Interim Decision #2817
MATTER OF LENNING
In Visa Petition Proceedings
A-24019786
Decided by Board August 12, 1980
A visa petition filed on behalf of an alien spouse is properly denied where the parties
legally separated pursuant to the terms of a formal, written separation agreement
notwithstanding fact that their marriage was entered into in good faith and had not
been finally dissolved by an absolute divorce decree. Chan v. Bell, 464 F.Supp. 125
1978), and Matter of McKee, Interim Decision 2782 (BIA 1980), distinguished.
ON BEHALF OF PETITIONER: Lydia Savoyka, Esquire
Migration and Refugee Services
1250 Broadway
New York, New York 10001
Br. Milhollan, Chairman; Maniatis, Appleman, and Maguire, Board Members. Dissenting Opinion, Farb, Board Member
The petitioner has appealed from the decision of a District Director,
dated February 21, 1980, denying the visa petition filed on behalf of the
beneficiary as his spouse under section 201(b) of the Immigration and
Nationality Act, 8 U.S.C. 1151(4 The appeal will be dismissed.
The petitioner is a 65-year-old native and citizen of the United
States. The beneficiary is a 61-year-old native and citizen of New Zealand and is the wife of the petitioner. They were married on July 13,
1974, in Nev York City. That the marriage was valid at its inception
and entered into in good faith has not been put into question. However,
on September 27, 1979, the petitioner and beneficiary entered into and
executed a formal, written separation agreement in which they settled
financial, property, and other rights between the parties. The visa petition was not filed until October 16, 1979, after the separation agreement
took effect. It was solely on the basis of this separation agreement that
the District Director denied the visa petition. The petitioner appeals
from that finding, citing Chan v. Bell, 464 F.Supp. 125 (D.D.C. 1978)
from which. he asserts that a marriage entered into in good faith an
Still "legally unterrninated" is sufficient to support a spouse's visa pe'
tion and eligibility for section 245 adjustment We disagree.
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Interim Decision #2817
In visa petition proceedings, the petitioner has the burden of establishing proof of the claimed relationship under which benefits are
being sought. Matter of Branagan, 11 I&N Dec. 493 (BIA 1966). Under
section 204(b) of the Act, if an alien can show that the facts stated in a
petition filed in his behalf as an immediate relative as defined in
section 201(b) are true, he is entitled to admission in that status
without regard to numerical limitations. This provision was included
in the Act in order to prevent the separation of families and to
preserve the family unit. H.R. Rep. No. 1365, 82d Cong., 2d Sess. 1680
(1952).
Previous Board decisions attempting to carry out the Congressional
intent to retain and unite family relationships led the Board to apply a
"viability" test to any marital relationship being put forth as the basis
for conferral of immediate relative status as the spouse of a United
States citizen. See Matter of Lew,
11 I&N Dec. 148 (D.D. 1965), Matter
of Sosa,
15 I&N Dec. 572 (BIA 1976). However, the ability of the Board
and Service to fairly determine which marriages are viable and which
are not has been seriously questioned. See Dabaghiavi, v. Civiletti,
607
F.2d 868 (9 Cir. 1979), Chan v.
Bell, supra. Accordingly, we expressly
overrode the viability test of Matter of Sosa, supra, within the Ninth
Circuit, Matter of Kondo, Interim Decision 2781 (RTA 1980), and effectively put an end to the test as applied in Matter of Sosa in Matter of
McKee, Interim Decision 2782 (BIA 1980). There we adopted the
reasoning of the Chan court and held that where the parties enter into
a valid marriage, and there is nothing to show that they have since
obtained a legal separation or dissolution of that marriage, a visa
petition filed on behalf of the alien spouse should not be denied solely
because the parties are nut residing together. Physical separation
from one another had long been one of the key factors used in
determining the viability of the marital relationship. At this time,
physical separation after the marriage is a relevant factor only insofar
as it bears upon the intent of the parties at the time of their marriage,
i.e., whether the marriage is a sham. See Bark v. INS,
511 F.2d 1200
(9 Cir. 1975).
