Matter of P. Singh

Cite as 27 I&N Dec. 598 (BIA 2019) Interim Decision #3960

引用为 27 I&N Dec. 598 (BIA 2019) 临时决定 #3960

Decided August 23, 2019

2019年8月23日决定

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

(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.”

(1) 根据《移民与国籍法》第204(c)条，8 U.S.C. § 1154(c)（2012），以婚姻欺诈为由阻止批准签证申请所需的证明标准是“实质性且具有证明力的证据”。

(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.

(2) 构成“实质性且具有证明力的证据”所需的证明程度高于优势证据，但低于清楚且令人信服的证据；也就是说，证据必须表明婚姻为欺诈的可能性大于真实。

(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.”

(3) 在确定证据是否“实质性且具有证明力”时，应考虑记录中所含婚姻欺诈证据的性质、质量、数量和可信度，并作整体考量。

(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.

(4) 适用“实质性且具有证明力的证据”标准要求审查所有相关证据，并确定该等证据在整体考量时是否以充分的可能性证明婚姻为欺诈。

(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.”

(5) 在确定是否存在《法》第204(c)条所指婚姻欺诈的“实质性且具有证明力的证据”时，可以考虑直接证据和间接证据，仅间接证据即可构成“实质性且具有证明力的证据”。

FOR PETITIONER: Marc Prokosch, Esquire, Bloomington, Minnesota

申请人代理律师：Marc Prokosch 律师，明尼苏达州布卢明顿

FOR THE DEPARTMENT OF HOMELAND SECURITY: Scott J. Langerman, Associate Counsel

国土安全部代理：Scott J. Langerman，副法律顾问

BEFORE: Board Panel: MALPHRUS, MANN, and CREPPY, Board Members.

审理：委员会合议庭：MALPHRUS、MANN 和 CREPPY，委员会成员。

CREPPY, Board Member:

CREPPY，委员会成员：

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

在2013年9月23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)（2012），授予受益人父母身份。 申请人已对该决定提出上诉。我们要求提交补充简报，双方

598

598

Cite as 27 I&N Dec. 598 (BIA 2019) Interim Decision #3960

引用为 27 I&N Dec. 598 (BIA 2019) 临时决定 #3960

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.

均已提交。申请人的口头辩论请求被拒绝。 8 C.F.R. § 1003.1(e)(7)（2019）。上诉将被驳回。

I. FACTUAL AND PROCEDURAL HISTORY

I. 事实和程序历史

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

申请人是受益人的儿子，受益人于2005年与申请人的外祖母结婚。受益人的妻子代表他提交了签证申请，主任于2009年11月30日拒绝，认定该婚姻仅为受益人获得移民利益而缔结。1 2012年3月13日，申请人代表受益人提交了签证申请。主任于2013年8月16日发出拒绝意向通知，告知申请人她打算基于受益人与其外祖母结婚是为了规避移民法的结论拒绝签证申请。在考虑申请人对拒绝意向通知的回应后，主任根据记录认定，由于受益人仅为获得移民利益而缔结婚姻，该婚姻为欺诈性婚姻，阻止批准其儿子目前提交的签证申请。主任根据《法》第204(c)条，8 U.S.C. § 1154(c)（2012），拒绝了签证申请。2 在作出此认定时，主任指出，在受益人结婚之前，他与配偶的女儿有长期关系，并育有三个孩子。申请人是这些孩子中的长子，他们分别出生于1990年、1993年和1999年。主任还依据2009年6月5日欺诈检测和国家安全办公室（“FDNS”）报告中的信息，该报告记录了对受益人和其配偶婚姻住所的实地访问。 根据报告，访问时受益人的妻子独自在家，她提供了关于谁住在该住所的相互矛盾的陈述。起初，她说她和受益人以及她的女儿（受益人的

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:

1 该决定被上诉。我们将案件发回主任，主任于2012年3月16日再次拒绝签证申请，认定婚姻为虚假。我们驳回了对该拒绝的上诉，认定受益人的妻子未能履行其举证责任，证明她与受益人的婚姻出于移民目的是真实的。 2 《法》第204(c)条相关部分规定：

[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.

[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.

