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U.S.

Department of Justice
Executive Office for Immigration Review

Board ofImmigration Appeals


Office of the Clerk
5107 leesburg Pike, Suite 2000

Falls Church, Virginia 20530

OHS/ICE Office of Chief Counsel - DAL

Law Office of George Anibowei, P.C.


6060 N. Central Expressway., Suite 560
Dallas, TX 75206

125 E. John Carpenter Fwy, Ste. 500


Irving, TX 75062-2324

Name: DAVIS, JOYCE JENROLA

A 087-297-576

Date of this notice: 4/21 /2015

Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,

DorutL ca.AA)
Donna Carr
Chief Clerk

Enclosure
Panel Members:
Cole, Patricia A.
Pauley, Roger
Wendtland, Linda S.

Userteam: Docket

For more unpublished BIA decisions, visit


www.irac.net/unpublished/index
Cite as: Joyce Jenrola Davis, A087 297 576 (BIA April 21, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

Anibowei, George, Esq.

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executi.ve Office for Immigration Review


Falls Church, Virginia 20530

Date:

File: A087 297 576 - Dallas, TX

APR 212015

In re: JOYCE JENROLA DAVIS

APPEAL
ON BEHALF OF RESPONDENT:

George Anibowei, Esquire

CHARGE:
Notice: Sec.

237(a)(l)(B), l&N Act [8 U.S.C. 1227(a)(l)(B)] In the United States in violation of law (conceded)

APPLICATION: Adjustment of status

The respondent, a native and citizen of Nigeria, appeals from the Immigration Judge's
May 1, 2013, decision pretermitting her application for adjustment of status under section 245(a)
of the Immigration and Natipnality Act (Act), 8 U.S.C. 1255(a). The appeal will be sustained,
and the record remanded.
We review for clear error the findings of fact, including the determination of credibility,
made by the Immigration Judge. 8 C.F.R. 1003.l(d)(3)(i) (2013). We review de novo all other
issues, including whether the parties have met the relevant burden of proof and issues of
discretion and judgment. 8 C.F.R. 1003.l(d)(3)(ii).
The respondent was previously the beneficiary of an approved Alien Relative Petition
(Form I-130) filed by her former husband, a United States citizen, on March 11, 2008 (Amended
United States Citizenship and Immigration Services (USCIS) Notice of Intent to Revoke dated
November 16, 2009).1 On January 28, 20 I 0, USCIS revoked the approved visa petition based on
its determination that the petitioner had not presented sufficient evidence of a bona fide marriage
and the petitioner had entered into a marriage of convenience for the purpose of evading the
immigration laws (USCIS Decision dated January 28, 2010). The Board dismissed an appeal
from the visa revocation determination on August 4, 2010, concluding that USCIS 's revocation
was supported by good and sufficient cause (August 4, 2010, Board Order). See Matter of
Estime, 19 I&N Dec. 450 (BIA 1987). Thereafter, the respondent's marriage ended and she
married her current husband, also a United States citizen (l.J. at 2). The respondent's current
husband filed a visa petition on her behalf that was approved on September 20, 2011 (l.J. at 2;
Resp't October 3, 2012, Documentary Submission at Tab A).

1 Some of the facts recited in this order were not formally found by the Immigration Judge but
may be administratively noticed based on the submission of records from USCIS. See 8 C.F .R.
1003.1(d)(3)(iv); Matter ofS-H-, 23 I&N Dec. 462, 465-66 (BIA 2002).
Cite as: Joyce Jenrola Davis, A087 297 576 (BIA April 21, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

IN REMOVAL PROCEEDINGS

A087 297 576

The respondent disputes the Immigration Judge's determination that there was a prior finding
of marriage fraud under section 204(c) of the Act (Resp't Br. at 4-5; l.J. at 2). In USCIS's
January 28, 2010, revocation of the visa petition filed by the respondent's prior spouse, USCIS
cited section 204(c) of the Act in concluding that the respondent's first marriage was a "marriage
of convenience entered into for the sole purpose of evading the immigration laws" (USCIS
Decision dated January 28, 2010). However, the petitioner appealed USCIS's decision. The
Board dismissed the appeal, concluding there was good and sufficient cause to revoke the visa
petition approval in that the petitioner did not meet his burden of proving a bona fide marriage
(August 4, 2010, Board Order). The Board did not make a marriage fraud determination
(August 4, 2010, Bd. Order).
The Immigration Judge clearly erred in stating that there was a prior finding of marriage
fraud under section 204( c) of the Act that rendered this respondent ineligible to adjust her status
(see I.J. at 2). The Board has consistently held that USCIS has the exclusive authority to
determine if an alien's prior marriage was "entered into for the purpose of evading the
immigration laws" under section 204(c) of the Act during adjudication of a visa petition. See,
e.g., Matter ofTawjik, 20 l&N Dec. 166, 167 (BIA 1990) ("Accordingly, [under section 204{c)
of the Act] the district direct or must deny any subsequent visa petition for immigrant
classification filed on behalf of such alien . . ." (emphasis added)); Matter ofRahmati,
16 I&N Dec. 538, 539 (BIA 1978) ("The section 204(c) decision is to be made on behalf of the
Attorney General by the District Direct or in the course ofhis adjudicati on ofthe subsequent visa
petiti on." (citing Matter of Samsen, 15 I&N Dec. 28 (BIA 1974)) (emphasis added)).
Accordingly, an Immigration Judge has no authority to apply section 204(c) of the Act in
adjudicating an application for adjustment of status.
To be eligible for adjustment of status under section 245(a) of the Act, a respondent must
show that she: (1) has filed an application for adjustment of status; (2) is eligible to receive an
immigrant visa and is admissible to the United States for permanent residence; and (3) has an
immigrant visa irrunediately available to her. See section 245(a) of the Act; 8 C.F.R. 1245.l(a).
In addition, she must demonstrate that she merits relief in the exercise of discretion. There is no
dispute that this respondent has applied for adjustment of status. The respondent is also the
beneficiary of an approved visa petition as the spouse of a United States citizen, with a visa
immediately available to her. See section 20 1(b)(2)(A)(i) of the Act, 8 U.S.C. 115l(b)(2)(A)(i).
The Immigration Judge must still decide whether the respondent is admissible and whether to
grant adjustment of status in the exercise of discretion. See section 245(a) of the Act.
Consequently, we will remand the record for the Immigration Judge to consider respondent's

