In Unpublised Matter of Chen, Board Addresses Issues of Timeliness of I-130 Appeal and Chinese Cultural "Discrepancies" In A Stokes Interview

By Alan Lee, Esq.

We recently won a case at the Board of the Immigration Appeals, Matter of Chen, (BIA 10/9/07), which although unpublished, is important in its discussion of the issues of timeliness of appeal and discrepancies in a Stokes interview. (Marriage interviews are called Stokes interviews in New York and conducted when U.S.C.I.S. has suspicion that a marriage under which an applicant is attempting to gain status may not be bona fide. In a Stokes interview, the couple are separated and questioned on the details of their marital relationship). The decision is interesting in reminding appellants that the 30 days for appeal of a U.S.C.I.S. decision begins with the postmark date of the envelope if the decision is mailed, and that the citing of many alleged discrepancies in a Stokes interview is not fatal where there are good solid reasons rebutting the "discrepancies".

In this case involving a Chinese couple, the District Director cited 11 areas of discrepancies (15 discrepancies altogether) in the I-130 denial of May 13, 2005. These ran the gamut of the beneficiary's not knowing the details of the petitioning husband's naturalization or how he obtained his permanent residence; that the beneficiary did not know her father-in-law's first name or when her mother-in-law passed away; that she did not know where the husband's three children resided; that she was not aware that the husband had seen his three children two weeks earlier at a coffee shop; that she did not know where the petitioner was living before she married with him; and that they had different answers on whose name appeared on the phone bill, the amount in the bank account, and whether the husband had made transactions on that bank account.

The appeal to the Board on June 14, 2005, was initially denied on March 24, 2006, as being untimely filed. On motion to reconsider, we submitted the postmarked envelope used by the Immigration Service to transmit its denial showing a mailing date of May 16, 2005, and pointed to 8 CFR section 1003.3 (a)(2) that an appellant has 30 days of the service of the decision being appealed to file the notice of appeal, and that the notice was filed within 29 days of the service of the decision.

The Board agreed on October 9, 2007, that as per the regulation and the submission of the post marked envelope, the appeal thus was due on June 15, 2005, and was timely filed on June 14, 2005.

On the merits of the appeal, the Board pointed out the reasons for which it found the petitioner's explanations reasonable including the transcript supporting the consistency of the couple's answers in the discussion of the bank balance, and the reason for which the beneficiary and the husband's children had not met. It stated that other discrepancies concerned relatively minor areas of disagreement or apparently related to Chinese cultural differences and still others pertained to information that the other marital partner would not necessarily know. The Board accepted the petitioner's explanation that the beneficiary did not know the name of the husband's father who was living in China because she referred to him only by the traditional honorific "Father" and that she simply did not know the date the husband's mother passed away because he had not told her. The Board further rebuked the District Director's lack of discussion about the areas in which the parties gave consistent answers and lack of detailed analysis of the joint financial documents submitted by the petitioner.

The Board remanded the matter to the District Director to allow for both the petitioner and DHS to present any and all available relevant evidence, and for the District Director to issue a new decision fully addressing the new evidence as well as the interview areas in which the parties gave consistent answers.

The author is a 26+ year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004.

This article 2007 Alan Lee, Esq.


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