- Introduction: Matter of Aldecoaotalora, 18 I&N Dec. 430 (BIA 1983)
- Factual and Procedural History of Matter of Aldecoaotalora, 18 I&N Dec. at 430, 430-31
- Sham Divorces in the Inadmissibility Context: Bazzi v. Holder, 746 F.3d 640 (6th Cir. 2013)
- Factual and Procedural History: 746 F.3d 640, 640-42
- Issue in the Case: 746 F.3d at 642-43
- Inadmissibility Finding Based on Substantial Evidence: 746 F.3d at 643-45
- Sham Divorce is a Legally Cognizable Basis for Finding of Misrepresentation: 746 F.3d at 645-47
- Additional Rules — Noting “Sham Divorce” Has Been Considered in Other Immigration Contexts: 746 F.3d at 647
- Interesting Non-Sham Divorce Applications of Matter of Aldecoaotalora in U-Visa Context
The concept of “sham marriage” is well known in immigration law and discussed in detail in various articles on site [see article]. However, there is also a lesser-known concept of a “sham divorce,” which may arise in the context of immigration benefits that are available only to unmarried beneficiaries.
On July 22, 1983, the Board of Immigration Appeals (BIA) issued a published for-precedent decision in the Matter of Aldecoaotalora, 18 I&N Dec. 430 (BIA 1983) [PDF version]. Matter of Aldecoaotalora concerned the beneficiary of an immigrant visa petition filed under section 203(a)(2) of the Immigration and Nationality Act (INA), for which only the unmarried sons and daughters of lawful permanent residents (LPRs) are qualified. At issue was the fact that daughter of the petitioner had been previously married and then divorced before the immigrant visa petition was filed by her mother on her behalf. In Matter of Aldecoaotalora, the Board found that the beneficiary was ineligible for a visa under section 203(a)(2) based on the finding of fact that she had divorced her husband for the sole purpose of obtaining immigration benefits. The Board held that a divorce made for sole purpose of procuring an immigration benefits constitutes a “sham divorce” and is not recognized for immigration purposes.
In this article, we will examine the factual and procedural history of Matter of Aldecoaotalora as well as the Board's analysis and conclusions in the decision in order to understand the concept of a sham divorce in immigration law. In addition, we will look at subsequent citations to Matter of Aldecoatalora to illuminate how the precedent has been applied in other cases. Notably, we will examine the decision of the United States Court of Appeals for the Sixth Circuit in Bazzi v. Holder, 746 F.3d 640 (6th Cir. 2013) in detail.
The petitioner in Matter of Aldecoaotalora was a native and citizen of the Philippines. She filed an immigrant visa petition under section 203(a)(2) of the INA on behalf of her unmarried daughter, a 31-year old native of the Philippines.
The case record reflects that the beneficiary claimed to be a citizen of Spain. She had married a citizen of Spain on April 15, 1973. Furthermore, she and her husband had two children, born on March 17, 1976, and July 13, 1981, respectively, who were both United States citizens. On July 28, 1981, the beneficiary obtained a divorce from her husband.
The District Director who was adjudicating the immigrant visa petition interviewed the petition beneficiary on May 18, 1982. In the beneficiary's sworn statement, she claimed that she had divorced her husband due to “irreconcilable differences.” However, upon questioning from the District Director, she responded that the differences stemmed from the fact that she needed to procure a green card in order that her children could remain in the United States. She also admitted that she not only continued to reside with her former husband, but also that they still filed joint tax returns and exercised joint control over their home and other property.
Based on the beneficiary's testimony and other evidence in the record, “the District Director concluded that the beneficiary's divorce was entered into for the sole purpose of circumventing the immigration visa preference system.” Based on this finding, the District Director denied the petition, having concluded that the beneficiary was not the petitioner's “unmarried” daughter because her divorce was a sham. Although the District Director relied primarily on the beneficiary's own statements in the interview, he also noted the following in his decision to deny the immigrant visa petition:
- The employment records of the beneficiary's former husband indicated that he claimed to still be married and to have three dependents.
- The telephone at the beneficiary's residence was listed in the telephone directory under the name of her divorced spouse.
The District Director's decision was certified to the Board for review.
The Board would ultimately agree with the District Director's conclusions. In this section, we will examine the Board's analysis.
