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DISCUSSION The Director Vermont Service Center denied the immigrant visa petition The. Administrative Appeals Office AAO dismissed the subsequent appeal The matter is now before the. AAO on a motion to reopen and reconsider The motion to reopen will be granted The appeal will. remain dismissed and the petition will remain denied. The petitioner seeks immigrant classification pursuant to section 204 a l A iii of the Immigration. and Nationality Act the Act 8 U S C 1154 a l A iii as an alien battered or subjected to. extreme cruelty by a United States citizen spouse,Applicable Law. Section 204 a l A iii of the Act provides that an alien who is the spouse of a United States citizen. may self petition for immigrant classification if the alien demonstrates that he or she entered into the. marriage with the United States citizen 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 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 ll of the Act 8 U S C 1154 a l A iii II. Section 204 a l J of the Act states in pertinent part. In acting on petitions filed under clause iii or iv of subparagraph A or in making. determinations under subparagraphs C and D the Secretary of Homeland Security shall. consider any credible evidence relevant to the petition The determination of what evidence is. credible and the weight to be given that evidence shall be within the sole discretion of the. Secretary of Homeland Security, Section 204 g of the Act 8 U S C 1154 g prescribes. Restriction on petitions based on marriages entered while in exclusion or deportation. proceedings Notwithstanding subsection a except as provided in section 245 e 3 a. petition may not be approved to grant an alien immediate relative status or preference status. by reason of a marriage which was entered into during the period in which administrative or. judicial proceedings are pending until the alien has resided outside the United States for a 2. y ar period beginning after the date of the marriage. Section 245 e of the Act 8 U S C 1255 e provides an exception to section 204 g of the Act as. Restriction on adjustment of status based on marriages entered while in exclusion or. deportation proceedings, 1 Except as provided in paragraph 3 an alien who is seeking to receive an immigrant. visa on the basis of a marriage which was entered into during the period described in. paragraph 2 may not have the alien s status adjusted under subsection a. 2 The period described in this paragraph is the period during which administrative or. judicial proceedings are pending regarding the alien s right to be admitted or remain. in the United States, 3 Paragraph 1 and section 204 g shall not apply with respect to a marriage if the alien. establishes by clear and convincing evidence to the satisfaction of the Secretary of. Homeland Security that the marriage was entered into in good faith and in. accordance with the laws of the place where the marriage took place and the marriage. was not entered into for the purpose of procuring the alien s admission as an. immigrant and no fee or other consideration was given other than a fee or other. consideration to an attorney for assistance in preparation of a lawful petition for the. filing of a petition under section 204 a with respect to the alien spouse or alien. son or daughter In accordance with the regulations there shall be only one level of. administrative appellate review for each alien under the previous sentence. The corresponding regulation at 8 C F R 245 1 c 8 v states in pertinent part. Evidence to establish eligibility for the bona fide marriage exemption Section 204 g of the. Ad provides that certain visa petitions based upon marriages entered into during deportation. exclusion or related judicial proceedings may be approved only if the petitioner provides. clear and convincing evidence that the marriage is bona fide. The eligibility requirements are explained further at 8 C F R 204 2 c 1 which states in pertinent. part the following, iv Eligibility for immigrant classification A self petitioner is required to comply with the.
provisions of section 204 c of the Act section 204 g of the Act and section 204 a 2 of the. 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. 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 Aself petition willnot be denied however solely because the spouses an. not living together and the marriage is no longer viable. The evidentiary standard and guidelines for a self petition filed under section 204 a 1 A iii of the. Act are explained further at 8 C F R 204 2 c 2 which states in pertinent part. i General Self petitioners are encouraged to submit primary evidence whenever possible. The Service will consider however any credible evidence relevant to the petition The. determination of what evidence is credible and the weight to be given that evidence shall be. within the sole discretion of the Service, iii Residence One or more documents may be submitted showing that the self petitioner. and the abuser have resided together Employment records utility receipts school. records hospital or mediCal records birth certificates of children deeds mortgages. rental records insurance policies affidavits qr any other type of relevant credible evidence of. residency may be submitted, vii Good faith marriage Evidence of good faith at the time of marriage 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 cour tship 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. re ationship and affidavits of persons with personal knowledge of the relationship All. credible relevant evidence will be considered,Facts and Procedural History. The petitioner is a Citizen of Thailand who entered the United States as a nonimmigrant student on. September 6 2004 On November 16 2009 the petitioner was placed into removal proceedings. On January 12 2010 she married a U S citizen in Illinois The petitioner filed the instant Form 1 360. on November 8 2010 The director denied the pe ition for failure to establish that the petitioner. resided with her husband and married him in good faith and the AAO dismissed the petitioner s. subsequent appeal In its July 5 2012 decision the AAO summarily dismissed the appeal and. upheld the director s decision regarding the failure to show the petitioner entered into marriage in. good faith and resided with her husband The AAO further found that the petitioner failed to qualify. for the bona fide marriage exemption from section 204 g of the Act under the heightened standard. of proof required by section 245 e 3 of the Act, Counsel asserts that an erroneous assessment was made in weighing the evidence provided. However counsel s brief fails to establish that the AAO s prior decision was incorrect based on the. evidence of record at the time See 8 C F R 103 5 a 3 prescribing this additional requirement. Consequently the motion to reconsider must be dismissed See 8 C F R 103 5 a 4. Counsel s submission does however me et the requirements for a motion to reopen at 8 C F R. 103 5 a 2 Counsel asserts that the petitioner has submitted sufficient documentation to establish. by clear and convincing evidence that she married her husband in good faith and that the AAO did. not properly assess the evidence provided Counsel submits new evidence a Jetter from the. petitioner s landlord and a new declaration from the petitioner as well as copies of previously. submi tted evidence Accordingly the motion to reopenis granted. Joint Residence, The record fails to demonstrate that the petitioner resided with her husband The petitioner and her.
