Interim Decision #3049
MATTER OF ARIAS
In Visa Petition Revocation Proceedings
A--24510614
Decided by Board March 8, 1988
(1) A decision to revoke approval of a visa petition can only be grounded upon, and
the petitioner is only obliged to respond to, the factual allegations specified in the
notice of intention to revoke.
(2) Observations of the consular officer that are conclusory, speculative, equivocal,
or irrelevant to the bona fides of the claimed relationship between the petitioner
and the boneficiar7 do not provide "good and sufficient cause" for the issuance of
a notice of intention to revoke approval of a visa petition and cannot serve as the
basis for revocation, notwithstanding the petitioner's failure to timely respond to
the notice of intention to revoke.
ON BEHALF OF PETITIONER: Pro se
BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members
In a decision dated August 7, 1986, the Immigration and Naturalization Service Regional Service Center ("RSC") director revoked
his prior approval of the visa petition filed by the United States citizen petitioner to accord the beneficiary immediate relative status
as her husband pursuant to section 201(b) of the Immigration and
Nationality Act, 8 U.S.C. § 1151(b) (1982). The petitioner appealed
from that decision and requested oral argument before the Board.
The appeal will be sustained and approval of the visa petition will
be reinstated. The petitioner's request for oral argument is denied.
The record reflects that the visa petition was approved on
August 9, 1983, and was forwarded to the American Embassy in
Santo Domingo, Dominican Republic. The Embassy returned the
visa petition. to the Service for possible revocation on the ground
that the marriage between the petitioner and the beneficiary appeared, in the Embassy's view, to be a sham, entered into for the
purpose of obtaining immigration benefits.
In a memorandum accompanying the returned petition dated
February 4, 1986, the Embassy reported that the beneficiary was
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unable to provide evidence that he had corresponded with the petitioner since leaving the United States in 1984. 1 At a later point,
however, the memorandum stated that, at a subsequent interview,
the beneficiary presented letters which "appear to have been" written by another person. Photographs submitted in support of the
visa petition were declared to have been "unconvincing." The
memorandum noted that the beneficiary was 49 years of age while
the petitioner was 26 years old. The memorandum continued that
local inquiry revealed that the beneficiary's first wife had lived in
the United States for several years and "was possibly living with
him" during his stay in this country. The beneficiary was said to
have had photographs of his first wife taken in New York, "some
of them dedicated to him." The beneficiary reportedly spends a
great deal of time with his daughters by his first marriage and
with his former mother-in-law. The memorandum observed that
the petitioner had never been in the Dominican Republic and
stated that neighbors of the beneficiary "were unaware of his divorce from his first wife and of his remarriage!' The memorandum
did note that twelve one-page letters, "possibly written by the petitioner," were submitted as evidence of a bona fide marriage.
In a. notice of intention to revoke dated May 1, 1986, 2 the RSC
director advised the petitioner that he proposed to revoke his approval of the visa petition on the following ground:
A local investigation conducted by the American Embassy at Santo Domingo revealed that the beneficiary's neighbors were unaware of his divorce from his first
wife and his remarriage to you. -According to his neighbors, you have never visited
the beneficiary in the Dominican Republic.
The petitioner was given 15 days within which to offer evidence in
opposition to the alleged basis for revocation. On August 7, 1986,
noting that no reply had been received in response to the notice of
intention to revoke, the RSC director revoked his approval of the
visa petition on the ground that the stated basis for revocation had
not been overcome. 3
Under section 205 of the Act, 8 U.S.C. § 1155 (1982), the Attorney
General may revoke the approval of any visa petition approved by
him for what he deems to be "good and sufficient cause." This
Board recently held that a notice of intention to revoke a, visa peti-
It appears that the beneficiary is ineligible for adjustment of status and that he
had returned to the Dominican Republic for his visa interview following the approval of the visa petition.
2 A copy of the Embassy's memorandum was enclosed with the notice of intention
to revoke.
a The petitioner has, on appeal, offered a rebuttal to the allegations contained in
the notice.
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Interim Decision * 3049
tion is properly issued for "good and sufficient cause" when the evidence of record at the time of issuance, if unexplained and unrebutted, would warrant a denial of the visa petition based upon the
petitioner's failure to meet his burden of proof. Matter of Estime,
19 I&N Dec. 450 (BIA 1987). Assuming regulatory requirements
have been satisfied,4 the decision to revoke approval of a visa petition will be sustained, notwithstanding the submission of evidence
on appeal, where a petitioner fails to offer a timely explanation or
rebuttal to a properly issued notice of intention to revoke. However, where a notice of intention to revoke is based upon an unsupported statement or an unstated presumption, or where the petitioner is unaware and has not been advised of derogatory evidence,
revocation of the visa petition cannot be sustained, even if the petitioner did not make a timely response to the notice of intention to
revoke.
Id.
In the instant case, the sole basis for the proposed revocation
cited in the notice of intention to revoke was the statement, not
further elaborated upon in the Embassy's memorandum, that the
beneficiary's neighbors did not know that the beneficiary had divorced and remarried and that, according to the neighbors, the petitioner had not visited the beneficiary in the Dominican Republic.
Hence, the revocation could only be grounded upon, and the petitioner was only obliged to respond to, those two factual allegations.
8 C.F.R. § 205.2(b) (1986). We find that the reasons stated in the
notice of intention to revoke did not provide "good and sufficient
cause" for the issuance of the notice and cannot serve as the basis
for revoking approval of the visa petition, notwithstanding the petitioner's failure to respond in timely fashion to the notice. Matter of
Estime, supra. Furthermore, we would have reached the same conclusion even had the RSC director relied upon the Embassy's
memorandum in its entirety in his notice of intention to revoke.
The observations made in the memorandum are conclusory, speculative, equivocal, and, in at least one instance, e.g., the beneficiary's frequent contacts with his daughters and former mother-inlaw, irrelevant to the issue of the bona fides of the petitioner's
marriage to the beneficiary. The observations are those of the consular officer, not the words of the person who conducted the actual
investigation. Such observations are more appropriately made by
the RSC director or this Board in reviewing the factual record. Spe-
4 The notice of intention to revoke must include a specific statement of the facts
and evidence underlying the proposed action, and the petitioner must be given an
opportunity to counter such facts and evidence. See generally Matter of Estime,
supra;
8 C.F.R. §205.2(b) (1988).
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cific, concrete facts are meaningful, not unsupported speculation
and conjecture. Taken individually or collectively, the allegations
as set forth in the memorandum did. not provide a sufficient foundation for initiating revocation proceedings. The appeal will therefore be sustained. Approval of the visa petition will be reinstated.
ORDER: The appeal is sustained and the approval of the visa
petition is reinstated.
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