend on a determination of whether there is, at present, sufficient evidence, inclusive of evidence relied upon in the determination of the first visa petition, to support the contention that the beneficiary’s previous marriage to a United States citizen was entered into for purposes of evading

构成欺诈。3 见 Matter of R.I. Ortega, 28 I&N Dec. 9, 12 (BIA 2020)（指出“根据既定的法律解释规则，我们首先看语言的平义”）。相反，宽泛的措辞以及缺乏时间性要求表明，第204(c)条可以在任何时候适用，只要一旦明显存在实质性和证明力强的证据，证明存在为规避移民法而缔结婚姻的企图或共谋，即可基于婚姻欺诈的认定予以适用。 我们此前的先例进一步支持这一解释。在 Matter of Kahy, 19 I&N Dec. 803, 804–05 (BIA 1988) 中，我们审议了地区主任依据该法第204(c)条拒绝后续签证申请是否适当的问题，该案中受益人的前妻在一份宣誓陈述中表示，她同意以1,000美元与他结婚，以便他能留在美国，但由于一名身份不明者在签证申请上伪造了她的签名，她实际上从未基于该欺诈婚姻寻求移民利益。尽管受益人并未寻求移民利益，我们仍裁定：“如果记录中有证据表明受益人曾积极参与婚姻欺诈共谋，则举证责任转移至申请人，由其证明受益人并未基于先前的欺诈婚姻寻求非配额或优先身份。”Id. at 806–07。由于申请人未能反驳该指控，我们维持了拒绝签证申请的决定。 我们在 Matter of Tawfik, 20 I&N Dec. at 168–69 中同样论述了该法第204(c)条的宽泛性以及缺乏具体时间线的问题。在该案中，地区主任撤销了对申请人后续签证申请的批准，理由是受益人此前曾因欺诈婚姻而试图作为美国公民的配偶获得直系亲属身份。Id. at 166–67。在审查该裁定时，我们指出，“该法第204(c)条和条例均未规定……在何时”可以作出关于外国人是否曾企图或共谋为规避移民法而缔结婚姻的裁定。Id. at 168。 我们还认定，主任“不应对先前程序中作出的裁定赋予结论性效力，而应基于其面前的证据得出自己的独立结论。”Id. 在这方面，我们裁定，后续签证申请的可批准性“将取决于一项裁定，即目前是否有足够的证据——包括在第一次签证申请裁定中所依赖的证据——支持关于受益人与美国公民的先前婚姻是为规避

3 Section 204(c) of the Act also does not bar the approval of a successive visa petition filed by the same petitioner on behalf of a beneficiary spouse. Matter of Isber, 20 I&N Dec. 676, 678–79 (BIA 1993).

3 该法第204(c)条也不禁止批准同一申请人为受益人配偶提交的后续签证申请。Matter of Isber, 20 I&N Dec. 676, 678–79 (BIA 1993)。

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the immigration laws.” Id. at 168–69. Applying these standards, we found that the record lacked sufficient documentation to support the District Director’s conclusion that the beneficiary had entered into a fraudulent marriage, and we reversed the revocation of the visa petition. Id. at 169–70. The petitioner also contests the propriety of the Director’s finding that the beneficiary’s prior marriage was fraudulent. Evidence of a fraudulent marriage “must be documented in the alien’s file and must be substantial and probative.” Id. at 167. “[T]he 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 [is] higher than a preponderance of the evidence and closer to clear and convincing evidence.” Matter of P. Singh, 27 I&N Dec. 598, 607 (BIA 2019). Thus, “to be ‘substantial and probative,’ the evidence must establish that it is more than probably true that the marriage is fraudulent.” Id. “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.” Id. In response to the Notice of Intent to Deny, the petitioner submitted a psychological report in support of her assertion that the beneficiary has memory problems, which she claims explain the discrepancies in his answers about his prior marriage. The Director provided reasons for discounting the psychological report. However, even crediting this evidence, the Director identified conduct of the couple after the marriage that, unrelated to any memory issues, indicates their subjective state of mind when they married. In particular, he concluded that the Summary of Findings detailing the September 21, 2012, site visit to the claimed marital residence establishes fraud. See id. at 609 (“Detailed reports from on-site visits and field investigations are especially important pieces of evidence that may reveal the presence of fraud.”). The Summary of Findings describes significant discrepancies in the accounts given by the beneficiary and his first wife regarding (1) whether and for how long the couple lived at the claimed marital residence; (2) their places and type of employment (and whether they, in fact, worked at the same store owned by the beneficiary’s father); and (3) the former wife’s living arrangements in Salem and the reasons why the beneficiary paid rent for her apartment there. Additionally, the record contains documentation of contradictions that arose during the beneficiary’s two visa interviews regarding how, when, and where he met his first wife, as well as how their relationship progressed to marriage. The petitioner submitted no new documentary evidence showing a joint life between the beneficiary and his first wife, apart from affidavits from the petitioner, the beneficiary, and the pastor who conducted the beneficiary’s