The Board began by taking a position on Congress' intent in creating the preference category for the unmarried sons and daughters of LPRs based on the legislative history of the INA. The Board stated “that the intent of Congress in providing for preference status for unmarried sons and daughters of [LPRs] was to reunite with their parents unmarried children who, although not minors, were still part of a family unit.” The Board had reached the same conclusion with respect to Congressional intent in its prior decisions in Matter of Coletti, 11 I&N Dec. 551 (BIA 1965) [PDF version], and Matter of Lew, 11 I&N Dec. 148 (D.D. 1965) [PDF version].
The Board noted that the case record showed that, notwithstanding her divorce, the beneficiary had “neither severed her relationship with [her former husband] nor returned to the family unit of her parents.”
The Board cited to the decision of the Supreme Court of the United States in Gregory v. Helvering, 293 U.S. 465 (1935), where the Court “created the sham transaction doctrine in the context of tax law…” In that case, the Board explained, the Supreme Court held that a “transaction [that is] on its face outside the plain intent of the statute involved … should be disregarded” because doing otherwise would, in the words of the Court in Gregory, “exalt artifice above reality and … deprive the statutory provision in question of all serious purpose.” Id. at 470. The United States Court of Appeals for the Fourth Circuit in Boyter v. Commissioner, 668 F.3d 1382, 1387 (4th Cir. 1981), applied the principle of Gregory and successor cases to a situation where married taxpayers procured a divorce for the sole purpose of avoiding the “marriage penalty” tax.
The Board stated that the evidence in the instant case established beyond any doubt that the beneficiary had sought and obtained a divorce solely for the purpose of obtaining immigration benefits. In addition to the beneficiary's own testimony, the evidence indicated that she had continued to live with her former husband in what appeared to be a marital relationship. From these facts, the Board concluded that the beneficiary was “clearly attempting to thwart the statutory purpose of the [INA] to unite unmarried children with their [LPR] parents.” Accordingly, the Board affirmed the District Director's decision.
Under Matter of Aldecoaotalora, a divorce procured solely for purpose of circumventing the purpose of the immigration laws is invalid for immigration purposes. In the specific context of section 203(a)(2), the Board determined that the purpose of the preference category for unmarried sons and daughters of LPRs is to reunite such sons and daughters with their parents in the United States. Accordingly, procuring a divorce for the sole purpose of qualifying for preference under section 203(a)(2) contravenes the purpose of the preference category and is not recognized for immigration purposes.
On December 19, 2013, the United States Court of Appeals for the Sixth Circuit issued a published for-precedent decision in Bazzi v. Holder, 746 F.3d 640 (6th Cir. 2013) [PDF version]. In addition to discussing and following Matter of Aldecoaotalora, the case also examined sham divorces in the context of inadmissibility for fraud or misrepresentation of a material fact to procure any benefit under the INA. In the subsequent sections, we will examine Bazzi v. Holder.
In Bazzi v. Holder, Ihsan Bazzi and his “purported ex-wife” were married in Lebanon in 1975. Between 1975 and 1986, Bazzi served in the South Lebanon Army and had five children with his wife. In 1986, Bazzi and his wife procured a divorce “allegedly because then-Mrs. Bazzi did not want to accompany him to the United States. His ex-wife gave birth to their sixth and final child after the divorce was finalized.
In 1987, Bazzi applied for an immigrant visa abroad. The U.S. Embassy in Tel Aviv, where Bazzi applied, had suspicions about the nature of the divorce. Not only were there were inconsistencies in the testimony between Bazzi and his purported ex-wife, but Bazzi's sister-in-law had informed the Embassy outright that the divorce was a sham. The Embassy found that the divorce was a sham and that Bazzi was ineligible for a visa on the basis of this sham divorce.
In 1991, Bazzi's ex-wife entered the United States as an unmarried child of an LPR and was followed by all six of her and Bazzi's children. In 1995, Bazzi entered the United States without being admitted or paroled and remained for eight years. He was issued a Notice to Appear in 2008 when his application for adjustment of status was denied. Bazzi was charged as being inadmissible under section 212(a)(6)(C)(i) for having sought to procure a visa through fraud or misrepresentation of a material fact. This charge was based on the allegation that in 1987 he had falsely represented himself as divorced in order to gain admission into the United States.
An Immigration Judge ruled that Bazzi was inadmissible on the basis of the 1987 petition based on a sham divorce, and this ruling was affirmed by the BIA. Bazzi filed a petition for review with the Sixth Circuit.
