TAHSIR

Interim Decision #2540




                               MATTER OF TAIISIR

                           In Visa Petition Proceedings
                                      A-19450829

                      Decided by Board December 8, 1976
(1) This is an appeal of the denial of an immediate relative visa petition based on a report
   which was not shown to petitioner.
(2) The regulations provide for the use of "classified" information without the petitioner's
   right to inspect it only upon a finding by the regional commissioner that the information
   is relevant and classified under E.O. 11652 (8 C.F.R. 103.2(b)(2)). In addition, the
   regional commissioner's authorization to use such classified information must be made a
   part of the record of proceeding. Also, petitioner should be given notice of the general
   nature of the information and an opportunity to rebut it if it can ha dorm without
   jeopardizing the safety of the information and its source.
(3) Where denial of the petition is based upon "classified" information which is not shown
   to petitioner, and the requirements of 8 C.F.R. 103.2(b)(2) are not followed, the record
   will he remanded to afford petitioner an opportunity to inepeet and rebut tlac adverac
   information or for appropriate classification of the information by the regional commissioner in accordance with the above regulation.
ON BEHALF OF PETITIONER: Alan E. Pilte, Esquire
                         18 Tremont Street
                         Boston, Massachusetts 02108


BY: Milhollan, Chairman; Wilson, Torrington, Maniatis, and Appleman, Boar Members


   The United States citizen petitioner applied for immediate relative
status for the beneficiary as her spouse under section 201(b) of the
Immigration and Nationality Act. In a decision dated March 5, L 976, the
District Director denied the petition on the ground that the petitioner
bad failed to establish eligibility for the status sought. The record will
be remanded for further proceedings.
   The visa petition is supported by certificates attesting to the petitioner's birth in the United States on May 22, 1953, and marriage to the
beneficiary on February 3, 1975. The District Director's decision, on the
other hand, appears to be based upon a report which has not been shown
to the petitioner.
   The District Director's decision recites that the petitioner and the
beneficiary appeared for an interview, together with their attorney, on

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                                                  Interim Decision #2540
March 2, 1976. During the course of this interview, on the advice of their
attorney, the parties refused to answer specific questions which appear
to have been raised by the aforementioned report. When their attorney
advised the parties to answer no more questions until he could see
whatever report the questions came from, he was informed that he
could see only the record portion of the file. The interview was then
terminated and the visa petition was subsequently denied for lack of
prosecution.
   The report, upon which the District Director appears to have based
his denial, is a part of the record before us. Although the report has
some type of security classification, it does not appear to have been
treated as such by the District Director_ The regulations provide for the
use of "classified" information without the petitioner's right to inspect it,
only upon a finding by the regional commissioner that the information is
relevant and classified under Executive Order No. 11652 (

;
March 10, 1972). 8 C.F.R. 103.2(b)(2). In addition, the petitioner should
be given notice of the general nature of the information and an opportunity to offer opposing evidence, if it can been done without jeopardizing
the safety of the information and its source. More importantly, the
regional commissioner's authorization to use the "classified information"
must be made a part of the record of proceeding. In this case, there is no
evi dence in the rpeord that any of these procedures have been followed.
   There is nothing in the record to indicate that the petitioner was
aware of the evidence impugning the beneficiary's capacity to contract a
valid marriage with her. The regulations require that she be given an
opportunity to inspect the record. See 8 C.F.R. 103.2(b)(2); Matter of
Holmes, Interim Decision 2274 (BIA 1974); Matter of Arteaga Godoy,  -


Interim Decision 2171 (BIA 1972); Cf., Matter of Mata, Interim Decision 2454 (BIA 1975).
   Moreover, there is no indication that the District Director's
memorandum to the Board, dated September 8, 1976, was ever served
on the petitioner. The regulations require that "an appeal, cross-appeal,
answers thereto and accompanying brief, if any, shall become part of the
record of proceeding and, if filed by an officer of the Service, a copy shall
be served on the party affected." 8 C.F.R. 103.3(a). Unless this
memorandum is served on the petitioner it cannot become a part of the
record.
   Accordingly, the record will be remanded in order that the petitioner
may be given an opportunity to inspect and rebut the adverse evidence
upon which the District Director relied, or for the classification of such
evidence in accordance with 8 C.F.R. 103.2(b)(2).
   ORDER: The record is remanded to the District Director for further
proceedings in accordance with the above opinion and the entry of a new
  ecision.
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