599

599

Cite as 27 I&N Dec. 598 (BIA 2019) Interim Decision #3960

引用为 27 I&N Dec. 598 (BIA 2019) 临时决定 #3960

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

前伴侣）住在房子里。她还明确表示没有孩子住在家里。然而，一旦进入屋内，她说只有她和受益人住在那里。官员提醒她之前曾说她的女儿住在家里，她对此未作回应。当被问及谁拥有房子时，她说她和受益人是该财产的共有人。 当再次被要求确认谁住在家里时，她说她和受益人以及受益人的三个孩子住在那里，并否认她的女儿住在家里，直接与她先前的陈述矛盾。 FDNS报告还指出，尽管受益人的妻子声称与受益人共用主卧室，但对房间的检查削弱了这一说法。例如，在该房间发现的邮件是寄给她丈夫和她女儿共同或仅寄给她女儿的。当受益人的配偶被要求找到房间里属于她的任何东西时，她无法做到。然后她告诉官员，她的女儿有时在主卧室过夜，在这些访问期间，她睡在地下室。当被问及那些场合她是否独自睡在地下室时，她回答是。然而，当被问及在她女儿访问期间受益人睡在哪里时，她改变了答案，说他也在地下室卧室睡觉。她无法解释为什么她和受益人会搬到地下室，以便在她女儿访问期间让她睡在主卧室。官员随后要求查看地下室卧室，在那里他们发现仅属于受益人妻子的物品，包括墙上以她名字命名的牌匾和证书，表明她是唯一居住者。 官员告诉受益人的配偶，他们知道她的女儿和受益人共同拥有该房屋，并告知她婚姻欺诈的后果。3 根据报告，此时她承认她嫁给受益人是作为对她女儿的帮忙，以便他留在美国。她还承认她虚假陈述了家庭的睡眠安排，称她住在地下室，而受益人和她的女儿共用主卧室。当官员离开家时，他们注意到一张受益人和他妻子女儿的照片，呈“亲密姿势”。 在回应拒绝意向通知时，申请人提交了受益人妻子的宣誓书，她在其中否认承认她的婚姻是虚假的。申请人还提供了他母亲的声明，声称她与

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.

3 记录包含县财产记录，证明所声称的婚姻住所由受益人和他妻子的女儿于2007年购买。还有州机动车记录表明，一辆车在该地址共同注册给受益人和他妻子的女儿。

600

600

Cite as 27 I&N Dec. 598 (BIA 2019) Interim Decision #3960

引用为 27 I&N Dec. 598 (BIA 2019) 临时决定 #3960

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.

受益人没有持续关系，她母亲与受益人的婚姻是合法的，并且她与受益人一起购买房子是为了帮助供养他们的孩子。此外，申请人提交了水电费账单、纳税申报表、银行对账单以及受益人和他妻子熟人的宣誓书，以支持其婚姻真实的论点。记录显示，受益人和他的妻子仍然结婚。 主任考虑了申请人对拒绝意向通知的回应，以及受益人和其配偶共同生活的文件证据，但她得出结论，这不足以克服婚姻欺诈的“实质性且具有证明力的证据”。申请人在上诉中对此认定提出异议，主张主任错误地认定欺诈证据是“实质性且具有证明力的”，这应是一个高证明标准，要求证据“清楚、明确且令人信服”。 国土安全部（“DHS”）反驳称，“实质性且具有证明力的证据”是审查标准，而在婚姻欺诈案件中的证明标准应是“实质性证据”，这要求低于优势证据的欺诈证据即可触发《法》第204(c)条。

II. ANALYSIS

II. 分析

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).

欺诈性或虚假婚姻是指，尽管在法律的正式要求下有效，但“其缔结的主要目的是规避移民法”的婚姻。Matter of Laureano, 19 I&N Dec. 1, 2 (BIA 1983)；另见 United States v. Elzahabi, 517 F. Supp. 2d 1121, 1124 (D. Minn. 2007)（指出“无论基础婚姻在形式上是否有效，[被告]缔结了虚假婚姻以欺诈性地获取绿卡”）。在确定是否存在虚假婚姻时，“核心问题”是双方“在结婚时是否打算共同建立生活”。Matter of Laureano, 19 I&N Dec. at 2–3（引用 Bark v. INS, 511 F.2d 1200, 1201 (9th Cir. 1975)）；Matter of McKee, 17 I&N Dec. 332 (BIA 1980)（区分不可存续婚姻与虚假婚姻）。此种认定需要审查双方在婚前和婚后的行为以查明其意图，但“仅限于该行为与其结婚时的主观心理状态相关之范围”。Matter of McKee, 17 I&N Dec. at 334（引用 Bark, 511 F.2d at 1202）；另见 Lutwak v. United States, 344 U.S. 604, 617 (1953)。如果婚姻在缔结时有效，则就移民目的而言即为有效。Matter of Boromand, 17 I&N Dec. 450, 454 (BIA 1980)。

A. Standard of Proof

A. 证明标准

601

601

Cite as 27 I&N Dec. 598 (BIA 2019) Interim Decision #3960

引用为 27 I&N Dec. 598 (BIA 2019) 临时决定 #3960

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.

