Interim Decision #2350
MATTER OF RUBINO
In Visa Petition Proceedings
A-10747407
Decided by Board January 9, 1975
Where a prior visa petition classifying the beneficiary as the spouse of a United States
citizen was apprwed, then subsequently revoked because the marriage was 'entered
into for the purpose of according immigration benefits to the beneficiary and the
beneficiary was not issued a visa or granted adjustment of status on the basis of the
prior petition, se2tion 204(c) of the Immigration and Nationality Act did not operate to
preclude approval of a subsequent petition filed to accord that same beneficiary fifth
preference classification. -
ON BEHALF or Pawnor:En: ON BEHALF OF SERVICE:
Irving I. Freedman, Esquire Irving A. Appleman
134 N. LaSalle Street, Suite 1616 Appellate Trial Attorney
Chicago, Illinois 60602
In a decision dated April 11, 1974, the district director revoked
approval of a visa petition classifying the beneficiary as a preference
immigrant under section 203(a)(5) of the Immigration and Nationality
Act. The United States citizen petitioner has appealed from that decision. The appeal will be sustained and the record remanded to the
district director for further action consistent with this opinion.
The visa petition, filed in order to accord -the beneficiary status as the
petitioner's brother, was approved on September 15, 1973. The district
director does not appear to contest the existence of the claimed relationship. Although the record as forwarded on appeal does not contain the
district director's decision, a copy of that decision supplied by counsel
for the petitioner at oral argument indicates that the district director
predicated his revocation of approval on section 204(c) of the Act. The
record does contain a copy of the district director's letter to the petitioner, dated March 11, 1974, which gave notice of the intention to
revoke approval of the petition and which specified section 204(c) as the
authority upon which the district director was relying.
Section 204(c) provides, in pertinent part:
. no petition shall be approved if the alien has previously been accorded a nor's:mote
or preference status as the spouse of a citizen of the United States or the spouse of an
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Interim Decision #2350
alien lawfully admitted for permanent residence, by reason of a marriage determined by
the Attorney General to have been entered into for the purpose of evading the immigration laws.
In October of 1972, an earlier visa petition classifying the beneficiary
as the spouse of a United States citizen was approved. Approval of that
petition was revoked in March of 1973 pursuant to a request by the
earlier petitioner that the petition be withdrawn. At that time both the
beneficiary and the earlier petitioner signed statements indicating that
their marriage was entered into for the purpose of according immigration benefits to the beneficiary.
The District Director relied an the beneficiary's earlier classification
as the spouse of a United States citizen in determining that section
204(c) prohibits the approval of the present petition. The beneficiary,
however, was not issued a visa or granted adjustment of status on the
basis of that earlier petition.
An alien who merely has been classified as the spouse of a United
States citizen has not been "accorded a nonquota or preference status,"
as that phrase of section 204(c) has been interpreted. Amarante v.
Rosenberg,
(BIA 1964). Accordingly, the beneficiary does not fall within
the prohibition of that section. The district director's decision revoking
approval of the visa petition was incorrect.
The record indicates that the district director was aware of the case
law regarding section 204(c) prior to the forwarding of the record on
appeal. While it may be that the decision to commence the proceeding to
revoke approval of this visa petition was made without an appreciation
of the case law, it is clear that the district director, or persons acting in
his behalf, desired to challenge that case law. The manner in which that
challenge was raised, however, presents some serious problems.
Pursuant to 8 CFR 3.1(g), our precedent decisions are binding on the
Service in all proceedings involving the same issue or issues. This
regulation does not entirely foreclose the Service from attacking case
law it deems erroneous. However, the Service is bound by the regulation and any such attack should be done in a manner which affords
adequate protection to the interests of the person or persons affected.
In this case, the district director could easily have instituted the
proceeding to revoke appioval of the visa petition, then have made a
finding in favor of the petitioner on the basis of Matter of Pisciotta,
supra, and then have certified the record to us with a statement as to
why that case should be overruled or modified. Such a sequence of
events would assure our review of the record. We would be enlightened
regarding problems in the application of a Board decision, and the
protection of an individual's interests would not depend upon the accident of an appeal.
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Interim Decision #2350
ORDER: The appeal is sustained and the approval of the visa petition
is reinstated.
Further order: The record is remanded to the district director for
further action consistent with this opinion.
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