Ina 204(c) Is Not The Death Penalty

The central question of any marriage based immigrant visa petition is whether the couple intends to establish a life together

· Matter of McKee, 17 I&N Dec 332 (BIA 1980)

Petitioner must establish the validity of the marriage by a preponderance of the evidence and prove that it was not entered into to circumvent the immigration laws. The truth is to be determined not by quantity of evidence alone, but by its quality.

· Matter of Laureano, 19 I&N Dec 1 (BIA 1983)

· Matter of E-M-, 20 I&N Dec 77, 79, 80 (Comm’r 1989)

It is firmly established that the 5^th Amendment entitles aliens to due process.

· Zadvydas v. Davis, 533 US 678, 693 (2001)

· Reno v. Flores, 507 US 292, 306 (1993)

· Animashaun v. INS, 990 F.2d 234, 238 (5^th Cir 1993)

· Chike v. INS, 948 F.2d 961, 962 (5^th Cir 1991)

This includes a fair opportunity to be heard

· US v. Lopez-Ortiz, 313 F.3d 225, 230 (5^th Cir 2002)(citing Kwong Hai Chew v. Colding, 344 US 590, 597-98 (1953)

If CIS is going to deny an I-130 based on INA §204(c), the burden is on CIS to show fraud by substantial and probative evidence and that such evidence is documented in the alien’s file.

· 8 CFR §204.2(a)(1)(ii)

· Matter of Tawfik, 20 I&N Dec 166 (BIA 1990)

· Matter of Kahy, 19 I&N Dec 803 (BIA 1988)

· Ghaly v. INS, 48 F.3d 1426 (7^th Cir 1995)

Substantial evidence is evidence that a reasonable mind would find adequate to support a conclusion

· Richardson v. Perales, 402 US 389, 401 (1971)

If CIS is going to deny an I-130 based on a previous INA §204(c) finding, the petitioner must be given an opportunity to rebut the info before a final decision is made on the petition

· 8 CFR §103.2(b)(16)(i)

A decision to deny an I-130 cannot be based on unsupported presumptions or conclusions, especially if the petitioner has not been advised of the derogatory information

· Matter of Estime, 19 I&N Dec 450 (BIA 1987)

· Matter of Arias, 19 I&N Dec 568 (BIA 1988)

CIS must verify that substantial and probative evidence is in the alien’s file

· AFM §21.3(a)(2)(D)

An inference of fraud does not rise to the level of substantial and probative standard

· Matter of Tawfik, 20 I&N Dec 166 (BIA 1990)

WHAT TO DO WHEN DHS OR EOIR GET’S IT WRONG

Appeal the decision to the AAO using the normal process

BIA has appellate jurisdiction over denied I-130 petitions filed in accordance with INA 204

· 8 CFR §1003.1(b)(5)

BIA has authority to take appellate jurisdiction of denied I-130 petitions by certification

· 8 CFR §1003.1(c)

If the appeal is first made to the AAO, they have 45 days to do something or must forward the case to BIA

· 8 CFR 1003.5(b)