Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988): Reasonable Opportunity for Petitioner to Respond to Derogatory Evidence

 

Introduction: Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988)

On January 27, 1988, the Board of Immigration Appeals (BIA) issued a published decision in the Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988) [PDF version].

Matter of Obaigbena concerned procedures for giving a visa petitioner the opportunity to rebut derogatory evidence cited in a notice of intention to deny a visa petition. The Board held that a petitioner must be given a reasonable opportunity to rebut evidence cited in a notice of intention to deny his or her petition.

The Board also held that where the petitioner makes a “reasonable and timely request” for an extension of time to submit a rebuttal, the adjudicator should deal with the request “in a reasonable and fair manner.” In order for a request for an extension to be “reasonable,” it must be specific in stating the reason that the extension is needed, must request the extension for only a finite period, and must not be designed to give the petitioner time to submit documents that he or she should have submitted as an initial manner in accordance with applicable regulations. However, note that the regulations regarding the period of time for a petitioner to respond to a notice of intent to deny have changed subsequent to the issuance of Matter of Obaigbena. We will examine how the decision is relevant in the context of the new rules.

Matter of Obaigbena is also notable for its reaffirmation in a footnote that assertions of counsel do not constitute evidence.

In this article, we will examine the factual and procedural history of Matter of Obaigbena, the Board's analysis and conclusions, and what the decision means in the context of visa petitions today.

Please see our companion article on another 1988 decision, Matter of Soriano, 19 I&N Dec. 764 (BIA 1988) [PDF version] [see article], which dealt with similar issues.

Factual and Procedural History

The petitioner in Matter of Obaigbena was a U.S. citizen. She filed an immigrant visa petition on behalf of her spouse, a native and citizen of Nigeria.

The petitioner had previously filed two immigrant visa petitions on behalf of the beneficiary as her spouse. The first petition was denied in a decision dated January 16, 1985. The second petition was terminated on May 9, 1985, based on the petitioner's withdrawing the petition. The petitioner filed the instant petition on July 24, 1985.

In a notice dated October 2, 1985, the district director adjudicating the petition advised the petitioner of his intention to deny the instant petition. The notice of intention to deny stated that the petitioner had failed to meet her burden of proving the bona fides of her marriage to the beneficiary from the time the marriage was entered into in accord with Matter of Laureano, 19 I&N Dec. 1 (BIA 1983) [PDF version] [see article]. The district director afforded the petitioner 15 days to rebut the derogatory information cited in the notice of intention to deny and to submit additional evidence in support of the petition.

In a letter dated October 9, 1985, counsel for the petitioner responded to the notice of intention to deny. Counsel for the petitioner stated that he did not receive the notice of intention to deny the visa petition until October 7, 1985, five days after it was issued. Counsel for petitioner's letter contained a partial rebuttal to the derogatory information in the notice of intention to deny. In the October 9 letter, counsel for the petitioner stated that he would submit further argument and evidence within the 15-day time period that commenced on October 2, 1985. However, in a letter dated October 16, 1985, the then-Immigration and Naturalization Service (INS) received a second letter from counsel for the petitioner requesting a two-week extension to submit further rebuttal evidence. In requesting the two-week extension, counsel for the petitioner stated that he had been hampered in submitting evidence due to the following four factors:

1. The petitioner was bed-ridden due to a recent miscarriage;
2. The beneficiary had been out of town for medical school interviews;
3. The district director had failed to provide counsel for the petitioner with necessary information, which is part of the record of proceeding, and had failed to respond to counsel's letter of October 9, 1985; and
4. The notice of intention to deny the visa petition was not received by counsel until October 7, 1985.

The October 16 letter also contained additional information attesting to the bona fides of the marriage between the petitioner and the beneficiary.

In a letter dated October 18, 1985, the district director denied the petitioner's request for additional time to provide evidence to rebut the derogatory information cited in the notice of intention to deny. In this letter, the district director stated that the petitioner must submit all rebuttal evidence by October 21, 1985.

The Board noted that the INS received additional correspondence from the petitioner dated October 21, 1985, and October 24, 1985, both requesting an extension of time to submit rebuttal evidence.

On October 31, 1985, the district director denied the immigrant visa petition. In so doing, the district director found that the October 24, 1985, request for an extension of time to submit rebuttal evidence was without merit. The district director noted in the denial that the petitioner had been afforded 19 days to submit rebuttal evidence. He added that the case record contained a significant amount of conflicting and derogatory evidence that indicated that the marriage was not bona fide. The district director further found that the petitioner's continuous filing of visa petitions along with conflicting documentation was a tactic to delay the beneficiary's deportation hearing. However, the district director advised that the petitioner may submit additional documentation in support of his or her petition on appeal.