However, the existence of a valid legal separation presents an altogether different set of considerations. The problems noted in
Chan,
supra, concerning the application of a viability standard for marriages
are not present when there is presented a legal separation in which,
with precise language, the appropriate documentation (i.e., a separation agreement or separation decree from a court) renders the relationship of the parties as if they were not married at all. The separation agreement in the, record before us presents us with such a
situation.
The petitioner and beneficiary were married in the state of New
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Interim Decision #2817
York on July 13, 1974. At the time their separation agreement was
executed, they were both residents of the state of New York.' Under the
law of New York, a married couple can 'obtain a divorce if
(b) The husband and wife have lived separate and apart pursuant to a written
agreement of separation, subscribed by the parties thereto and acknowledged or
proved in the form required to entitle a deed to be recorded, for a period of one or more
years after the execution of such agreement and satisfactory proof has been submitted
by the plaintiff that he or she has substantially performed all the terms and conditions
of such agreement... . [14 McKinney, Domestic Relations Law t ri0(b)]'
A divorce obtained on grounds of living apart pursuant to a written
separation agreement is referred to as a "conversion divorce" in that it
is permissible to convert the separation agreement into an absolute
divorce decree. Christian v. Christian, 42 N.Y.2d 63,
396 N.Y.S.2d 817,
865 N.E.2d 849 (1977).
The separation agreement here states that the parties
... have heretofore separated and are now living separate and apart ... [and that]fflhe
Husband and Wife shall continue to live separate and apart from each other, and each
shall be free from interference, authority and control by the other, as fully as if he or
she were sole and unmarried . ... Neither of the parties shall interfere with the other
in his or her respective liberty of action or conduct, and each agrees that the other may
at any and all times reside and be in such place and with such relatives, friends and
acquaintances as he or she may choose, and each party agrees that he or she will not
molest the other or compel or seek to compel the other party to cohabit or dwell with
him or her or institute any proceedings for the restoration of conjugal rights. [Separation Agreement, pp. 1-2] [Emphasis added.]
The agreement contains a division and settlement of their property,
both real and personal, which shall be enjoyed "by him or separately as
if he or she were unmarried." (Separation Agreement, p. 8). The
husband petitoner's obligation for maintenance and support is not to
-
extend beyond a period of five years from the date the agreement took
effect (p. 9). And while neither party is precluded from seeking an
absolute divorce, the agreement is not to be merged with any divorce
decree and instead, "shall survive the same and shall be binding and
conclusive upon the parties for all time." (P. 15) The agreement also
addresses matters concerning taxes, estates and its ultimate finality
insofar as other jurisdictions and any heirs, next of kin, executors,
administrators and other personal representatives are concerned.
The petitioner, through counsel, asserts that since the marriage has
' The record indicates that petitioner's current address is in Palm Beach, Florida.
There is no indication concerning the current status of his property holding in New York
City.
The final requirement of the statute is that the agreement, or a memorandum
thereof, be filed in the office of the clerk of the county wherein either party resides. Since
this agreement was offered by the petitioner as proof of his support of the beneficiary, we
assume compliance with this provision.
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Interim Decision I/ 2817
not yet been legally terminated the visa petition should have been
approved. He cites Chan, supra, in support of that view. His reliance on
that case is misplaced. The pertinent language in Chan states
The construction proposed by the Service is inherently incompatible with due process,
as it would -vest in that agency an unreasonably wide, and essentially unreviewabie,
discretion to determine which marriages are or are not viable. [At 1291 [Emphasis
added.]
We are not confronted here with the problem associated in applying an
untenable standard of "inherent unworkability" in which the Service
attempts "to establish the vague and elusive concept of marriage
viability .. .." Chan, at 130. Courts routinely review the terms of
separation agreements and therefore Service decisions based on such
agreements may be subject to review by the courts on appeal. Hence,
the fears of unreviewability alluded to in Chan are not present in the
instant case. And in New York, where there has been full disclosure of
all relevant facts in proper context and no inequitable conduct or other
infirmity which might vitiate the execution of the agreement, the
courts are encouraged to fully uphold the agreement. Christian v.
Christian, supra.
It is also of no small import that Chan made reference to the
distinctions we have noted here. There, it was pointed out that
It is equally undisputed that, although the parties now live apart, no divorce or legal
separation has taken place and no proceedings for divorce or legal separation have
been instituted. [At 127] [Emphasis added.]
