U.S. Citizenship and Immigration Services

MATTER OF L-S-A-

· APPEAL OF VERMONT SERVICE CENTER DECISION

Non-Precedent Decision of the Administrative Appeals Office

DATE: JULY 28, 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, denied the petition. The Director concluded that the Petitioner did not establish that she shared a qualifying marital relationship with her U.S. citizen spouse and her corresponding eligibility for immigrant classification. The Director further concluded that the Petitioner did not establish that she resided with her spouse, her spouse battered or subjected her to extreme cruelty, and she entered into marriage with her spouse in good faith.

The matter is now before us on appeal. On appeal, the Petitioner submits a brief and additional evidence. The Petitioner claims that she presents sufficient evidence to demonstrate that she was battered or subjected to extreme cruelty by her spouse, and she entered into her marriage in good faith.

Upon de novo review, we will dismiss the appeal.

I. APPLICABLE LAW

Section 204(a)(l )(A)(iii)(l) of the Act provides that an individual, who is the spouse ~fa U.S. citizen, may self-petition for immigrant classification if the individual demonstrates that he or she entered 'into the marriage with the U.S. citizen spouse in good faith and that during the marriage, the individual or a child of the individual was battered or subjected to extreme cruelty perpetrated by the foreign national's spouse. In addition, the individual must show that he or she is eligible to be classified as an immediate relative under section 201 (b )(2)(A)(i) of the Act, resided with the abusive spouse, and is a person of good moral character. Section 204(a)(l)(A)(iii)(II) of the Act.

An individual whose relationship with an abusive U.S. citizen has ended may still self-petition under this provision of the Act if the individual demonstrates "a connection between the legal termination of the marriage within the past 2 years and battering or extreme cruelty by the United States citizen

Matter of L-S-A-

spouse." Section 204(a)(l )(A)(iii)(II)(aa)(CC)( ccc) of the Act, 8 U.S.C. § 1154(a)(l)(A)(iii)(II)(aa)(CC)(ccc).

The eligibility requirements under section 204(a)(l)(A)(iii) of the Act are explicated in the regulation at 8 C.F.R. § 204.2(c)(l), which states, 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:

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

(v) Residence . ... The self-petitioner is not required to be living with the abuser when the petition is filed, but he or she must have resided with the abuser ... in the past.

(vi) Battery or extreme cruelty. For the purpose of this chapter, the phrase "was battered by or was the subject of extreme cruelty" includes, but is not limited to, being the victim of any act or threatened act of violence, including any forceful detention, which results or threatens to result in physical or mental injury. Psychological or sexual abuse or exploitation, including rape, molestation, incest (if the victim is a minor), or forced prostitution shall be considered acts of violence. Other abusive actions may also be acts of violence under certain circumstances, including acts that, in and of themselves, may not initially appear violent but that are a part of an overall pattern of violence. The qualifying abuse must have been committed by the citizen ... spouse, must have been perpetrated against the self-petitioner or the self-petitioner's child, and must have taken place during the self-petitioner's marriage to the abuser.

(ix) Good faith marriage. A spousal self-petition cannot be approved if the self-petitioner entered into the marriage to the abuser for the primary purpose of circumventing the immigration laws. A self-petition will not be denied, however, solely because the spouses are not living together and the marriage is no longer viable.

The evidentiary guidelines 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

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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 self­petitioner ....

(iii) Residence. One or more documents may be submitted showing that the self-petitioner and the abuser have resided together .... Employment records, school records, hospital or medical records, rental records, insurance policies, affidavits or any other type of relevant credible evidence of residency may be submitted.

(iv) Abuse. Evidence of abuse may include, but is not limited to, reports and affidavits from police, judges and other court officials, medical personnel, school officials, clergy, social workers, and other social service agency personnel. Persons who have obtained an order of protection against the abuser or have taken other legal steps to end the abuse are strongly encouraged to submit copies of the relating legal documents. Evidence that the abuse victim sought safe-haven in a battered women's shelter or similar refuge may be relevant, as may a combination of documents such as a photograph of the visibly injured self-petitioner supported by affidavits. Other forms of credible relevant evidence will also be considered. Documentary proof of non-qualifying abuses may only be used to establish a pattern of abuse and violence and to support a claim that qualifying abuse also occurred[.]

(vii) Goodfaith marriage. Evidence of good faith at the time ofmarriage may include, but is not limited to, proof that one spouse has been listed as the other's spouse on insurance policies, property leases, income tax forms, or bank accounts; and testimony or other evidence regarding courtship, wedding ceremony, shared residence and experiences. Other types of readily available evidence might include the birth certificates of children born to the abuser and the spouse; police, medical, or court documents providing information about the relationship; and affidavits of persons with personal knowledge of the relationship. All credible relevant evidence will be considered.

