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Matter of Chen, (BIA 10/9/07), which although unpublished,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.
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