Matter of Mavis Nyarko MENSAH, (BIA 2021)
In this case, the immigrant was granted conditional residence based on her prior marriage. She filed a joint motion to remove conditions that was denied by USCIS after inconsistent (potentially false) testimony was provided at the USCIS interview and she was unable to prove that her marriage was bona fide. Her status was terminated by USCIS and she was placed in removal proceedings. In removal proceedings, she divorced and remarried, and she sought to adjust status through the new marriage. USCIS approved a second marriage-based Form I-130, and the court could have approved the adjustment, but ordered her removed instead.
This appears to be a sad case of overconfidence and poor preparation. It does not appear that the immigrant filed a second Form I-751 petition to remove conditions (based on a good faith marriage ending in divorce or hardship), but rather – it appears she abandoned this additional defense in favor of what she thought would be an easily approvable adjustment of status application. USCIS did not have reliable evidence her first marriage was fraudulent (or they would have denied the second I-130), so she overlooked or underestimated the effect that any misrepresentations she made during the USCIS interview would have on the court’s decision.
The respondent argues that, because the USCIS approved her current husband’s visa petition, it must have necessarily concluded that the marriage fraud bar under section 204(c) of the Act, 8 U.S.C. § 1154(c) (2012)—which is triggered when an alien enters a prior marriage for the purpose of evading the immigration laws—does not apply. She asserts that the approval of this visa petition constitutes an implicit determination that her first marriage was bona fide. See Matter of Tawfik, 20 I&N Dec. 166, 167–68 (BIA 1990). Therefore, the respondent argues that the Immigration Judge erroneously determined that she is inadmissible under section 212(a)(6)(C)(i) of the Act based on a misrepresentation about her first marriage.