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 (AAQ 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)(1)(J) of the Act; 8 C.F.R. § 204.2(c)(2)(i).

II. RELEVANT FACTS AND PROCEDURAL HISTORY

The Petitioner, a citizen of Brazil, married 0-F-, 1 a United States citizen, on 2008, in New York. 0-F- filed a Form 1-130, Petition for Alien Relative, on her behalf,

which was approved on December 15, 2009, and the Petitioner was concurrently granted conditional

1 Initials areused in this decision to protect individuals' identities.

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lawful permanent resident status. On October 24, 2011, the Petitioner filed a Form I-751, Petition to Remove Conditions on Residence, indicating that she and 0-F- were married and filing the Form I-751 together. At an interview on the Form I-751 before U.S. Citizenship and Immigration Services (USCIS) on January 29, 2013, she amended the Form I-751 to reflect that she is no longer filing the Form I-751 jointly with 0-F- because they divorced on 2012, and she is seeking a waiver to the joint filing requirement because she entered into her marriage with 0-F- in good faith. USCIS denied the Form I-751 on January 31, 2013, finding that the Petitioner did not establish that she and 0-F- had a bonafide marriage.

The Petitioner filed a Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant (VA WA petition), on July 25, 2013, which was denied by the Director. The Petitioner then filed the instant VAWA petition on October 27, 2014, which is based largely on evidence submitted with the prior VA WA petition. The Director issued a notice of intent to deny (NOID) based on a lack of evidence that the Petitioner was battered or subjected to extreme cruelty by 0-F-, resided with 0-F-, and entered into her marriage with 0-F- in good faith. The Petitioner responded to the NOID with additional evidence, which the Director found was not sufficient and denied the VA W A petition. The Petitioner appealed and, as noted above, submits additional evidence ..

III. ANALYSIS

A. Battery or Extreme Cruelty

The relevant evidence in the record does not demonstrate that the Petitioner was battered or subjected to extreme cruelty by 0-F-.

In her personal statement submitted with the instant VA W A petition, the Petitioner asserts that she and 0-F- went on a "perfect" vacatioq to Brazil in February 2010, they continued living together upon their return, but 0-F- became abusive approximately six months afterwards, or in August 2010. In a separate personal statement, dated January 9, 2014, which the Petitioner submits on appeal, she indicates that she and 0-F- filed the Form I-7 51, at which time she believed that she and 0-F- had "a happy, healthy marriage" and that, shortly after they filed the Form 1-751, she "began to discover that [their] relationship had problems." In the same personal statement, the Petitioner recounts that 0-F- slapped her in December 2011 and she left him after that.

These personal statements are not credible evidence that we can consider when determining whether 0-F- subjected her to battery or extreme cruelty. First, the Petitioner submitted in conjunction with the Form I-751 a complaint for· divorce filed by her as the plaintiff with the Superior Court of

New Jersey, on 2012, in which the Petitioner declares that she and 0-F- separated on February 19, 2010. However, her assertion to the court about the date of the couple's separation contradicts information in her personal statements and VAWA petitions, in which she stated that that she and 0-F- lived together into 2011. The Petitioner also does not reconcile her assertion to USCIS that she and 0-F- had "a happy, healthy marriage" as of October 24,2011, but told the court that her separation from 0-F- started in February 2010.

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Second, even without considering the Petitioner's divorce petition, she told USCIS different dates for when she and 0-F- ceased living together: her VAWA petitions reflect that she and 0-F- ceased living together in June 2011 but her personal statement provides a December 2011 timeframe

·because she had been in a "happy, healthy marriage" through at least October 2011.

Third and finally, the Petitioner informed a USCIS officer at an interview on January 29, 2013, regarding the Form I -7 51, that she gave birth to a daughter on and the father of her daughter is R-B-, with whom she had been in relationship for approximately 18 months. The Petitioner's relationship with R-B-, therefore, would have begun in approximately June 2011, which is inconsistent with the Petitioner's January 9,2014, personal statement, in which she noted that, as of October 24,2011, she and 0-F- had a "happy, healthy marriage."

Accordingly, the personal statements submitted by the Petitioner, when considered in light of the complaint for divorce and information that .she provided to USCIS in her Form I-751 and prior VA WA proceedings, are not credible evidence that 0-F- subjected her to battery or extreme cruelty, as the alleged acts of abuse she describes occurring in the marital home happened after she told a New Jersey divorce court that she was physically separated from 0-F-.

