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Gay Man’s Immigration Spousal Petition Revived

US judge finds no evidence of fraud in Romanian immigrant’s first marriage to a woman

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US District Judge Mary Rowland, an out lesbian recently appointed to the federal bench by President Donald Trump, has ruled that the Board of Immigration Appeals (BIA) erred in denying a petition by Thomas Valdivia, Jr., a US citizen, to award spousal residency rights to his husband, Radu Cheslerean, a Romanian citizen.

The BIA, affirming a decision by the Chicago district director of the US Citizenship and Immigration Services to deny Valdivia’s petition, had concluded that Cheslerean previously entered into a “sham marriage” with a woman in order to obtain immigration benefits.

The story begins at a New Year’s Eve party on December 31, 2005, when Cheslerean met Nina Garcia, whom he married about a month later. In August 2006, Garcia filed an I-130 petition with Immigration Services seeking spousal residency rights for Cheslerean. The couple was interviewed in the Chicago district office, but nothing happened for three years until the district director indicated that the petition would be denied. Garcia appealed to the BIA, which dismissed the matter in February 2011. Several months later, the couple divorced, with the judgment stating that Cheslerean and Garcia “lived separate and apart as of March 15, 2007, and had no children together.”

Cheslerean married Valdivia in 2015. A year later, Valdivia filed his own I-130 petition on behalf of Cheslerean, and the men were interviewed at the Chicago district in early 2017. That office issued a notice that the new petition would be denied, and Cheslerean responded by filing an affidavit explaining his two marriages. He stated that in his “relationship with Nina, we did not plan ahead, or have insurance or much other evidence of a comingled life because we had very little money, and any savings we had we would just spend. We were young and immature and didn’t think about the future or plan ahead.”

He also explained that he came from a conservative Christian family in Romania that viewed homosexuality as a sin so “coming to terms with who I am and living my life authentically as a gay man was a painful journey and it took me a lot longer than it takes other gay men these days.”

That information did not sway the Chicago district director who denied Valdivia’s petition in March 2017. The BIA, in turn, denied his appeal in December 2017, leading to this lawsuit.

Both Immigration Services and the BIA concluded that Cheslerean’s 2006 marriage to Garcia was a sham intended to game immigration law in a manner not allowed. That conduct precludes any future I-130 petition approval for the beneficiary, in this Cheslerean.

In responding to Valdivia’s lawsuit, the BIA noted that he had filed an affidavit in support of Cheslerean’s wife Garcia’s I-130 petition in 2009, but offered no explanation in his own 2016 I-130 petition of what the Board referred to as “the 2007 events” — which was when Cheslerean and Garcia stopped living together. The BIA concluded that Valdivia “was being less than fully candid in August of 2009 when he did not disclose the true nature of his relationship to Cheslerean.”

Rowland refused to accept the BIA’s conclusion on this point.

“Nowhere in the [Immigration Services] and BIA decision was Validiva’s credibility an issue, based on his 2017 affidavit or anything else,” she wrote.

Cheslerean’s recent affidavit concerning his two marriages indicated that Garcia’s 2006 I-130 petition on his behalf was rejected because she did not check any boxes regarding comingled resources or other evidence of a genuine union such as insurance policies. That’s a red flag to immigration authorities of a sham marriage — though Cheslerean argues that was all due to their youthful naiveté and lack of any significant financial resources.

Rowland found that the BIA cannot now read back into its ruling in the Garcia case “a finding that Valdivia failed to disclose his earlier attraction to Cheslerean.”

The BIA also argued in this lawsuit that in 2009 Garcia admitted that she and Cheslerean were “just friends,” but that is not dispositive, Rowland found, of the state of their relationship when the couple married in 2006. The question of a sham marriage, the judge noted, relates to the time when the marriage was entered into, not the state of the relationship years later. The marriage may not have been a real one by 2009, but that is not proof that Cheslerean entered into it three years earlier with the intention of defrauding the US.

Rowland concluded that nothing proves that Cheslerean’s marriage to Garcia was a sham and found that the story told now by Valdivia and Cheslerean is credible. Garcia and Cheslerean met at a party and married, that marriage eventually broke up, perhaps, we might speculate, partly due to Cheslerean’s discovery that he was falling in love with Valdivia. Cheslerean finally embraced his sexual orientation and became Valdivia’s boyfriend and then his husband. Case closed.

Valdivia and Cheslerean are represented by Chicago attorneys Noelia Rodriguez-Quiñones and Nancy Marcia Vizer.

Updated 11:41 am, November 25, 2019
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