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7 <meta name="author" content="Andrew DeFaria">
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8 <title>Matter of Fedoryaka</title>
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12 <div align="Center">
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13 <h1>Matter of Fedoryaka</h1>
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18 Olga Fedoryaka entered the US March of 1995 on a K1 Fiancé Visa
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19 with Michael Moffat from Tempe, Arizona. They married on May 27, 1995 within
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20 the required 90 period. Shortly after marrying Michael Moffat left for Thailand
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21 for 6 months as part of his job. Olga could not accompany him since she
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22 had not yet completed the Adjustment of Status process nor had they had
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23 time to complete the Advanced Parol process. By the time Michael returned
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24 6 months later their marriage was showing signs of difficulties and they
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25 separated and were divorced by May 3, 1996.
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26 <p>Olga remained in the US, obtained a job (Michael had helped her obtain
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27 a green card) and an apartment. Near the end of 1996 Olga met Jon Miller
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28 and they dated for a while. They married January 18, 1997 for a very brief
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29 time. Shortly thereafter Olga felt that she did not love Jon and could not
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30 see a lifetime of togetherness with him so she filed for divorce. The divorce
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31 was finalized by July 14, 1997. At no time did Olga file for any INS benefits
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32 from her marriage to Jon Miller. </p>
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34 <p>After divorcing Jon, Michael, Olga's first ex husband, contacted Olga.
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35 He was concerned that Olga was overstaying her welcome to the US. He had
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36 consulted with an immigration lawyer who informed him that due to a change
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37 in INS laws as of April 1997, Olga had 180 days to leave the US and she would
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38 be able to later return to the US without penalty. Michael urged Olga to consider
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39 leaving the US and offered to help her go to Hong Kong on a tourist visa.
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40 Olga left the US on September 27, 1997 and stayed with Michael for 3 months
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41 in Hong Kong. When her Hong Kong tourist visa expired she returned to Kiev,
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44 <p>I met Olga in July, 2000. I returned in September, 2000 we got engaged
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45 and I started the K1 Fiancé visa process. I visited her again in
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46 December, 2000 and we were approved in January 2001. We had an interview
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47 date of April 23, 2001 in Warsaw. While at the interview the consular questioned
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48 Olga's exit from the US, requiring us to obtain additional documentation
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49 of her departure from the US and entry from Hong Kong to Kiev, Ukraine. We
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50 provided that documentation. </p>
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52 <p>Next, in explaining the sequence of events in US the supervising consular
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53 grew suspicious about Olga's second marriage to Jon Miller. He voiced his
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54 concern that the marriage was a sham marriage intended to fraudulently obtain
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55 immigration benefits and decided to send our application back to the INS
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56 in Vienna for "administrative review".</p>
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59 The consular charges that Ms. Fedoryaka is inelligable for a visa based
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60 on INA 212(a)(6)(C)(i) which states:<br>
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62 <blockquote><span style="font-family: arial; "><span style="font-size: 15px; ">
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63 In general.-Any alien who, by fraud or willfully misrepresenting a material
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64 fact, seeks to procure (or has sought to procure or has procured) a visa,
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65 other documentation, or admission into the United States or other benefit
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66 provided under this Act is inadmissible.</span></span><br>
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68 He bases this on the record which shows that Ms. Fedoryaka was previously
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69 in the US and she had two marriages to US citizens of short duration. However
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70 the record shows no evidence that Ms. Fedoryaka had sought to procure a
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71 visa or any other benefit of the INA. It is devoid of any application for
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72 any benefit from her second marriage to Mr. Miller. The record shows an application
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73 for Adjustment of Status from her first marriage to Mr. Moffat. It also shows
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74 a retraction of the invitation for the Adjustment of Status interview by
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75 Mr. Moffat due to the disolution of the marriage. So the consular's decision
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76 to return this petition for administrative review seems to be based merely
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77 on supicion of fraudulent activity.<br>
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79 However looking at 9 FAM 42.43 N2.1 Petitions Approved in Error:<br>
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81 <blockquote>The approval of a petition is usually considered to be prima
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82 facie evidence that the alien beneficiary has met the petition requirements.