The Petitioner provides letters and a statement from several friends to support her claim that O-F­battered her or subjected her to extreme cruelty, as well as a psychological evaluation and a follow­up letter from PLCC. These letters and the evaluation are not credible evidence, however, because the incidents of alleged abuse they mention would have occurred in the marital home and, as we discussed, the Petitioner has not presented a credible account of her residence with 0-F-.

Consideration of any relevant, credible evidence is the evidentiary standard by which USCIS adjudicates petitions under section 204(a)(1)(A)(iii) of the Act, and we have sole discretion to determine what evidence is credible and the weight accorded such evidence. Section 204(a)(l)(J) of the Act; 8 C.F.R. § 204.2(c)(2)(i). The Director properly found that the Petitioner's evidence was insufficient to establish the requisite battery or extreme cruelty, as there are noted contradictions in the evidence that we have discussed here. Accordingly, the' Petitioner has not established that O-F­subjected her to battery or extreme cruelty during their marriage, as required by section 204(a)(l)(A)(iii)(I)(bb) ofthe Act.

B. Qualifying Relationship and Corresponding Eligibility for Immediate Relative Classification

The Petitioner has not established a qualifying relationship with 0-F-. As noted above, the Petitioner and 0-F- were divorced on 2012, and the Petitioner filed the VAWA petition on October 27, 2014. A petitioner who divorces a U.S. citizen spouse within two years prior to the filing of a VA WA petition may petition under section 204(a)(l )(A)(iii)(I) of the Act if the petitioner establishes that the divorce was connected to battery or extreme cruelty by the U.S. citizen spouse. Section 204(a)(l)(A)(iii)(II)(aa)(CC)(ccc) of the Act. In this case, as noted above, the preponderance of the relevant evidence does not establish that the Petitioner was battered or subjected to extreme cruelty. Therefore, the Petitioner has not demonstrated a causal connection between her divorce and battery or

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Matter of L-S-A-

extreme cruelty and, accordingly, the ,Petitioner does not have a qualifying relationship with 0-F-. Additionally, she is ineligible for corresponding immediate relative classification under section 201(b)(2)(A)(i) of the Act.

C. Joint Residence

The relevant evidence in the record does not demonstrate that the Petitioner resided with her spouse.

In her VAWA petition, the Petitioner noted that she resided with 0-F- from October 2008 until June 2011, which is contradicted by the complaint for divorce, in which the Petitioner declares that she and 0-F- separated on February 19,2010. The information contained in the VAWA petition is also at odds with the Petitioner's personal statement, dated January 9, 2014, in which she avers that, as of October 24, 2011, she and 0-F- resided together. The Petitioner also filed a sworn statement from F-F- in support ofthe Form I-751, in which F-F- indicates that, in 2006, she helped the Petitioner find a residence in New Jersey, and that the Petitioner and her spouse lived at that residence, which contradicts the Petitioner's personal statements and documentary evidence she submits in support of her VA W A petition, which indicate that she and 0-F- lived in New York after they married, except for a brief period when she left the Petitioner and returned to New Jersey before they reconciled and she moved back to New York. Accordingly, we give the Petitioner's personal statements no weight; they are not credible evidence of joint residence.

The statements from the Petitioner's friends primarily focus on the abuse and do not establish that the Petitioner jointly resided with 0-F-. In their letters and statement, E-A-, J-C-, and T-W- indicate that they visited the Petitioner and 0-F- but they do not provide any details of their interactions with the couple at their residence, or describe their residence in any detail.

As proof that she shared a residence with 0-F-, the Petitioner submitted the following documents: federal and state tax returns for 2009 and 2010; bank statements; a cell phone service agreement; and an automobile insurance coverage summary. The tax returns do not establish joint residence because they are not signed and do not indicate whether they were filed with the Internal Revenue Service or the New York State Department of Taxation and Finance. In addition, they reflect that 0-F- was the sole wage earner although her personal statements indicate that she was also employed, and they reflect an address in New York, and not the address in New York, where she claims they resided during that period of their marriage. Accordingly, the tax returns do not establish joint residence with 0-F-.

The bank statements from are for monthly periods ending in January 2009, April 2009, October 2010 through December 2010, and March 2011. With the exception of the March 2011 statement, the bank statements reflect very low balances and no record of any deposits or withdrawals. One bank statement includes a copy of a cancelled check written by the Petitioner for $200.00 on October 23, 2010, to R-B-, the father ofher daughter, who was born on The Petitioner separately testified at the January 29, 2013, interview with USCIS regarding the Form 1-751 that she met R-B- eighteen months prior to the interview, thus calling into question whether the account she shared with 0-F- was used for marital expenses, and further diminishing the overall

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weight that we give the Petitioner's statements. The March 2011 bank statement indicates a deposit on February 7, 2011, of $30,000.00 but does not reflect the source of that deposit. The other statements were issued by which has a financial relationship with

those statements are for monthly periods ending in October 2010, November 2010, and December 2010, and, with the exception of a money market savings account, also reflect low balances (;Uld no account activity.

