Interim Decision #2380
MATTER OF ROMERO
In Visa Petition Proceedings
A-20582443
Decided by Board May 9, 1975
The petitioner who claimed to be a United States citizen by birth in Puerto Rico, applied
for immediate relative status for the beneficiary as her spouse, under section 201(b) of
the Immigration and Nationality Act. The petition was denied, and the appeal dismissed. Petitioner failed to produce satisfactory identification to establish that she was
the person named in the birth certificate upon which her claimed United States citizenship was based. In the course of separate interviews, a number of discrepancies
developed between the information furnished by the petitioner and the beneficiary.'
Thereafter, the Service requested additional evidence, including photographs and fingerprints of the petitioner, pursuant to 8 CFR 103.2(b)(1). Petitioner refused to be
photographed or fingerprinted or to Submit additional evidence of identity. Petitioner's
refusal of these requests, along with the unexplained discrepancies in testimony was
sufficient reason to deny the petition.
ON BEHALF OF PETITIONER. ON BEHALF or SEn viuz:
Albert L. Merlis, Esquire Paul C. Vincent
11 Park Place Appellate Thal Attorney
New York, New York 10007
The petitioner applied for immediate relative status for the beneficiary as the spouse of a United States citizen under section 201(b) of
the Inunigrati on and Nationality Act. In a decision dated March 18,
1974, the district director denied that petition. The appeal will be
dismissed.
The petitioner claims to be a United States citizen by birth in Puerto
Rico on August 2, 1952. The alien beneficiary is a native and a citizen of
Colombia, born on March 21, 1949. A marriage certificate in the record
shows that the petitioner and the beneficiary were married in
Hempstead, Kew York on September 14, 1973.
On March 1.3, 1974, in response to a written request by the Service,
the petitioner and the beneficiary appeared for an interview in connection with the visa petition. The written request had instructed the
petitioner to bring proper identification. The petitioner and the beneficiary were interviewed separately without the presence of counsel,
since counsel had given the Service written authorization to proceed
with the interiiews in his absence.
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Interim Decision #2380
In the course of their separate interviews, a number of discrepancies
appeared between the information furnished by the petitioner and that
furnished by the beneficiary. In addition, the petitioner could not produce identification to establish that she was the person referred to in the
Puerto Rican birth certificate which she submitted to establish her
United States citizenship.
In light of the discrepancies and the failure to furnish proper identification, the petitioner and the beneficiary were referred to the Investigations Section of the Service for inquiry into whether their marriage
was a "sham" marriage undertaken for the purpose of circumventing the
immigration laws.
Upon arriving in the Investigations Section, the petitioner was advised of her rights including the right to remain silent and the right to
counsel. She was then asked to furnish fingerprints and photographs to
aid in establishing her identity. She refused to be fingerprinted or
photographed. Thereupon, the interview was terminated.
The district director denied the visa petition on the grounds that the
petitioner had failed to establish her identity as a United States citizen
and that she had failed to show that her marriage to the beneficiary was
not a marriage of convenience, entered into for the purpose of obtaining
immigration benefits for the beneficiary in circumvention of the immigration laws.
On appeal, counsel argues that the petitioner was denied due process
because of the Service's request that she submit fingerprints and photographs.
In visa petition proceedings, the petitioner has the burden of establishing the validity of the claimed relationship. Matter of Branagan, 11
I. & N. Dec. 493 (BIA 1966). A beneficiary is not entitled to immigration
status on the basis of a marriage entered into for the primary purpose of
evading the immigration laws, irrespective of the validity of that marriage under the applicable domestic law. Matter of M—,
8 I. & N. Dec.
217 (BIA 1958); Matter of Kitsalis, 11 & N. Dee. 613 (BIA 1966).
S CPR 103. 2(b)(1) authorizes the Service to make reasonable requests
for the submission of additional evidence and to make any necessary
investigation in connection with the adjudication of any application or
petition. The issue in the present case is whether the request for
fingerprints and photographs was reasonable under the circumstances.
The petitioner's failure to identify herself properly, and the discrepancies disclosed upon initial examination, raised the possibility that
a marriage fraud was involved in the present case. In order to resolve
this possibility of fraud, the petitioner was requested to submit fingerprints and photographs to aid in establishing her identity and the bona
fides of her marital relationship with the beneficiary.
The purpose of the photographs was for use in a neighborhood inves-
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Interim Decision #2380
tigation to ascertain whether the petitioner was known to reside with
the beneficiary at the address claimed in the visa petition. Such investigation is within the scope of the authorization contained in 8 CFR
103.2(b)(1).
The purpose of the request for fingerprints was to ascertain whether
the petitioner was in fact the person she claimed to be. "Fingerprints
have long been recognized as a scientific and accurate means of identification." Thom v. New York Stock Exchange, 306 F. Supp. 1002, 1006
(S.D.N.Y. 1969), aff'd sub nom., Miller v. New York Stock Exchange,
425 F.2d 1074 (C.A. 2, 1970), cert. denied,
398 U.S. 905 (1970). 1
In the specific factual context of this ease, where the initial questioning of the petitioner and the beneficiary raised the possibility of fraud,
and the petitioner failed to present adequate identification, the request
for fingerprints and photographs was reasonable. We emphasize that
compliance with this request was not mandatory, but rather was voluntary on the part of the petitioner. The petitioner had the option of
declining to submit the fingerprints and photographs. However, by
choosing not to submit the requested evidence, the petitioner took the
risk that the inadequacy of her identification and the discrepancies in
her testimony would result in denial of her visa petition for failure to
establish the claimed relationship.
Had the petitioner adequately established her identity by other evidence, and if the interview had raised no reasonable possiblity of marriage fraud, the petition presumably would have been granted without
resort to fingerprints or photographs. However, it is notable that even
on appeal, no allegation has been made that the petitioner has other
evidence cf her identity to submit, or that she is willing or able to
explain the discrepancies that appeared from the interview.
Our review of the record satisfies us that the petitioner has failed to
sustain her burden of establishing the claimed relationship. Consequently, the appeal will be dismissed.
ORDER: The appeal is dismissed.
The tour; in Thom considered the widespread use of fingerprinting in noncriminal
contexts. The court stated: "In sum, the public has long recognized it as a valuable and
reliable means of identification, and to suggest that a stigma attaches when It Is so used is
to fly in the face of reality." 306 F. Supp. at 1009.
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