Interim Decision 4t 8051
MATTER OF HO
In Visa Petition Proceedings
A-24247019
Decided by Board March 17, 1988
(1) The petitioner bears the burden in visa petition revocation proceedings of establishing that the beneficiary qualifies for the benefit sought under the immigration
laws. Matter of Cheung 12 I&N Dec. 715 (BIA 1968), reaffirmed-
(2) Approval of a visa petition vests no rights in the beneficiary of the petition but is
only a preliminary step in the visa or adjustment of status application procebs,
and the beneficiary is not, by mere approval of the petition, entitled to an immigrant visa or to adjustment of status.
(3) The realization by the district director that he made an error in judgment in
initially approving a visa petition may, in and of itself, be good and sufficient
cause for revoking the approval, provided the district director's revised opinion is
supported by the record.
(4) Doubt cast on any aspect of the petitioner's proof may lead to a reevaluation of
the reliability and sufficiency of the remaining evidence offered in support of the
visa petition.
(5) Evidence serving as the basis of a notice of intention to revoke approval of a visa
petition need not have been previously unavailable or undiscoverable.
(6) It is incumbent upon the petitioner to resolve any inconsistencies in the record
by independent objective evidence, and attempts to explain or reconcile such inconsistencies, absent competent objective evidence pointing to where the truth, in
fact, lies, will not suffice.
ON BEHALF OF PNITHONER: ON BEHALF OF SERVICE:
Sam Bernsen, Esquire David M. Dixon
Fragomen, Del Rey & Bernsen, P.C. Appellate Counsel
1140 Connecticut Avenue, N.W.
Suite 1000 Glyndell E. William'
Washington, D.C. 20036 General Attorney
BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members
In a decision dated May 2, 1985, the district director revoked his
prior approval of the visa petition which the petitioner had filed to
accord the beneficiary preference status as his unmarried son pur-
582
Interim Decision # 3051
scant to section 203(aX1) of the Immigration and Nationality Act, 8
U.S.C. § 1153(a)(1) (1982). The petitioner appealed from that decision and oral argument in the case was heard by the Board on
June 4, 1986. The appeal will be dismissed.
The petitioner, a 55-year-old native of the People's Republic of
China ("PRC") and citizen of the United States, immigrated to this
country with his wife and five biological children on September 19,
1968. The petitioner claims that he and his wife adopted the beneficiary in the PRC in 1966 when the beneficiary was 7 years old.
In order to qualify as a "son" for the purpose of obtaining preference status under the immigration laws, the beneficiary must once
have qualified as a "child" of the petitioner as that term is defined
by section 101(b)(1) of the Act, 8 U.S.C. § 1101(bX1) (1982); Matter of
Coker,
14 I&N Dec. 521 (BIA 1974). Section 101(bX1)(E) of the Act
includes within the definition of the term "child" an adopted child,
provided the child was legally adopted while under the age of 16
years and the child resided with and was in the legal custody of the
adopting parent or parents for the requisite 2-year period.'
The petitioner filed his visa petition on the beneficiary's behalf
on May 9, 1979. On February 4, 1982, the district director issued a
notice Of intention to deny the visa petition on the ground that the
evidence submitted failed to establish that the beneficiary qualified
as the petitioner's adopted child. On August 17, 1982, following the
submission of additional evidence by the petitioner, the visa petition was approved and was forwarded to the American consulate
general in Guangzhou, PRC. The consulate general returned the
visa petition to the district director for possible revocation on December 6, 1983, setting forth reasons for its belief that the claimed
adoption may not have taken place and, 'further, that the 2-year
residence and legal custody requirements of section 101(bX1XE) had
not been satisfied.
In a letter dated January 24, 1985, the district director notified
the petitioner of his intention to revoke his approval of the visa petition based upon the recommendation of the American consulate
general at Guangzhou, and he granted the petitioner 15 days
within which to offer evidence in opposition to the grounds for revocation cited in the consulate general's report. The petitioner was
" Under the law in effect at the time the petitioner filed his visa petition, periods
of residence both prior and subsequent to the adoption could be considered in determining whether the residenmt requirement of section 101(bX1XE) had been met, but
the child had to be in the legal custody of the adopting parent for 2 years following
the adoption. The requirement that the legal custody provision could only be satisfied subsequent to the adoption was eliminated by section 2 of the Immigration and
Nationality Act Amendments of 1936,
Pub. L. No. 99-653, 100 Stet. 3655.
