## Facts

- Sang Chul Bark, a Korean national, entered the United States in August 1968 as a business visitor and later held student status.
- Bark had a long prior relationship with a woman from Korea who became a lawful permanent resident in the United States.
- After renewing their relationship, Bark and the resident-alien spouse married in Hawaii in May 1969.
- The spouse filed a visa petition to classify Bark as the spouse of a lawful permanent resident; Bark applied to adjust status to permanent resident under INA § 245.
- At the adjustment hearing, both spouses testified they married for love rather than to evade immigration law, but admitted marital conflict and separation.
- The Immigration Judge discredited their testimony, relying primarily on evidence that they lived separately and gave conflicting accounts about the extent of their time together.
- The Immigration Judge denied adjustment on the ground that the marriage was a sham; the BIA affirmed on the same basis.

## Issues

1. Whether substantial evidence supported the BIA’s determination that Bark’s marriage was a sham, rendering him ineligible for adjustment of status under INA § 245.
2. Whether the sham-marriage inquiry turns on post-marriage conduct (e.g., separation and living apart) or on the parties’ intent at the time of the marriage.

## Decision

- The Ninth Circuit reversed the BIA and remanded for further proceedings.
- The court held that a marriage is a sham for immigration purposes only if, at the time of the wedding, the spouses did not intend to establish a life together as husband and wife.
- The court held the agency applied an incorrect legal standard by treating separation and separate living quarters as effectively dispositive, rather than using such evidence only as it may bear on intent at the time of marriage.
- The court directed reconsideration under the proper intent-based standard.

## Legal Principles

- A marriage is a sham only if the spouses lacked intent at the time of marriage to establish a life together as marital partners.
- Post-marriage conduct (including separation) may be considered only to the extent it sheds light on the spouses’ intent when they married; it is not, by itself, determinative.
- Immigration adjudication may not impose a federalized model of marital life (such as mandatory cohabitation or prescribed time spent together) as a condition of recognizing a bona fide marriage; doing so raises serious constitutional concerns.

## Conclusion

The court set aside the agency’s sham-marriage finding because it relied chiefly on the couple’s separation and living arrangements, and remanded for application of the correct rule that bona fides depend on the spouses’ intent at the time of the marriage.


Bark v. Immigr. & Naturalization Serv., 511 F.2d 1200 (9th Cir. 1975)