MARQUEZ

Interim Decision #3129




                        MA 11 ER OF MARQUEZ
                 In Visa Petition Revocation Proceedings
                                    A- 27590846

                   Decided by Board February 23, 1990

(1)The Board of Immigration Appeals rejects a strict statutory interpretation of section
  101(b)(1)(E) of the Immigration and Nationality Act, 

(b)(1)(E) (1982),
  thereby relying upon the legislative history of the statute which indicates that
  Congress did not intend to recognize ad hoc adoptions designed to circumvent the
  immigration laws.
(2)The Board finds the adoptive relationship is more akin to marital relationships than
  to steprelationships, and thus, in certain cases, the bona fides of adoptions will be
  determined.
(3) Visa petitions involving the specter of sham adoptions which generally arise in
  adoptions by a close relative where the relationship between the natural parent and
  the adopted child does not appear to change subsequent to the adoption will he
  analyzed under the standards set forth in Matter of Caen°, 

 (BIA
  1989).
ON BEHALF OF PETITIONER:                             ON BEHALF OF SERVICE
  Donald L Ungar, Esquire                               Arthur R. George
 Simmons, Ungar, Helbush,                               General Attorney
  DiCostanro & Steinberg
  517 Washington Street
  San Francisco, California 941W

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


   In a decision dated May 31, 1988, the district director revoked his
prior approval of the visa petition filed by the petitioner to accord the
beneficiary immediate relative status as her adopted daughter under
section 201(b) of the Immigration and Nationality Act, 

(b) (1982). The petitioner appeals from that decision. The
appeal will be dismissed.
   The petitioner, a 49-year-old native of the Philippines and citizen of
the United States, adopted the beneficiary, a 20-year-old native and
citizen of the Philippines, on December 2, 1980, when she was 11
years old. The petitioner filed the visa petition on the beneficiary's
behalf on December 28, 1984, when the beneficiary was 15 years old.
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   The record shows that the beneficiary is the petitioner's niece. The
petitioner asserts that she resided with the beneficiary from her birth
in 1969 until the petitioner emigrated to the United States in 1975. In
support of her visa petition, the petitioner submitted an affidavit of
the beneficiary's natural mother, which confirms that the petitioner
resided in the home of the beneficiary's natural mother with the
beneficiary, whom the petitioner helped support financially. The
petitioner also provided a letter dated March 5, 1985, from the
manager of the Esteva & Co., Inc., a dollar-peso exchange, listing
numerous remittances from the petitioner and her husband payable to
the beneficiary's natural mother from 1982 through 1984.
   At the time the district director entered his decision in this case,
section 101(b)(1)(E) of the Act, 

(b)(1)(E) (1982),
included within the definition of the term "child," "a child adopted
while under the age of sixteen years if the child has thereafter been in
the legal custody of, and has resided with, the adoptive parent or
parents for at least 2 years."
  The visa petition was approved on April 8, 1985. Thereafter, the
Service received a memorandum from the American Embassy in the
Philippines dated July 7, 1986, which concludes that the petitioner
failed to comply with the 2-year residence requirement of section
101(b)(1)(E) of the Act. The memorandum states that the beneficiary
was adopted by her aunt, that the petitioner did live in the beneficiary's household prior to her emigration to the United States, but that
the beneficiary's natural mother resided in the same household and
maintained parental authority.
   Based upon that memorandum, the district director advised the
petitioner in an undated letter of his intention to revoke approval of
the visa petition for failure to meet the residence requirement of
section 101(b)(1)(E) of the Act. In his letter, the district director set
forth the facts outlined in the Embassy memorandum and granted the
petitioner 18 days within which to submit evidence rebutting the
stated ground for revocation.
   In response to the district director's notice of intention to revoke
the visa petition, the beneficiary submitted a letter dated April 27,
1988, from the beneficiary to the district director asking for reconsideration and stating that from the time of her adoption, her natural
mother acted only as a guidance counselor, while the petitioner met
her physical and financial needs.
   In his decision of May 31, 1988, the district director revoked his
Prior approval of the visa petition on the ground that the petitioner
had failed to submit evidence sufficient to overcome the stated basis
for revocation.
   On appeal, the petitioner through counsel contends that the district

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director erred in concluding that she had failed to satisfy the residence
requitement of section 101(b)(1)(E) of the Act. The petitioner argues
that the parties' undisputed 6-year residence in the same dwelling
place prior to her emigration to the United States fulfills that
requirement inasmuch as the concept of residence is addressed in the
Act only in section 101(a)(33), which defines "residence" as one's
"principal dwelling place." The petitioner further argues on appeal
that contrary to the district director's view, parental control or
authority is an element of legal custody and should not be intertwined
with the residence requirement of section 101(bX1)(E) of the Act.
Counsel for the petitioner also points out that in Palmer v. Reddy, 

