Matter of Mensah, 28 I&N Dec. 288 (BIA 2021)

On April 14, 2021, the Board of Immigration Appeals published a new precedent decision in the Matter of Mensah, 28 I&N Dec. 288 (BIA 2021) [PDF version]. The Board held that an immigration judge may rely on an alien’s fraud or willful misrepresentation of a material fact in an interview to remove the conditions from his or her permanent resident status in assessing whether the alien is eligible for adjustment of status in removal proceedings. In the instant case, the Board concluded that the respondent’s statements in an interview to remove conditions on permanent residence that she had acquired through a prior marriage rendered her inadmissible under section 212(a)(6)(C)(i) of the Immigration and Nationality Act (INA), and thus ineligible for adjustment of status on the basis of an approved immigrant visa petition relating to a second marriage to a different individual.

We will examine the factual and procedural history of Matter of Mensah, the Board’s reasoning and conclusions, and what the decision means going forward.

Factual and Procedural History

The respondent, a native and citizen of Ghana, was admitted to the United States as a B2 nonimmigrant visitor in 2005. She overstayed her visa.

First Marriage and Petition to Remove Conditions

The respondent married her first husband in 2010. Her first husband, a U.S. citizen, filed an immigrant visa petition on her behalf. The United States Citizenship and Immigration Services (USCIS) approved the immigrant visa petition and granted her application for conditional permanent resident status under section 216(a)(1) of the Act [PDF version].

The respondent and her first husband filed a petition to remove the conditions on her permanent resident [see category] status in 2013. The petition was timely filed in accordance with section 216(c)(1)(A) of the Act.

On September 10, 2014, the USCIS District Director concluded that the respondent and her first husband had failed to established that the marriage was entered into in good faith. The Board listed the Director’s conclusions about the evidence:

The documentary evidence did not support the respondent’s claim that she lived with her first husband during the marriage.
The Director noted that the respondent acknowledged having a child with another man — her second husband and petitioner in the visa petition at issue in Matter of Mensah — while she was still married to her first husband.
The respondent was unaware that her first husband had been convicted of a criminal offense and sentenced to two years of probation in February 2014, all during the marriage.
The Director afforded limited weight to the affidavits submitted on behalf of the respondent and her first husband, noting that the affidavits were nearly identical to one another.

Because the Director denied the petition to remove conditions, the Department of Homeland Security (DHS) placed her in removal proceedings, charging her with removability under section 237(a)(1)(D)(i) of the Act as an alien whose conditional permanent resident status was terminated.

Second Marriage and New Petition

The respondent divorced her first husband in December 2014. She then married her second husband, also a U.S. citizen, in March 2015. Her second husband filed a Form I-130, Petition for Alien Relative on her behalf. The USCIS approved the new Form I-130 in 2016.

Based on the new approved immigrant visa petition, the respondent applied for adjustment of status before the immigration judge under section 245(a) of the Act.

Immigration Judge Denies Adjustment of Status

The immigration judge denied the respondent’s application for adjustment of status, finding that she had failed to establish that she was not inadmissible to the United States under section 212(a)(6)(C)(i) for having willfully misrepresented the bona fides of her first marriage in her 2014 interview to remove conditions on her permanent resident status.

Appeal to the BIA, Arguments, and Issues

The respondent appealed from the denial of her application for adjustment of status to the Board. The Board summarized her main arguments on appeal:

Immigration judge erred in concluding that she had failed to establish that she was not inadmissible for willful misrepresentation under section 212(a)(6)(C)(i).
The approval of the immigrant visa petition filed by her second husband negated any adverse consequences from her 2014 interview.
Immigration judge clearly erred in finding that her testimony during the removal hearing itself bolstered the conclusion that she had misrepresented whether she lived with her first husband in her 2014 interview.

The Board summarized the issues as follows:

The issue in this case is whether the Immigration Judge correctly concluded that the respondent did not establish her eligibility for adjustment of status in removal proceedings-in that she failed to demonstrate that she is not inadmissible under section 212(a)(6)(C)(i) of the Act for willfully misrepresenting a material fact to procure a benefit under the Act-based on a misrepresentation she made at her interview with the USCIS, where she sought to remove the conditional basis of her permanent resident status.

Furthermore, the Board explained that it would assess the issues as they relate to her application for adjustment before the immigration judge based on her second approved immigrant visa petition.

Board’s Analysis and Conclusions

The Board ultimately denied the respondent’s petition for review on all points, agreeing with the immigration judge and ordering her removed to Ghana. Below, in several sections, we will work through the Board’s decision.

Legal Background

An alien whose petition to remove conditions from permanent residence is denied is placed in removal proceedings by the DHS. 8 CFR 216.4(d)(2). While the alien cannot appeal the denial of the petition to USCIS, he or she may seek review of the decision by an immigration judge in proceedings. In removal proceedings, the DHS bears the burden of establishing by a preponderance of the evidence that either the information provided by the joint petitioners for removal of conditions was untrue or that the USCIS otherwise properly denied the petition.

The Board noted that the respondent may ask for a waiver of the joint petition requirement in certain cases, although that did not occur in the instant matter.

In the instant case, the USCIS denied the respondent’s joint-petition with her first husband for the removal of conditions. As a result, the DHS initiated removal proceedings against the respondent.