Interim Decision #3051
provided with a copy of the report, both prior and subsequent to
the notice of intention to revoke, and he responded through letters
of counsel dated October 22, 1984, and March 4, 1985. On May 23,
1985, notwithstanding the petitioner's rebuttal, the district director
determined that the petitioner had failed to demonstrate compliance with the residence and legal custody requirements of the statute, and he accordingly revoked his approval of the visa petition.
The consulate general's report, upon which these revocation proceedings are based, expressed doubt both as to whether an adoptive
relationship was in fact created and whether the 2-year residence
and legal custody requirements of section 101(b)(1)(E) had been satisfied. Since the district director's decision to revoke his approval of
the visa petition was grounded solely on the petitioner's failure to
establish compliance with the residence and legal custody requirements of the Act, we shall focus on those aspects of the record that
relate to the stated ground for revocation.
Offered in support of the visa petition when it was first before
the district director were several letters to the petitioner and his
wife from the beneficiary, money order receipts, affidavits, and Chinese documents. Those documents included an adoption agreement,
purportedly signed by the petitioner and his wife and the beneficiary's natural mother, which recites that the agreement was made
on April 2, 1967.
In an affidavit dated July 7, 1981, the petitioner's wife stated
that she and the petitioner adopted the beneficiary in June 1966,
some 10 months prior to the date the adoption agreement was executed, following the death of the beneficiary's natural father. The
petitioner's wife explained that she had not realized the would
need documentation for the adoption until the family began arrangements to immigrate to the United States. She stated that her
husband, the petitioner, lived in Hong Kong 2 and was fearful of
returning to their village in the PRC, having once been detained by
the Communist regime as the son of a landlord. She asserted that
she accordingly "had the responsibility of living in the village together with my adopted son to look after our farmlands being tilled
by our workers." She claimed that her residence was in the village
except for periodic visits to Hong Kong to be with her husband.
She explained that her natural born children, all of whom were
born in Hong Kong,3 lived with her husband in Hong Kong but
that she and the children could freely enter and leave the PRO
The record reflects that the petitioner left the PRC for Hong Kong in 1946.
a A sixth child was born to the petitioner and his wife in the United States in
1975.
584
Interim Decision #3051
with her Hong Kong identity card. She added that the beneficiary
had been unable to obtain an exit permit from the PRC Government and consequently could not join the other children in Hong
Kong. The petitioner's wife explained that, because of the expense
involved, and in order to avoid complicating the family's immigration. to the United States, the petitioner's sister, who had petitioned
to accord the petitioner his preference status, instructed the petitioner's wife not to claim her mother, sister, or the beneficiary. The
petitioner's wife stated that the petitioner's sister had initially intended to bring only the petitioner to the United. States but reconsidered when relatives urged that she not break up the family.
In an affidavit executed on June 29, 1981, one of the petitioner's
biological sons, Jack, stated that arrangements for the beneficiary's
adoption were made by his mother since his father was in Hong
Kong and seldom returned to the village. He stated that "every
summer vacation my mother brought me and my sister Susan back
to our native village of Cheung On Lee from Hong Kong where we
were attending school" and that "on the occasions we returned to
the village my mother would bring candy and cookies for my brother which he loved." He stated that the beneficiary was cared for by
his maternal grandmother whenever his mother was in Hong
Kong. He added that it was his understanding that his parents
could not obtain an exit permit from PRO authorities to enable the
beneficiary to accompany the family to the United States.
In a sworn statement dated June 27, 1981, the petitioner's daughter Susan declared that her parents had adopted the beneficiary
when he was about 6 years old and that u[d]uring June/July of
1966, he lived in our household and as children he played with me
and my brother (Jack)." She continued, "My mother left China together with me and brothers and sisters." She explained that the
family was not able to bring the beneficiary with them when they
immigrated to the United States in September 1968 because "my
father's sister who petitioned for us felt it would be too complicated
to bring my adopted brother to the United States."
