News & Insights

Facts and Circumstances

The petitioner, a Kenyan national, gained LPR status through marriage in 1985. This marriage ended in divorce within nine months of his residency approval. The petitioner remarried in March 1986 and subsequently filed a spousal visa petition for his new wife. However, section 204(a)(2)(A) of the Immigration and Nationality Act (INA) imposed a presumption of fraud for such cases unless rebutted by clear and convincing evidence. The district director initially denied the petition, finding insufficient evidence to establish the bona fides of the first marriage.

Legal Issues Addressed

• Does section 204(a)(2)(A) of the INA apply retroactively to visa petitions pending at the time of the Immigration Marriage Fraud Amendments?
• What constitutes “clear and convincing evidence” to rebut the presumption of a fraudulent prior marriage?

Court’s Decision and Reasoning

The Board of Immigration Appeals (BIA) sustained the appeal, approving the spousal visa petition. Key points of the decision include:

• Retroactive Application: The BIA held that section 204(a)(2)(A) applies to cases pending when the law was enacted. Retroactivity did not result in manifest injustice because the provision addressed issues of national immigration policy, and petitioners had the opportunity to present evidence to meet the new standard.
• Rebutting the Presumption of Fraud: The petitioner provided substantial evidence demonstrating the bona fide nature of his first marriage. This included:
  • Affidavits from relatives, business associates, and his first wife attesting to the legitimacy of the marriage.
  • Financial documents, such as joint tax returns and shared bank accounts.
  • Documentation of their elaborate wedding ceremony, shared life, and efforts to reconcile marital issues.

  The court emphasized that the petitioner’s divorce was initiated by his first wife due to personal and cultural challenges rather than fraudulent intent.

• Clear and Convincing Standard: The court defined this standard as evidence that creates a firm belief or conviction in the truth of the petitioner’s claims. It noted that while this standard is higher than a preponderance of the evidence, it is lower than beyond a reasonable doubt.

Impact of the Case

This decision clarifies the evidentiary burden under section 204(a)(2)(A) and emphasizes the importance of fair evaluation of evidence in cases involving marital bona fides. It underscores that affidavits, financial records, and corroborative documentation can effectively rebut statutory presumptions of fraud.