Burden of Proof

When seeking adjustment of status in removal proceedings, the respondent bears the burden of establishing eligibility for adjustment of status. INA 240(c)(4)(A)(i). One requirement for being eligible for adjustment of status is being admissible for permanent residence. INA 245(a). In the instant matter, the respondent bore the burden of establishing that she was not inadmissible to the United States.

Effect of Approval of Subsequent Petition

The respondent argued that the USCIS’s approving her second marriage-based immigrant petition negated any questions about the first petition. She reasoned that by approving the subsequent petition, the USCIS must have necessarily concluded that she was not subject to the “marriage fraud bar” in section 204(c) of the Act. Section 204(c) is not an inadmissibility provision, but instead bars an alien who attempted to circumvent the immigration laws through marriage fraud from having a subsequent preference petition approved on his or her behalf.

The Board was unpersuaded. It noted that there was no dispute that the respondent’s current and second marriage was bona fide. The second petition was approved on the basis of concluding only that the second marriage was bona fide. The Board found, however, that the approval of the subsequent petition had no bearing on the relevance of the respondent’s statements in her 2014 interview.

The Board added that the USCIS did not invoke section 204(c) at all. The question in the instant petition was whether the respondent had, at any time, willfully misrepresented a material fact for the purpose of obtaining some benefit under the INA.

Willful Misrepresentation of a Material Fact

The respondent bore the burden of proving that she had not willfully misrepresented a material fact in her 2014 interview. The respondent bore the burden because the Board determined that the USCIS Director’s statement in denying the respondent’s 2014 petition to remove conditions indicated that the respondent may be inadmissible for willful misrepresentation.

In order to be inadmissible under INA 212(a)(6)(C)(i), the misrepresentation must be made with the subjective intent of obtaining an immigration benefit. Kungys v. United States, 485 U.S. 759, 780 (1988) [PDF version]. The misrepresentation must have been deliberate. Matter of S- and B-C-, 9 I&N Dec. 436, 445 (BIA 1960; A.G. 1961) [PDF version]. The misrepresentation must also be material, that is, that it had a natural tendency to affect the decision of the adjudicator, or that it prevented the adjudicator from pursuing a line of inquiry that would have disclosed relevant facts. See Kungys, 485 U.S. at 771; Matter of D-R-, 27 I&N Dec. 103, 113 (BIA 2017) [see article].

Respondent Willfully Misrepresented a Fact

The Board found no clear error in the immigration judge’s conclusion that the respondent, in 2014, willfully misrepresented that she was living with her first husband.

The Director cited to numerous pieces of evidence suggesting that the respondent had misrepresented her living situation. Specifically, the Board noted that the Director cited to the respondent’s 2013 tax returns, which indicated that she lived at a different address.

The respondent’s interview occurred in September 2014. At that time, she testified that she still resided with her first husband. However, in removal proceedings, she testified that she lived with her first husband only until they divorced, which she testified occurred in May 2014 — as opposed to December 2014, which she had claimed previously.

The immigration judge asked the respondent about the discrepancy. She reaffirmed that she stopped living with her first husband in May 2014, prior to her interview to remove conditions.

The Board concluded that the immigration judge committed no clear error in relying in part upon the respondent’s testimony in removal proceedings to find that she had made a material misrepresentation in her September 2014 interview.

The respondent made numerous attempts to explain the discrepancy during the course of her removal proceedings. She testified that she had engaged in a brief relationship with her second husband during her first marriage. She further testified that she and her second husband had a single physical encounter that resulted in her pregnancy in 2013. The Board found no clear error in the immigration judge’s finding that the respondent’s explanations were unpersuasive,and thus declining to creidt them. See Matter of O-M-O, 28 I&N Dec. 191 (BIA 2021) [PDF version].

Respondent’s Misrepresentation Was Of a Material Fact

The Board noted that the respondent argued that her misrepresentation of her residence was immaterial, without noting her rationale. The Board was unpersuaded. It explained that the purpose of the 2014 interview was to ascertain the bona fides of her marriage. Thus, her misrepresentation that she lived with her husband was the type of misrepresentation that would have a natural tendency to affect the conclusion the USCIS reached on her petition, or would tend to shut off a line of inquiry that would have disclosed relevant facts. For that reason, the USCIS affirmed the immigration judge’s conclusion on materiality.

Conclusion

The Board stated that although the respondent relied on a different petition for adjustment in proceedings than that which was at issue in the 2014 interview, she still bore the burden of showing, in light of the Director’s 2014 denial notice, that she had not willfully misrepresented a material fact in her 2014 interview. Because the Board concluded that she failed to sustain her burden of proof, it affirmed the immigration judge’s decision denying her application for adjustment of status and dismissed her appeal.

The Meaning of the Decision

A conditional permanent resident may not adjust status on an alternative basis. However, as we have discussed on site, a conditional permanent resident may adjust on an alternative basis after his or her conditional permanent resident status is terminated [see article]. In Matter of Mensah, the Board made clear that an alien may nevertheless be found inadmissible for conduct relating to his or her time in conditional permanent resident status. In the instant matter, the Board found that in a marriage-based case, the subsequent approval of a different Form I-130 than the one at issue in the respondent’s prior attempt to remove conditions did not negate questions about the respondent’s conduct concerning the first petition.

The Board’s decision highlights that being found to have misrepresented a material fact to the USCIS may have serious immigration consequences no matter when it occurs.