On appeal to the BIA, counsel for the petitioner argued that he had not received the notice of intention to deny the immigrant visa petition in a timely manner, leaving him with only ten days to respond. He further argued that allowing him only ten days to respond to the notice of intention to deny was arbitrary, capricious, and an abuse of discretion. He further argued that the district director's decisions to deny the request for an extension and the district director's decision to deny the immigrant visa petition were both arbitrary, capricious, and an abuse of discretion. The petitioner took the position on appeal that the requests for an extension of time to respond to the notice of intention to deny were reasonable and well-justified.

On appeal, the petitioner also submitted a motion to remand for further consideration of the petition. The petitioner submitted additional evidence in support of the motion to remand attesting to the bona fides of the marriage.

Assertions of Counsel are Not Evidence: 19 I&N Dec. at 534 n.2

Matter of Obiagbena is cited to most often today for a footnote that was not part of the main holding in the decision. Regarding counsel for the respondent's assertion that he had not received the notice of intent to deny until days after it was issued, the Board added posted the following footnote:

We note statements or assertions by counsel are not evidence.

To this effect, the Board also cited to Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980) [PDF version].

Essentially, the point of this footnote is to make clear that a statement by an attorney is not evidence. An attorney may present evidence into the record, but an attorney's statement of a fact is not evidence of that fact.

Rebutting Derogatory Evidence in Notice of Intent to Deny: 19 I&N Dec. 536-37

Before examining the Board's analysis, it is important to note that the applicable regulations regarding time frames for responding to a notice of intent to deny have changed since 1988. At the time the decision was issued, the Board stated that “[t]he regulations do not prescribe any time limits for the issuance of a notice of intention to deny a visa petition or for the submission of a rebuttal to such notice of intention to deny.”

However, in 2007, the applicable regulations were amended [72 FR 19100 (Jun. 18, 2007)]. Under current 8 C.F.R. 103.2(b)(8)(iv), a petitioner has a maximum of thirty days to respond to a notice of intent to deny. The notice of intent to deny may specify a shorter timeframe to respond than thirty days, but it may not provide more time than thirty days. Under 8 C.F.R. 103.2(b)(16)(i), a notice of intent to deny may be issued when the United States Citizenship and Immigration Services (USCIS) is aware of derogatory information unknown to the petitioner or the applicant. The petitioner or applicant must be given the opportunity to review and rebut such information except where the information is classified (8 C.F.R. 103.2(b)(16)(iii) and (iv)). Under 8 C.F.R. 103.2(b)(11), only three types of responses to a notice of intent to deny are permitted: (1) a complete response containing all requested information within the time period afforded; (2) a partial response with a request for a decision based on the record; or (3) a withdrawal of the benefit request. All materials must be submitted at one time, and submission of partial evidence will be considered a request for a decision based on the evidence in record.

Accordingly, the new regulations effectively override portions of Matter of Obaigbena. Specifically, the regulations preclude requests for extensions in response to a notice of intent to deny. Furthermore, submitting a partial response constitutes a request for a decision based on the evidence in record

However, despite subsequent regulatory changes, Matter of Obaigbena retains relevance. Specifically, the Board held that “the petitioner must be afforded a reasonable opportunity to rebut the derogatory evidence cited in the notice of intention to deny and to present evidence in his behalf before the decision is rendered.” In short, the Board held generally that a petitioner must be given a “reasonable opportunity” to review and rebut derogatory evidence against him or her. The “reasonable opportunity” requirement remains good law. Furthermore, the principle applies outside the context of the notice of intent to deny.

Although the current notice of intent to deny regulations do not permit requests for extensions, the Board held generally that under the prior regulations “a request for an extension of time to submit a rebuttal to the notice of intention to deny a visa petition should be dealt with … in a reasonable and fair manner.” This holding may remain applicable in other contexts, such as a case involving the revocation of an approved immigrant visa petition with cause.1 However, this does not apply in the case of an automatic revocation under 8 C.F.R 205.1.

Board May Not Consider Evidence Submitted in First Instance on Appeal: 27 I&N Dec. at 537

The Board held that, where the petitioner does not respond substantively to a notice of intent to deny, the Board will not consider or review any evidence first submitted on appeal. Rather, the Board's review is limited to evidence submitted to the district director. This principle applies also to appeals handled by the USCIS's Administrative Appeals Office (AAO). Thus, in order to have new evidence considered that was not submitted in response to a notice of intent to deny, the petitioner would have to file a new immigrant visa petition on behalf of the respondent. For this reason, it is important for a petitioner to offer as complete of a rebuttal as possible to a notice of intent to deny if he or she intends to continue pursuing approval of the petition throughout the process.