在裁定婚姻是否为虚假婚姻时，主任必须审查记录以确定是否存在实质且具证明力的欺诈证据，从而依据该法第204(c)条拒批签证申请。“实质且具证明力的证据”一词自第204(c)条颁布以来从未被纳入该条。4 该术语首次出现于 Matter of Agdinaoay, 16 I&N Dec. 545, 546 (BIA 1978)，我们在该案中裁定“认定第204(c)条确实适用于外国人的结论必须基于实质且具证明力的证据”。引用 Matter of Agdinaoay，我们随后在 Matter of Tawfik, 20 I&N Dec. 166, 167 (BIA 1990) 中适用了该术语，裁定试图或共谋规避移民法的证据必须“实质且具证明力”。我们在该案中得出结论，尽管在评估婚姻欺诈时可以考量“任何相关证据”，但欺诈的“合理推断”不足以满足“实质且具证明力的证据”标准。Id. at 168。尽管我们未明确界定“实质且具证明力的证据”一词，但 Tawfik 案的事实说明了欺诈的“合理推断”与“实质且具证明力的证据”之间的区别。 在该案中，主任撤销了受益人美国公民配偶提交的签证申请的批准，认定受益人的先前婚姻系为规避移民法之目的而缔结。撤销基于以下事实：在拒批时，受益人与申请人居住在不同城市，以及主任认定受益人与其第一任妻子同住。正如我们在裁决中所指出的，“记录中不包含这些结论之外的任何证据。”Id. at 169。 我们裁定，尽管这些因素可能引发欺诈的推断，但该推断不足以构成“实质且具证明力的证据”以证明该夫妇在结婚时意图规避移民法。我们解释说，“仅仅在签证申请被拒时申请人与受益人分居这一事实，并不构成试图或共谋……为规避移民法之目的缔结婚姻的证据。”Id. 我们还指出，记录中不包含支持受益人与其前妻同住这一结论的证据，该结论是在签证申请被拒时作出的。

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.

4 该法第204条于1965年修订，在第204(c)条增加了婚姻欺诈条款。1965年10月3日法案，Pub. L. No. 89-236, §4, 79 Stat. 911, 915。第204(c)条此后经过两次修订。1988年移民与技术更正法案，Pub. L. No. 100-525, § 9(g), 102 Stat. 2609, 2620；1986年移民婚姻欺诈修正案，Pub. L. No. 99-639, § 4(a), 100 Stat. 3537, 3543。第204(c)条的立法历史未表明国会意图适用何种证据标准；也未解释国会为何未明确标准。

602

602

Cite as 27 I&N Dec. 598 (BIA 2019) Interim Decision #3960

引用为 27 I&N Dec. 598 (BIA 2019) 临时决定 #3960

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:

因此，该案中的证据在数量或质量上均不实质。其也不能证明该夫妇在结婚时的意图，而这是婚姻欺诈案件的核心问题。因此，主任的欺诈推断不构成该法第204(c)条所要求的阻止批准签证申请的“实质且具证明力的证据”。Id. at 170。 在我们发布 Matter of Tawfik 数年后，8 C.F.R. § 204.1(a)(2)(iv) (1992) 中关于第204(c)条的法规被重组并修订，增加了“实质且具证明力的证据”的表述：

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.

该法第204(c)条禁止批准代表曾试图或共谋为规避移民法之目的缔结婚姻的外国人提交的签证申请。对于存在实质且具证明力的证据表明该外国人存在此种试图或共谋的，无论该外国人是否通过该试图或共谋获得利益，主任均应拒批代表其提交的移民签证分类申请。尽管该外国人不必因此种试图或共谋被定罪甚至被起诉，但该试图或共谋的证据必须包含在该外国人的档案中。

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.