The cell phone service agreement is only in the name of 0-F-, does not reflect multiple phones, and is dated August 25, 2012, which is after the Petitioner and 0-F- separated. The automobile insurance coverage summary lists both the Petitioner and 0-F- as insureds and is for a policy period ending December 9, 2009. In her personal statement she submits in response to the NOID, however, the Petitioner indicates that she and 0-F- maintained separate automobile insurance policies and, despite that she lived with 0-F- in New York for more than three years, she kept New Jersey license plates on her vehicle, which does not support the Petitioner's claim that she and 0-F- jointly resided in New York during their marriage.

Accordingly, the record does not establish by a preponderance of the evidence that the Petitioner resided with 0-F- during their marriage as required by section 204(a)(l)(A)(iii)(II)(dd) of the Act.

D. Entry Into Marriage in Good Faith

The relevant evidence submitted below and on appeal does not demonstrate the Petitioner's entry into her marriage with 0-F- in good faith. To establish her good faith entry into the marriage, the Petitioner submits the same documentary evidence listed above with respect to joint residence. Due to the issues noted above concerning inconsistencies in the evidence when compared to the Petitioner's personal statements, this evidence also does not establish the nature of their relationship or the Petitioner's good faith intentions in entering into the marriage.

As with joint residence, traditional forms of documentation are not required to demonstrate a petitioner's entry into marriage in good faith. See 8 C.F.R. §§ 103.2(b)(2)(iii), 204.2(c)(2)(i). Rather, a petitioner may submit "testimony or other evidence regarding courtship, wedding ceremony, shared residence and experiences and affidavits of persons with personal knowledge of the relationship. All credible relevant evidence will be considered." 8 C.F.R § 204.2(c)(2)(vii).

With the exception of the personal statement she submits on appeal, the Petitioner describes in her personal statements meeting 0-F- at a Brazilian festival and that they then went on dates and, after approximately one year, became eng;:tged and married soon after. She indicates that they wanted to have children and were happy together for approximately the first two years of their marriage. The Petitioner does not provide further probative details regarding her relationship with 0-F-, their courtship, her intent when she married 0-F-, their wedding ceremony and any celebration, shared residences and experiences, apart from the claimed abuse, to establish that she entered into the marriage with 0-F- in good faith.

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The letters and statement submitted by the Petitioner are also not sufficient to establish that she entered into the marriage with 0-F- in good faith because they do not provide sufficient details to address the Petitioner's marital intentions and offer little insight into the Petitioner's good faith intentions in marrying 0-F-. In her letters, E-A- indicates that she went out with the Petitioner and 0-F- prior to their marriage and 0-F seemed very polite and, in the beginning of their marriage, "everything was going great for them." She also notes that she often went out to dinner with them and visited their home but she does not describe one visit or occasion that she spent with the couple, or provide substantive information regarding her knowledge of their relationship, apart from the claimed abuse, or the Petitioner's marital intentions. J-C- indicates in her letter that the Petitioner and 0-F- were a "happy couple" and they attended parties and barbecues with friends on weekends and T-W- states that he went a party at their house and they were introduced as spouses but neither J-C- of T-W- provide substantive information regarding personal knowledge of the couple's relationship and the Petitioner's marital intentions.

Accordingly, the record does not establish by a preponderance of the evidence that the Petitioner entered into her marriage with 0-F- in good faith as required by section 204(a)(l)(A)(iii)(I)(aa) of the Act.

III. CONCLUSION

The record does not demonstrate by a preponderance of the evidence that the Petitioner was battered or subjected to extreme cruelty by 0-F-, resided with 0-F- during their marriage, and entered into her marriage with 0-F- in good faith. And, because the Petitioner has not demonstrated a causal connection between her divorce and battery or extreme cruelty, the Petitioner does not have a qualifYing relationship with 0-F- and, accordingly, she is ineligible for immigrant classification under section 204(a)(1)(A)(iii) of the Act. Additionally, the Petitioner is ineligible for corresponding immediate relative classification under section 201 (b )(2)(A)(i) of the Act.

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

ORDER: The appeal is dismissed.

Cite as Matter of L-S-A -, ID# 17090 (AAO July 28, 20 16)

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