In the notice of intention to deny the visa petition dated February 4, 1982, the district director observed, inter alia, that the affidavits submitted in support of the visa petition were rather vague
with respect to the length of time the beneficiary resided with the
petitioner's spouse.4 The district director pointed out that it would
not have been possible for the petitioner's wife to have resided with
4 The legal custody and residence requirements of the statute may be satisfied
when custody and residence for the requisite 2-year period have been with only one
of the adopting parents. Matter of Y-K-W-, 9 I&N Dec. 176 (A.G. 1961).
ror
Interim Decision # 3051
the beneficiary for the requisite 2-year period inasmuch as the
adoption took place, according to the adoption agreement, on April
2, 1967, and the petitioner immigrated to the United States with
his wife and biological children on September 19, 1968. The district
director took note of the petitioner's wife's contention that the
adoption in fact took place 10 months prior to the date the adoption agreement was executed but observed that her assertion had
not been substantiated. He noted that a review of the petitioner's
immigration file disclosed that, on various declarations and applications executed after the beneficiary's claimed adoption, the petitioner made no mention whatever of the beneficiary but listed only
his biological children, specifically stating on one occasion, "I do
not have any other children besides those listed above." The district director concluded that the petitioner had failed to sustain his
burden of establishing the claimed relationship between himself
and the beneficiary.
In response to the notice of intention to deny, the petitioner submitted, inter alie, affidavits executed by his wife's first cousin and
by himself. The petitioner's wife's cousin stated in his affidavit,
dated February 22, 1982, that he had had dinner with the petitioner and the petitioner's wife at his home in Hong Kong on April 28,
1966, and was told that the petitioner's wife "had just returned for
[sic] her village where she had adopted a son, [the beneficiary]." He
claims that he clearly recalls the date of the dinner because 3 days
later, on May 1, 1966, he finalized a partnership agreement for his
first business venture.
In his own affidavit dated March 3, 1982, the petitioner corroborated the information provided in the affidavits of his wife and
children, although he reported February 15, 1966, as the date of
adoption, a different date than that given by his wife and. suggested
by her cousin. The petitioner stated that "my wife maintained our
household in the village and managed our farmlands which were
being rented out to the villagers" but that "she visited me from
time to time in Hong Kong." With regard to the discrepancy between the date of the adoption agreement and the alleged date of
adoption, the petitioner explained that there was no indication that
the family would be able to immigrate to the United States at the
time of the adoption and there was consequently no thought at
that time that a contract of adoption would be needed. With respect to his past failure to acknowledge the beneficiary as his son,
the petitioner explained that he had not listed the beneficiary
among his children at his sister's insistence when his sister petitioned for him and that he felt compelled on subsequent applications to give consistent information.
586
Interim Decision #3051
As noted earlier, the visa petition was eventually approved on
August 17, 1982, and sent to the American consulate general at
Guangzhou. The consulate general determined, upon investigation,
that the evidence did not support the petitioner's contention that
the beneficiary lived with the petitioner's wife in her native village
in the PRC from the time of the alleged adoption until the family
immigrated to the United States. Rather, the consulate general
concluded, the preponderance of evidence suggests that the petitioner's wife lived with her husband in Hong Kong and occasionally returned on visits to the village.
The consulate general reported that, as a result of discrepancies
in the beneficiary's statements and the documents he presented in
his initial visa interview at the consulate general in January 1983,
the consular officer requested further documentation and a review
of the immigration file of the petitioner's wife. Examination of that
file revealed that the petitioner's wife had consistently claimed
Hong Kong, not the PRC, as her place of residence from 1952 until
her departure for the United States. 5 The report continued!
