HOLMES

                                                       Interim Decision #2274




                            MATTER OF HOLMES

                        In Visa Petition Proceedings

                                   A-20594548

                    Decided by Board March 22,1974
(1) In the absence of evidence that adverse information having a bearing on the
   adjudication of a visa petition was called to the attention of the petitioner and
   that he was afforded an opportunity to rebut it and to present evidence in his
   own behalf in accordance with 8 CFR 1032(b)(2) before the district director
   rendered his decision, the case is remanded for that purpose.
(2) Where the bona fides of a marriage constituting the basis of a visa petition
   are cast in doubt, it is not necessarily incumbent on the Service to conduct an
   outside investigation to establish whether the parties to the marriage are
  living in marital union since the harden of proof is on the petitioner and
  sufficient doubt, warranting denial, may be engendered by the evidence
  without such outside investigation.
ON BEHALF OF PETITIONER: Sachs and Spector, Esquires
                       152 West 42nd Street
                       New York, New York 10036

  This is an appeal from an order of a District Director denying
petitioner's application under section 201(b) of the Immigration
and Nationality Act to accord immediate relative status to the
beneficiary as his wife. We remand for further proceedings.
  The visa petition is supported by certificates attesting to the
petitioner's birth in the United States and marriage to the beneficiary on June 21, 1973. The District Director's denial decision,
which is dated January 4, 1974, is based upon a sworn statement
taken from the beneficiary on January 3, 1974, which casts doubt
on the bona fides of the marriage. While the District Director's
decision recites that the petitioner and the beneficiary appeared
for interview together, there is nothing in the record to indicate
that the beneficiary's statement was taken in the petitioner's
presence or that it was otherwise called to his attention and that
he had an opportunity to rebut it and present evidence in his own
behalf before the District Director made his decision. See 8 CFR
1032(bX2); Matter of Arteaga Godoy, Interim Decision No. 2171
                                     -


(MA 1972). We shall remand so that he may have that opportunity.

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Interim Decision #2274
  On remand, counsel should also be given the opportunity to
establish by sworn testimony the allegations of official wrongdoing
he asserts in his unsworn notice of appeal. We have previously
commented on the undesirability of making such statements
casually and not under oath. See Matter of Geronimo, 

 (BIA 1971); Matter of Godfrey, 13 I & N. Dec. 790 (BIA
1971). Counsel also errs in asserting in his notice of appeal, that
"The Service has not established its burden, it conducted no
outside investigation to determine whether the parties involved
are living in marital status." The burden of proof is on the
petitioner, not on the Service. An outside investigation by the
Service is not required in every case; sufficient doubt to warrant
denial may be engendered by the evidence even without an
outside investigation.
  ORDER: The record is remanded to the District Director for
further proceedings consistent with this opinion.

Warren R. Torrington, Member, Dissenting:


  I respectfully dissent.
  In my view, a remand is quite unnecessary. Here the beneficiary, the petitioner's alleged spouse, stated, in effect, under oath,
that no bona fide marriage had ever existed. It appears to me that
the provisions of 8 CFR 1032(bX2) were not designed to govern
that type of situation.
  The appeal should have been dismissed.

Marianne B. McConnaughey, Member, Dissenting:

  I concur in Mr. Torrington's dissent.




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