移民法而缔结的主张。”Id. at 168–69。适用这些标准，我们认定记录缺乏足够的文件支持地区主任关于受益人缔结了欺诈婚姻的结论，因此我们撤销了签证申请的撤销决定。Id. at 169–70。 申请人还对主任关于受益人先前婚姻系欺诈的认定是否适当提出异议。欺诈婚姻的证据“必须记录在外国人的档案中，且必须具有实质性和证明力。”Id. at 167。“认定婚姻欺诈足以支持依据该法第204(c)条拒绝签证申请所需的证明程度[是]高于优势证据且接近清楚且令人信服的证据。”Matter of P. Singh, 27 I&N Dec. 598, 607 (BIA 2019)。因此，“要具有‘实质性和证明力’，证据必须确立婚姻为欺诈的可能性大于真实。”Id.“适用‘实质性和证明力强的证据’标准需要审查所有相关证据，并裁定此类证据在整体审视时是否以足够的盖然性确立婚姻为欺诈。”Id. 针对拒绝意向通知，申请人提交了一份心理报告，以支持其关于受益人存在记忆问题的主张，她声称这解释了他关于先前婚姻的回答中的差异。主任提供了不采信该心理报告的理由。然而，即使采信该证据，主任仍指出了该夫妇在婚后与任何记忆问题无关的行为，这些行为表明了他们结婚时的主观心态。特别是，他认定详细记载2012年9月21日对所称婚姻住所进行实地走访的调查结果摘要确立了欺诈。See id. at 609（“来自实地走访和现场调查的详细报告是特别重要的证据，可能揭示欺诈的存在。”）。 调查结果摘要描述了受益人和其第一任妻子在以下方面陈述中的重大差异：(1) 该夫妇是否以及在该所称婚姻住所居住了多长时间；(2) 他们的工作地点和类型（以及他们是否实际上在受益人父亲拥有的同一家商店工作）；以及 (3) 前妻在塞勒姆的居住安排以及受益人为何为其在那里的公寓支付租金的原因。此外，记录中包含受益人在两次签证面谈中出现的矛盾的文件，涉及他如何、何时、何地结识其第一任妻子，以及他们的关系如何发展到结婚。 申请人未提交新的书面证据表明受益人与第一任妻子之间存在共同生活，除了来自申请人、受益人以及主持受益人

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Cite as 28 I&N Dec. 113 (BIA 2020) Interim Decision #3998

引用为 28 I&N Dec. 113 (BIA 2020) 临时决定第3998号

first wedding ceremony. Affidavits of this nature, 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.” Id. The Director correctly conducted an independent determination based on the facts available when the petitioner filed the current visa petition. See Matter of Tawfik, 20 I&N Dec. at 168–69. In doing so, the Director permissibly relied on “relevant evidence, including evidence having its origin in prior [visa petition] proceedings involving the beneficiary.” Id. at 168. We conclude that the Director properly conducted an independent analysis of section 204(c)’s applicability in adjudicating the petitioner’s visa petition. In so doing, he did not erroneously equate the beneficiary’s first wife’s failure to prove the bona fides of their marriage with the beneficiary’s intent in entering into that marriage.

第一场婚礼仪式的牧师的宣誓书。仅凭此类宣誓书，“通常不足以在没有客观书面证据佐证宣誓人陈述的情况下克服记录中的婚姻欺诈证据。”Id. 主任正确地基于申请人提交当前签证申请时可获得的事实进行了独立裁定。See Matter of Tawfik, 20 I&N Dec. at 168–69。在这样做时，主任可以允许地依赖“相关证据，包括源自涉及受益人的先前[签证申请]程序的证据。”Id. at 168。我们认定，主任在裁定申请人的签证申请时，适当地对第204(c)条的适用性进行了独立分析。在这样做时，他并未错误地将受益人第一任妻子未能证明其婚姻的善意等同于受益人缔结该婚姻的意图。

III. CONCLUSION

III. 结论

The fact that the visa petition filed by the beneficiary’s first wife was denied for failure to establish a bona fide marriage does not preclude the Director from denying the petitioner’s visa petition under section 204(c) of the Act. Moreover, having reviewed all the relevant evidence in its totality, we uphold the Director’s finding that there is substantial and probative evidence in the record that the beneficiary’s prior marriage was fraudulent and entered into for the purpose of evading the immigration laws. See Matter of P. Singh, 27 I&N Dec. at 607; Matter of Tawfik, 20 I&N Dec. at 167. We further conclude that the petitioner did not rebut this evidence when given the opportunity to do so. We therefore affirm the denial of the petitioner’s visa petition pursuant to section 204(c) of the Act. Accordingly, the petitioner’s appeal will be dismissed. ORDER: The appeal is dismissed.

受益人第一任妻子提交的签证申请因未能确立善意婚姻而被拒绝这一事实，并不妨碍主任依据该法第204(c)条拒绝申请人的签证申请。此外，在整体审查所有相关证据后，我们维持主任的认定，即记录中存在实质性和证明力强的证据表明受益人的先前婚姻系欺诈且为规避移民法而缔结。See Matter of P. Singh, 27 I&N Dec. at 607; Matter of Tawfik, 20 I&N Dec. at 167。我们进一步认定，申请人在获得机会时未能反驳该证据。因此，我们维持依据该法第204(c)条对申请人签证申请的拒绝。据此，申请人的上诉将被驳回。 命令：上诉驳回。

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