Thus, our holding here today is not based upon any notion of the
viability of the marriage, but rather is determined on the basis of the
separation agreement between the petitioner and beneficiary. Since it
is clear that the Congressional policy of retaining and uniting family
relationships will not be furthered through the issuance of an immigrant visa to the beneficiary, the decision of the District Director to
deny the visa petition was correct and the appeal shall be dismissed.
ORDERS The appeal is dismissed.
DISSENTING OPINION: Ralph Farb, Board Member
I respectfully dissent.
The Board, which only recently declared in Matter of McKee, Interim Decision 2782 (BIA 1980), that it would no longer deny a visa
petition solely because the spouses were separated under conditions
making the marriage appear to be no longer viable, has backslided_
Seizing on two aspects. of this particular New York case, the Board
pretends to distinguish Chan v. Bell,
464 F.Supp. 125 (D.D.C. 1978),
from which McKee is derived.
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Interim Decision #2817
Although we said in McKee that the separation of spouses is a
relevant fact only as evidence, and that the only ultimate fact for
petitioner to establish is that the marriage was bona fide in its inception, the Board is once again fatally attracted to the proposition that it
will be carrying out the will of Congress if it strikes down petitions
when granting them would not serve to retain and unite family relations. It justifies this by suggesting that a written separation agreement is a big step closer to dissolution of a marriage than uncontraeted
separation is. It also points to a peculiarity of New York law that when
parties have been separated for over one year following execution of a
separation agreement either may sue for divorce on that ground alone.
Domestic Relations Law, section 170(6).
New York, after being the last of the 50 states to permit divorce on
only one ground, adultery, has now gone to the other extreme. Of the
six permitted grounds for divorce in section 170, two are "no-fault." To
show how far New York has gone in liberality, I quote from American
Jurisprudence 2d, Divorce and Separation, section 148:
In the absence of a statute specifically so providing, the fact that husband and wife
have lived separate and apart, for however long a time, is not a ground for divorce. In
many jurisdictions, however, the statutes authorize an absolute divorce where there
has been a separation and the husband and wife have lived apart for a specified length
of time. The policy of these statutes is based on the proposition that where a husband
and wife have lived apart for a long period of time, without any intention ever to
resume conjugal relations, the best interests of society and the parties themselves will
be promoted by a dissolution of the marital bond. (Underscoring supplied.)
It is significant that unlike the norm next stated in American
Jurisprudence, that divorce based on separation usually requires at
least double the period of waiting specified for divorce based on desertion, New York will permit a suit after a waiting period of one year on
either of these grounds.
All the same, the marital bond is not dissolved by mere separation,
either with or without a separation agreement. The premise on which
the Board's interpretation rests, that people who execute separation
agreements are set irreversibly on a permanent course away from each
other is unsound. There are cases both ways. Sometimes the parties
will reconcile and resume marital relations. From this a court may
even infer an intent to abandon the separation agreement. In re
Whiteford's Estate, 35 A.D.2d 751,
314 N.Y.S.2d 811, App. Div. 3d Dept.
(1970); cf. Will of Granchelli, 90 Mise2d 103,
393 N.Y.S.2d 894, Surrogates Ct. Monroe Cty. (1977).
Even if the separation agreement herein were in existence for over a
year, there would be no normal and natural inference that the parties
will never effect a reconciliation as married partners. The court in
Chan questioned both our right and our wisdom in speculating on that.
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Interim Decision #2817
So did the Court in Bark v. INS, 511 F.2d 1200 (9 Cir. 1975). Nothing in
the statute suggests a "viability" test. The key statement in Chan is,
"In the first place, an agency's interpretation cannot vary the plain
words of a statute ..."
464 F.Supp. at 181.
The fact that New York State has reduced the waiting period for a
divorce based on a separation agreement to as little as one year should
have the cautionary effect of inhibiting inferences that the parties to
any separation agreement intend never to resume marital relations.
Such short-term data as is found here is clearly insufficient for any
"viability" conclusion. Instead, dazzled by the cleverness of the phrase
"conversion divorce," the Board blunders into a repetition of its preMcKee error.
I would sustain the appeal and grant the petition. •
481
