July-August 2012

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Page 25 of 33

BEHIND THE CASE by Sheeba Raj CASE: In re Kagau ATTORNEY: Nicolas Chavez, Chavez & Valko LLP I BIA: IJ's Conclusion of Prior Marriage Fraud Erroneous continuance pending the outcome of a Form I-130, Peti- tion for Alien Relative, which had been filed by the respon- dent's second wife. The IJ refused the request aſter conclud- ing that a prior I-130 filed on the respondent's behalf by his first wife had been denied because of marriage fraud. According to the BIA, however, there had been no deter- mination that the "respondent and his [first] wife entered into their marriage for the purpose of evading immigration laws." Instead, the Board noted, "the petition was denied based on the parties' failure to submit sufficient evidence to establish a bona fide marriage. n an unpublished decision, the Board of Immigration Appeals (BIA) determined that an immigration judge (IJ) abused his discretion when he refused to grant a migration Judge's denial of the respondent's motion for a " Therefore, "[T]he Im- continuance rests upon a clearly erroneous factual finding." A "failure to submit sufficient evidence to establish a bona fide marriage" is not a finding of marriage fraud, argued Texas chapter member Nicolas Chavez, of Chavez & Valko LLP, in In Re Kagau (Apr. 26, 2012). Chavez represents the respondent, Patrick Kagau. In his brief to the BIA, Chavez pointed out the IJ's erroneous reliance on U.S. Citizenship and Immigration Services's (USCIS) denial of the first I-130, given that the denial was unsup- ported by substantial and probative evidence. "The mere lack of evidence is not enough to meet the 'substantial and probative' threshold required for an affirmative finding that a marriage was fraudulent or entered into for the pur- pose of evading immigration laws," Chavez wrote. He also asserted that, under Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009), awaiting the adjudication of the second I-130 petition was good cause for a continuance. The BIA ruled in Kagau's favor and remanded the case. USCIS had rejected the I-130 petition filed by Kagau' previous wife under INA §204(c), but did not specify any evidence, statements made, or behavior that would suggest that Kagau intended to evade immigration laws. Chavez said his biggest difficulty was challenging the mindset of judges, who tend to deny continuances "on the mere fact that [US] CIS is producing a denial notice on §204(c). This decision s IJ Awaits Dorman Decision Before Ruling in Similar Case A FOR MORE INFORMATION: Immigration Law & the Transgender Client Purchase > 26 VOICE Denver immigration judge (IJ) has decided to administratively close an open case implicating the Defense of Marriage Act (DOMA) in order to await the Board of Immigration Appeals's decision in Matter of Dorman, 25 I&N Dec. 485 (AG 2011). The IJ stated in a May 31, 2012, opinion that administrative closure was appropriate pending the outcome of Dorman. Colorado chapter member Bryon Large, of Joseph Law Firm, P.C., who represents the respondent in the closed case, is currently preparing for the government's appeal. He said he's been monitoring activity surrounding DOMA and its impact on immigration law, and followed Immigration Equality and AILA's Gay, Lesbian, Bisexual, and Transgender Interest Group (GLIG). "GLIG is Major Developments in (CD

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