Introduction: Matter of Soriano, 19 I&N Dec. 764 (BIA 1988)

On October 5, 1988, the Board of Immigration Appeals (BIA) issued a published for-precedent decision in the Matter of Soriano, 19 I&N Dec. 764 (BIA 1988) [PDF version]. Since its issuance, Matter of Soriano has proven to be one of the most relied upon precedents of the Board for administrative adjudicators.

First, the Board held that where an immigrant visa petitioner files a second marriage-based petition on behalf of a spouse after having an initial petition filed on behalf of that same spouse denied based on the finding that “the marriage was entered into solely to bestow an immigration benefit,” the petitioner will “bear[] a heavy burden of proof” in the subsequent petition.

The rest of the Board’s decision dealt with the requirement of notice to a petitioner of deficiencies in his or her petition prior to its adjudication. The Board listed several ways in which a petitioner can be put on notice of evidentiary requirements. The Board then held that the record on appeal should be remanded if a petition is denied based on deficiency of proof, but the petitioner had not been put on notice of the deficiency and given a reasonable opportunity to address it, and then subsequently provides additional evidence on appeal to address the deficiency. However, if the petitioner was put on notice of the evidentiary requirements and given a reasonable opportunity to provide the evidence before the petition was adjudicated, the Board will not consider new evidence on appeal.

In this article, we will examine the factual and procedural history of Matter of Soriano, the Board’s analysis and conclusions, and the enduring impact of the Matter of Soriano precedents.

Factual and Procedural History: 19 I&N Dec. at 765

The petitioner, a 45-year old U.S. citizen, filed an immigrant visa petition on behalf of her husband, a 38-year old native and citizen of the Philippines. The parties were married on October 2, 1985. The petitioner filed the first immigrant visa petition on behalf of her husband on December 2, 1985.

The district director adjudicating the initial petition denied it on March 14, 1986. The district director had concluded that the marriage was a sham based on the following factors:

The magnitude of the inconsistencies in the parties’ statements at their separate interviews;
The petitioner’s inability to explain the inconsistencies in the parties’ statements; and
The inadequacy of the evidence submitted by the petitioner.

The petitioner did not appeal the March 14, 1986, denial. Instead, she filed a second immigrant visa petition on behalf of the same beneficiary as her husband on August 7, 1986. Along with the subsequent petition, she attached affidavits from her sons, aged 16 and 17, attesting to the bona fides of the marriage.

On September 8, 1986, the district director denied the August 7 petition on the basis of his conclusions reached in denying the initial petition. He added that the petitioner failed to submit any evidence indicating that her marriage was valid.

The petitioner appealed from the denial of the second petition. On October 20, 1986, the district director wrote to the petitioner’s counsel noting that counsel had failed to file a brief on appeal. The district director advised the petitioner’s counsel that he had 30 days to submit additional evidence in support of the appeal. The petitioner submitted additional evidence.

Analysis and Conclusions: 19 I&N Dec. Dec. at 765-67

First, the Board explained that a marriage that is entered into for the primary purpose of circumventing the immigration laws is not recognized as enabling an alien spouse to obtain immigration benefits. The central question in determining whether a marriage is bona fide is whether the bride and groom intended to establish a life together at the time the marriage was entered into. The Board stated that the conduct of the parties both before and after the marriage is relevant to ascertaining their intent at the time the marriage was entered into. The Board listed several types of evidence that may be considered. On these points, the Board followed its prior precedents, namely its decision in Matter of Laureano, 19 I&N Dec. 1 (BIA 1983) [PDF version]. To learn more about each of the points discussed in more detail, please see our full article on Matter of Laureano [see article] and the most relevant passages specifically [see section].

Citing to its decision in Matter of Brantigan, cc (BIA 1966) [PDF version], the Board explained that the petitioner bears the burden of establishing eligibility for the benefits sought in visa petition proceedings. Please see our article on Matter of Brantigan to learn more about the burden of proof in visa petition proceedings generally [see article].

While the petitioner in visa petition proceedings always bears the burden of proof, he or she “bears a heavy burden of proof with respect to any subsequently filed visa petition involving the same beneficiary” where the prior petition was denied based on the finding of a sham marriage. Here, the Board followed its decision in Matter of Laureano, 19 I&N Dec. at 4 [see section].

