PRADIEU

                                                      Interim Decision #3021




                          MATTER OF PRADIEU

                        In Visa Petition Proceedings

                                  A-27078577

                    Decided by Board October 22, 1986

  Where a spouse visa petition is filed in the New York District Office of the Immigration and Naturalization Service, it must be adjudicated in compliance with the
procedures set forth under the final consent judgment entered in Stokes v. INS, No.
74 Civ. 1022 (S.D.N.Y. Nov. 10, 1976), regardless of whether the visa petition has
been submitted individually or simultaneously filed with an application for adjustment of status.
ON BEHALF OF PETITIONER: George T. Chew, Esquire
                         401 Broadway, Suite 501
                         New York. New York 10013

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members


   The United States citizen petitioner applied for immediate relative status for the beneficiary as her spouse under the provisions of
section 201(b) of the Immigration and Nationality Act, 

(b) (1982). In a decision dated January 24, 1985, the district
director denied the petition. The petitioner has appealed. The
appeal will be sustained and the record remanded for further proceedings.
   The spouse visa petition, Form 1-130 (Petition to Classify Status
of Alien Relative for Issuance of Immigrant Visa), was filed on the
beneficiary's behalf on June 25, 1984, at the New York District
Office of the Immigration and Naturalization Service. The petition
was apparently accompanied by an application for adjustment of
status. See 

(a)(2Xi), 245.2(a)(2) (1986). On January
24, 1985, the district director denied the petition. His decision indicates that a "245 interview" was conducted, that there was reason
to doubt the validity of the marital relationship, and that the petitioner had "not provided evidence, either documentary or by testimony given at the time of [the] interview that this is a bona fide
marital relationship." The record itself does not reflect when the
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Interim Decision #3021

 "interview" was conducted, what occurred at the "interview," what
documents, if any, were requested and not provided, why there was
reason to doubt the validity of the marriage, or what specific facts
supported the denial of the visa petition. The record predating the
appeal includes only the visa petition, photocopies of a birth and a
marriage certificate, and the district director's decision denying the
petition.
   On appeal the petitioner, through counsel, challenges the conduct of the interviewer, the substance of the district director's decision, including the failure to reference evidence submitted at the
interview,' and the Service's failure to comply with the procedures
required under the final consent judgment entered in Stokes v.
INS, No. 74 Civ. 1022 (S.D.N.Y. Nov. 10, 1976) ("Stokes judgment").
   The Service brief in opposition to the petitioner's appeal addresses the issue concerning the Stokes judgment but does not otherwise
specifically address the issues raised by the petitioner on appeal.
   As we agree with the petitioner that this petition cannot be
denied without compliance with the provisions of the Stokes judgment, the decision of the district director will be vacated and the
record remanded for further proceedings. Even were this not the
case, however, the decision in issue here would be reversed as the
specific basis for the denial of the petition, and the evidence underlying that decision, cannot be determined from either the decision
itself or the record.
   Paragraph 49 of the Stokes judgment states that the provisions of
the judgment apply to "1-130 spouse visa petitions . . . filed . . . in
the New York District Office of the . . . Service." For the purposes
of the judgment, an "adjudicatory proceeding" is defined to include
"all interviews and examinations held before presiding immigration officers in connection with the determination of 1-130 spouse
visa petitions filed in the New York District Office." Included in
the definition of "Presiding Immigration Officers" are "immigration inspectors, immigration examiners, or supervisory officers of
such employees to whom the . Service delegates authority for
performing functions . . . [relating to the adjudication of] 1-130
spouse petitions." The Stokes judgment sets forth procedural requirements, which are not otherwise required by regulation, governing the investigation and adjudication of spouse visa petitions
filed in the New York District Office. Paragraph 54 of the judgment provides that "[j]urisdiction is retained by the Court until

  1 0n appeal the petitioner states that "evidence of a joint bank account, photographs from a wedding album, wedding and gift cards and testimony regarding their
courtship and marriage" was presented. The record does not include this evidence.

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further order, for the purpose of issuing any orders as may be necessary for the construction, implementation, or enforcement of this
judgment or of any of the provisions thereof. . . ."
   The Service contends that the Stokes judgment does not apply to
this visa petition because it was filed simultaneously with an application for adjustment of status. It is submitted that the Stokes
judgment is "solely a stipulation between the parties," 2 that it
makes no reference to "simultaneous filings, section 245 proceedings or 1-485 interviews," and that the "present practice of the
Service and the New York District Office of providing merged petition/adjustment proceedings is manifestly dehors the terms agreed
upon. in the Stokes stipulation." It is argued that this "independent
practice" established for the public benefit should not be disturbed
because the Stokes judgment "expressly refrains from judging the
validity of procedures in the New York District Office or the Immigration and Naturalization Service generally." It is finally noted
that a petitioner may elect to file a visa petition, not accompanied
by an adjustment application, and request an interview, "thereby
assuring the petitioner of the rights and privileges under the
Stokes judgment."
  While we are not unsympathetic to the problems faced by the
New York District Office in timely adjudicating visa petitions and
are aware of the added difficulties the Stokes judgment may create,
we cannot find that a spouse visa petition filed in the New York
District Office is "dehors the terms agreed upon in the Stokes [judgmentr solely because it is accompanied by an application for adjustment of status. This simultaneous filing does not change the
fact that a spouse visa petition is filed in. the New York District
Office and must be adjudicated as such. See 

(a)(20,
2452(a)(2) (1986). Accordingly, the petition comes within the specific terms of the Stokes judgment and cannot be denied without providing the petitioner her right to an "adjudicatory proceeding"
under the provisions of the stipulation_ The Service remains free to
seek a construction of the judgment from the district court under
the court's retained jurisdiction. This would have been the appropriate course at the outset to resolve whether the procedures in
issue here could be found to be outside the scope of the judgment.




  2 It is not alleged that the final judgment is no longer in effect or does not otherwise bind the Service.
Interim Decision #3021

  Accordingly, the appeal must be sustained and the record remanded for further proceedings consistent with this decision and
the entry of a new decision.
  ORDER: The appeal is sustained and the record is remanded
for further proceedings and the entry of a new decision.




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