FAMILY LAW
Gay Man’s Immigration
Spousal Petition Revived
No evidence of fraud found in Romanian
immigrant’s fi rst marriage to a woman
BY ARTHUR S. LEONARD
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, affi rming 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 benefi ts.
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 fi led
an I-130 petition with Immigration
Services seeking spousal residency
rights for Cheslerean. The couple
was interviewed in the Chicago district
offi ce, 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 fi led
his own I-130 petition on behalf of
Cheslerean, and the men were interviewed
at the Chicago district in
early 2017. That offi ce issued a notice
that the new petition would be
denied, and Cheslerean responded
by fi ling an affi davit 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 benefi
ciary, in this Cheslerean.
In responding to Valdivia’s lawsuit,
the BIA noted that he had
fi led an affi davit 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 affi davit or anything
else,” she wrote.
➤ IMMIGRATION, continued on p.15
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