o U.S. Citizenship "' and Immigration

Services

MATTER OF N-K-B-

Non-Precedent Decision of the Administrative Appeals Office

DATE: OCT. 25, 2016

CERTIFICATION OF VERMONT SERVICE CENTER DECISION

PETITION: FORM 1-360, PETITION FOR AMERASIAN, WIDOW(ER), OR SPECIAL IMMIGRANT

The Petitioner seeks immigrant classification as an abused spouse of a lawful permanent resident of the United States. See Immigration and Nationality Act (the Act) section 204(a)(l)(B)(ii), 8 U.S.C. § 1154(a)(l)(B)(ii). Under the Violence Against Women Act (VAWA), an abused spouse may self-petition for preference classification rather than remain with ,or rely upon an abuser to secure immigration benefits.

The Director, Vermont Service Center, revoked approval ofthe Form 1-360, Petition for Amerasian, Widow(er), or Special Immigrant (VA WA petition), and certified the matter to us. We withdrew the. Director's decision and remanded the matter for issuance of a new decision because the Director did not properly serve the Petitioner's counsel of record at that time. The Director again issued a decision revoking approval of the VA W A petition finding that the Petitioner did not establish that she shared a qualifying marital relationship with her lawful permanent resident spouse, R-P-. 1 The Director certified the new decision to us and the Petitioner, providing a copy of the decision to the Petitioner's attorney of record?

On certification, the Petitioner submits a brief and additional evidence.

Upon de novo review, we will affirm the Director's certified revocation.

I. APPLICABLE LAW

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

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

1 Name withheld to protect the individual's identity. 2 Counsel subsequently withdrew her representation of the Petitioner.

Matter of N-K-B-

Section 204(a)(l)(B)(ii) ofthe Act allows the spouse of a lawful permanent resident ofthe United States to self-petition for immigrant classification if the alien demonstrates that he or she entered into the marriage with the permanent resident spouse in good faith and that during the marriage, the alien or a child of the alien was battered or subjected to extreme cruelty perpetrated by the alien's spouse. In addition, the alien must show that he or she is eligible for classification under section 203(a)(2)(A) of the Act as the spouse of a lawful permanent resident, resided with the abusive spouse, and is a person of good moral character. Section 204(a)(l)(B)(ii)(II) of the Act, 8 U.S.C. § 1154(a)(l)(B)(ii)(II).

The eligibility requirements are further 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)(B)(ii) ... ofthe Act for his or her classification as an immediate relative ... if he or she:

(B) Is eligible for immigrant classification under ... section 203(A)(2)(A) of the Act based on that relationship [to the lawful permanent resident spouse].

(vii) Good moral character. A self-petitioner will be found to lack good moral character if he or she is a person described in section 1 01 (f) of the Act. Extenuating circumstances may be taken into account if the person has not been convicted of an offense or offenses but admits to the commission of an act or acts that could show a lack of good moral character under section IOI(f) ofthe Act. ... A self-petitioner will also be found to lack good moral character, unless he or she establishes extenuating circumstances, if he or she ... committed unlawful acts that adversely reflect upon his or her moral character, or was convicted or imprisoned for such acts, although the acts do not require an automatic finding of lack of good moral character. A self-petitioner's claim of good moral character will be evaluated on a case-by-case basis, taking into account the provisions of section IOI(f) ofthe Act and the standards of the average citizen in the community.

The evidentiary guidelines for a VA WA 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 ... proof of the immigration status of the lawful permanent resident abuser. It must also be accompanied by evidence o'f 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 ....

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(b)(6)

Matter of N-K-B-

(v) Good moral character. Primary evidence of the self-petitioner's good moral character is the self-petitioner's affidavit. The affidavit should be accompanied by a local police clearance or a state-issued criminal background check from each locality or state in the United States in which the self-petitioner has resided for six or more months during the 3-year period immediately preceding the filing of the self-petition .... If police clearances, criminal background checks, or similar reports are .not available for some or all locations, the self-petitioner may include an explanation and submit other evidence with his or her affidavit. The Service will consider other credible evidence of good moral character, such as affidavits from responsible persons who can knowledgeably attest to the self­petitioner's good moral character.