Decision in the Instant Case: 27 I&N Dec. 537-38

In the instant case and under the regulations in effect at the time, the Board remanded the record to the district director after finding that he had improperly denied the petitioner's reasonable request for an extension of time to submit a rebuttal.

Subsequent Citations

As we noted, the majority of references to Matter of Obaigbena in administrative decisions are to its point that assertions of counsel do not constitute evidence. However, we will highlight here three decisions that touched on various issues presented in Matter of Obaigbena.

In Bagaoisan v. Radcliffe, 78 F.3d 591 (9th Cir. 1996), the Ninth Circuit held that, where a petitioner failed to substantively respond to a notice of intent to deny an immigrant visa petition based on marriage, the BIA did not err in refusing to grant the petitioner an additional hearing to rebut the allegation that the marriage was fraudulent. Instead, the Ninth Circuit held that if the petitioner wanted additional evidence to be considered, she should have submitted that evidence in response to the notice of intent to deny or should have filed a motion with the BIA to reopen the hearing.

On July 18, 2011, the United States District Court for the District of Connecticut issued an un-reported decision in Koffi v. Holder, No. 09-2102, 2011 WL 286049 (D.Conn. Jul. 18, 2011) [PDF version]. Here, the petitioner argued, based on Matter of Obaigbena, that he was not given sufficient opportunity to confront and rebut derogatory information pertaining to the bona fides of his marriage contained in a 1999 notice of intent to revoke and in a 2007 notice of intent to deny. The District Court rejected both claims. In so doing, it noted that, in both cases, the plaintiffs (the petitioner and his spouse) were given the opportunity to review the derogatory evidence and 30 days to respond. In both cases, the plaintiffs responded within the 30-day window. The United States Court of Appeals for the Second Circuit upheld the District Court's decision in a non-precedent decision in Koffi v. Holder, 487 Fed.Appx. 658, 661 (2d Cir. 2012) [PDF version]: “We conclude, therefore, that the government properly advised Mr. Koffi of the derogatory information in his file and gave him a meaningful opportunity to rebut it.”

Finally, we will examine the following unpublished January 3, 2014 decision of the Administrative Appeals Office (AAO) [PDF version]. The AAO had initially dismissed an appeal from the decision of the Director of the Nebraska Service Center to revoke an approved Form I-129. The instant decision was issued in response to a motion to reconsider with the AAO. The issue was whether the petition beneficiary had accrued the work experience in Pakistan that he claimed in the petition. The petition revocation was based in large part on questions over the veracity of the evidence. In one instance, a letter from the beneficiary's purported employer in Pakistan misspelled the company's name on its letterhead. The beneficiary's counsel noted that on other parts of the letterhead, the name was spelled correctly, and that misspelling the company's name could not be a basis for questioning the credibility of the letter. However, the AAO took the position that “counsel's assertion is not supported by any authority or precedent decision that releases the USCIS from its requirement to judge the quality of evidence submitted.” Citing to Matter of Obaigbena, the AAO explained that “[w]ithhout documentary evidence to support the claim, the assertions of counsel will not satisfy the petitioner's burden of proof.”

Conclusion

Although subsequent regulatory changes have superseded parts of Matter of Obaigbena, the decision remains relevant on three points. First, the decision is cited often for the proposition that the assertions of an attorney are not evidence. An attorney may present evidence, but his or her statements are not evidence in and of themselves. Second, a petitioner must be given a “reasonable opportunity to rebut the derogatory evidence cited in a notice of intention to deny…” This principle still applies to responses to notices of intention to deny, and it furthermore applies to rebutting evidence more generally. Finally, along with Matter of Soriano, the Matter of Obaigbena makes clear that the BIA will generally not consider evidence submitted for the first time on appeal. This principle extends to appeals before the USCIS's AAO. However, regarding the final point, the principle is not absolute. For example, in Matter of Li, 21 I&N Dec. 13, 19 (BIA 1995) [PDF version], the Board considered evidence first offered on appeal where “in this instance the issue to which this evidence pertains was understandably not focused on below, inasmuch as no standard had yet been articulated regarding the treatments of adoption for immigration purposes.”

An alien filing an immigrant visa petition should work closely with an experienced immigration attorney throughout the process. If problems arise while the petition is being adjudicated, an attorney will be able to assess the situation and determine the avenues that may be available for responding.

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  1. “Obtaining Permanent Residence Through Family Relationships.” Sarah B. Ignatius. Immigration Law & Family sec. 3:11. (2017 Ed.) Westlaw. (database updated June 2017.)