The question in the case was whether Bazzi was inadmissible under section 212(a)(6)(C)(i). If he was found inadmissible, he would not be eligible for any waivers of inadmissibility. Bazzi advanced two defenses against the administrative findings that he was inadmissible. First, Bazzi argued that the findings were not supported by “substantial evidence.” Second, Bazzi argued that the concept of a “sham divorce” itself was not legally cognizable as a basis for denying a visa application or making a finding of misrepresentation. We will examine why the Sixth Circuit rejected both arguments and dismissed Bazzi's appeal in the subsequent subsections.
The Sixth Circuit would conclude that the Immigration Judge's finding that Bazzi had willfully misrepresented a material fact in order to procure admission was based on substantial evidence. We will summarize the evidence that was discussed by the Sixth Circuit in brief:
- The Sixth Circuit noted the evidence that led to the Embassy in Tel Aviv ultimately rejecting Bazzi's application for an immigrant visa in 1989. In addition to the inconsistent testimony of Bazzi and his purported ex-wife and the testimony of his sister-in-law, Bazzi also submitted documentation that was discredited by the U.S. Department of State (DOS).
- In 2009, officers of the U.S. Immigrations and Customs Enforcement (ICE) conducted an unannounced visit to the home of Bazzi's ex-wife on the night before his hearing. They found evidence that Bazzi in fact resided with his purported ex-wife (e.g., clothes and medication that belonged to Bazzi). Two of Bazzi's sons provided inconsistent information. An address check indicated that Bazzi and his purported ex-wife had shared several addresses together subsequent to their alleged divorce. In rejecting Bazzi's argument that the original finding of a sham divorce should not be relied upon because it concerned events that had taken place over twenty years prior, the Immigration Judge relied in part on this contemporary evidence that the divorce had been a sham.
- When Bazzi was interviewed in 1986, he had claimed that he procured a divorce because he wanted to move to the United States but his then-wife had not. Yet, his purported ex-wife moved to the United States in 1991. The Immigration Judge relied on this in discrediting Bazzi's professed reason for procuring the divorce.
Based on this evidence, which is discussed in even more detail in the decision, the Sixth Circuit agreed with both the Immigration Judge and the Board that Bazzi's divorce was a sham and that he had willfully misrepresented a material fact in order to procure an immigrant visa.
Bazzi's second argument was that the concept of “sham divorce” was not actually a legally cognizable basis to make a finding of misrepresentation. Bazzi reasoned that, while “sham marriages” are addressed in the immigration laws, “sham divorces” are not. He argued that, based on this omission of “sham divorce,” there was no authority on which to charge him with misrepresentation because he was in fact “divorced” as a matter of civil law.
The Board rejected Bazzi's first argument that the non-mention of the term “sham divorce” in the INA and its implementing regulations meant that a finding of a sham divorce could not serve as the basis of a charge of material misrepresentation. The Board explained that the two questions in assessing whether an alien made a willful misrepresentation that was material are (1) whether he or she willfully misrepresented (2) a fact that was material.
Regarding the instant case, the Board stated that Bazzi had entered into a sham divorce. Regardless of the legality of the divorce as a matter of the laws of Lebanon, the Sixth Circuit noted that Bazzi and his purported ex-wife “continued to conduct their affairs together as man and wife.” The Board stated that in seeking an immigrant visa, Bazzi, despite knowing that his divorce was a sham, willfully misrepresented the truth of the matter.
Furthermore, the Board found that “Bazzi's actual marital status was undoubtedly material.” It noted that, despite the fact that he was “[a]n adult man and father of six children, a soldier in the South Lebanese Army and agent for the Mossad,” he had sought immigration status as the unmarried child of an LPR. Here, the Sixth Circuit made its first reference to Matter of Aldecoatalora, noting that Congress created a preference for unmarried sons and daughters of LPRs in order “to reunite with their parents unmarried children who, although not minors, were members of a family unit.” The Board noted that none of this described Bazzi, and it added that he had not returned to the family unit of his parents, as was also true of the petitioner in Matter of Aldecoatalora. Regarding the materiality of the misrepresentation, the Sixth Circuit states that, “had the truth of Bazzi's sham marriage been known, he would have been denied the immigration benefit he sought to procure.”
