Hernandez requested a waiver of the joint petition to remove the conditions on his residence, on the ground that he entered into a bona fide marriage that had ended in divorce. Because of the many years that had passed since his divorce, Hernandez had very little supporting documentation to prove that he had entered into a bona fide marriage. He did, however, testify unequivocally that married his ex-wife because he loved her.
On appeal, the Seventh Circuit disagreed with the Board of Immigration Appeals' finding that Hernandez had not submitted sufficient evidence to demonstrate by a preponderance of the evidence that his marriage was bona fide. "Hernandez testified unequivocally that he did not marry Winger to obtain residency but because he 'loved her.' If, as the Board assumed, Hernandez testified truthfully, then this testimony alone is enough to prove that his marriage to Winger was more likely than not bona fide. Because the Board elected to credit all of Hernandez’s testimony—including his assurance that love, not residency, motivated him to accept Winger’s proposal—the only conclusion it could then logically reach was that Hernandez’s marriage was bona fide. The Board’s failure to reach that conclusion is a legal error. "
In response the Government's contention that Hernandez was required to provide corroborating documentation under the REAL ID Act, the court stated that "this provision of the REAL ID Act is irrelevant here because neither the IJ’s nor the Board’s ruling rests on a determination that Hernandez had failed to provide available corroborating evidence. "
The decision in Hernandez Lara v. Lynch can be found here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D06-18/C:14-3305:J:Williams:aut:T:fnOp:N:1571971:S:0