2
Cite as: Joyce Jenrola Davis, A087 297 576 (BIA April 21, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

On February 18, 2010, removal proceedings commenced with the filing of a Notice to
Appear alleging that the respondent was deportable under section 237(a)(l)(B) of the Act,
8 U.S.C. 1227(a)(l)(B). The respondent conceded removability and sought adjustment of
status (1.J. at 1-2). On May I, 20 13, the Immigration Judge determined that the respondent was
ineligible to adjust her status under section 245(a) of the Act because she was barred by section
204(c) of the Act, 8 U.S.C. 1154(c) (l.J. at 2). Specifically, the Immigration Judge found that
there was an affirmative finding of marriage fraud under section 204( c) of the Act in conjunction
with the visa petition filed by the respondent's first husband (l.J. at 2). This appeal followed.

A087 497 576.

adjustment of status application in the first instance. Accordingly, the following orders will be
entered.
ORDER: The respondent's appeal is sustained.

3
Cite as: Joyce Jenrola Davis, A087 297 576 (BIA April 21, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

FURTHER ORDER:
The record is remanded to the Immigration Judge for further
proceedings and entry of a new decision consistent with the foregoing opinion.

'

'

UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
DALLAS, TEXAS

In the Matter of

)
JOYCE JENROLA DAVIS

IN REMOVAL PROCEEDINGS

)
RESPONDENT

CHARGES:

A violation of Section 237(a)(1) (B) .

APPLICATIONS:

Pretermitted adjustment of status.

ON BEHALF OF RESPONDENT: GEORGE ANIBOWEI


Dallas, TX
ON BEHALF OF .Q.1:4.SUnited States: JOHNSTON L. ALLUMS
Dallas, TX

ORAL DECISION OF THE IMMIGRATION JUDGE


The respondent is a female, native and citizen of Nigeria, who was issued a
Notice to Appear on February 18, 20 10 . See Exhibit 1. At a Master Calendar
previously held on November 29, 2012, the respondent appeared with her attorney of
record and admitted allegations one through four and conceded her removability from
the United States as alleged under Section 237(a) (1) (B) of the Immigration and

Immigrant & Refugee Appellate Center | www.irac.net

May 1, 2013

File: A0 87-297-576

Nationality Act. As a result of the admissions and concessions entered by the


respondent through her attorney of record, the Court finds that the issue of removability
has been conclusively established. See Section 240(c)(1)(A) of the Act.

country of removal.
The respondent previously at that Master Calendar indicated that she was going
to be seeking adjustment of status because she had an approved 1-130. However, the
Government of the United States, on the date of the prior hearing, indicated that the
Government does not believe that the respondent is eligible for adjustment of status
because the respondent has a prior affirmative finding of marriage fraud under Section
204(c) of the Immigration and Nationality Act.
The respondent then married a different spouse who also filed for an 1-130 and
that 1-130 has been approved. The respondent attempts to equate the approval of an 1130 with eligibility for adjustment of status and those two events are not synonymous.
The fact that CIS may have approved a subsequent 1- 130 through a different
spouse does not mean that the respondent is eligible for adjustment of status. The prior
finding of marriage fraud under Section 204(c) of the Immigration and Nationality Act
through the first spouse makes the respondent statutorily ineligible for adjustment.
The Court granted the respondent an additional six-month continuance to identify
any other form of relief that the respondent has. Counsel, on the record for today,
identified no other relief available to this respondent.
ORDER
IT IS HEREBY ORDERED ordered that the respondent be removed from the

A087-297-576

May 1,2013

Immigrant & Refugee Appellate Center | www.irac.net

The respondent, through her attorney of record, designated Nigeria as the

United States to the nation of Nigeria.


The respondent will be advised of her appeal rights separately on the record.

signature
MICHAEL P. BAIRD
United States Immigration Judge

AOB?-297-576

May 1, 2013

Immigrant & Refugee Appellate Center | www.irac.net

Please see the next page for electronic

//s//
Immigration Judge MICHAEL P.
bairdm on July 25,

BAIRD

2013 at 3:49 PM GMT

Immigrant & Refugee Appellate Center | www.irac.net

A087-297 -576

May 1, 20 13