The burden of proof is on a petitioner to demonstrate eligibility by a preponderance of the evidence. See Matter of Chawathe, 25 I&N Dec. 369 (AAO 201 0). 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 has consistently maintained that she is eligible for the requested classification because she shared a qualifYing marital relationship based on her marriage to R-P-. The Petitioner specifically asserted that she married R-P- in a Hindu marriage ceremony in India, on 1996, and that this marriage was valid under the Hindu Marriage Act, 1955, even though it was not registered. The Director found the record insufficient to establish the Petitioner' s qualifYing mar,jtal relationship.

On certification, the Petitioner contends that she recently discovered that her 1996 marriage to R-P- was in fact registered under the Hindu Marriage Act, 1955, and provides a copy of a Certificate of Registration of Marriage from the Government of that her uncle allegedly obtained after traveling to According to the certificate; the Petitioner and R-P- resided separately in India, at the time of her 1996 marriage, and the marriage was "solemnized on ' 1996 at India. The document states that the Petitioner's marriage was registered "this day 1996 at serial No. 506 of volume 01 of Register of Marriages maintained under the Registration of Marriages Act, 2006." The certificate is dated 1996.

However, the results of an agency field investigation determined that the Petitioner's newly provided marriage certificate is not valid. Specifically, the Sub-Registrar of confirmed that after a search of official records of marriages that were registered from March 29, 1996, to March 18, 1997, there is no entry for a marriage between the Petitioner and R-P- for a marriage registered on 1996. The Sub-Registrar confirmed that only one marriage was registered on 1996, and it bears a different serial number and volume number than those reflected on the certificate the Petitioner provided . . The Sub-Registrar conCluded that the copy of the marriage certificate that .the Petitioner provided is "fake." ·

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(b)(6)

Matter of N-K-B-

We advised the Petitioner in writing that based on the information provided by the Sub-Registrar of the evidence she submitted regarding her 1996 marriage to R-P- under the Hindu

Marriage Act, 1995, is not valid. In our notice, we explained that the submission of fraudulent evidence undermines the Petitioner's credibility, and the falsified document itself does not establish: (1) that the Petitioner shared a qualifying relationship with R-P-; and (2) her corresponding eligibility for immigrant classification.

In response, the Petitioner submitted a statement in which she asserted that her marriage to R-P- was "true," that her mother, uncle, and other individuals witnessed the marriage, and that if any evidence was fraudulent "then it was done without [the Petitioner's] knowledge." She asserted that her current husband is abusive, "took control over the VAWA process," handled all of the documents, and would not let her see them. To the extent that the Petitioner suggests that her current husband was responsible for submitting the fraudulent marriage registration relating to R-P-, there is no indication in the record that the Petitioner's current husband, an individual born in Trinidad, was involved in the Petitioner's VAWA petition and secured the falsified document from India. Instead, the Petitioner's prior attorney of record stated in a cover letter dated August 28, 2014, that the Petitioner was the individual who had secured the marriage registration from her own uncle. The Petitioner does not otherwise dispute that the document is falsified.

The Petitioner has not submitted evidence on certification which overcomes the Director's decision to revoke approval of her petition. The Petitioner, therefore, has not established by a preponderance of the evidence that she had a qualifying marital relationship with R-P- and that she is eligible for classification based upon that relationship pursuant to sections 204( a)(1 )(B)(ii)(II)( aa) and ( cc) of the Act.3

In addition, the Petitioner's submission on certification of a fraudulent document in support of her VA W A petition constitutes behavior that falls below the standards of the average citizen in the community pursuant to the regulation at 8 C.P.R. § 204.2(c)(1)(vii). Accordingly, she has not established her good moral character as required by section 204(a)(l)(B)(ii)(II)(bb) 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 ofthe Act, 8 U.S .C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met.

3 The Petitioner maintains that she had a valid marriage with R-P- and they were not subsequently divorced. Because we find the Petitioner has not established a qualifying marriage with R-P-, we need not further address her subsequent divorce proceedings. For 'this same reason, although the record also demonstrates that the Petitioner subsequently married another individual , we do not make any determination as to the validity of that marriage and whether that remarriage further precludes approval pursuant to 8 C.F.R. § 204.2(c)(l )(ii).

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Matter of N-K-B-

ORDER: The initial decision of the Director, Vermont Service Center, dated August 5, 2014, is affirmed, and approval of the petition is revoked.

Cite as Matter ofN-K-B-, ID# 66963 (AAO Oct. 25, 2016)

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