8 C.F.R. § 204.2(a)(1)(ii) (1993)（着重号为后加）。5 因此，我们确立了“实质且具证明力的证据”作为证明标准，该标准与认定婚姻欺诈的后果相称，即永久禁止批准任何签证申请。相应地，法规将其纳入并编纂为根据第204(c)条认定婚姻欺诈所需的证明标准。自我们在 Matter of Tawfik 中的裁决以及1993年通过“实质且具证明力的证据”标准的法规修订以来，我们未发布任何专门论述满足该标准所需证据类型和范围、或适用 Matter of Tawfik 的“合理推断”禁止规则的先例裁决。

5 The Supplementary Information to the final rule of this regulation explains why this language was added:

5 该法规最终规则的补充信息解释了增加该表述的原因：

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)].

三十五名评论者建议移民局澄清根据 8 CFR 204.2(a)(1)(ii) 因先前婚姻欺诈而拒批所需的证据类型和范围。目前法规要求移民局通知申请人记录中包含的、将用于支持此类拒批的任何不利信息；然而，根据最近的先例裁决，仍有进一步澄清的空间。因此，最终规则将被修订，以反映此类证据必须“实质且具证明力”，符合 Matter of Tawfik, 20 I&N Dec. [166 (BIA 1990)] 中阐述的标准。

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).

将外国人分类为美国公民直系亲属或优先移民的申请，57 Fed. Reg. 41,053, 41,054 (1992)（最终规则）（补充信息）。

603

603

Cite as 27 I&N Dec. 598 (BIA 2019) Interim Decision #3960

引用为 27 I&N Dec. 598 (BIA 2019) 临时决定 #3960

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.

处理婚姻欺诈的联邦法院案件未明确区分司法审查的“实质证据”标准与我们在第204(c)条案件中适用的“实质且具证明力的证据”证明标准。尽管法院承认婚姻欺诈的认定必须由“实质且具证明力的证据”支持，但其通过引用适用司法审查“实质证据”标准的案件来界定该标准。例如，在 Zemeka v. Holder, 989 F. Supp. 2d 122 (D.D.C. 2013) 中，法院承认认定婚姻欺诈的标准为“实质且具证明力的证据”，但将该标准界定为“超过一丁点证据，但……低于优势证据的某种程度”，即巡回法院审查委员会和地区法院裁决所依据事实认定的司法标准。Id. at 129–30（引文省略）。另见，例如，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)。因此，这些案件在界定婚姻欺诈语境下的“实质且具证明力的证据”方面价值有限。

B. Position of the Parties

B. 各方立场

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.

DHS 主张，在婚姻欺诈案件语境下，“实质且具证明力的证据”并非证明标准，而是法院采用的审查标准。因此，DHS 敦促我们在第204(c)条婚姻欺诈案件中采用“实质证据”定义，该定义仅要求记录中存在超过一丁点但低于优势证据的欺诈证据。6 我们不被说服应当如此。 首先，“实质且具证明力的证据”不可能是第204(c)条案件中的审查标准，因为 8 C.F.R. § 1003.1(d)(3)(iii) 明确规定，委员会对拒批签证申请的任何上诉中的所有事实和法律问题适用 de novo 审查标准。

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.

6 国土安全部援引Woodby v. INS, 385 U.S. 276 (1966)中的“合理、实质性和有证明力”证据标准，以支持其论点，即婚姻欺诈法规中的“实质性和有证明力证据”一语指的是审查标准而非证明标准。最高法院在Woodby中明确表示，该法原第106(a)(4)条、8 U.S.C. § 1105a(a)(4) (1994)中的“合理、实质性和有证明力”标准“仅与司法审查有关”，id. at 282–83，并裁定驱逐程序中的证明责任为“清晰、明确且令人信服的证据”，id. at 286。因此，该案对于确定婚姻欺诈语境下“实质性和有证明力证据”的含义提供的指引甚少。

