Minimal Independent Review and Summary Notice Suffice for §1154(c) Marriage‑Fraud Denials: Fifth Circuit Affirms USCIS under Tawfik and 8 C.F.R. § 103.2(b)(16)

Minimal Independent Review and Summary Notice Suffice for §1154(c) Marriage‑Fraud Denials: Fifth Circuit Affirms USCIS under Tawfik and 8 C.F.R. § 103.2(b)(16)

Introduction

This unpublished, per curiam decision from the Fifth Circuit arises out of the United States Citizenship and Immigration Services’ (USCIS) denial of a Form I‑130 immediate relative visa petition filed by U.S. citizen Elias Gonzalez, Jr. on behalf of his wife, Martha Carolina Chavez Aguero. USCIS concluded that 8 U.S.C. § 1154(c)—often referred to as the “marriage‑fraud bar”—precluded approval because Chavez Aguero previously entered into a marriage with Joel Ribera for the purpose of evading immigration laws. After Gonzalez sued under the Administrative Procedure Act (APA), the district court granted summary judgment to the government. The Fifth Circuit affirms.

On appeal, Gonzalez advanced three issues:

  • USCIS acted arbitrarily and capriciously by failing to conduct the independent analysis required by Matter of Tawfik, 20 I&N Dec. 166 (BIA 1990);
  • USCIS’s § 1154(c) finding was not supported by substantial evidence; and
  • USCIS violated 8 C.F.R. § 103.2(b)(16) by not disclosing the adverse documentary evidence with sufficient specificity in the Notice of Intent to Deny (NOID).

The court rejects all three. Most notably, the opinion clarifies that USCIS satisfies Tawfik’s “independent analysis” requirement with a record‑based explanation that it reviewed the petition, interview testimony, and evidence; that substantial evidence can be circumstantial (including a certified divorce decree contradicting an earlier unauthenticated decree and an inability to answer basic questions about the prior spouse); and that § 103.2(b)(16) does not require attachment of adverse documents where the NOID summarizes the gist of the adverse evidence in a manner sufficient to permit rebuttal.

Summary of the Opinion

The Fifth Circuit affirms summary judgment in favor of the government, holding:

  • Arbitrary and capricious: USCIS complied with Matter of Tawfik by expressly stating it based its decision on a thorough review of the petition, interview testimony, and the record, and by articulating applicable law (including Tawfik). The agency did not impermissibly give conclusive effect to other proceedings.
  • Substantial evidence: The record contained substantial and probative evidence that Chavez Aguero sought immigration benefits through a fraudulent marriage, including the use of an unauthenticated Mexican divorce decree later contradicted by a certified decree, inconsistencies regarding her children, and her inability to answer basic questions about Ribera despite still being married to him. Direct evidence of fraud is not required.
  • Notice under § 103.2(b)(16): The NOID sufficiently described the adverse information (use of a fraudulent divorce decree and entry into a fraudulent marriage, as reflected in removal proceedings) such that Gonzalez had a meaningful opportunity to rebut it. The regulation does not demand attachment of the documents or hyper‑specific descriptions.

Detailed Analysis

Procedural Posture and Standards of Review

The case arrives on appeal from a district court judgment under the APA. The Fifth Circuit applies:

  • Arbitrary and capricious review (Motor Vehicle Mfrs. Ass’n v. State Farm; FCC v. Prometheus) to test whether USCIS examined relevant data and articulated a satisfactory explanation for its action without clear judgment error.
  • Substantial evidence review under 5 U.S.C. § 706(2)(E) for factual findings underlying the § 1154(c) determination, an approach the court aligns with its immigration jurisprudence (Orellana‑Monson v. Holder; Chen v. Gonzales; Webster v. Kijakazi; Taylor v. Astrue). Reversal requires that the record not merely support but compel a contrary conclusion.

The court emphasizes deference: courts do not substitute their policy judgment for the agency’s, and circumstantial evidence can suffice for the agency’s factual conclusions.

