MATTER OF 0-S-A-

APPEAL OF VERMONT SERVICE CENTER DECISION

Non-Precedent Decision of the Administrative Appeals Office

DATE: DATE: DEC. 1, 2016

PETITION: FORM I-360, PETITION FOR AMERASIAN, WIDOW(ER), OR SPECIAL IMMIGRANT

The Petitioner seeks immigrant classification as an abused spouse of a U.S. citizen. See Immigration and Nationality Act (the Act) section 204(a)(l)(A)(iii), 8 U.S.C.§ 1154(a)(l)(A)(iii). Under the Violence Against Women Act (VA WA), an abused spouse may self-petition as an immediate relative rather than remain with or rely upon an abuser to secure immigration benefits.

The Director, Vermont Service Center, initially approved the petition, but later revoked the approval. The Director concluded that the Petitioner had not established that she had a qualifying relationship with her U.S. citizen spouse and that she was eligible for immigrant classification based upon such a relationship.

The matter is now before us on appeal. On appeal, the Petitioner submits a brief. The Petitioner claims that the Director did not properly analyze or consider the evidence in the record of proceedings.

Upon de novo review, we will dismiss the appeal.

I. LAW

Section 205 ofthe Act, 8 U.S.C. § 1155, states the following:

The Secretary of Homeland Security may, at any time, for what [she] deems to be good and sufficient cause, revoke the approval of any petition approved by [her] under section 204. Such revocation shall be effective as of the date of approval of any such petition.

The regulation at 8 C.F.R. § 205.2(a) states, in pertinent part, the following:

Any Service officer authorized to approve a petition under section 204 of the Act may revoke the approval of that petition upon notice to the petitioner on any ground other than those specified in§ 205.1 [for automatic revocation] when the necessity for the revocation comes to the attention of [U.S. Citizenship and Immigration Services].

Matter of 0-S-A-

The eligibility requirements for a self-petition under section 204(a)(l)(A)(iii) of the Act are further explained in the regulation at 8 C.F.R. § 204.2(c)(l), which provides, in pertinent part:

(i) Basic eligibility requirements. A spouse may file a self-petition under section 204(a)(l )(A)(iii) ... of the Act for his or her classification as an immediate relative ... if he or she:

(A) Is the spouse of a citizen or lawful permanent resident of the United States;

(B) Is eligible for immigrant classification under section 201 (b )(2)(A)(i) ... ofthe Act based on that relationship [to the U.S. citizen spouse].

The evidentiary guidelines for a self-petition under section 204(a)(l )(A)(iii) of the Act are further explicated in the regulation at 8 C.F.R. § 204.2(c)(2), which states, in pertinent part:

(ii) Relationship. A self-petition filed by a spouse must be accompanied by evidence of citizenship of the United States citizen .... · It must also be accompanied by evidence of the relationship. Primary evidence of a marital relationship is a marriage certificate issued by civil authorities, and proof of the termination of all prior marriages, if any, of ... the self-petitioner ....

The burden of proof is on a petitioner to demonstrate eligibility by a preponderance of the evidence. See Matter ofChawathe, 25 I&N Dec. 369 (AAO 2010). A petitioner may submit any evidence for us to consider; however, we determine, in our sole discretion, the credibility of and the weight to give that evidence. See section 204(a)(l)(J) of the Act; 8 C.F.R. § 204.2(c)(2)(i).

II. ANALYSIS

The Petitioner is a citizen of Nigeria, who was admitted to the United States as a B-1 nonimmigrant visitor. She married G-A-, 1 a U.S. citizen, and later filed a Form 1-360, Petition for Amerasian, Widow( er), or Special Immigrant, (VA W A petition), which was approved. After providing notice to the Petitioner, the Director revoked the approval of the VA WA petition. Specifically, the Director determined that the Petitioner had been married prior to her marriage to G-A- and that she did not establish that the prior marriage was properly terminated. The Petitioner timely filed an appeal.

A. Qualifying Relationship and Corresponding Immigrant Classification

The relevant evidence submitted below does not demonstrate that the Petitioner had a qualifying relationship with her U.S. citizen spouse and that she was eligible for immediate relative classification.

1 Initials are used in this decision to protect the identities of the individuals.

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(b)(6)

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A review of the record does not establish that the Petitioner's prior marriage was legally terminated before she married G-A-.

The Petitioner filed the VA W A petition based on her marital relationship with G-A-. The Director subsequently issued a notice of intent to revoke (NOIR) the VA W A petition, based on the results of an overseas verification investigation, conducted in connection with a Form 1-130, Petition for Alien Relative (alien relative 'petition) and concurrently filed Form I-485, Application to Register Permanent Residence or Adjust Status, (adjustment application), which revealed that the divorce document that the Petitioner submitted as evidence of the termination of her prior marriage was fraudulent.

In the decision revoking approval of the VA W A petition, the Director noted that the record of proceedings contained a divorce decree from the Judicial Division of the State, dated 2004, which showed that the marriage between the Petitioner and her prior spouse, 0-S-, was dissolved. The record contained the result of a Department of State investigation, which revealed that the divorce decree was fraudulent and that it did not exist in the

records. The Director also noted that the record of proceedings showed that the Petitioner previously applied for nonimmigrant visas in 2005 and 2006, and that both applications showed the Petitioner's marital status as "married." Her former spouse, 0-S- was listed as her spouse. This directly contradicted the 2004 divorce decree, which reflected that the Petitioner's marriage was dissolved.