Next, the Board addressed situations in which a visa petition is denied on the basis of a deficiency of proof. The Board stated that the Board is an appellate body, it considers the record already created in visa petition proceedings. Therefore, in a case where the petitioner was put on notice of the required evidence for the approval of the petition and was then given a reasonable opportunity to provide such evidence, itthe Board would not consider any additional evidence submitted on appeal for any purpose. Because the Board is an appellate body, it considers the record already created in visa petition proceedings. For this reason, if a petitioner was given notice of evidentiary deficiencies and a reasonable opportunity to respond, the Board would not consider any new evidence submitted on appeal. Instead, citing to Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988) [PDF version], the Board would “adjudicate the appeal based on the record of proceedings…” The Board explained that in this scenario, the petitioner would be required to file a new visa petition in order to have the new evidence considered. Please see our full article on Matter of Obaigbena to learn more about these issues [see article].

However, the Board held that in a scenario where “the petitioner was not put on notice of the deficiency and given a reasonable opportunity to address it before the denial of the petition, and the petitioner proffers additional evidence addressing the deficiency with the appeal, in the ordinary course we will remand the record to allow the district or Regional Service Center director to consider and address the new evidence.” In short, the Board here held that a petitioner in visa petition proceedings should be “put on notice” of deficiencies in evidence and the evidentiary requirements. Furthermore, the petitioner should be afforded the opportunity to address the deficiencies. If the petitioner is not put on notice of any deficiencies and given a “reasonable opportunity” to address those deficiencies before the petition is adjudicated, but on appeal the petitioner submits additional evidence addressing the deficiencies„ the Board stated that it would generally remand the record for consideration of the new evidence.

How may a petitioner be put on notice of evidentiary requirements? The Board stated listed several examples: “A petitioner may be put on notice of evidentiary requirements by various means, such as a requirement in the regulations that a particular document be submitted with the visa petition, a notice of intent to deny, letter, or form noting the deficiency and requesting additional evidence; or an oral statement at an interview that new evidence is required.”

Finally, the Board applied its holdings to the facts of the instant case. Here, the district director first notified the petitioner of deficiencies of proof in the second visa petition when he denied the petition. It was only after the denial that the district director suggested the petitioner submit new evidence, which was in support of the petitioner’s appeal.

Furthermore and in a separate point, the Board concluded that the district director erred in stating that the petitioner had not submitted any evidence with the second immigrant visa petition. The Board explained that the affidavits of the petitioner’s children were evidence in support of the petition. However, the Board added that the affidavits of the petitioner’s family members were “of weak probative value.”

For the foregoing reasons, the Board remanded the record to the district director so that he may consider additional evidence that was submitted by the petitioner on appeal. However, the district director was directed to consider the new evidence while “bearing in mind the petitioner’s heavy burden of proof.”

Conclusion

Matter of Soriano is a highly influential Board precedent in a number of areas. Regarding the definition of sham marriages and establishing the bona fides of a marriage, it closely tracked prior Board precedents on the issue, most notably Matter of Laureano.

Matter of Soriano also followed Matter of Laureano regarding the “heavy burden of proof” an immigrant visa petitioner has when he or she files a subsequent petition for a beneficiary based on marriage after the petitioner’s prior petition filed on behalf of the same beneficiary was denied based on the finding of a sham marriage. However, Matter of Soriano made clear that the petitioner must still be given notice of deficiencies in the subsequent petition and given the opportunity to submit new evidence prior to the adjudication of the subsequent petition. In Matter of Soriano, the Board remanded the record where the petitioner’s subsequent petition was denied based on conclusions reached regarding the initial petition and where the petitioner was not notified of evidentiary deficiencies in the second petition or given the opportunity to address them.

However, the Board made clear that where the petitioner does receive proper notification of deficiencies in the evidence in support of the petition and where he or she is given the opportunity to address the deficiencies, evidence offered for the first time on appeal will not be accepted. The Board relied on this precedent in its relatively recent published decision in Matter of Izaguirre, 27 I&N Dec. 67, 71 (BIA 2017) [PDF version] [see article].

Finally, in an easy-to-miss passage in the decision, the Board stated that affidavits submitted by the petitioner’s two sons were of “limited probative value.” This suggests that the Board’s view with regard to the affidavits in Matter of Soriano was that they did not serve as strong evidence of the bona fides of the marriage. Tthe extent to which affidavits submitted by close relatives of the petitioner or beneficiary may or may not support the proposition that the marriage is bona fide will likely depend on the nature of the affidavits and the circumstances of the specific case.

It is important to note that many regulatory provisions address the United States Citizenship and Immigration Services’ (USCIS’s) obligation to notify petitioners of a deficiency of proof and provide an opportunity to respond. When filing a visa petition, a petitioner should consult with an experienced immigration attorney who will not only be able to assist throughout the petitioning process, but will also be able to help ensure that the petitioner is given every opportunity to present his or her case. Regarding petitions based on marriage, it is important for petitioners to remember that seeking benefits based on a sham marriage may carry severe immigration, and in some cases criminal, consequences [see article].