DaBAASE

Interim Decision #2699




                              MATTER OF DABAASE
                           In Visa Petition Proceedings

                                      A-18375444
                        Decided by Board April 10, 1979
The "party affected" in visa petition cases is the petitioner, and the beneficiary does not
  have standing to move to reopen the proceedings.
ON BEHALF OF ThixtriONER: Larry Carp, Esquire
                          Carp & Morris
                          Suite 1100, Parkway Tower
                          225 South Meramec Avenue
                          St. Louis (Clayton), Missouri 63105
BY: Milhollan, Chairman; Maniatis, Appleman. Maguire, and Farb, Board Members


  This is a motion to reopen visa petition proceedings. The motion will
be denied because it was improperly filed by the beneficiary of the visa
petition, rather than the petitioner.
   The movant here is a native and citizen of Ghana, who last entered the
United States on or about November 29, 1968, as a nonimmigrant
student authorized to remain until January 27, 1971. He is the beneficiary of a visa petition filed by Eula M. DaBaRe to accord him
immediate relative status as the spouse of a United States citizen. The
petition was initially filed on August 15, 1973, three days before the
beneficiary was to leave the United States pursuant to a grant of
voluntary departure by an immigration judge_ The petition was initially
denied on September 12, 1972, because both the petitioner and the
beneficiary had previous marriages which had not been shown to have
been dissolved. An appeal was filed on September 26, 1973; however, it
was not forwarded to the Board and thus was never decided.'
   On October 24, 1973, a new petition was filed. It was denied by the
District Director on February 18, 1976, because the petitioner had failed
to show dissolution of one of the beneficiary's previous marriages. On
October 1, 1976,* we remanded the record to the District Director to
afford the petitioner an opportunity to present evidence that the former
  ' In view of subsequent events, we find that the failure to forward the appeal to the
Board resulted in no prejudice.
  *See Interim Decision 2534 (BIA 1976).

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                                                           Interim Decision #2(m

marriage had been validly terminated according to Ghanaian tribal
custom. The record was subsequently returned to the Board by the
District Director by a memorandum in which he stated that the petitioner had not submitted any further evidence. In a decision dated
October 27, 1977, we remanded the record to the District Director for
entry of a form al decision. On April 20, 1978, and in the absence of the
evidence for which the record was remanded 18 months before, the
Board dismissed the petitioner's appeal.
   In an oral decision on June 18, 1973, an immigration judge found the
beneficiary (then respondent) deportable as a nonimmigrant who had
remained in the United States longer than permitted. He did not appeal
but remained in the United States while his wife pursued the visa
petition proceedings discussed above. By letter dated June 13, 1978, he
was advised that he was required to depart from the United States at
his own expense on or before July 13, 1978. An extension of time was
granted until December 29, 1978. On February 26, 1979, a "Notice to
Deportable Alien of Departure Arrangements" (Form 1-166) was issued
directing the beneficiary to report for deportation on March 2, 1979. On
March 13, 1979, he filed with the immigration judge a MOTION TO
REOPEN DEPORTATION PROCEEDINGS AND FOR STAY OF
EXECUTION OF DEPORTATION ORDER.
   In a decision dated March 13, 1979, the immigration judge observed
that the motion papers were deficient in that: (1) they wave unsigned, (2)
did not conform to the requirements of 8 C.F.R. 3.5 and 242.22 in that
the existence of the evidence sought to be introduced had been known to
the beneficiary since May of 1978, and (3) the motion was not supported
by affidavits or other evidentiary material which would warrant reopening. He ordered that the papers and the check for the filing fee be
returned. The beneficiary has neither appealed that decision rim- refiled
his motion. The deportation proceedings pertaining to the beneficiary
have never been, and are not now, properly before the Board for
deeision.2
   The beneficiary has cited no provision giving a beneficiary the right to
pursue a visa petition in his own behalf. Those provisions of 8 C.F.R.
cited by the beneficiary in support of his contention that he can move to
reopen these proceedings apply specifically to deportation cases, or
refer to the petitioner in visa petition cases.
   The "party affected" 3 in visa petition cases is the petitioner. Section

   2 By order dated March 2, 1979, we denied a telephonic request for a stay of deportation
on the ground that the Board was without jurisdiction because the respondent had not
filed an appropriate motion to reopen the deportation proceedings.
   3 The beneficiary refers to "party affected" from the second sentence of 8 C.F.R. 3.2 in
support of his allegation that the beneficiary may move to reopen vice petition proceedings.


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interim iiecision #2699

204(a) of the Immigration and Nationality Act, 8 U.S. C. 1154(a), provides that a United States citizen or lawful permanent resident may file
a petition with the Attorney General to accord an alien immediate
relative status under section 201(b), or preference by reason of the
relationships described in paragraphs (1), (2), or (5) of section 203(a) of
the Act. The regulation provides that the petition shall be filed in the
office of the Service having jurisdiction over the place where the petitioner is residing. 8 C.F.R. 2041. The petitioner has the burden of
establishing eligibility for the classification sought. Matter of Brantigan,11 I. & N. Dee. 493 (1966). Only the petitioner can appeal from the
denial of a visa petition. 8 C.F.R. 204.1(a); cf. Matter of Arteaga, 

 (BIA 1972); Matter of Kurys,

 (BIA
1965). Likewise, only the petitioner can appeal from the revocation of a
previously approved visa petition. 8 C.F.R. 205.3; Matter of C—, 

 (BIA 1962).
  Even if the motion to reopen were properly filed by the petitioner, we
would find it insufficient to warrant reopening because the evidence
sought to be admitted would not establish the beneficiary's eligibility for
the immediate relative status he seeks. Matter of Lam, 

 (BIA 1072). In our opinion of October 1, 1976, we advised the
petitioner that the beneficiary's alleged customary divorce could be
proven by a court decree from Ghana or by other evidence. In that
regard we advised:
 If the party to,the tribal divorce prefers to prove the validity of the proceeding without
 the assistance of the Ghanaian judicial system, he must provide evidence which establishes (1) the tribe to which he belongs, (2) the current customary divorce law of that
 tribe, (3) the fact that the pertinent ceremonial procedures were followed.

   The evidence the beneficiary would now submit to prove that divorce
is an affidavit by Veronica Adabinge DaBaase, the prior spouse, and
Adongo Abambire, the purported "Native Chief - of an unspecified
tribe, which states simply that Veronica DaBaase divorced the be=
neficiary pursuant to the Ghanaian tribal native custom. Obviously, this
affidavit does not satisfy the requirements set forth in our previous
order.
   ORDER: The motion to reopen is denied.




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