Interim Decision #2813
MATTER OF ABDOULIN
In Visa Petition Proceedings
A-21682628
Decided by Board June .9, 1980
(1) Where a visa petitioner left the United States for 11 years following his admission as
a lawful permanent resident and then reentered thrice as a nonimmigrant visitor, he
fails his burden of establishing lawful permanent residence so as to confer preference
status to his spouse and his petition was properly denied even though no adjudication
against him in deportation proceedings had been made. Matter of Umaio,16 I&N Dee.
682 (BIA 1979) and Matter of Abdelhadi, 15 I&N Dec. 383 (BIA 1975) distinguished.
(2) Unlike an exclusion or deportation proceeding, a denial of a waiver of a visa under
section 211(b) of the Immigration and Nationality Act, 8 U.S.C. 1181(b) by a District
Director does not constitute a definitive adjudication of abandonment of lawful
permanent resident status.
(3) The denial of a visa petition because of petitioner's failure to meet his burden of
proof that he was a lawful permanent resident, while not an adjudication of petitioner's personal status like a deportation proceeding, is a proper adjudication of his
ability to confer benefits to another alien.
ON BEHALF OF PETITIONER: Willard H. Myers, Esquire
Wasserman, Orlow, Ginsberg & Rubin
936 Public Ledger Building
Philadelphia, Pennsylvania mos
By Mil kollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members
In a decision dated February 15, 1980, the District Director denied
the visa petition submitted on behalf of the beneficiary by the petitioner under section 203(a)(2) of the Immigration and Nationality Act,
8 U.S.C. 1153(a)(2). The petitioner has appealed. The appeal will be
dismissed.
The petitioner is a 27-year-old native and citizen of Iran. He was
admitted into the United States as a permanent resident on October
29, 1964. He subsequently left the United States and returned to Iran
with his family, where his mother is employed at the United States
Embassy. He returned to the United States in 1975 and 1976 as a
nonimmigrant student. He last entered the United States in May 1979
as a nonimmigrant visitor. The beneficiary is a 23-year-old native and
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citizen of Iran. She married the petitioner on May 26, 1977, in Iran, and
is presently in the United States.
The District Director denied the visa petition on the ground that the
petitioner's application for a waiver of a visa under section 211(b) of
the Act, S U.S.C. 1181(b), had been denied in 1979. He adopted the
findings contained in the denial of the waiver dated February 15, 1980.
These findings were that the petitioner was not a permanent resident
of the United States and that he was not returning from a temporary
visit abroad. He concluded that the petitioner had not carried his
burden of proof in conferring benefits under section 203(a)(2) of the
Act, because he had not established that he was a permanent resident
of the United States pursuant to section 101(a)(20) of the Act, 8 U.S.C.
1101(a)(20).
On appeal, the petitioner contends that the decision of the District
Director conflicts with the holding of Matter of Umale,16 I&N Dec. 682
(BIA 1979) because the District Director is seeking to attack the
petitioner's lawful permanent resident status in visa petition proceedings. It is said that this procedure denies him due process protections
afforded in deportation proceedings under section 242 of the Act, 8
U.S.C. 1252.
The issue, then, is whether or not a visa petition can be denied on the
ground that the petitioner has, not established that he is entitled to
permanent resident status, even though no adjudication of this status
has occurred in deportation or exclusion proceedings.
The Service claims in its denial of the visa petition that Umale,
id., is
distinguishable on the ground that the petitioner was last admitted
into the United States as a nonimmigrant visitor, while Umale was
admitted as a permanent resident. We agree that this is a distinction
of importance. In Umale,
id., the petitioner had last been admitted into
the United States as a permanent resident, and was in the United
States at the time she submitted her visa petition on behalf of her
spouse. The visa petition was denied by the District Director on the
ground that she was not entitled to permanent resident status because
she had been admitted as a permanent resident on the basis of her
status as the unmarried daughter of a United States citizen, when it
appeared that she had in fact been married at the time of her admission. We held that she would remain a lawful permanent resident until
such time as she was found deportable. We remanded the record for
further proceedings.
In Matter of Abdelhadi, 15 I&N Dec. B83 (BIA 1975), the alien had
been admitted as a permanent resident, but was outside the United
States at the time she submitted her visa petition. We held that on the
basis of the evidence available, she had not carried her burden of proof
in conferring benefits under the immigration laws. We also held that
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Interim Decision #2813
her claim to permanent resident status was not at issue, and that the
question of this status could only be presented in the context of a
deportation or an exclusion hearing.
The underlying assumption of both Umale and Abdelhadi was that
the permanent resident status of the petitioners was a claim of such
importance that they could not be divested of this status without a full
hearing. The result of both the cases was to protect this status. We,
however, also found that where a question had arisen as to the status
of the alien which affected his right to confer benefits under the
immigration laws to other persons, it was not necessary to overlook
this fact until the status had been independently adjudicated. The
context of the proceedings is entirely different. In visa petition
proceedings, the burden is always on the alien to show that he is
entitled to confer benefits. Matter of Brantigan, 11 I&N Dec. 493 (BIA
1966). In deportation proceedings, the burden is on the Government to
show by clear, convincing, and unequivocal evidence that the alien is
deportable. In the case of an alien with a colorable claim to permanent
resident status who is placed in exclusion proceedings, the burden is
also on the Government to show that he should not be divested of this
status. Matter of Kane,
15 I&N Dec. 258 (BIA. 1975).
In the present case, the petitioner falls into a position outside that
occupied by either Umale or Akklhadi. The petitioner was admitted as
a lawful permanent resident in 1964, and then departed the United
States for about 11 years. He reentered the United States as a nonimmigrant on 3 occasions between 1975 and 1979. Given the amount of
time he spent outside the United States, coupled with his 3 entrances
as a nonimmigrant over a period of 4 years, and the lateness of his
claim to permanent resident status, we find that his permanent resident status has been placed in sufficient doubt so as to justify the
conclusion that he has not established his entitlement to confer
benefits under section 203(a)(2) of the Act.
In arriving at this conclusion, it is necessary to emphasize that our
decision is based solely on the petitioner's actions. We do not agree
that the denial of the application for a waiver of a visa under section
211(b) of the Act was a definitive adjudication of the petitioner's
permanent resident status, as the District Director seems to imply.
Nor do we agree that the apparent refusal of the consular officer to
issue the petitioner a visa as a special immigrant under section 244 of
the Act, 8 U.S.C. 1204, is binding on the Service. See Tejeda v. INS,
346
F.2d 389 (9 Cir. 1963). The Service may test the petitioner's status in a
deportation proceeding. Until it does so, there has been no adjudication of his personal status. There has been, however, a proper adjudication of his right to confer benefits to another alien. In this context, we
find that the petitioner has not carried his burden of proof, and the visa
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petition must be denied. The appeal is accordingly dismissed.
ORDER: The appeal is dismissed.
461