In her immigrant visa application which she signed on January 26, 1968, one and
one-half years after an adoption agreement was allegedly signed, Mrs. Tam [the
petitionor's wife] listed the following places of residence of six months or more:
1933-1952 Kwangtung (Guangdong) China; 1952-1957 Peak Road, Hong Kong;
July 1957-November 1964 Kowloon, Hong Kong; November 1964 to now (1/26/68)
Kowloon, Hong Kong. [6] She further stated that her children were living with
her in Hong Kong. In her Statutory Declaration made before the Court of Justice
in Hong Kong on February 3, 1968, Mrs. Tam swore that she "last left Mainland
China on the first of November 1952" and that she was at the time the declaration was made living with her husband and children in Hong Kong. Likewise, her
husband stated in both his immigrant visa application dated January 26, 1968,
and his Statutory Declaration of February 3, 1968, that his wife was living with
him in Hong Kong. In the 1-130 petition filed for her brother on December 16,
1966, ten months after the beneficiary was allegedly adopted but two months
Wore an adoption agreement was signed, Mr. Tam's sister also gave a Kowloon,
Hong Kong address for her brother's spouse and children.
The consulate general found incredible the claim of the petitioner and his wife that, following the adoption of the beneficiary, the
petitioner's wife remained in the PRO to manage the family's farmlands. The report pointed out that "[d]uring the fifties and certainly by the early sixties, all land in [the PRO] was declared to be
state property and was divided into communes. Private citizens did
5 Review of the petitioner's wife's file also disclosed that she, like the petitioner,
never claimed the beneficiary as her son.
6 The immigrant visa application of the petitioner's wife in fact listed specific
street addresses at which she claims to have lived in Hong Kong for the periods
indicated, addresses that correspond with addresses given by the petitioner for the
same periods on his immigrant visa application.
KS21
Interim Decision #3051
not retain private family lands and certainly did not collect rents
from villagers?'
Noting that it is common for Chinese males to live and work in
Hong Kong while their families remain in the PRC, the consulate
general considered it "highly unusual" for a man and his five
young children to live in Hong Kong alone while only the wife
stayed behind in the village. The consulate general found it "extremely difficult to believe" that the petitioner's wife would give
birth to five children in Hong Kong between 1954 and 1962, then
send them to school in Hong Kong, while she herself remained in
the PRC to care for an adopted child.
The consulate general took note of additional discrepancies in
the evidence. For example, the petitioner's son Jack swore in his
affidavit that his maternal grandmother had cared for the beneficiary whenever his mother was in Hong Kong. However, his mother,
the petitioner's wife, stated in her 1968 Hong Kong Statutory Declaration and immigrant visa application that her mother had died
in Canton City, China, on January 18, 1957. The beneficiary told
the consular officer that his uncles had looked after him when his
adoptive mother was away.
On January 24, 1985, the district director issued a notice of intention to revoke based upon the consulate general's report. Subsequently, on May 23, 1985, he revoked his prior approval of the visa
petition. We concur with the actions taken by the district director.
Under section 205 of the Act, 8 U.S.C. § 1155 (1982), the Attorney
General may revoke the approval of a visa petition previously approved by him for what he deems to be "good and sufficient cause."
In response to the notice of intention to revoke and on appeal, the
petitioner argues (1) that the district director did not have good
and sufficient cause to institute revocation proceedings in this case,
(2) that the Government has the burden of proof in these proceedings and did not meet its burden, and (3) that the 2-year residence
and legal custody requirements of section 101(3X1)(E) of the Act
were satisfied. We find the petitioner's arguments unpersuasive.
We turn first to the question of who bears the burden of proof in
this case. In Matter of Cheung,
12 I&N Dec. 715 (BIA 1968), this
Board specified that the burden remains with the petitioner in revocation proceedings to establish that the beneficiary qualifies for
the benefit sought under the immigration laws, a principle which
we reaffirmed in our recent decision in Matter of Estime,
19 I&N
Dec. 450 03IA 1987).
The petitioner argues that the beneficiary of an approved visa
petition has "a valuable privilege in the nature of a license" and
that the burden of proof is upon the district director, as initiator of
588
Interim Decision *3051
the revocation proceedings, to establish that the beneficiary should
be deprived of that privilege. The petitioner seeks to distinguish
Matter of Cheung, supra, arguing that the approval of the visa petition in Cheung was subject to conditions, whereas the approval in
the present case was unconditional.