604

604

Cite as 27 I&N Dec. 598 (BIA 2019) Interim Decision #3960

引用为 27 I&N Dec. 598 (BIA 2019) 临时决定第3960号

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

国土安全部还主张，“实质性和有证明力证据”不能作为证明标准，因为在签证申请程序中，唯一的证明标准是优势证据，据此责任始终由申请人承担，从不转移至美国公民及移民服务局（“USCIS”）。 见该法第291条，8 U.S.C. § 1361 (2012)；Matter of Rehman, 27 I&N Dec. 124, 125 (BIA 2017)。 然而，在签证申请语境下，存在规定优势证据以外证明标准的法定条款和法规。例如，根据该法第204(a)(2)(A)条，通过婚姻获得合法永久居民身份、并在获得永久居留权后5年内基于第二次婚姻为外国人提交申请的合法永久居民，适用欺诈推定。见Matter of Patel, 19 I&N Dec. 774, 783 (BIA 1988)。为推翻该推定，申请人承担以清晰且令人信服的证据证明先前婚姻并非为规避移民法之目的而缔结的责任。Id.；8 C.F.R. § 204.2(a)(1)(i)(A)(1), (C)。 这与该法对其他带有欺诈推定的婚姻的处理方式一致。例如，婚姻发生在驱逐程序进行期间时，根据该法第204(g)条推定存在欺诈。在此类案件中，如果外国人以清晰且令人信服的证据证明婚姻是真实的，则该推定不适用。该法第245(e)(3)条，8 U.S.C. § 1255(e)(3) (2012)；Matter of Velarde, 23 I&N Dec. 253, 256 (BIA 2002)。此外，关于第204(c)(1)条的责任归属，我们已裁定：“当记录中存在证据表明受益人[参与]了婚姻欺诈共谋时，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。”Matter of Kahy, 19 I&N Dec. 803, 806–07 (BIA 1988)（着重号为原文所加）。 总之，申请人负有以优势证据证明婚姻真实性的初始责任。当记录中包含欺诈证据时，USCIS必须将任何不利证据告知申请人，申请人必须按适当的证明标准予以反驳。见8 C.F.R. § 103.2(b)(16)(i) (2019)；另见Zemeka, 989 F. Supp. 2d at 130（“在收到[拒绝意向通知]后，责任转移至申请人，由其反驳USCIS的欺诈认定并证明先前婚姻并非‘为规避移民法之目的而缔结’。”（引文省略））。如果USCIS基于婚姻欺诈根据该法第204(c)条拒绝申请，记录中必须包含此类欺诈的实质性和有证明力证据。见Saleh v. Holder, 54 F. Supp. 3d 1163, 1169 (D. Nev. 2014)（“[政府负有

605

605

Cite as 27 I&N Dec. 598 (BIA 2019) Interim Decision #3960

引用为 27 I&N Dec. 598 (BIA 2019) 临时决定第3960号

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.

提供实质性和有证明力证据证明先前婚姻是虚假婚姻的责任。”（引文省略））。 为支持申请人关于欺诈的“实质性和有证明力证据”意味着“清晰、明确且令人信服的证据”的论点，他援引我们在Matter of Tawfik, 20 &N Dec. at 168中的陈述，即尽管主任通常不应对先前程序中作出的认定赋予终局效力，但例外可适用于“受益人此前曾基于一项认定被裁定可驱逐，该认定由清晰、明确且令人信服的证据支持，即该受益人为作为移民进入美国而成为欺诈婚姻的一方”。然而，该陈述的含义并非这是满足实质性和有证明力证据标准所必需的证明水平。相反，正如我们所解释的，可驱逐性的认定要求清晰、明确且令人信服证据的高标准，因此此种认定必然足以在无需任何进一步证据的情况下确立婚姻欺诈的实质性和有证明力证据。 我们已明确指出，为第204(c)条之目的，婚姻欺诈的证据必须是“实质性和有证明力的”，法规起草者纳入了该标准。见Matter of Tawfik, 20 I&N Dec. at 167–68；8 C.F.R. § 204.2(a)(1)(ii)。如果意图要求以“清晰、明确且令人信服的证据”证明欺诈，则会改为采用该标准。 为进一步支持其关于实质性和有证明力证据应被解释为高证明标准的论点，申请人指出若干案件，其中欺诈的直接证据，如书面供词和支付结婚费用的证明，被认定构成实质性和有证明力证据。然而，此类证据足以满足实质性和有证明力证明标准这一事实，并不必然意味着在所有案件中都需要此类证据。因此，我们驳回申请人关于实质性和有证明力证据意味着“清晰、明确且令人信服的证据”的论点。 基于上述理由，我们裁定，Matter of Tawfik中编纂于8 C.F.R. § 204.2(a)(1)(ii)的“实质性和有证明力证据”一语指的是确立婚姻欺诈所需的证明标准，而非审查标准。

C. Degree of Proof Required

C. 所需的证明程度

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

8 C.F.R. § 204.2(a)(1)(ii)所要求的“实质性和有证明力证据”证明标准指的是合格、可信和客观证据的质量和数量。见Matter of Tawfik, 20 I&N Dec. 168；Matter of E-M-, 20 I&N Dec. 77, 80 (Comm. 1989)（指出“证据的目的是

606

606

Cite as 27 I&N Dec. 598 (BIA 2019) Interim Decision #3960

引用为 27 I&N Dec. 598 (BIA 2019) 临时决定第3960号

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.

