Introduction: Matter of Laureano, 19 I&N Dec. 1 (BIA 1983)

On December 12, 1983, the Board issued a published decision in the Matter of Laureano, 19 I&N Dec. 1 (BIA 1983) [PDF version]. Matter of Laureano tied together existing precedents on the question of what constitutes a bona fide marriage that is valid for immigration purposes. Accordingly, Matter of Laureano serves as one of the most useful single decisions on the subject. Furthermore, the Board addressed in detail the “heavy burden” on a petitioner who had withdrawn a prior petition after an admission by one of the parties in the marriage that the marriage was fraudulent.

Citing to existing precedents, the Board defined as a “sham marriage” a marriage that is entered into for the primary purpose of circumventing the immigration laws, adding that such a marriage does not suffice for obtaining immigration benefits. It listed several factors for identifying what constitutes a bona fide marriage. Furthermore, the Board placed the burden of proof for establishing the bona fide nature of a marriage squarely on the petitioner. Finally, the Board addressed the “heavy burden” borne by a petitioner to establish the bona fides of a marriage after withdrawal of a prior petition upon the admission of a fraudulent marriage by one of the parties.

In this article, we will examine the facts and procedural history of Matter of Laureano, the Board’s analysis and conclusions, and the lasting impact of the decision.

Factual and Procedural History: 19 I&N Dec. at 1-2

The beneficiary was a native and citizen of the Dominican Republic who had last arrived in the United States on October 11, 1980. She married the petitioner, a U.S. citizen, on June 21, 1981. On December 17, 1981, the petitioner filed an immigrant visa petition on behalf of his wife as the immediate relative of a U.S. citizen under section 201(b) of the Immigration and Nationality Act (INA). The petitioner and beneficiary were interviewed on the same day.

The petitioner withdrew the immigrant visa petition after the interview. In so doing, he stated that he had married the beneficiary in order to allow her to obtain permanent resident status and remain in Puerto Rico. On April 14, 1982, the petitioner filed a second immigrant visa petition on behalf of the same beneficiary.

The acting district director adjudicating the second petition ultimately denied it. He concluded, based on the petitioner’s statement accompanying the withdrawal of the initial petition, that the marriage was entered into for the purpose of circumventing the immigration laws.

Petitioner’s Arguments on Appeal: 19 I&N Dec. at 2

The petitioner appealed from the District Director’s decision to deny the second petition. On appeal, the petitioner made several claims.

First, he stated that he had not been represented by counsel when he filed the initial petition, and that the subsequent withdrawal of the petition was done under duress caused by the then-Immigration and Naturalization Service (INS). Second, the petitioner claimed that he had not been afforded the opportunity to submit additional evidence in support of the second petition. Third, the petitioner argued that the district director’s decision was contrary to law insofar as it was based on the conclusion that the petitioner’s statement made when withdrawing the initial petition “contain[ed] an irreversible admission of fraud, impossible to be overcome by additional evidence.” . Finally, the petitioner submitted additional evidence with the appeal to attest to the bona fides of his marriage.

What Constitutes a Bona Fide Marriage? 19 I&N Dec. at 2-3

The Board stated that:

A marriage that is entered into for the primary purpose of circumventing the immigration laws, referred to as a fraudulent or sham marriage, has not been recognized as enabling an alien spouse to obtain immigration benefits.” Here, the Board quoted from its published decision in Matter of McKee, 17 I&N Dec. 332, 333 (BIA 1980) [PDF version].

The Board made clear that a sham marriage is one where the primary purpose of the marriage is to procure immigration benefits, or in other words, to “circumvent the immigration laws.

The Board added, again quoting from Matter of McKee, 17 I&N Dec. at 334: “The central question is whether the bride and groom intended to establish a life together at the time they were married.”

This point addresses the question of what makes a marriage bona fide when it was entered into. The central point for the Board was that the two parties entering into the marriage must have intended to establish a life together at the time of the marriage. This principle had previously been articulated clearly by the United States Court of Appeals for the Ninth Circuit in Bark v. Immigration and Naturalization Services, 511 F.2d 1200 (9th Cir. 1975) [PDF version], which was also cited to in Matter of Laureano.