 (9th Cir. 1980), the United States Court of Appeals for the
Ninth Circuit held it improper for the Service, in the context of
steprelationships, to require a stepparent to demonstrate "parental
interest" when the statute made no explicit reference to such showing.
He argues the same should be true for adoptive relationships.
   In its brief on appeal, the Service, relying on Matter of Repuyan, 19
I&N Dcc. 119 (BIA 1984), argues that the petitioner's appeal should be
dismissed because the petitioner did not live with the beneficiary in a
home established by her and because she has failed to establish that
she did not adopt the beneficiary solely to facilitate the beneficiary's
entry into the United States.
   The petitioner responded to the Service's arguments, arguing that
section 101(b)(1)(E) of the Act does not explicitly state that the
residence of the adopted child and adoptive parent must occur in a
home established by the adoptive parent. Counsel for the petitioner
avers that such requirement would impermissibly burden adoptive
parents by adding criteria to the statutory definition of an adopted
child. Counsel further suggests that the absence of clear statutory
language in section 101(b)(1)(E) of the Act requiring that the residence
of the parties occur in a home established by the adoptive parent,
coupled with the absence of a provision for a de facto familial
relationship, indicates congressional intent to recognize all adoptions
which comply with the age and legal custody requirements of that
section where the adopted child and adoptive parent have shared the
same "principal dwelling place" for at least 2 years.
   In responding to the Service's argument that the petitioner failed to
prove the adoption was not entered into in order to circumvent the
immigration laws, counsel relies on Matter of Cho, 

 (BIA 1977), for the proposition that the explicit requirements of
section 101(b)(1)(E) of the Act were designed by Congress to prevent
sham adoptions, and that their satisfaction should establish for
immigration purposes that the adoption is not a sham.
  In sum, the petitioner argues for strict statutory interpretation of

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section 101(b)(1)(E) of the Act such that all adoptions which satisfy the
age and legal custody requirements of the Act where the parties have
shared the same principal dwelling place for 2 years would be
recognized for immigration purposes. She claims that she has fully
satisfied the plain language of section 101(b)(1)(E) of the Act and
approval of her visa petition should, therefore, be reinstated.
   In assessing the petitioner's arguments, we first note that the
legislative history of the bill which provided for section 101(b)(1)(E) of
the Act indicates that Congress did not by its definition intend to
recognize ad hoc adoptions entered into to circumvent immigration
laws. See 103 Cong. Rec. 14,659 (1957).'
   Second, we disagree with the petitioner that section 101(b)(1)(E),
and section 101(b)(1)(D) of the Act which provides for the admission
of stepchildren, are sufficiently analogous that Palmer v. 

should influence how we interpret the language of section 101(b)(1)(E)
of the Act. Palmer involved steprelationships, which, unlike adoptive
relationships, are derivative in nature, arising as a consequence of
another relationship, that is, a marriage of a natural parent and a
stepparent. Thus, the familial status of children from such a marriage
and the concomitant immigration benefit granted by Congress as a
result of that status could not in itself involve an attempt to
circumvent immigration laws?
   In this regard, we find the adoptive relationship more akin to
marital relationships than we do to steprelationships because a
marriage, like an adoption, may be entered into simply to facilitate
entry into the United States. The United States Supreme Court has
upheld inquiry into the bona fides of legal marriages despite the
absence of statutory language mandating such inquiry. See, e.g.,
Lutwak v. United States, 

 (1953) (the Court upheld
criminal convictions for conspiracy to defraud the United States by
obtaining illegal entry into this country of three aliens who had entered
into marriages with the defendants for the sole purpose of qualifying
them for admission into the United States).
   We also find misplaced the petitioner's reliance on Matter of Cho,
supra, for the proposition that the bona fides of an adoption is
established when the parties satisfy the age and legal custody

  1 103 Cong. Rec. 14,659 (1957) shows that Senator Kennedy, one of the principal
sponsors of the bill which provided for section 101(b)(1)(E) of the Act, stated that the
requirements of the adopted child amendment "would prevent abuse through ad hoc
adoptions made only for the purpose of circumventing the immigration laws."
  2 Wc have recently held, however, that if the marriage creating the stemelatiunship is
determined to be a sham, then we will not recognize for immigration purposes
steprelationships created as a result of that marriage. See Matter of Awwal, 

 (BIA 1988).