查明真相”，且“[真]相不能仅由证据的数量确定，而应由其质量确定”）。任何特定案件中的证据是否足够实质性和有证明力以支持婚姻欺诈的认定，将取决于每个案件的事实情况。Matter of E-M-, 20 I&N Dec. at 79。 鉴于根据该法第204(c)条从事婚姻欺诈的后果是永久禁止批准任何未来的签证申请，欺诈证据必须相对较高才能触发该禁令。我们认定，根据该法第204(c)条认定婚姻欺诈足以支持拒绝签证申请所需的证明程度应高于优势证据，并接近清晰且令人信服的证据。因此，我们裁定，要成为“实质性和有证明力的”，证据必须确立婚姻为欺诈的可能性大于真实。7 在澄清第204(c)条所要求的证明程度时，我们指出，这与我们目前在裁决涉及婚姻欺诈的签证申请时所采用的标准一致。

D. Substantial and Probative Evidence of Marriage Fraud

D. 婚姻欺诈的实质性和有证明力证据

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).

适用“实质性和有证明力证据”标准需要审查所有相关证据，并确定此类证据在整体审视时是否以足够的可能性确立婚姻是欺诈性的。Matter of E-M-, 20 I&N Dec. at 80。“直接证据”是“[基]于个人知识或观察的证据，且如果属实，无需推论或推定即可证明某一事实。”Evidence, Black's Law Dictionary (11th ed. 2019)。当事人承认婚姻是欺诈性的、金钱易手、且夫妻无意共同生活或圆房的宣誓陈述，是“实质性和有证明力的”欺诈直接证据。见，例如，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)（未出版的表格决定）；Ghaly v. INS, 48 F.3d 1426, 1427–28 (7th Cir. 1995)。但见Ching v. Mayorkas, 725 F.3d 1149, 1154–56 (9th Cir. 2013)。

7 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 Matter of E-M-, 20 I&N Dec. at 80对相关证明程度解释如下：“[当]某事必须以清晰且令人信服的证据证明时，证据必须表明其为高度可能真实。但是，当某事要以优势证据确立时，证据仅需表明其为可能真实即可。”我们对第204(c)条案件的标准高于优势证据但低于清晰且令人信服的证据，我们称之为“可能性大于真实”。

607

607

Cite as 27 I&N Dec. 598 (BIA 2019) Interim Decision #3960

引用为 27 I&N Dec. 598 (BIA 2019) 临时决定第3960号

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.