Contrary to the petitioner's contention, the approval of a visa petition vests no rights in the beneficiary of the petition. Approval of
a visa petition is but a preliminary step in the visa or adjustment
of status application process, and the beneficiary is not, by mere
approval of the petition, entitled to an immigrant visa or to adjustment of status. See generally Tongatapu Woodcraft Hawaii, Ltd. v.
Feldman, 736 F.2d 1305 (9th Cir. 1984); Amarante v. Rosenberg
326
F.2d 58 (9th Cir. 1964); see also Joseph v. Landon,
679 F.2d 113 (7th
Cir. 1982); Matter of Cheung, supra. Rather, such approval may be
revoked at any time for good cause shown. Section 205 of the Act.
As there is no right or entitlement to be lost, the burden of proof
in visa petition revocation proceedings properly rests with the petitioner, just as it does in visa petition proceedings. nrcgatapu Woodcraft Hawaii, Ltd. v.
Feldman, supra; Matter of Cheung, supra.
The petitioner's attempt to distinguish Matter of Cheung, supra,
raises, in our view, a distinction without a difference_ The conditionality of the approval of the petition in Cheung was not material
to the Board's holding in the case. Id. at 719.
The Board's position with respect to the allocation of the burden
of proof in revocation proceedings is wholly consistent with that of
the Ninth Circuit Court of Appeals, the jurisdiction in which this
case arises. In Tongatapu Woodcraft Hawaii, Ltd. v.
Feldman,
supra,, the Ninth Circuit stated that, notwithstanding the burden
section 205 places on the Government to show good and sufficient
cause for the proposed revocation, "a proceeding to revoke a visa
petition, like the petition itself, is a part of the application process
and falls under § 291 of the Act,
8 U.S.C. § 1361."
Id. at 1308. 7 Accordingly, "once the INS has produced some evidence to show cause
for revolting the petition, the alien still bears the ultimate burden
of proving eligibility. The alien's burden is not discharged until the
visa is issued."
Id. The court then directed its attention to the
7 Section 291 of the Act,
8 U.S.C. § 1361 (1982), provides in part:
Whenever any person makes application for a visa or any other document required for entry, or makes application for admission, or otherwise attempts to
enter the United States, the burden of proof shall be upon such person to establish that he is eligible to receive such visa or such document, or is not subject to
exclusion under any provision of this Act, and, if an alien, that he is entitled to
the nonimmigrant, immigrant, special immigrant, immediate relative, or refugee
status claimed, as the case may be.
gQ0
Interim Decision # 3051
standard of review which applies in visa petition revocation proceedings and determined that a decision to revoke approval of a
visa petition, like a decision to deny a visa petition, will be sustained on judicial review if supported by substantial evidence. Id.
at 1309; see also Kee Yia Leong v. O'Shea,'
363 F.2d 426 (9th Cir.
1966).
In Matter of Estirne, supra, this Board stated that a notice of intention to revoke a visa petition is properly issued for "good and
sufficient cause" where the evidence of record. at the time the
notice is issued, if unexplained and unrebutted, would warrant a
denial of the visa petition based upon the petitioner's failure to
meet his burden of proof. The decision to revoke will be sustained
where the evidence of record at the time the decision is rendered,
including any evidence or explanation submitted by the petitioner
in rebuttal to the notice of intention to revoke, would warrant such
denial. Id.
The petitioner maintains that the district director did not have
"good and sufficient cause" to institute these revocation proceedings. He argues that "good and sufficient cause" requires a showing
of new evidence, fraud, or error of law, none of which, he contends,
was demonstrated here. The petitioner maintains that all of the
evidence supporting the decision to revoke was in the district director's possession when he approved the visa petition and that the
decision to revoke was based solely upon the consulate general's
disagreement with that approval. The district director, the petitioner submits, simply changed his mind. The petitioner insists that
"good and sufficient cause" contemplates more than a relitigation
of the same factual issues.
