Interim Decision *3081
MATTER OF SORIANO
In Visa Petition Proceedings
A-27259'736
Decided by Board October 5, 1988
(1) Where a visa petition has once been denied based on a finding that the marriage
was entered into solely to bestow an immigration benefit, the petitioner bears a
heavy burden of proof with respect to any subsequently filed visa petition involving the same beneficiary.
(2) A petitioner may be put on notice of evidentiary requirements by means such as
a requirement in the regulations that a particular document be submitted with
the visa petition; a notice of intent to deny, letter, or form noting the deficiency or
requesting additional evidence; or an oral statement at an interview that additional evidence is required.
(3) Where a visa petition is denied based on a deficiency of proof, the petitioner had
not been put on notice of the deficiency and given a reasonable opportunity to
address it before the denial, and on appeal the petitioner proffers additional evidence addressing the deficiency, the record will, in the ordinary course, be remanded to allow the Immigration and Naturalization Service to initially consider
and address the new evidence.
(4) Where the petitioner was put on notice of the required evidence and given a reasonable opportunity to provide it for the record before the visa petition is adjudicated, evidence submitted on appeal will not be considered for any purpose, and
the appeal will be adjudicated based on the record of proceedings before the Service.
ON BEHALF OF PETITIONER: ON BEHALF OF SERVICE:
Scott T. Strack, Esquire Joanna London
Central Pacific Plaza District Counsel
220 S. King Street, Suite 368
Honolulu, Hawaii 96813
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 husband under section 201(b)
of the Immigration and Nationality Act, 8 U.S.C. § 1151(b) (1982).
In a decision dated September 8, 1986, the district director denied
the petition. The record will be remanded.
Interim Decision #3081
The petitioner is 45 years old. The beneficiary is a 38-year-old
native and citizen of the Philippines. The parties were married on
October 2, 1985. The petitioner filed a visa petition on behalf of the
beneficiary on December 2, 1985.
On March 14, 1986, the district director denied the visa petition.
He concluded that the marriage was a sham, based on the nature
and magnitude of the inconsistencies in the parties' statements at
their separate interviews on February 12, 1986, the petitioner's inability to explain them, and the inadequacy of the evidence submitted by the petitioner.
The petitioner did not appeal from the district director's March
14, 1986, decision. On August 7, 1986, she filed a second visa petition on. behalf of the beneficiary as her husband. Attached to the
visa petition were undated affidavits of her sons, ages 16 and 17,
concerning the bona fides of the marriage.
The district director denied the second visa petition on September 8, 1986, on the basis of the conclusions regarding the validity of
the marriage expressed in his March 14, 1986, decision, stating also
that the petitioner had not submitted any evidence indicating that
her marriage was valid. The petitioner appealed. On October 20,
1986, the district director wrote to counsel for the petitioner, noting
that he had failed to file a brief on appeal and advising him that
he had 30 days "to submit additional evidence in support of your
appeal.'
On appeal, the petitioner, who maintains that the marriage is
bona fide, submitted additional evidence.'
A marriage that is entered into for the primary purpose of circumventing the immigration laws, referred to as a fraudulent or
sham marriage, has not been recognized as enabling an alien
spouse to obtain immigration benefits. Matter of Laureano, 19 I&N
Dec. 1 (BIA 1988); Matter of McKee,
17 I&N Dec. 332 (BIA 1980); see
also, e.g, Lutwak v. United States,
344 U.S. 604 (1953); Chan v.
Bell,
464 F. Supp. 125 (D.D.C. 1978); McLat v. Longo,
412 F. Supp.
1021 (a.V.I. 1976); Matter of Pereira,
19 I&N Dec. 169 (BIA 1984);
Matter of M-,
8 I&N Dec. 217 (BIA 1958). See generally Johl v.
United states,
370 F.2d 174 (9th Cir. 1966). The central question is
whether the bride and groom intended to establish a life together
at the time they were married. See, e.g., Bu Roe v. INS,
771 F.2d
1328 (9th Cir. 1985); Bark v. INS,
511 F.2d 1200 (9th Cir. 1975);
Matter of Laureano, supra; Matter of McKee, supra.
The conduct of the parties before and after marriage is relevant
to their intent at the time of marriage. Lutwak v. United States,
1 Some of the evidence submitted is not in the record.
Interim Decision #3081
supra; Garcia-efaramillo v. INS,
604 F.2d 1236 (9th Cir. 1979), cert.
denied,
449 U.S. 828 (1980); Bark v. INS, supra. Where there is
reason to doubt the validity of the marital relationship, the petitioner must present evidence to show that the marriage was not
entered into for the purpose of evading the immigration laws. Such
evidence could take many forms, including, but not limited to,
proof that the beneficiary has been listed as the petitioner's spouse
on insurance policies, property leases, income tax forms, or bank
accounts, and testimony or other evidence regarding courtship,
wedding ceremony, shared residence, and experiences. Matter of
Laureano, supra; Matter of Phillis,
15 I&N Dec. 385 (BIA 1975).
In visa petition proceedings, the petitioner has the burden of establishing eligibility for the benefits sought. Matter of Brantigan,
11 I&N Dec. 493 (BIA 1966). Where a visa petition has once been
denied based on a finding that the marriage was entered into solely
to bestow an immigration benefit, the petitioner bears a heavy
burden of proof with respect to any subsequently filed visa petition
involving the same beneficiary. cf.
Matter of Laureano, supra.
Where a visa petition is denied based on a deficiency of proof,
the petitioner was not put on notice of the deficiency and given a
reasonable opportunity to address it before the denial, and the petitioner proffers additional evidence addressing the deficiency with
the appeal, then in the ordinary course we will remand the record
to allow the district or Regional Service Center director to consider
and address the new evidence. A petitioner may be put on notice of
evidentiary requirements by various means, such as a requirement
in the regulations that a particular document be submitted with
the visa petition; a notice of intent to deny, letter, or form noting
the deficiency or requesting additional evidence; or an oral statement at an interview that additional evidence is required. Where,
however, the petitioner was put on notice of the required evidence
and given a reasonable opportunity to provide it for the record
before the denial, we will not consider evidence submitted on
appeal for any purpose. Rather, we will adjudicate the appeal
based on the record of proceedings before the district or Regional
Service Center director. See Matter of Obaigbena, 19 I&N Dec. 533
(BIA 1988). In such a case, if the petitioner desires further consideration, he or she must file a new visa petition.
The district director first pointed out the deficiencies of proof
with respect to the second visa petition when he denied that petition, and he suggested thereafter that the petitioner submit new
evidence. We note also that the district director was in error in
stating that the petitioner had submitted no evidence with the
nee
Interim Decision #3081
second visa petition. The affidavits of the petitioner's children were
evidence, albeit of weak probative value.
Accordingly, we shall remand this matter to the district director
so that he may consider the evidence submitted on appeal, bearing
in mind the petitioner's heavy burden of proof.
ORDER: The record is remanded to the district director for
further proceedings consistent with the foregoing opinion and the
entry of a new decision.