Precedents Cited and How They Shaped the Decision

  • Matter of Tawfik, 20 I&N Dec. 166 (BIA 1990): The cornerstone precedent for § 1154(c). Tawfik requires a district director to make an independent assessment rather than give conclusive effect to prior proceedings, while allowing reliance on evidence originating from earlier agency or court proceedings. It sets the agency’s evidentiary threshold as “substantial and probative” evidence of prior marriage fraud and clarifies that no criminal conviction is required. The Fifth Circuit applies Tawfik in two ways: (1) USCIS satisfied the independence requirement by explaining it had conducted a “thorough review” of the petition, interview, and record; and (2) circumstantial evidence can meet the “substantial and probative” standard.
  • Matter of Kahy, 19 I&N Dec. 803 (BIA 1988) and Iyawe v. Garland, 28 F.4th 875 (8th Cir. 2022): These authorities underscore that § 1154(c) imposes a mandatory bar to approval even if the current marriage is bona fide. The Fifth Circuit cites them to reject the argument that the bona fides of Gonzalez’s current marriage can overcome a prior fraud finding.
  • Matter of P. Singh, 27 I&N Dec. 598 (BIA 2019): Confirms that circumstantial evidence alone can be sufficiently strong to be “substantial and probative” for § 1154(c) purposes. The court leverages P. Singh to dispel the notion that direct proof or prosecution is necessary.
  • Omokoro v. Hamilton, 688 F. App’x 263 (5th Cir. 2017) (per curiam): Illustrates Fifth Circuit comfort with circumstantial evidence to sustain sham‑marriage findings. The court cites it to reinforce that direct evidence is unnecessary.
  • State Farm, 463 U.S. 29 (1983) and Prometheus, 592 U.S. 414 (2021): Frame the arbitrary‑and‑capricious analysis, emphasizing reasoned decision‑making and judicial restraint.
  • Orellana‑Monson v. Holder, 685 F.3d 511 (5th Cir. 2012) and Chen v. Gonzales, 470 F.3d 1131 (5th Cir. 2006): Provide the substantial evidence standard in immigration adjudication—reversal requires evidence to compel the opposite result.
  • Webster v. Kijakazi, 19 F.4th 715 (5th Cir. 2021) and Taylor v. Astrue, 706 F.3d 600 (5th Cir. 2012): Clarify that “substantial evidence” is more than a scintilla but less than a preponderance—just enough for a reasonable mind to reach the same decision.
  • Anyaso v. Mayorkas, 716 F. Supp. 3d 642 (N.D. Ill. 2024) and Omowole v. Garland, 6 F.4th 734 (7th Cir. 2021): Cited by Gonzalez to argue insufficiency of the evidence. The court distinguishes Anyaso because the inconsistencies there were trivial (e.g., differing accounts of an anniversary venue), whereas here the certified divorce decree undermined legal marital status at the time of the I‑130 and the interview answers were glaringly deficient.
  • Smith v. Garland, 103 F.4th 1244 (7th Cir. 2024), cert. denied, 145 S. Ct. 1059 (2025): Used to support the proposition that § 103.2(b)(16) notice obligations are satisfied by a summary sufficient to allow rebuttal, not necessarily by disclosure of every document. The Fifth Circuit agrees with that approach.

The Court’s Legal Reasoning

1) Tawfik’s Independent Analysis Requirement

Gonzalez contended that USCIS impermissibly gave conclusive effect to removal proceedings and failed to conduct its own analysis. The Fifth Circuit disagrees, pointing to the NOID’s language that USCIS reached its decision after a “thorough review of your petition, the testimony provided during your interview, and the record of evidence,” coupled with the agency’s explicit recitation of the governing legal standards, including Tawfik. While a sentence in the NOID could be read as relying on removal proceedings (“the beneficiary was entered into removal proceedings based on…a fraudulent marriage”), the court reads the document as a whole and finds independent consideration and appropriate reliance on prior‑proceeding evidence, which Tawfik permits.

The court also rejects the claim that USCIS ignored exculpatory or contradictory evidence. The final decision listed the rebuttal evidence and expressly found Gonzalez “failed to submit evidence to show that the beneficiary’s prior marriages were not entered into for the primary purpose of evading immigration law.” That suffices to show the material was considered and found unpersuasive.

