Interim Decision #2020
MATTER OF VARELA
In Visa Petition Proceedings
A-19184691
Decided by Board February 6, 1970
Visa petition to accord beneficiary immediate relative status was properly
denied since upon the death of the United States citizen petitioner, beneficiary was no longer the spouse of a citizen and, hence, not entitled to status as an immediate relative.
ON BEHALF OF PETITIONER: ON BEHALF OF SERVICE:
Esther M. Kaufman, Esquire Irving A. Appleman
Room 102 Appellate Trial Attorney
1823 L Street, N.W.
Washington, D.C. 20036
Norman Stiller, Esquire
995 Market Street, Suite 1018
San Francisco, California 94103
(Attorney of Record)
This case is before us on appeal from a decision rendered by the
District Director at San Francisco on August 25, 1969, denying
the petition because of the petitioner's demise. The appeal will be
dismissed.
There is no dispute as to the basic facts of this matter. The petitioner acquired United States citizenship through naturalization
in 1943. On June 23, 1969, in Reno, Nevada, he married the beneficiary, a native and national of the Republic of the Philippines.
On July 9, 1969, he submitted a petition to have the beneficiary
classified as an immediate relative for issuance of an immigrant
visa. This petition was received by the Service on the following
day, July 10, 1969. In the same month the petitioner, a petty
officer in the United States Naval Reserve, was recalled to active
duty. On August 2, 1969, while still on active duty, he died of a
heart attack.
Obviously, the only issue presented for our consideration is
whether the District Director properly denied the visa petition cm
the ground that, with the death of the petitioner, the beneficiary
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Interim Decision #2020
was not entitled to status as an immediate relative, as the spouse
of a United States citizen. For the following reasons, our answer
is in the affirmative. 1
Subsection (a) of section 204 of the Immigration and Nationality Act (8 U.S.C. 1154) provides that a United States citizen
claiming that an alien is entitled to immediate relative status
under section 201 (b) of the Act (8 U.S.C. 1151) may file a petition with the Attorney General for such classification. Subsection
(b) thereof stipulates that the Attorney General shall approve
the petition if, after investigation of the facts, he determines
that they are true as stated in the petition and that the alien on
behalf of whom the petition is made is an immediate relative.
Viewing these provisions of the law in the light of the facts teAted above, it is clear that the District Director properly denied
:he petition. Simply stated, at the time of his decision the benefi-
!iary was not the spouse of a United States citizen. His death had
tripped her of that status.
A question has been raised as to the beneficiary's standing
alder the law to prosecute this appeal (oral argument, p. 6) 2 The
∎oint requires only this passing comment, however, since we will
ispose of her supporting arguments on the merits.
We find inapplicable here the case of Pierno v. INS, decided by
ie United States Court of Appeals for the Second Circuit on
uly 9, 1968 (397 F.2d 949). That case involved revocation of an
pproved visa petition, under former section 206 of the Immigraon and Nationality Act (8 U.S.C. 1156) and the related regulaons, 8 CFR 206.1 (b) (2), whereas here the petition was never
pproved. Second, there was an unduly prolonged delay in cornetion of the investigation in the Pierno case because of a
-oundless suit brought by a person not even a party to the immi-
-ation proceedings, while here the death of the petitioner folwed the filing of the petition by approximately three weeks, and
e District Director's denial followed approximately three weeks
The District Director also denied the beneficiary's concomitant applicam for adjustment of her status to that of a permanent resident, under
Aion 245 of the Immigration and Nationality Act (8 U.S.C. 1255), finding
r-to be a nonpreference immigrant for whom an immigrant visa was not
mediately available under the nonpreference portion of the quota for the
public of the Philippines, to which she was chargeable; and he granted
r 25 days within which to depart from the United States voluntarily.
Scalzo v. Hurney,
225 F. Supp. 560 (U.S.D.C., E.D. Pa., December 18,
33) ; aff'd
338 F.2d 339 (3 Cir., 1964); cert. denied
382 U.S. 849 (October
1965). Cf. Hum Sin v. Esperdy,
239 F. Supp. 903 (U.S.D.C., S.D.N.Y.,
)ruary 17, 1965).
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Interim Decision #2020
later. Third, former section 206 of the Act, upon which the revocation was predicated in the Pierno case, was permissive,
whereas section 204 on which the present case is predicated requires the existence of a citizen spouse as a condition precedent to
the granting of status as an immediate relative.
Finally, we are aware of the sympathetic features of this case
stemming from the fact that the beneficiary is the widow Of a citizen who died while on active duty status in the Armed Forces of
the United States. Nevertheless, we find it of no assistance to her
here that section 319 of the Immigration and Nationality Act (8
U.S.C. 1430) was amended on June 29, 1968, to provide that a
person similarly situated may be naturalized without any required period of residence.3 Suffice it to say, in this connection,
that the Congress has not seen fit to similarly amend section 204 of
the Act, which controls here, and as that controlling section of
the law now stands the District Director has correctly decided the
case. Accordingly, no change is warranted in his decision, for the
reasons hereinbefore set forth.
ORDER: It is ordered that the appeal be and the same is
hereby dismissed.
SEPARATE OPINION: Thomas J. Griffin, Membcr
In the interest of legal precision I find it necessary to file a
separate opinion in these proceedings.
It is my position that the appellant herein has no legal standing to prosecute an appeal to this Board. Accordingly, any consideration of the merits of the appeal is totally unwarranted.
The majority decision notes the issue of standing and cites two
cases on this issue in its footnote at page 3. With the possible
exception of the Hom Sin v. Esperdy case,' which is patently
distinguishable from the proceedings herein, the courts have uniformly and unanimously held that no-alien has a personal vested
right to become beneficiary of a visa petition.'
n Formerly, such a person lost all rights to the expeditious naturalization
provided for spouses of citizens living with them in marital union, if their
spouses died, even though death occurred in combat or while on an active
duty status.
239 F. Supp. 903 (U.S.D.C., S.D.N.Y., February 17, 1956).
2 SCa/Z0 v. Hurney,
225 F. Supp. 560 (U.S.D.C., E.D. Pa., December 18,
1963), aff'd
338 F.2d 339 (3 Cir., 1964) ; cert. denied
382 U.S. 849 (October
11, 1965). Wright v. Immigration and Naturalization Service, iCe,
379 F.2d 275
(1967), cert. denied
19 L.Ed. 279. Pacheco Pereira v. Immigration and Natu-
455
Interim Decision #2020
The instant case suffers from greater infirmities than those
cited above in that this petition was never even acted upon by the
Immigration and Naturalization Service. For these reasons I
would dismiss the appeal solely for lack of standing on the part
of the appellant.
lization Service, 342 F.2d 422. United States ex rel. Stellas v. Esperdy,
9 F. Supp. 85 (1966), afrd
366 F.2d 266.
456
