U.S.

Department of Justice
Executive Office for Immigration Review
Board ofImmigration Appeals
Office ofthe Clerk
5 /07 Leesburg Pike, Suite 2000
Falls Church, Virginia 2204/

DHS/ICE Office of Chief Counsel - ATL

180 Ted Turner Dr., SW, Ste 332
Atlanta, GA 30303

Name: SMITH JODA, FATIMO EYITAYO ...

A 079-134-441
Date of this notice: 6/15/2016

Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,

DO>VtL C

l1/v\)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Cole, Patricia A.
Pauley, Roger
Wendtland, Linda S.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: Fatimo Eyitayo Renke Smith Joda, A079 134 441 (BIA June 15, 2016)

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Akpele, Uzo A., Esq.

AKPELE & ASSOCIATES, LLC
3355 Lenox Rd., Suite 600
Atlanta, GA 30326

us. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A079 134 441 - Atlanta, GA

Date:

JUN 15 Z016

IN REMOVAL PROCEEDINGS
CERTIFICATION
ON BEHALF OF RESPONDENT: Uzo A. Akpele, Esquire
ON BEHALF OF DHS: Wylly Jordan
Assistant Chief Counsel
CHARGE:
Notice: Sec.
APPLICATION:

212(a)(6)(A)(i), l&N Act [8 U.S.C. 1182(a)(6)(A)(i)] Present without being admitted or paroled (conceded)
Adjustment of status

This matter was last before the Board on November 19, 2012, when we remanded the record
to the Immigration Judge for preparation of a separate decision, because the record as it was then
constituted was not sufficient for us to conduct review of the respondent's
August 2, 2012, appeal. See Matter of A-P-, 22 I&N Dec. 468 (BIA 1999). Thereafter, on
September 24, 2014, the Immigration Judge issued an oral decision and returned the matter to the
Board by certification. See 8 C.F.R. 1003.7. The Department of Homeland Security ("DHS")
filed an opposition. The record will again be remanded to the Immigration Judge for further
proceedings consistent with this decision and for the entry of a new opinion.
We review findings of fact, including credibility findings, under the "clearly erroneous"
standard. See 8 C.F.R. 1003.l(d)(3)(i); see also Matter of J-Y-C-, 24 I&N Dec. 260
(BIA 2007); Matter of S-H-, 23 I&N Dec. 462 (BIA 2002). We review questions of law,
discretion, or judgment, and all other issues de novo. See 8 C.F.R. 1003.l(d)(3)(ii).
The following facts are not in dispute. 1 The respondent, a native and citizen of Nigeria,
entered the United States without inspection and married a United States citizen who filed an
1

Some of the facts recited in this order were not formally found by the
Immigration Judge but may be administratively noticed based on the submission of records from
United States Citizenship and Immigration Services ("USCIS") and the Georgia State
Office of Vital Records. See 8 C.F.R. 1003. l(d)(3)(iv) (limiting our appellate fact-finding
authority to "taking administrative notice of commonly known facts such as current events or the
contents of official documents"); Matter ofS-H-, supra, at 465-66.

Cite as: Fatimo Eyitayo Renke Smith Joda, A079 134 441 (BIA June 15, 2016)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