2) Substantial Evidence Supporting § 1154(c) Fraud

Applying deferential review, the court concludes that a reasonable factfinder could infer marriage fraud from:

  • A certified divorce decree (obtained in 2014) showing that Chavez Aguero’s divorce from her first husband occurred in April 2005, contradicting the earlier unauthenticated divorce decree submitted to USCIS. The contradiction implies that when Ribera filed an I‑130 claiming she was his wife, she was still married to her prior spouse;
  • Inconsistencies across applications regarding children born in 2004 and 2006, which undermined prior representations in the immigration record; and
  • Chavez Aguero’s 2017 interview performance, in which she was unable to answer basic questions about Ribera and could not identify his whereabouts despite still being married to him, while USCIS determined she had been living in a common‑law marriage with Gonzalez for several years.

Tawfik and Matter of P. Singh make clear that direct evidence of fraud or a criminal prosecution is unnecessary. The court also rejects reliance on Anyaso, observing that the discrepancies here go to the legal validity and genuineness of the marriage (not minor memory lapses) and thus bear directly on whether the marriage was sham.

Finally, the court underscores the mandatory force of § 1154(c). Even proof that Gonzalez’s current marriage is bona fide cannot overcome a prior attempt or conspiracy to procure immigration benefits through a sham marriage (citing Iyawe and Matter of Kahy).

3) Adequacy of Notice Under 8 C.F.R. § 103.2(b)(16)

Gonzalez argued that USCIS violated § 103.2(b)(16) by failing to attach the 2005 divorce decree or provide detailed specifics about the 2017 interview. The court holds that the regulation requires a meaningful summary of adverse information sufficient to permit rebuttal, not the attachment of documents or hyper‑specific itemization. The NOID’s description—identifying the use of a fraudulent divorce decree and the removal proceedings based on a fraudulent marriage—was enough, especially because the removal proceeding record was accessible.

The court notes counsel’s response to the NOID did not substantively address the charge, confusing a “fraudulent divorce” with a “fraudulent divorce decree,” and asserting irrelevance due to the bona fide nature of the current marriage—an argument foreclosed by § 1154(c).

The Statutory and Regulatory Architecture

  • 8 U.S.C. § 1154(c): Prohibits approval of an I‑130 if the beneficiary previously sought immigration benefits through a fraudulent marriage or attempted or conspired to do so. At the agency level, the evidentiary burden is “substantial and probative” evidence of fraud (Tawfik; P. Singh). The bar is mandatory, regardless of the bona fides of a current marriage (Kahy; Iyawe).
  • 8 C.F.R. § 103.2(b)(16): Requires USCIS to inform an applicant of derogatory information not previously known to the applicant and provide an opportunity to rebut. The Fifth Circuit accepts that a substantive summary can be sufficient; attachments or exhaustive detail are not required so long as a meaningful opportunity to respond is afforded.
  • Administrative Procedure Act, 5 U.S.C. § 706: Governs judicial review of agency action. The court applies both arbitrary‑and‑capricious review to agency reasoning and substantial‑evidence review to factfinding underlying the § 1154(c) determination.

Impact and Practical Implications

  • Tawfik compliance threshold: Agencies can satisfy the “independent analysis” requirement with a concise but clear statement that they reviewed the petition, interview testimony, and the record, accompanied by correct legal standards. This lowers the litigation leverage of petitioners arguing that USCIS gave conclusive effect to other proceedings, provided the record reflects independent consideration.
  • Circumstantial evidence sufficiency: Certified documentary contradictions (here, competing divorce decrees) plus interview anomalies can meet the “substantial and probative” standard at USCIS and the substantial evidence threshold on judicial review.
  • Notice obligations narrowed in practice: The court accepts that a NOID need only summarize the adverse information; there is no categorical requirement to attach the adverse documents. Petitioners should not expect granular disclosure absent special circumstances.
  • Priority of prior fraud over current bona fides: The decision reiterates that a current bona fide marriage cannot overcome a prior § 1154(c) bar. Practitioners should focus on rebutting the historical fraud finding with objective evidence rather than emphasizing current marital genuineness.
  • Unpublished but instructive: Though nonprecedential within the Fifth Circuit (see 5th Cir. R. 47.5), the opinion signals how panels are likely to treat similar challenges to NOIDs and § 1154(c) determinations—especially where counsel offers limited rebuttal.