At the outset, we reject the petitioner's contention that mere
error in judgment on the part of the district director in initially
approving the visa petition cannot, in and of itself, be a proper
basis for revolting the approval. The petitioner cites no authority
for that proposition and we are unaware of any such authority. We
believe that the realization by the district director that he erred in
approving the petition, however arrived at, may be good and sufficient cause for revoking his approval, provided the district director's revised opinion is supported by the record. 8
It appears to us that the district director did err in approving the instant visa
petition. One of the grounds for denial referenced in the notice of intention to deny
was the petitioner's failure to demonstrate compliance with the residence and legal
custody requirements of the statute. The only evidence offered in rebuttal to that
stated ground for proposed denial were the affidavits of the petitioner and his wife's
cousin. The petitioner's affidavit was not specific with respect to the period or periContinuer/
590
Interim Decision #3051
In this regard, we note that evidence considered by the district
director may take on new significance when viewed from a different perspective. For example, the district director apparently accepted at face value the petitioner's explanation that his wife had
remained in the PRC to manage the f rnily farmlands. However,
the consulate general, with its particular expertise regarding prevailing economic and social conditions in the PRC, found that account to be incredible. Doubt cast on any aspect of the petitioner's
proof may, of course, lead to a reevaluation of the reliability and
sufficiency of the remaining evidence offered in support of the visa
petition.
In any event, these revocation proceedings are based upon the
report of the consulate general at Guangzhou, which the district director incorporated by reference in the notice of intention to
revoke. The consulate general's investigation did in fact uncover
new evidence sufficient to support the issuance of the notice of intention to revoke, most significantly, documents in the petitioner's
wife's immigration file reflecting her residence in Hong Kong
during the time she claimed to be living in the PRC. There is no
indication that the district director reviewed those documents prior
to approving the visa petition. There is, moreover, no requirement
that evidence serving as the basis of a notice of intention to revoke
must have been previously unavailable or undiscoverable.
The petitioner's remaining argument, that the evidence of record
establishes compliance with the 2-year residence and legal custody
requirements of the Act, must likewise be rejected. That evidence
consists solely of the unsubstantiated statements of the petitioner
and his wife, 0 statements that have been shown to be unreliable,
having been contradicted by the affiants' own prior declarations.
Additional questions regarding the veracity of those assertions are
raised by the consulate general's report. The petitioner and his
family are responsible for the ambiguities in the record, and it is
incumbent upon the petitioner to resolve the inconsistencies by independent objective evidence. Attempts to explain or reconcile the
ods of time his wife actually resided with the beneficiary. The affidavit of his wife's
cousin, even if fully credited, merely tended to establish that it was possible for the
petitioner's wife to have resided with the beneficiary for 2 years following the adoption, as claimed; the affidavit was not evidence that she had in fact resided with the
beneficiary for any given period. The evidence offered in response to the notice of
intention to deny did not. in our opinion, resolve the legitimate questions raised in
the notice.
9 The affidavits of the petitioner's son and daughter, and of his wife's cousin, cited
by the petitioner as further evidence that the residence and legal custody requirements have been met, do not support the petitioner's claim_
tai
Interim Decision #3051
conflicting accounts, absent competent objective evidence pointing
to where the truth, in fact, lies, will not suffice. No such evidence
has been presented.
Questions of credibility aside, the affidavits of the petitioner and
his wife are deficient on their face inasmuch as they fail to allege
facts establishing that the petitioner's wife resided with the beneficiary for an aggregate of time totaling 2 years. See generally Matter
of Lee, 11 I&N Dec. 911 (WA 1066). See also Matter of Repuyan,
19
I&N Dec. 119 (BIA 1984) (residence requirement of section
101(b)(1)(E) of the Act is not met by a succession of visits by an
adopting parent in the home of the adopted child).
We find that the notice of intention to revoke provided a sufficient foundation for initiating revocation proceedings and that the
basis for revocation alleged has not been overcome by the petitioner. The appeal will accordingly be dismissed.'°
ORDER: The appeal is dismissed.
1 " The Service allege° for the first time on appeal that some of the evidence sub-
mitted in support of the visa petition, specifically, two letters from the beneficiary
dated October 17, 1968, and December 21, 1969, may have been fabricated. Given
our holding in the case, we need not and we do not consider that charge.
592