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Interim Decision #3129

requirements of the statute and show they have shared a principal
dwelling place for 2 years. In Matter of Cho, we asserted that district
directors should not impose stricter standards on adoptive relationships than Congress and we recognized that Congress inserted specific
safeguards against ad hoc adoptions. However, an examination of the
nature of the parties' residence with one another is not precluded by
Matter of Cho, supra.
   Taking the petitioner's arguments to their logical extreme, district
directors would have to recognize all adoptions meeting the age and
legal custody requirements of the Act where the parties have shared a
principal dwelling place for 2 years even if they concede that the sole
purpose of the adoption was to facilitate entry of the adopted child
into the United States. While it may be a rare occasion that an
adoptive parent admits such purpose for an adoption, we note that
most of the cases which raise the specter of a sham adoption arise in a
limited factual context. Generally, the adoption is by a close relative,
the natural parent or parents are still alive, the cohabitation of the
adoptive parent and child occurs with the natural parent or parents,
often in the home of the natural parents, and no meaningful objective
evidence is provided that the relationship between the natural parents
and adopted child changed subsequent to the adoption. Further, the
adoptive parent often leaves the residence at some point after the
adoption, sometimes for years, while the natural parents and adopted
child continue to live together.
   In both Matter of Repuyan, supra, and Matter of Cuello, 

 (BIA 1989), we concluded that such adoptions must be
evaluated in light of the congressional intent to recognize only bona
fide adoptive relationships. To facilitate congressional intent, we
determined in Matter of Cuello, supra, that the residence requirement
of section 101(b)(1)(E) of the Act means more than simply that the
adopted child and adoptive parent live together in the same residence
for 2 years) We determined that, under the circumstances described
above, the adoptive parent has the burden of establishing primary
parental control during his or her residence with the adopted child. Id.
In order to establish parental control, the petitioner may submit
competent objective evidence that the adoptive parent owns or
maintains the property where the child resides, provides financial
support and daily care, and assumes responsibility for important
decisions in the child's life. Id. A description of the relationship

  3 We disagree with the petitioner's assertion that an examination of the nature of the
parties' residence adds a requirement to section 101(b)(1)(E) of the Act. Rather, we are
interpreting the residence requirement of that section.

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between the adopted child and her natural parents subsequent to the
adoption must also be provided. Id.
   In the instant case, the petitioner concedes that she resided with the
beneficiary and her natural mother in the home of the beneficiary's
natural mother. No competent objective evidence was proffered to
establish that the petitioner exercised primary parental control during
the parties' residence with one another. See Matter of Cuello, supra;
Matter. of Repuyan, supra. We accordingly find that the district
director had good and sufficient cause to issue the notice of intention
to revoke and we agree with the district director that the evidence the
petitioner submitted in response to that notice is insufficient to
establish compliance with the 2-year residence requirement of section
101(b)(1)(E) of the Act. Inasmuch as the basis for revocation alleged in
the notice has not been overcome by the petitioner, the appeal will be
dismissed. See generally Matter of Estime, 

 (BIA
1987).
   ORDER:          The appeal is dismissed.




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Interim Decision #3130




                           MAILER OF TAWFIK

                 In Visa Petition Revocation Proceedings

                                    A-26653077

                    Decided by Board February 28, 1990

(1) In making a determination that a beneficiary's prior marriage comes within the
  purview of section 204(c) of the Immigration and Nationality Act, 8 U.S.0 § 1 1 54(c)
  (1988), as a marriage entered into for the purpose of evading the immigration laws,
  the district director should not give conclusive effect to determinations made in prior
  proceedings, but, rather, should reach an independent conclusion based on the
  evidence of record, although any relevant evidence may be relied upon, including
  evidence having its origin in prior Service proceedings involving the beneficiary or in
  court proceedings involving the prior marriage.
(2) A decision to revoke approval of a visa petition because the beneficiary entered into
    pliut mat-Liege for the primary purpose of obtaining immigration benefits can only
 be sustained if there is substantial and probative evidence in the alien's file to the
 effect that the prior marriage was entered into for such purpose, and, where the
 district director concluded that there was evidence in the record from which it could
 "reasonably be inferred" that a marriage had been entered into for the primary
 purpose of obtaining immigration benefits, the substantial and probative evidence,
 requisite to the revocation of a subsequently approved visa petition, was not
 presented.
ON BEHALF OF PETITIONER:                            ON BEHALF OF SERVICE;
 Milton A. DeJesus, Esquire                            Harris L. Leatherwood
  P.O. Box 22634                                       General Attorney
  Little Rock, Arkansas 72221