In re: FATIMO EYITAYO RENKE SMITH JODA a.k.a. Fatima Joda-Durden

a.k.a. Fatima Smith-Joda a.k.a. Fatima Eyitayo Joda-Durden

A079 134 441

Before the Immigration Judge, the respondent sought adjustment of status under section
245(i) of the Immigration and Nationality Act ("Act"), 8 U.S.C. 1255(i), based on visa
availability through the approved petition filed by her current husband and claimed that she is a
grandfathered alien based on the visa petition withdrawn by her former spouse (I.J. at 1-2).
However, the Immigration Judge concluded that the respondent did not carry her burden of proof
in establishing that her first marriage was bona fide at inception and thus, that the first visa
petition filed on her behalf was approvable when filed (I.J.at 2-4).2 On appeal, the respondent
challenges this conclusion and specifically asserts that the Immigration Judge erred in
impermissibly relying on certain record evidence to support his finding that the first visa petition
filed on her behalf was not approvable when filed (Resp.Brief at 6, 8-15, 17-23).
We conclude that a remand is warranted in this case. Generally, evidence, including hearsay,
is admissible in immigration proceedings if it is probative and its admission is not fundamentally
unfair based on indicia of reliability. See Indrawati v. United States Attorney General,
779 F.3d 1284, 1299 (11th Cir. 2015); Matter of C-C-1-, 26 I&N Dec. 375, 384 (BIA 2014);
Matter of D-R-, 25 I&N Dec. 445, 461 (BIA 2011); Matter of Grijalva, 19 l&N Dec. 713,
721-22 (BIA 1988).
The Immigration Judge admitted and considered interview notes an immigration officer
purportedly took during an adjustment interview that the respondent and her first husband
attended on October 3, 2007 (I.J.at 3; Exh. 6B). The respondent argues that the interview notes
are inherently unreliable because they have not been authenticated or sufficiently identified as
being (1) related to the respondent or (2) made contemporaneously with the interview
(Resp. Brief at 13-14). We agree. Regulations applicable to these proceedings state that, with
regard to domestic documents offered into evidence, "an official record ...when admissible for
any purpose, shall be evidenced by an official publication thereof, or by a copy attested by the
official having legal custody of the record or by an authorized deputy." 8 C.F.R. 1287.6(a). It
does not appear that the DH S provided an original copy of the interview notes nor did the DRS
certify that a true and correct copy had been produced (Exh.6B). See id

In a prior decision rendered on April 21, 2009, the Immigration Judge found that the
respondent was not a grandfathered alien. However, on November 23, 2010, this Board
remanded the record for further proceedings when we concluded that the Immigration Judge did
not provide adequate analysis in support of this determination.

2
Cite as: Fatimo Eyitayo Renke Smith Joda, A079 134 441 (BIA June 15, 2016)

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Alien Relative Petition ( Form 1-130) on the respondent's behalf on April 30, 2001 (I.J. at 1-2;
Tr. at 12-13; Exhs. 1, 2, 2B, 6). The visa petition was approved on May 15, 2005, but was
subsequently withdrawn by the petitioner on October 3, 2007 (I.J. at 3; Exhs. 3, 6, 6B). The
couple divorced on October 23, 2008, and the respondent married her current husband, also a
United States citizen, on November 12, 2008 (Exh. 4). The respondent's current husband
then filed a visa petition on her behalf and that petition was approved on
October 19, 2009 (Exhs.4, 5 C).

A079 134 441

Furthermore, the actual interview notes do not contain identifying information relating to the
respondent or her first husband, such as their names or the respondent's alien number (Exh. 6B).
We thus conclude that the Immigration Judge erred in admitting the interview notes into
evidence as they were unauthenticated, do not clearly relate to the respondent, and contain
indicia of unreliability. See Li Shan Chen v. United States Attorney General, 672 F.3d 961, 964
(11th Cir. 2011) ("Unauthenticated documents lack veracity and are entitled to no deference.");
Kazemzadeh v. United States Attorney General, 577 F.3d 1341, 1353 (11th Cir. 2009) ("The
Board was entitled to discount the evidence because the documents had not been
authenticated.").
The Immigration Judge also considered evidence proffered by the DH S in the form of a letter
submitted by the respondent's first husband, withdrawing the approved visa petition he filed on
her behalf (I. J. at 3; Exh. 6). The respondent argues that the Immigration Judge's reliance on this
letter was fundamentally unfair as the declarant was not made available for
cross-examination and as the letter is hearsay (Resp. Brief at 17-18; Exh. 6).
The withdrawal letter is of questionable probative weight and reliability without testimony
from the author regarding its meaning. In the letter, the respondent's first husband stated, "I
decided to not be apart this petitioner because we are not together at this time in a relationship
and I did not understand the pentile [sic] of my actions" (I. J. at 3; Exh. 6). The withdrawal letter,
executed in 2007, does not specifically address the bona tides of the marriage at its inception in
2001; instead, it indicates that the respondent's first husband was withdrawing the petition
because he and the respondent were not in a relationship at the time he submitted the letter
(Exh. 6). See Matter ofRiero, 24 I&N Dec. 267, 268-69 (BIA 2007) (holding that where the visa
petition is based on marriage, the alien must show the marriage was bona fide at its inception);
see also Indrawati v. United States Attorney General, supra; Matter of C-C-1-, supra;
Matter ofD-R-, supra; Matter ofGrijalva, supra.
In addition, the meaning of the word "pentile" in the letter is unclear. Even assuming the
Immigration Judge's construction of the word "pentile" as "penalty" is correct, it is unclear what
exactly the respondent's first husband, who was not available for cross-examination, meant when
he wrote "I did not understand the pentile of my actions" (1. J. at 3; Exh. 6). Thus, the
Immigration Judge's conclusion that this statement alone was evidence that the marriage
between the respondent and her first husband was not valid at inception is speculative
(1. J. at 3-4).
Based on the exclusion of the interview notes for the reasons outlined above, and given the
uncertain meaning of the withdrawal letter absent testimony from its author, we conclude that
3
Cite as: Fatimo Eyitayo Renke Smith Joda, A079 134 441 (BIA June 15, 2016)