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83 Unless a petition has been approved in error, the petition can only be returned
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84 if the consular officer knows, or has reason to believe, that the beneficiary
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85 is not entitled to status. Knowledge and reason to believe must be based
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86 upon evidence that the INS did not have available at the time of adjudication.
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87 This evidence often arises as a result of or during the consular officer’s
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88 interview. <u>Reason to believe must be more than mere conjecture or speculation</u>
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89 —there must exist probability, <u>supported by evidence</u> that the alien
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90 is not entitled to status.</blockquote>
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91 And 9 FAM 42.43 N2.2 Cases of Sham Marriages:
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92 <blockquote>INS has minimum evidentiary standards that must be established
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93 before revocation proceedings may begin. These minimum evidentiary standards
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95 <p>(1) A written statement from one or both of the parties to the marriage
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96 or documentary evidence that money exchanged hands; or </p>
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98 <p>(2) <u>Factual evidence developed by the consular officer that would
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99 convince a reasonable person that the marriage was a sham marriage entered
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100 into to evade immigration laws.</u></p>
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103 <h2>Criteria for Finding of Ineligibility</h2>
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104 Now let's look at the criteria used to find ineligibility. According to
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105 9 FAM 40.63 N2 Criteria for Finding of Ineligibility:<br>
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107 <blockquote> In order to find an alien ineligible under INA 212(a)(6)(C)(i),
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108 it must be determined that:<br>
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110 (1) There has been a misrepresentation made by the applicant [see 9 FAM
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112 (2) The misrepresentation was willfully made [see 9 FAM 40.63 N5 ]; and<br>
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113 (3) The fact misrepresented is material [see 9 FAM 40.63 N6 ], or<br>
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114 (4) The alien uses fraud [see 9 FAM 40.63 N3 ] to procure a visa or other
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115 documentation [see 9 FAM 40.63 N7 ], to receive a benefit under the INA [see
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116 9 FAM 40.63 N7 ].<br>
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118 I submit that no such misrepresentation was made by Ms. Fedoryaka. Indeed
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119 our petition disclosed both marriages and included their divorce decrees.
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120 The petition did not misrepresent nor conceal them. Further Ms. Fedoryaka
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121 did not use fraud to procure a visa or benefit under the INA with respect
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122 to her marriage to Mr. Miller, in fact she sought nothing as the record
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125 Also, accordning to 9 FAM 40.63 N1.2 Not a Substitute for Other INA 212(a)
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126 Ineligibility "The section was not intended to permit - and must not become
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127 a device for - entrapment of aliens whom the consular officer might suspect
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128 to be ineligible on some other ground(s) for which there is not sufficient
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129 evidence to sustain a finding of ineligibility" and "it must also be borne
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130 in mind that aliens may not be denied visas simply because they do not seem
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131 to be particularly desirable individuals as either immigrants or nonimmigrants"
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132 yet it appears as if the consular returned the approved petition based merely
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133 on suspicion that Mr. Fedoryaka does not seem to be particularly desirable
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134 as either an immigrant or nonimmigrant.<br>
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136 And in 9 FAM 40.63 N3 Different Standards for Findings of "Fraud" or "Willfully
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137 Misrepresenting a Material Fact":
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138 <blockquote>a. The fact that Congress used the terms "fraud" and
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139 "willfully misrepresenting a material fact" in the alternative indicates
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140 an intent to set a lower standard than is required in making a finding of
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141 what is known in the law as representation of a material fact with knowledge
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142 of its falsity and with the intent fraud. The distinction between the two
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143 terms is not readily apparent. For the purposes of this section, <u>the Board
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144 of Immigration Appeals has determined that a finding of "fraud" requires
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145 a determination that the alien made a false </u><u>representation of a material
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146 fact with knowledge of its falsity and with the intent</u><u> to deceive
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147 a consular or immigration officer.<br>
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149 Again I submit to you that at no time did Ms. Fedoryaka make a false representation
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150 with the intent to deceive the consular.<br>
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152 This petition was already approved by the INS and according to 9
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153 FAM 40.63 N10.1 Misrepresentation in Family Relationship Petitions "a misrepresentation