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 section 201(b) of the
Immigration. and Nationality Act, 

(b) (1982). The
petition was approved on September 14, 1987. In a decision dated July
25, 1989, the district director revoked approval of the petition on the
ground that the beneficiary had previously attempted to be accorded
immediate relative status as the spouse of a United States citizen by
reason of a marriage determined by the Attorney General to have been
entered into for the purpose of evading the immigration laws. The
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petitioner has appealedr The appeal will be sustained and approval of
the visa petition will 1Se reinstated. The petitioner's request for oral
argument is denied. See 

(e) (1989).
   The beneficiary, a 4,1-year-old native and citizen of Egypt, married
the petitioner in 1987. The record reflects that this was his third
marriage, and his second marriage to a United States citizen.
   In the instant proceedings, the district director revoked the
beneficiary's approved visa petition, filed on his behalf by the
petitioner. Under section 205 of the Act, 

 (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."
A notice of intention to revoke a visa petition 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. However, where a notice of intention to revoke is based upon an
unsupported statement, revocation of the visa petition cannot be
sustained. Matter of Arias, 

 (BIA 1988); Matter of
Estime, 

 (BIA 1987).
   The notice of intention to revoke the visa petition at issue here,
dated September 8, 1988, was issued based on the premise that the
beneficiary had previously "engaged in and sought status through a
marriage that was determined to have been entered into for the
purpose of evading immigration laws."
   Section 204(c) of the Act, 

(c) (1988), prohibits the
approval of a visa petition filed on behalf of an alien who has
attempted or conspired to enter into a marriage for the purpose of
evading the immigration laws. Accordingly, the district director must
deny any subsequent visa petition for immigrant classification filed on
behalf of such alien, regardless of whether the alien received a benefit
through the attempt or conspiracy. As a basis for the denial it is not
necessary that the alien have been convicted of, or even prosecuted for,
the attempt or conspiracy. However, the evidence of such attempt or
conspiracy must be documented in the alien's file and must be
substantial and probative. Matter of Kahy, 

 (BIA
 1988); Matter of Agdinaoay, 

 (BIA 1978); Matter of
La Grotta, 14 I&N Dec- 110 (BIA 1972); 

(a)(2)(iv)
(1989).

   The Immigration and Naturalization Service has requested that this appeal be
dismissed based on the fact that the beneficiary's name, along with that of the petitioner,
appears on the Notice of Appeal to the Roard of immigration Appeals (Form I -290A).
That request will be denied. An appeal creating Board jurisdiction to review this case on
the merits has been filed by the petitioner. See Matter of' Sano, 

 (BIA
1985).

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Interim Decision #3130

   Neither section 204(c) of the Act nor the regulations specify who
may make the Attorney General's decision in such matters and at what
point it is to be made. However, we have held that the determination is
to be made on behalf of the Attorney General by the district director in
the course of his adjudication of the subsequent visa petition. Matter
of Samsen, 

 (BIA 1974).
   In making that adjudication, the district director may rely on any
relevant evidence, including evidence having its origin in prior Service
proceedings involving the beneficiary, or in court proceedings involving the prior marriage. Ordinarily, the district director should not give
conclusive effect to determinations made in a prior proceeding, but,
rather, should reach his own independent conclusion based on the
evidence before him. See Matter of F-, 

