The BIA Accepts Historic Marriage Fraud Appeal for Decision
For the first time in American history, the Board of Immigration Appeals (BIA) will decide whether U.S. citizens have the right to appeal previously approved I-130 petitions when new evidence of marriage fraud emerges.
The case — brought by Codias Law on behalf of a U.S. citizen victim — marks a watershed moment for fraud enforcement and for the rights of fraud victims in the immigration system. With marriage-based petitions making up nearly one-quarter of all green cards issued each year, the stakes could not be higher.
Media Story
Tonight, The Daily Caller published an article, entitled “A First-Of-Its-Kind Case Could Completely Change The Fight Against Immigration Fraud,” which frames the case as a defining moment for whether the federal government will finally hold USCIS accountable for approving fraudulent petitions.
This development builds on Codias Law’s petition campaign this past summer, which drew national attention and called on the BIA to create the first-ever procedures for citizen appeals. That petition provided model forms, practice manual revisions, and a draft certification order.
Now, the appeal goes a step further: instead of asking for new procedures, it forces the Board to confront a more fundamental question — whether existing law already provides citizens with the right to appeal.
The Appeal
At the heart of the case is 8 C.F.R. § 1003.1(b)(5), a regulation that gives the BIA jurisdiction over DHS “decisions” of visa petitions. The regulatory text does not limit “decisions” to denials, and USCIS’s own policy manual confirms that the term “decision” includes both approvals and denials. Until now, however, our firm is unaware of any other law firm willing to advocate for the rights of U.S. citizens by invoking this provision to prevent marriage fraud.
Our firm’s position is straightforward: an approval is a “decision” under the regulation, and citizens must have the same right to appeal a fraud-tainted approval that foreign nationals already have when contesting a denial. This appeal does not seek revocation — a separate statutory procedure. Instead, it seeks a denial on appeal, the same remedy that applies in every other BIA appeal when the evidentiary standard is met.
Jurisdiction is only one of several fundamental issues at play. This appeal raises broader questions that could shape the rights of every marriage fraud victim, including:
Oversight: Whether USCIS may unilaterally approve petitions that violate INA § 204(c) without any appellate oversight.
Mandatory Denial: Whether an I-130 petition must be denied on a properly presented appeal when the evidentiary standard under INA § 204(c) is met, or whether USCIS may affirm approved petitions that violate the statutory bar and constitute a felony under 8 U.S.C. § 1325(c).
Standard of Proof: Whether the Board may substitute a heightened “substantial and probative evidence” standard for the default preponderance standard required by the Supreme Court in administrative proceedings, when Congress declined to do so and instead lowered the standard for the same conduct elsewhere in the same statute.
Definition of Marriage Fraud: Whether the Board’s “primary purpose” and “establish a life” tests under INA § 204(c) are legally incorrect and ultra vires because they are based on precedent that predates the statute, impermissibly narrow its plain language, and have been rejected by nearly every federal appellate court.
Timeliness of Appeal: Whether Petitioner’s appeal is timely under the doctrine of equitable tolling—which the Board has already adopted for appeals from immigration judges and which the Supreme Court has held presumptively applies to non-jurisdictional deadlines, particularly where fraud conceals the basis for a claim.
Taken together, these issues will determine whether Congress’s fraud bar at INA § 204(c) is meaningful—or whether it can be quietly nullified by administrative inaction.
The Implications
This case is more than a test of law — it is a test of the Trump administration’s commitment to the rule of law and immigration enforcement beyond the border. For years, the administration has declared enforcement a priority, but in practice the focus has been concentrated on the border and on a narrow category of convicted criminals.
Marriage fraud, by contrast, is systemic. It undermines Congress’s explicit prohibition at INA § 204(c), it harms U.S. citizens directly, and it compromises the integrity of the largest single category of green cards. The Board’s decision will determine whether fraud enforcement is treated as seriously as border enforcement.
Importantly, the BIA is not a court. It is an executive branch agency that operates under the Attorney General’s authority. Its duty is to ensure that immigration laws are faithfully executed — including Congress’s mandate that fraudulent petitions be denied. If the Board affirms that citizens can appeal fraudulent approvals, it will demonstrate that immigration fraud is being confronted at the institutional level, with statutory safeguards finally given real force. If the Board refuses, the system will continue to sideline victims, while career staff shield foreign perpetrators of fraud.
Cody M. Brown, Managing Attorney of Codias Law, issued the following statement:
“For the first time in American history, the Board of Immigration Appeals will decide whether its regulation allows U.S. citizens to challenge previously approved marriage petitions based on newly discovered fraud—bringing needed sunlight to a secretive process that has allowed fraud to fester inside DHS for decades. This is a critical test of whether the Trump administration is serious about enforcement beyond the border. Declaring a war on fraud means nothing if career staff inside DHS and DOJ can quietly shield fraudulent approvals from review.”
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