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154 with respect to entitlement to status under a family-relationship petition,
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155 e.g., document fraud, sham marriage or divorce, etc., cannot be deemed material
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156 as long as the petition is valid"
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157 <h2>Did fraud occur?</h2>
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158 While not directly applicable to this case the following seems germane (I
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159 can no longer find the title for this excerpt. The URL I have for this is
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160 <a href="http://www.ins.usdoj.gov/cgi-bin/folioisa.dll/fedreg.nfo/query=fraud+marriage/doc/%7B@27968%20%7D/words=4?">
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161 http://www.ins.usdoj.gov/cgi-bin/folioisa.dll/fedreg.nfo/query=fraud+marriage/doc/{@27968</a>
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162 <a href="http://www.ins.usdoj.gov/cgi-bin/folioisa.dll/fedreg.nfo/query=fraud+marriage/doc/%7B@27968%20%7D/words=4?">
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164 however that no longer works):<br>
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166 <blockquote>A petition must be denied under the provisions of section
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167 204(c) of the Act if there is substantial and probative evidence that the
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168 self-petitioner has ever attempted or conspired to enter into a marriage for
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169 the purpose of evading the immigration laws. The self-petitioner does not
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170 need to have received a benefit through the attempt or conspiracy. He or
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171 she also need not have been convicted of, or even prosecuted for, the attempt
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172 or conspiracy. <u>Evidence of the attempt or conspiracy, however, must be
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173 contained in the self-petitioner's immigration file.</u></blockquote>
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174 yet, even though Ms. Fedoryaka never filed as a self-petitioner, the above
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175 can be viewed as a requirement for a finding that fraud had or had not occurred.
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176 The record is void of any evidence of the attempt or conspiracy to commit
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177 marriage fraud.<br>
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178 <h2>Is Ms. Fedoryaka Excluable under 212(a)(6)(C)(i)?</h2>
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179 According to <b>Interim Decision #3086: Matter of Kahy</b>:<br>
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180 <blockquote>(2) Where the record contains evidence that a visa
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181 petition was previously filed seeking nonquota status for an alien based
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182 on a fraudulent marriage, the burden then shifts to the petitioner to prove
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183 that the alien did not seek to be accorded nonquota status based on the prior
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184 marriage. Section 204(c)(1) of the Act, 8 U.S.C. § 1154(c)(1) (Supp.
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187 The record does not show that a visa petition was previously filed. Also,
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189 <blockquote>(3) A visa petition may be denied pursuant to section
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190 204(c)(2) of the Act, 8 U.S.C. § 1154(c)(2) (Supp. IV 1986), where there
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191 is evidence in the record to indicate that an alien previously conspired
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192 to enter into a fraudulent marriage.</blockquote>
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193 Again, the record does not show evidence that Ms. Fedoryaka conspired to
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194 enter into a fraudulent marriage.<br>
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197 <blockquote>It is well established that fraud or willful
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198 misrepresentation of a material fact in the procurement or attempted procurement
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199 of a visa, or other documentation, must be made to an authorized official
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200 of the United States Government in order for excludability under section
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201 212(a)(6)(C)(i) of the Act to be found. See Matter of D-L- & A-M-, 20
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202 I&N Dec. 3162 (BIA 1991); Matter of Shirdel, 19 I&N Dec. 33 (BIA
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203 1984); Matter of L-L-, 9 I&N Dec. 324 (BIA 1961). The record contains
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204 no evidence that the applicant practiced fraud or made a willful misrepresentation
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205 to a United States Government official in procuring or in seeking to procure
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206 documentation. Accordingly, we find that the issue at hand is whether the
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207 applicant is excludable for fraud or willful misrepresentation of a material
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208 fact in seeking to procure entry into the United States.<br>
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210 The record does not show that Ms. Fedoryaka attempted to fraud or willfully
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211 misrepresent a material fact in the procurement or attempted procurement
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212 of a visa, or other documentation to an authorized official of the United
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213 States Government with respect to her 1997 marriage to Mr. Miller.<br>
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218 <h2>Proving the marriage bona fide</h2>
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219 It is very difficult if not impossible to prove a negative. Absent any evidence
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220 that fraud occurred all we have left is a presumption of intent that Ms. Fedoryaka
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221 was intending to commit marriage fraud. The penality here if this presumption
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222 is taken as fact is a permanent bar of the alien from entry into the US forever.