Complex Concepts Simplified

  • Form I‑130: Petition by a U.S. citizen or lawful permanent resident to classify a non‑citizen relative (here, a spouse) as eligible for immigrant status.
  • Form I‑751: Petition to remove conditions on residence, filed by conditional permanent residents after a marriage‑based green card, intended to prove the marriage was not entered to evade immigration laws.
  • Section 204(c) (8 U.S.C. § 1154(c)): A mandatory bar preventing approval of new I‑130s if the beneficiary previously engaged in or attempted a sham marriage to obtain immigration benefits.
  • Notice of Intent to Deny (NOID): USCIS’s pre‑denial notice explaining adverse information and giving the petitioner a chance to rebut before a final decision.
  • Arbitrary and Capricious Review: Courts check whether the agency considered relevant factors and explained its decision; they do not reweigh the evidence.
  • Substantial Evidence: A deferential standard—requires only that a reasonable mind could reach the agency’s conclusion based on more than a scintilla of evidence.
  • “Substantial and Probative” Evidence (agency standard for § 1154(c)): A robust circumstantial case can meet this standard; no criminal conviction is required.
  • Fraudulent Divorce Decree vs. Fraudulent Divorce: A “fraudulent divorce decree” means the document presented was counterfeit or inaccurate; it differs from asserting that the divorce itself never occurred. Using a fraudulent decree to obtain benefits can evidence marriage fraud.
  • Independent Analysis under Tawfik: USCIS must not simply adopt prior findings but may rely on prior‑proceeding evidence while making its own conclusion on fraud.

Practice Notes

  • When a NOID cites prior fraud based on documents, request and review the removal record and obtain certified civil records (divorce decrees, marriage certificates) to verify dates and authenticity. Do not rely on unauthenticated copies.
  • Respond specifically: If the NOID references a “fraudulent divorce decree,” address that issue directly (authenticity, provenance, and explanations for discrepancies). Confusing concepts (e.g., conflating “fraudulent divorce” with “fraudulent document”) can be fatal.
  • Develop objective rebuttal: Provide contemporaneous evidence of cohabitation, shared finances, and other indicia of marital life during the prior relationship if arguing that the earlier marriage was bona fide.
  • Interview preparation matters: An inability to answer basic biographical questions about a spouse—especially during an ongoing marriage—can powerfully corroborate USCIS’s fraud concerns.
  • Appellate framing: Arguments that USCIS must attach every adverse document in a NOID are unlikely to succeed; focus instead on whether notice meaningfully enabled rebuttal and whether the agency ignored material rebuttal evidence.

Conclusion

This Fifth Circuit decision reinforces three core principles in marriage‑fraud adjudications. First, USCIS satisfies Tawfik’s independence requirement where it documents that it reviewed the petition, interview testimony, and record evidence, and articulates the governing legal standards. Second, substantial evidence can be circumstantial and need not include direct proof or criminal prosecution; a certified civil record contradicting a prior unauthenticated filing, combined with material interview inconsistencies, suffices. Third, under 8 C.F.R. § 103.2(b)(16), a NOID need only summarize adverse information sufficiently to permit rebuttal; attachment of documents is not mandatory.

The opinion also underscores the inexorable force of § 1154(c): a prior attempt to secure immigration benefits through a sham marriage categorically bars approval of a subsequent I‑130, no matter how genuine the current marriage may be. While unpublished, the decision offers a clear roadmap for both USCIS and litigants on evidentiary and notice thresholds in marriage‑fraud cases and signals continued deference to USCIS’s reasoned, record‑based determinations in the Fifth Circuit.

Case Details

Year: 2025
Court: Court of Appeals for the Fifth Circuit

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