Establishing Intent at the Time Marriage Was Entered Into: 19 I&N Dec. at 3

Citing to Bark and the Supreme Court of the United States decision in Lutwak v. United States, 73 S.Ct. 481 (1953) [PDF version], the Board stated that “[t]he conduct of the parties after marriage is relevant to their intent at the time of marriage.” To that effect, the Board cited to its published decision in Matter of Phillis, 15 I&N Dec. 385, 387 (BIA 1975) [PDF version], for a non-exhaustive list of evidence that may support the intent of the parties when the marriage was entered into to establish a life together:

Proof that the beneficiary has been listed as the petitioner’s souse on insurance policies;
Property leases;
Income tax returns;
Bank accounts;
Testimony or other evidence regarding courtship;
Wedding ceremony;
Shared residence; and
 Experiences.

The list from Matter of Phillis is not exhaustive, and different types of evidence may be relevant to proof of intent in specific cases. The central point here is that adjudicators will look to how the parties conducted themselves when they are married in order to discern their intent in marrying in the first place.

Although Matter of Laureano does not address this point, it is worth noting that these same principles apply for establishing that a marriage that is subsequently dissolved was bona fide at the time it was entered into.

Burden of Proof: 19 I&N Dec. at 3

The Board explained that in visa petition proceedings, “the petitioner has the burden of establishing eligibility for the benefit sought.” Here, the Board cited to Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966) [PDF version], which we discuss in detail in a separate article [see article].

Applying Rules to Facts of Matter of Laureano: 19 I&N Dec. at 3-4

In the instant case, the petitioner filed an immigrant visa petition on behalf of the beneficiary before ultimately withdrawing it. In withdrawing the petition, the petitioner admitted that the marriage was entered into for the purpose of helping the beneficiary obtain permanent resident status. The petitioner later argued that the acting district director erred by relying on the petitioner’s withdrawal of the initial petition and admission that the marriage was fraudulent in denying a subsequent petition filed on behalf of the same beneficiary.

The Board held that “[w]here a visa petition has once been withdrawn based on an admission by a party that the marriage was solely entered into to bestow an immigration benefit, any subsequently filed visa petition involving the same petitioner and beneficiary must include” the following at the time filing in order to establish the bona fides of the marriage:

1. An explanation of the prior withdrawal; and
2. Evidence supporting the bona fides of the parties’ relationship.

The Board held that, where the petitioner does not submit these materials at the time of filing the subsequent petition, the adjudicator “can reasonably deny the petition based on the admission made in conjunction with the prior withdrawal.”

The Board agreed with the petitioner “that a prior admission made in conjunction with the withdrawal of a first visa petition can be overcome with new evidence.” However, in such a scenario, the Board held that “the petitioner bears a heavy burden to establish the bona fides of the relationship.”

Rejecting the petitioner’s claims in the instant case, the Board concluded that the petitioner did not sustain his “heavy burden” for establishing the bona fides of the marriage. Additionally, the Board found no evidence supporting the petitioner’s claim that he was forced to withdraw the initial petition under duress.

For these reasons, the Board dismissed the petition.

Conclusion

Matter of Laureano remains arguably the most clear precedent on the requirements for establishing the bona fides of the marriage. Although it broke little new ground, it brought together important precedents from a variety of administrative and judicial opinions which remain good law today. In addition to its articulation of the rules for establishing a bona fide marriage, Matter of Laureano also addressed the petitioner’s “heavy burden” in a case where an initial petition on behalf of a beneficiary is withdrawn with at least one of the parties admitting the marriage was a sham and where the petitioner subsequently files a petition on behalf of the same beneficiary. The Board expanded on Matter of Laureano in its subsequent decision in Matter of Soriano, 19 I&N Dec. 764 (BIA 1988) [PDF version], wherein it addressed the burden of proof when a petitioner files a subsequent petition for the same beneficiary after the initial petition was rejected for deficient evidence of the bona fides of the marriage [see article].

An alien filing an immigrant visa petition on behalf of his or her spouse based on a legitimate marriage should consult with an experienced immigration attorney for case-specific guidance. It is important to remember that marriage fraud carries serious immigration, and potentially criminal, consequences [see article]. If an alien faces immigration charges based on a sham marriage, it is important to consult with an experienced immigration attorney immediately [see article].