Additional Rules — Noting “Sham Divorce” Has Been Considered in Other Immigration Contexts: 746 F.3d at 647
Regarding Bazzi's second argument, the Sixth Circuit determined that he erred in claiming that the “sham divorce” doctrine was only a product of immigration courts. The Sixth Circuit cited to INS v. Yueh-Shaio Yang, 519 U.S. 26, 32 (1996) [PDF version], where “the Supreme Court implicitly recognized sham divorce as a potential basis upon which to deny benefits in the context of immigration law…” In Restrepo v. Holder, 676 F.3d 10, 15-16 (1st Cir. 2012) [PDF version], the United States Court of Appeals for the First Circuit held that a sham divorce could be considered in determining whether an alien was of good moral character.
Although we will not examine Yueh-Shaio Yang and Restropo in detail in this article, it is important to note that they represent other contexts in which a sham divorce may have immigration consequences outside of a visa petition or inadmissibility.
In Yueh-Shaio Yang, the Supreme Court addressed whether the Government could consider acts of fraud committed by an alien in connection with his or her entry into the United States in evaluating whether the alien warranted a favorable exercise of discretion for a waiver of deportation. The Court held that such acts of fraud could be considered, and it implicitly recognized that entering into a “sham divorce” to procure entry is one such act (note that the alien's “sham divorces” had formed part of the basis of the Immigration Judge's decision in the case).
In Restropo, the First Circuit upheld a decision to deny cancellation of removal based on the finding that the applicant had lacked good moral character. The negative good moral character finding was based on obtaining a sham divorce.
In late 2016, the United States Citizenship and Immigration Services's (USCIS) Administrative Appeals Office (AAO) cited to Matter of Aldecoaotalora in a series of unpublished decisions that do not involve sham divorces. While these decisions are have no value as precedent, they are worth examining to see how the principle of Matter of Aldecoatalora applies even outside of the sham divorce context.
The cases involved petitioners for U nonimmigrant status who sought, through different means, to abandon LPR status. This would be necessary in petitioning for a U visa because, as LPRs, they were not eligible for a U nonimmigrant visa. For example, in Matter of T-A-M-W-, (AAO, Vermont, September 19, 2016) 2016 WL 5899515, a respondent sought to abandon LPR status solely for the purpose of becoming eligible for U nonimmigrant status. In Matter of R-C-, (AAO, Vermont, September 12, 2016) 2016 WL 584235, an EB5 immigrant investor also attempted to abandon his LPR status in order to qualify for classification as a U nonimmigrant. In Matter of A-B-P, (AAO, Vermont, December 12, 2016) 2016 WL 5899515, a U visa petitioner argued that, because he or she had admitted to procuring LPR status through marriage fraud, the LPR status should be considered abandoned (note that no formal decision to terminate the LPR status had been made).
In each of these cases, the AAO cited to Matter of Aldecoaotalora, 18 I&N Dec. 430, 431 (BIA 1983). Specifically, the AAO referenced the Board's citation therein to Gregory v. Heverling “for the proposition that where a transaction on its face is outside the plain intent of the statute involved, it should be disregarded because to do otherwise 'would be to exalt artifice above reality and deprive the statutory provision of all serious purpose.'” The “transaction” in these cases was attempt to abandon LPR status — or show that such status had been lost where it had not — for the sole purpose of allowing an individual to be classifiable as a U nonimmigrant. These cases thus highlight that, although specifically about sham divorces, Matter of Aldecoaotalora is based on a general legal principle that has application in other areas of immigration law and law in general.
Please see our website's full category on U visas to learn more about this and related issues [see category].
Matter of Aldecoaotalora makes clear that a divorce obtained for sole purpose of circumventing the immigration laws is not valid for immigration purposes. This issue will generally arise in cases where an alien must be “unmarried” in order to qualify for a benefit. However, other cases show that there could be more serious consequences to seeking an immigration benefit based on a sham divorce than the mere denial of a single petition. As we examined, depending on the specific circumstances, seeking an immigration benefit based on a sham divorce can lead to a finding that the alien is inadmissible for willful misrepresentation of a material fact. Providing false testimony regarding a sham divorce may lead to an adverse good moral character finding or may be considered in denying a discretionary benefit.
In seeking any immigration benefit, it is important to be forthright. In addition to being illegal, fraud and misrepresentations may lead to far more serious long-term immigration consequences than the denial of a single application or petition. An alien should consult with an experienced immigration attorney when seeking a benefit or a form of immigration relief.