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223 Such a heavy penality should not be taken lightly and should not be taken
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224 on a presumption or speculation alone. Evidence and facts should support
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225 any finding before such a severe penality is imposed. Fraudulent or sham
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226 marriages determination normally involve an alien that is attempting to procure
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227 a benefit under INA based on a current marriage of perhaps questionable merit
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228 and the alien is charged with the burden of proving the marriage is bona
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229 fide. But this is not the case here. Ms. Fedoryaka is seeking a fiancée
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230 visa. The marriage in question was 4 years ago to another man.<br>
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232 The usual method for proving a bona fide marriage consists of submitting
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233 evidence of it validity:<br>
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235 <blockquote>The Service has previously determined that
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236 a variety of evidence may be used to establish a good-faith marriage, and
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237 a self-petitioner should submit the best evidence available. Evidence of
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238 good faith at the time of marriage may include, but is not limited to, proof
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239 that one spouse has been listed as the other's spouse on insurance policies,
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240 property leases, income tax forms, or bank accounts; and testimony or other
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241 evidence regarding courtship, wedding ceremony, shared residence and experiences.
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242 Matter of Laureano, 19 I&N Dec. 1 (BIA 1983). Other types of readily
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243 available evidence might include the birth certificates of children born
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244 to the relationship; police, medical, or court documents providing information
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245 about the relationship; and affidavits of persons with personal knowledge
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246 of the relationship. Self-petitioners who submit affidavits are encouraged
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247 to submit affidavits from more than one person. Other types of evidence may
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248 also be submitted; the Service will consider any relevant credible evidence.</blockquote>
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249 However Ms. Fedoryaka's marriage was extremely short as she quickly realized
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250 that the marriage would not last. As such there is little if any of the normal
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251 records and evidence as required above. However:<br>
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254 <blockquote>The Act does not define a "good-faith"
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255 marriage or provide guidelines for evaluating the bona fides of a marriage;
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256 however, persons applying for immigration benefits based on a marriage are
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257 generally required to establish that they entered into the marriage in good
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258 faith, and a significant body of case law has developed concerning the interpretation
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259 of this requirement. It has long been held that a marriage that is entered
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260 into for the primary purpose of circumventing the immigration laws, referred
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261 to as a fraudulent or sham marriage, cannot be recognized as enabling a spouse
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262 to obtain immigration benefits. Lutwak v. United States, 344 U.S. 604 (1953)
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263 and Matter of Phillis, 15 I&N Dec. 385 (BIA 1975). A spousal petition
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264 will not be denied, however, solely because the spouses are not living together
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265 and the marriage is no longer viable. Matter of McKee, 17 I&N Dec. 332
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266 (BIA 1980). <u>The key factor in determining whether a person entered into
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267 a marriage in good faith is whether he or she intended to establish a life
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268 together with the spouse at the time of the marriage</u>. The person's conduct
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269 after marriage is relevant only to the extent that it bears upon his or her
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270 subjective state of mind at the time of the marriage. <u>Separation from the
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271 other spouse, even shortly after the marriage took place, does not prove,
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272 by itself, that a marriage was not entered into in good faith</u>. Bark v.
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273 INS, 511 F.2d 1200 (9th Cir. 1975).</blockquote>
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275 <h3>Looking for:</h3>
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279 <li>"However, we have always recognized that a
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280 fraudulent or sham marriage is intriniscally different from a nonviable or
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281 nonsubsisting one, see, e.g. Matter of Rahmati, 16 I&N Dec. 588 (BIA
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282 1978), although we have denied visa peition approval in both instances".</li>
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284 <li>Bark v. INS, 511 F.2d 1200 (9 Cir. 1975)<br>
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