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Bark v. Immigration and Naturalization Service

Facts

Petitioner applied for adjustment of his status from student visitor to permanent resident based on his marriage to a permanent resident. Petitioner and his wife had been sweethearts for several years while they were living in their native Korea. They were married in Hawaii in May 1969, and petitioner filed his application for adjustment of status after his wife filed a petition on his behalf. The Immigration Judge denied the application, concluding that the marriage was a sham based on evidence of their separation.

Petitioner applied for adjustment of his status from student visitor to permanent resident based on his marriage to a permanent resident. Petitioner and his wife had been sweethearts for several years while they were living in their native Korea. They were married in Hawaii in May 1969, and petitioner filed his application for adjustment of status after his wife filed a petition on his behalf.

Issue

Did the petitioner and his wife intend to establish a life together at the time of their marriage?

Did the petitioner and his wife intend to establish a life together at the time of their marriage?

Rule

Petitioner's marriage was a sham if the bride and groom did not intend to establish a life together at the time they were married. Evidence that the parties separated after their wedding is relevant in ascertaining whether they intended to establish a life together when they exchanged marriage vows.

Petitioner's marriage was a sham if the bride and groom did not intend to establish a life together at the time they were married.

Analysis

The court found that the Immigration Judge and the Board of Immigration Appeals did not focus on the key issue of the couple's intent at the time of marriage. Instead, they relied on the duration of the couple's separation, which was deemed relevant but not dispositive of the intent issue. The court emphasized that evidence of separation alone cannot support a finding that a marriage was not bona fide when it was entered.

The administrative record discloses that the Immigration Judge and Board of Immigration Appeals did not focus their attention on the key issue: Did the petitioner and his wife intend to establish a life together at the time of their marriage?

Conclusion

The court reversed and remanded the decision, stating that the inquiry should focus on the couple's intent to establish a life together at the time of their marriage.

Reversed and remanded.

Who won?

Petitioner prevailed in the case because the court found that the Immigration Judge's focus on the couple's separation was misplaced and did not adequately address the intent issue.

Petitioner prevailed in the case because the court found that the Immigration Judge's focus on the couple's separation was misplaced and did not adequately address the intent issue.

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