 (BIA 1962).
However, for example, in a case where the beneficiary has previously
been found deportable based on a determination, supported by clear,
unequivocal, and convincing evidence, that that beneficiary became a
party to a fraudulent marriage for the purpose of entering the United
States as an immigrant, it would he appropriate for the district director
to rely on that finding of deportability in a determination that the
beneficiary would be precluded by section 204(c) of the Act from
obtaining an immigration benefit by virtue of a subsequent marriage.
Matter of Agdinaoay, supra.
   In this case, the district director noted that the evidence showing
that the beneficiary had entered into a marriage for the purpose of
evading the immigration laws had been "sufficient to warrant the
denial of the petition" filed by the beneficiary's former United States
citizen spouse, and, on that basis, the previously approved visa
petition, filed by the beneficiary's current United States citizen spouse,
was revoked on July 25, 1989. It is to be noted, however, that in the
determination of the first visa petition submitted on behalf of the
beneficiary, it was not found that the beneficiary had attempted or
conspired to enter into a marriage for the purpose of evading the
immigration laws. Rather, the district director involved in the
determination of that petition noted that the record contained
evidence, which had not been rebutted, "from which it [could]
reasonably be inferred" that the beneficiary entered into a marriage for
the primary purpose of obtaining immigration benefits. Such a
reasonable inference does not rise to the level of substantial and
probative evidence requisite to the preclusion of approval of a visa
petition in accordance with section 204(c) of the Act.
   Since, with respect to the first visa petition submitted on behalf of
the respondent, there was no affirmative finding that the marriage was
entered into for the purpose of evading the immigration laws,
resolution of whether the visa petition revocation can be sustained will
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depend on a determination of whether there is, at present, sufficient
evidence, inclusive of evidence relied upon in the determination of the
first visa petition, to support the contention that the beneficiary's
previous marriage to a United States citizen was entered into for
purposes of evading the immigration laws.
   The beneficiary's first marriage to a United States citizen took place
in 1985. The Petition to Classify Status of Alien Relative for Issuance
of Immigrant Visa (Form 1-130) filed on behalf of the beneficiary by
his first United States citizen wife was denied by the district director
on January 30, 1987, based on the finding that the marriage was
entered into for the primary purpose of obtaining immigration benefits
for the beneficiary. The basis for the finding was the fact that the
petitioner and beneficiary lived in different cities at the time of the
denial, and on the conclusion that, at the same time, the beneficiary
was living with his first wife, a citizen of Egypt. No evidence beyond
these conclusions is contained in the record.
   We note that while the petition filed by the beneficiary's first
United States citizen wife was still pending before the district director,
the beneficiary divorced that wife, without knowledge as to what the
outcome of the petition might be. The divorce decree, entered on
December 17, 1986, 1 1/2 months prior to the denial of the petition,
provides that the beneficiary and his wife "were a married couple and
lived together as husband and wife until August 1986 and since then
have lived separate and apart." The mere fact that, at the time of the
visa petition denial, the petitioner was living separate from the
beneficiary is not evidence of an attempt or conspiracy on the
beneficiary's part to enter into a marriage for the purpose of evading
the immigration laws. Quite to the contrary, his divorce, prior to a
decision on the petition which may have been to his favor, tends to
reflect the bona fide nature of the marriage that he chose to terminate.
Further, the district director offered no evidence to support his
conclusion that the petitioner never lived with the beneficiary. With
respect to the concern that, during the course of the marriage of the
beneficiary and his first United States citizen wife, the beneficiary was
living with his former wife, we note that, according to the information
contained in the divorce decree of the beneficiary and his first United
States citizen wife, their separation occurred 4 months prior to their
divorce and 5 months prior to the denial of the petition submitted on
the beneficiary's behalf. Therefore, the conclusion of the district
director that the beneficiary was living with his former wife at the time
of the denial, a conclusion also unsupported by documentary evidence,
is, of itself, of no relevance to the issue of whether the beneficiary
Interim Decision #3130

entered into the marriage with his first United States citizen wife in an
attempt to evade the immigration laws. 2
   In order to sustain the district director's revocation of the visa
petition at issue here, it would be necessary to show that approval of
that visa petition was precluded by section 204(c) of the Act, which
bars approval of a visa petition for the benefit of an alien who has
attempted to enter into a marriage for the purpose of evading the
immigration laws. If that were the case, the previously approved visa
petition would have been revoked for "good and sufficient cause."
Matter of Arias, Supra; Matter of sthne, supra. However, the language
of the Code of Federal Regulations is clear that in order to find that an
alien has attempted to enter into a marriage for the purpose of evading
the immigration laws, the evidence of such an attempt must be
documented in the alien's file. 

_1(a)(2)(iv) (1989);
Matter of Kahy, supra. No such documentation is contained in the
record before us, and, therefore, there is no basis to support the district
director's conclusion that the beneficiary's prior marriage to a United
States citizen was entered into for the purpose of evading the
immigration laws. Since the beneficiary's prior marriage provided the
sole basis for the revocation of his approved visa petition and there is
no substantial and probative evidentiary basis for a finding that that
marriage was entered into for the purpose of evading the immigration
laws, the revocation of the previously approved visa petition cannot be
sustained. Accordingly, the petitioner's appeal will be sustained, and
the district director's decision will be reversed.
   ORDER:         The appeal is sustained, and the approval of the visa
petition is reinstated.




   2 0n appeal, the petitioner herein, who has since had a child with the beneficiary,
notes that prior to the termination of the beneficiary's marriage to his first United States
citizen wife, the beneficiary's former wife and a child of that marriage, both natives and
citizens of Egypt, were staying with him in order for the child to obtain medical
treatment in the United States.
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