In support of her VA WA petition, the Petitioner also submitted an unsigned "Affidavit in Support of Divorce," dated 2006. The affidavit, which was purportedly submitted by the Petitioner to the High Court of Justice in showed that the Petitioner was legally divorced from S-0- on 2005. The Director determined that the record did not contain any evidence that the unsigned "Affidavit in Support of Divorce" constituted a legal divorce in Nigeria and requested additional evidence of the termination of the Petitioner's prior marriage.

In response to the NOIR, the Petitioner submitted a certified Decree Absolute from the She also submitted a personal statement, a brief, and a copy of the policy memorandum regarding how field offices should proceed with requesting the revocation of a VA W A Petition. In her brief, the Petitioner asserted that she has provided sufficient evidence to establish that she was legally divorced from S-0-.

In her personal statement, the Petitioner explained that she believed that her marriage to S-0- was legally terminated and that she was not aware of any problems with the divorce decree until notified of them by USCIS. The Petitioner explained that she and her prior spouse, S-0- were separated before they were divorced and they subsequently lost contact with each other. The Petitioner explained that in 2006, S-0- served her with divorce documents from Nigeria. During the same period, she obtained a final divorce decree from reflecting that her marriage to .S-O­was legally terminated. She explained that she submitted both documents to USCIS believing that they were both legitimate. She further added that her 2005 and 2006 visa applications reflected her marital status as "married" because at the time, she believed that she was still married to S-0-. The

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(b)(6)

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Petitioner asserted that she has now submitted an original certified Decree Absolute, dated 2006, document from the High Court of which showed that her prior marriage to

0-S- was legally terminated.

On appeal, the Petitioner submits a brief, but no additional evidence. The Petitioner asserts that the Director erred in finding that her prior marriage to 0-S- was not legally terminated. She references her previously submitted documents, specifically, the final divorce decree, which she claims dissolved her prior marriage. The Petitioner reiterates that she has submitted sufficient evidence to show that she was divorced from her first spouse and legally free to marry G-A-.

The Petitioner further asserts that she has submitted a final divorce decree but that the Director did not consider the divorce decree or properly analyze the other relevant evidence in the record of proceedings. Notwithstanding these assertions, the Petitioner's attempt to explain the termination of her prior marriage to S-0- by claiming that she submitted the fraudulent documents by error and that her current divorce decree is sufficient to establish that she was legally separated prior to her marriage to G-A-, does not resolve the inconsistencies in the record regarding the legal termination of her marriage. As the record contains material inconsistencies with regards to the Petitioner' s marital history, the evidentiary value of the Petitioner' s testimony is diminished. Additionally, a subsequent on-site investigation confirmed that the 2006, Decree Absolute divorce document was deemed to be fraudulent.

In these proceedings, the Petitioner alone bears the burden to demonstrate her eligibility by a preponderance of the evidence. Matter of Chawathe, supra. USCIS has the sole discretion to determine what evidence is credible and the weight to accord such evidence. Section 204(a)(a)(J) of documentary evidence submitted below by the Petitioner are not sufficient to demonstrate that the Petitioner's marriage to S-0- was lawfully terminated prior to her marriage to G-A-.

Because the Petitioner was not divorced from S-0- when she married G-A-, she was in a bigamoL.JS marriage to G-A-. "Bigamy" is defined under Minnesota law as "a civil marriage entered into before the dissolution of an earlier civil marriage of one of the parties becomes final." See Minn. Stat. Ann. § 517.03(1) (West 2016). Under Minnesota law, a bigamous marriage is absolutely void. See Minn. Stat. Ann. § 518.01. There a·re no provisions under Minnesota law that allow for a bigamous marriage to be made valid by a subsequent termination of a prior marriage. See State v. Richards, 221 N.W. 867 (Minn. 1928). Bigamy is also a crime in Minnesota and a person found guilty of bigamy may be sentenced to imprisonment for up to five years or payment of a fine of up to $10,000, or both. Minn. Stat. Ann. § 609.355(2). Consequently, the Petitioner's marriage toG-A­was void from its inception and this defect cannot be remedied.

The regulation at 8 C.F.R. § 204.2(c)(2)(ii) requires proof of the termination of the self-petitioner's prior marriage. The Petitioner has not overcome the Director's finding that the divorce decree that she submitted is fraudulent, and that she has not submitted any other evidence of the legal termination of her prior marriage. Accordingly, the Petitioner does not demonstrate a qualifying relationship with a U.S. citizen and her corresponding eligibility for immediate relative classification pursuant to subsections 204(a)(l)(A)(iii)(II)(aa) and (cc) ofthe Act.

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B. Eligibility for Immediate Relative Classification

The regulation at 8 C.F.R. § 204.2(c)(1)(i)(B) requires that a self-petitioner be eligible for immediate relative classification under section .201 (b )(2)(A)(i) of the Act based on his or her qualifying relationship to the abusive U.S. citizen. As discussed in the preceding section, the Petitioner has not demonstrated that she had a qualifying relationship with her U.S. citizen spouse. She consequently has not established that she is eligible for immediate relative classification based on such a relationship, as required by section 204(a)(l)(A)(iii)(II)(cc) of the Act.

III. CONCLUSION

In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter o.fOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met.

ORDER: The appeal is dismissed.

Cite as Matter o.fO-A-S-, ID# 48992 (AAO Dec. 1, 2016)

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