husband s licenses list separate addresses and do not support the claim that they resided together On. the Form 1 360 the petitioner stated that she lived with her husband from January 12 2010 through. July 3 2010 c tnd that their last joint address was on Avenue in Illinois In her statements. however the petitioner claims that her husband moved in with her in September 2009 Although. counsel acknowledges this discrepancy in her Memorandum of Law in Support of the Appeal there. is no explanation provided for the inconsistency In her statements the petitioner does not describe. their home or shared residential routines in any detail apart from the alleged abuse In fact the. petitioner herself admits that her husband kept a separate apartment and that he only stayed with her at. her apartment two or three times each week In her first affidavit the petitioner noted that her husband. did not help her pay for rent on her apartment or for their food Throughout her statements the. petitioner repeatedly referred to the address on Avenue as my apartment When the petitioner. described looking for her husband after she saw him in a bar with another woman she stated that she. went to his apartment the next morning Emphasis added Similarly in her affidavit the. petitioner s friend stated that many times she went to the petitioner s apartment to. stay and chat with her as she is alone because her husband is in his apartment The petitioner. submitted a lease signed by both herself and her husband but the lease is dated July 31 2009 which. contradicts both the dates provided by the petitioner in her affidavits and her Form 1 360 Where. United States Citizenship and Immigration Services USCIS can articulate a material doubt regarding. the petitioner s eligibility the agency may either request additional evidence or deny the application if. the material doubt indicates that the claim is probably not true Matter ofChawathe 25 I N Dec 369. 376 AAO 2010 The inconsistencies described above greatly diminish the petitioner s credibility. Accordingly the record does not establish that the petitioner resided with her husband as required by. section 204 a l A iii II dd of the Act, Section 10l a 33 of the Act prescribesthat as used in the Act The term residence means the. place of general abode the place of gener al abode of a person means his principal actual dwelling. place in fact without regard to intent 8 U S C 1101 a 33 The preamble to the interim rule. regarding the self petitioning provisions cited section 101 a 33 of the Act as the binding definition. of residence and further clarified that a self petitioner cannot meet the residency requirements by. Counsel claims to have pre iously submitted a supplemental brief in support of the prior appeal on. January 3 2012 However the AAO never received a supplemental brief and counsel has not provided any. evidence that the brief was previously submitted as stated in the brief on motion. merely visiting the abuser s home while continu ing to maintain a general place of abode or. principal dwelling place elsewhere 61 Fed Reg 13061 13065 Mar 26 1996 In this case the. record shows that the petitioner maintained her own principal dwelling place apart from her. husband s apartment during their marriage and that her husband came to visit her at her apartment. two to three times each week, On motion counsel submits a letter from the petitioner s landlord Although. states that the petitioner and her husband have been living together since August 2009 and. dating since summer2008 he does not provide any information as to the basis of that knowledge. Additionally the date he provides for when the petitioner began living with her husband does not. match either of the dates provided by the petitioner September 2009 or January 2010 As such the. letter from the landlord is insufficient to overcome the above noted discrepancies Accordingly the. record does not establish that the petitioner resided with her husband as required by section. 204 a l A iii II dd of the Act,Entry into the Marriage in Good Faith. The relevant evidence submitted below and on appeal fails to demonstrate the petitioner s entry into her. marriage in good faith In her affidavits the petitioner stated that she first met her husband w hen she. went to fix his computer in 2006 and they began dating in the summer of 2008 The petitioner recalled. that her husband called every day and treated her well The petitioner claimed that her husband moved. in with her in September 2009 and asked her to marry him a few months later but she refused She. stated that in December 2009 they opened a joint bank account together and that on New Year s Eve. her husband proposed again and she said yes The petitioner recalled that on January 12 2010 they got. married at the court and had lunch with friends The petitioner did not further describe their courtship. engagement wedding or any of their shared experiences apart from the abuse. The petitioner submitted 16 letters from various friends These letters provided no specific information. vii Good faith marriage Evidence of good faith at the time of marriage 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 cour tship wedding ceremony shared residence and experiences Other types of readily available evidence

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