相比之下，“间接证据”是“基于推论而非个人知识或观察的证据”。《布莱克法律词典》，同上。我们已解释，在认定婚姻欺诈时可以考虑“任何相关证据”，但所依据的证据必须产生超过“合理推论”的欺诈推断。Matter of Tawfik，20 I&N Dec 第168页。值得注意的是，我们并未明确要求欺诈的“直接”或“肯定”证据。事实上，无论是法规、条例还是我们自己的先例，都不禁止我们依赖间接证据，而间接证据本身可能足以构成第204(c)条下婚姻欺诈的“实质性和证明性证据”。也就是说，在某些案件中，间接证据的质量和数量可能足以产生如此强烈的欺诈推断，以至于达到实质性和证明性的水平。大多数涉及该法第204(c)条下婚姻欺诈的联邦法院案件都涉及欺诈的直接证据，通常是未经可信反驳或辩驳的承认欺诈的宣誓陈述。然而，承认或其他此类直接证据并非认定婚姻欺诈所必需。见Atieh v. Riordan，797 F.3d 135, 140（第1巡回法院2015年）。 除Atieh外，其他法院也认定仅凭间接证据即足以认定第204(c)条下的欺诈。例如，在Omokoro v. Hamilton，688 F. App'x 263, 264（第5巡回法院2017年）（per curiam）中，美国第5巡回上诉法院认定，受益人与其美国公民的婚姻构成欺诈，依据的事实是她的丈夫在他们婚姻的第一年内又迎娶了另外两名女子，且她在与其丈夫婚姻存续期间以单身身份报税。此外，这对夫妇未能提供他们曾居住在同一地址或合并财务的证据，且记录中关于他们婚礼日期的记载存在不一致之处。此外，“没有实质性努力来否定USCIS的认定”，即先前婚姻是虚假的——只是赤裸裸地声称婚姻是善意缔结的。Id.；另见Dinh v. United States，670 F. App'x 505, 506（第9巡回法院2016年）（认定婚姻欺诈的实质性和证明性证据，其中夫妇在婚礼当天首次见面，婚礼由经纪人安排；受益人在婚礼当天离开该州，此后再未见过其配偶；且受益人的名字未出现在任何联名银行账户、保险或租约上）。因此，在确定该法第204(c)条下是否存在婚姻欺诈的“实质性和证明性证据”时，可以考虑直接证据和间接证据。 在确定是否达到“实质性和证明性”证据标准时，应考虑若干因素。重大不一致加上共同生活的最低限度书面证据可能支持以下结论：申请人未能履行其证明婚姻善意的举证责任。见，例如，8 C.F.R.

608

608

Cite as 27 I&N Dec. 598 (BIA 2019) Interim Decision #3960

引用为 27 I&N Dec. 598（BIA 2019） 临时决定 #3960

§ 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”).

§ 204.2(a)(1)(iii)(B)（规定证明婚姻善意的证据）。在存在一些轻微不一致且书面证据有限的情况下，应在评估是否存在欺诈时予以考虑，但仅凭这些因素本身不太可能足以满足婚姻欺诈的实质性和证明性证据标准。然而，当事人知情且故意试图在共同居住、共同财务或婚姻的其他方面误导或欺骗移民官员的证据强烈表明存在欺诈。现场访问和实地调查的详细报告是可能揭示欺诈存在的重要证据。当事人有其他浪漫伴侣并可能与其生育子女的证据也是一项重要考虑因素，尤其是当这些事实未被披露或被故意隐瞒时。家庭成员、雇主或熟人表示他们不知道这桩婚姻或当事人告诉他们婚姻是虚假的陈述是欺诈的额外迹象。其他可能支持婚姻欺诈认定的间接证据包括：一方或双方在婚姻期间以单身身份报税，或以其他方式对外自称单身，同时向移民官员表示他们仍然已婚。 表明欺诈的官方政府文件比婚姻善意的非正式证据（如保险单或银行账户对账单）具有更大的证据权重。 此外，尽管该法第204(c)条仅适用于受益人被发现从事欺诈的情形，申请配偶的行为也可能与调查相关。例如，如有证据表明申请人曾与多名受益人结婚，尤其是如果申请人与前配偶之间的联系通过共同财产所有权、财务或福利而持续存在，则应考虑受益人参与欺诈计划的可能性。在评估受益人对参与欺诈的否认是否可信时，主任应考虑美国公民申请人是否有动机“在[受益人]不知情的情况下代表[他或她]欺诈美国”。Zemeka，989 F. Supp. 2d 第131页（引文省略）。 此外，如果没有客观书面证据来佐证宣誓陈述人的主张，仅凭宣誓书通常不足以推翻记录中的婚姻欺诈证据。8 C.F.R. § 204.2(a)(1)(i)(B)(5)（“宣誓书应尽可能由一种或多种类型的书面证据支持……”）；Matter of Patel，19 I&N Dec. 第786页（认定该案中的宣誓书“可信且值得相当重视，因为它们详细、内部一致且合理；它们包括宣誓陈述人如何获得所述事实知识的解释；且它们得到历史证据的佐证”）。

609

609

Cite as 27 I&N Dec. 598 (BIA 2019) Interim Decision #3960

引用为 27 I&N Dec. 598（BIA 2019） 临时决定 #3960

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.