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Additionally, although the coversheet to the interview notes appears to bear a signature, it is
unclear who the preparer was and what was the preparer's official title (Exh. 6B). The
coversheet also bears indicia of unreliability because the section where the date appears is
unclear, calling into question whether the notes were made contemporaneously with the
interview in question (Exh. 6B). See Matter ofPineda, 20 I&N Dec. 70, 73 (BIA 1989) (stating
that documentary evidence is more persuasive if it is prepared contemporaneously with the
events it records).

' '\

A079134 441
remand of the record is necessary in further evaluating whether the visa petition in question was
approvable when filed.3 See Matter ofButt, 26 I&N Dec.108, 115 (BIA 2013).

Given our disposition of this matter, we need not consider the respondent's other arguments
on appeal. Accordingly, the following order is entered.
ORDER: The record is remanded for further proceedings consistent with this order and for
the entry of a new decision.

_LJ
FOR THE BOARD

<::.::.

We also note that the visa petition filed by the respondent's second spouse was approved
without USCIS identifying any concerns regarding fraud in the first marriage (Exh. 5, Tab C).
See, e.g., section 204(c) of the Act, 8 U.S. C. l 154(c) (precluding approval of a visa petition
filed on behalf of an alien who has previously been accorded, or has sought to be accorded,
immediate relative or preference status by reason of a marriage entered into for the purpose of
evading immigration laws).

4
Cite as: Fatimo Eyitayo Renke Smith Joda, A079 134 441 (BIA June 15, 2016)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Upon remand, the Immigration Judge should reconsider whether the respondent met her
burden of proof in establishing her eligibility for adjustment of status under section 245(i) of the
Act absent the interview notes and when affording the withdrawal letter only the appropriate
weight to which it is entitled. In so doing, the Immigration Judge should consider what, if any,
weight the withdrawal letter carries absent the availability of its author, unless the DHSchooses
to call the former spouse as a witness in clarifying his statement. The parties should also be
given the opportunity to update the evidentiary record and present additional arguments in
assisting the Immigration Judge with evaluating whether the respondent has carried her burden
of proof in showing she qualifies as a grandfathered alien.

File: A079-134-441

September 24, 2014

In the Matter of
)
)
)
)

FATIMO EYITAYO RENKE SMITH JODA

RESPONDENT
CHARGE:

212(a)(6)(A)(i).

APPLICATION:

adjustment of status.

IN REMOVAL PROCEEDINGS

ON BEHALF OF RESPONDENT: OBY ANIAGOH, Esquire

OUZOU ACAPELLAE, Esquire
ON BEHALF OF OHS: WYLLY JORDAN, Esquire

ORAL DECISION OF THE IMMIGRATION JUDGE

Respondent is a female native and citizen of Nigeria who was placed in removal
proceedings with the following of a Notice to Appear with the Court, charging her with
removability pursuant to provisions at 212(a)(6)(A)(i) of the INA. The record includes
multiple written pleadings acknowledging proper service of the Notice to Appear,
admitting the factual allegations, and conceding removability. Therefore, the Court find
removability has been established by clear and convincing evidence.
Given the date, manner, and method of respondent's last entry, she would not be

Immigrant & Refugee Appellate Center, LLC | www.irac.net

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
ATLANTA, GEORGIA

eligible for adjustment of status under 245(a). The only way she would be eligible to
adjust her status would be under the provisions of 245(i) of the INA. Under Section

inspection on or before January 14, 1998. This provision sunsetted, but was revived
under the Life Act, which extended INA Section 245(i) to April 30, 2001.
INA Section 245(i) has now expired except for those aliens who are already
grandfathered in, and respondent alleges she is grandfathered based on an 1-130 filed
prior to the April 30, 2001 date. The Government argues that respondent failed to show
that that petition was meritorious and approvable when filed.
On April 21, 2009, the Court denied respondent's request for continuance and
ordered her removed from the United States to Nigeria. The Board remanded on
November 23, 2010, indicating that respondent was entitled to a hearing on the issue of
whether the marriage was bona fide as an exception. The Board specified that the
burden was on the respondent to demonstrate that the marriage was bona fide at its
inception.
The Court held an evidentiary hearing on July 9, 2012, at which time it denied
respondent's application to adjust status and found that she had failed to meet her
burden specified by the Board to show the marriage was bona fide at its inception.
Unfortunately, the digital audio recording did not properly function on that date, and the
Board has remanded the case again for the Court to issue its opinion again.
The evidence with record before the Court is adequately summarized by the
Court in the prior transcript, pages 46 and 47, consisting of Exhibits 1 through 6.
Respondent testified in support of the application, indicating the marriage was valid at
its inception. No other evidence was presented to support this. The Court would note
that the respondent was very vague in her testimony, and when the Government
A079-134-441

September 24, 2014

Immigrant & Refugee Appellate Center, LLC | www.irac.net

245(i) of the Act, adjustment of status was available to aliens who entered without

attempting to pin her down, she would resort to failure to remember, it was a long time
ago, and other answers that did not give specific answers.

of the marriage from its inception, specifically the withdrawal of the 1-130 by the
petitioner, including the statement from the petitioner that, "I did not understand the
penalty of my actions" at the time the he filed the 1-130. Further, the CIS interview notes
showing vast discrepancies between the sworn testimony of the respondent/beneficiary
and the petitioner. The respondent indicated that she and the petitioner were living
together at the time of the interview. The petitioner indicated they were not living
together at the time of the interview. In response, the respondent indicated that they
were living together "on and off." She could not give more specific answers than that.
The petitioner indicated the respondent had one child. The beneficiary corrected
him at the interview, indicating she had two children . When asked about the child that
the petitioner knew about, he testified the child was ten years old. Again, the
respondent had to correct and then indicate the child was eight years old. When asked
where the respondent was from, the petitioner testified she was from Uganda. The
beneficiary in fact is from Nigeria. Testimony during the hearing shows that respondent
was unable to testify as to who paid for the marriage. She said it had been long time
ago, she does not remember. She had no memory of where she went on her
honeymoon other than thinking that it was somewhere in New York.
Given the remand from the Board, which specified that the respondent be given
the opportunity to show the marriage was valid at its inception, respondent has clearly
failed to meet this burden. In addition to this contradictory evidence provided by the
Government in the form of the CIS interview notes and the petitioner's withd_rawal of the
1-130 and his reasons for that withdrawal, the Court would also comment on the
A079-134-441

September 24, 2014

Immigrant & Refugee Appellate Center, LLC | www.irac.net

The Government filed a number of documents to call into the question the validity

evasive, inconsistent testimony of the respondent. Having failed to demonstrate the

marriage prior to April 30, 2001 was valid at its inception, respondent would not be

Court.
Based on a thorough evaluation of the entire record, the Court enters the
following orders and findings:
ORDER
Respondent has failed to show that her first marriage was valid at its inception;
therefore, she would be ineligible for adjustment of status under 245(i) of the INA.
Respondent is ordered removed from the United States to Nigeria on the charge
contained in the Notice to Appear.

Please see the next page for electronic

signature

A079-134-441

J. DAN PELLETIER
Immigration Judge

September 24, 2014

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eligible to adjust her status under 245(i). No other request for relief was made to the

//s//
Immigration Judge J. DAN PELLETIER

A079-134-441

Immigrant & Refugee Appellate Center, LLC | www.irac.net

pelletij on April 1, 2015 at 5:55 PM GMT

September24, 20t4