孤立地看，这些因素可能不一定足以构成婚姻欺诈的实质性和证明性证据。然而，“即使特定事实‘可能无法单独足以确立欺诈认定’，这些相同的事实，当综合在一起时，可能为机构推断欺诈婚姻提供‘充分支持’。”Atieh，797 F.3d 第140页注4（引文省略）。在确定婚姻欺诈证据是否具有实质性和证明性时，即是否确立婚姻为欺诈的可能性大于真实，应从整体上考虑记录中证据的性质、质量、数量和可信度。这一评估可以基于直接证据或间接证据。

E. Application to the Petitioner

E. 对申请人的适用

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

本案记录支持主任的认定，即根据该法第204(c)条，禁止批准签证申请。记录中包含受益人婚姻欺诈的“实质性和证明性证据”。8 C.F.R. § 204.2(a)(1)(ii)。 受益人的妻子在实地访问期间承认其与受益人的婚姻是虚假的，这是最直接的欺诈证据。尽管受益人的妻子后来否认作出此陈述，但她的承认是在政府官员进行调查过程中记录的，且申请人未能推翻此类官员善意正当履行职责的推定。见United States v. Armstrong，517 U.S. 456, 464（1996）（认定“在没有明确相反证据的情况下，法院推定[政府官员]已正当履行其公职”（引文省略））；Matter of Grijalva，21 I&N Dec. 27, 37（BIA 1995）。 此外，记录中的其他证据支持受益人的妻子所作承认的可靠性。她关于谁住在家里以及住在哪些卧室的多次不一致陈述削弱了她的可信度，并反映出试图误导官员相信她与受益人存在婚姻关系。在实地访问期间，注意到了若干实物差异。官员们注意到一张受益人与他妻子女儿的“亲密姿势”照片，且主卧室没有证据表明其由他的妻子居住。相反，在那里发现的证据仅与受益人和他妻子的女儿有关。 此外，属于受益人配偶的物品被发现在地下室卧室。对于为何是其女儿而非受益人的配偶占用主卧室，没有任何解释，申请人在上诉中承认了这一点。记录还包含书面

610

610

Cite as 27 I&N Dec. 598 (BIA 2019) Interim Decision #3960

引用为 27 I&N Dec. 598（BIA 2019） 临时决定 #3960

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.

有证据表明，受益人和他妻子的女儿共同拥有该房屋，这与妻子在实地走访时声称她在该房屋居住期间拥有该房屋的说法相反。8 这些因素，加上受益人与其子女的祖母结婚这一极不可能发生的情形，足以构成实质性和证明力强的证据，证明该婚姻是为了规避移民法而缔结的。主任适当地给予实地走访报告比记录中的其他证据（包括为回应拒绝意向通知而提交的证据）更大的权重，并且她根据面前的证据得出了自己的独立结论。参见 Matter of Tawfik, 20 I&N Dec. at 168。 申请人在上诉中主张，记录中除受益人的配偶所称她是为了帮女儿的忙而与受益人结婚的“有争议的陈述”外，没有任何欺诈证据。这一主张显然不实。即使不考虑该有争议的承认，其余证据也产生了强烈的推断，即受益人与配偶之间的婚姻是虚假婚姻。这构成实质性和证明力强的证据，证明该婚姻的目的是规避移民法。此外，受益人和其配偶仍然保持婚姻关系并提交了一些共同生活的书面证据这一事实，并不能推翻本案中关于欺诈的实质性和证明力强的证据。9 问题不在于一对夫妇目前是否住在一起，而在于他们在结婚时是否打算作为夫妻共同建立生活。Matter of McKee, 17 I&N Dec. at 334；另见 Roe v. INS, 771 F.2d 1328, 1331 (9th Cir. 1985)；Matter of Boromand, 17 I&N Dec. at 454。

IV. CONCLUSION

IV. 结论

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.

鉴于存在关于婚姻欺诈的实质性和证明力强的证据，我们认定记录支持主任的裁定，即受益人为了获取移民利益而缔结了虚假婚姻。因此，该签证申请的批准被该法第204(c)条所禁止。据此，申请人的上诉将被驳回。 命令：上诉被驳回。

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.

8 FDNS的调查结果摘要还指出，举报热线收到一条举报，称受益人与配偶结婚是为了“拿到他的证件”。 9 申请人主张，受益人的婚姻有效性由以下事实所证明：他本可以通过与其配偶的女儿（一名合法永久居民）结婚来调整身份，而不是与申请人的祖母结婚。然而，在没有其他事实（包括不同类别下签证的可获得性或她赋予移民身份的能力）的情况下，这一主张是推测性的，并不支持受益人婚姻为真实婚姻的说法。

611

611