HO

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 estab-

lishing 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 immi-

grant 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 in-

consistencies, 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-

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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 deci-

sion 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 benefi-

ciary in the PRC in 1966 when the beneficiary was 7 years old.

In order to qualify as a "son" for the purpose of obtaining prefer-

ence 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 peti-

tion 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 De-

cember 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 pe-

tition 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 rev-

ocation 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 deter-

mining 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 satis-

fied 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 compli-

ance with the residence and legal custody requirements of the stat-

ute, and he accordingly revoked his approval of the visa petition.

The consulate general's report, upon which these revocation pro-

ceedings 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 sat-

isfied. 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 require-

ments 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 Chi-

nese documents. Those documents included an adoption agreement,

purportedly signed by the petitioner and his wife and the benefi-

ciary'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 exe-

cuted, 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 ar-

rangements 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 to-

gether 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.

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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 Govern-

ment 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 immigra-

tion. to the United States, the petitioner's sister, who had petitioned

to accord the petitioner his preference status, instructed the peti-

tioner's wife not to claim her mother, sister, or the beneficiary. The

petitioner's wife stated that the petitioner's sister had initially in-

tended to bring only the petitioner to the United. States but recon-

sidered 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 broth-

er 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 daugh-

ter 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 to-

gether 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 Febru-

ary 4, 1982, the district director observed, inter alia, that the affi-

davits 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).

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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 adop-

tion 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 appli-

cations executed after the beneficiary's claimed adoption, the peti-

tioner 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 dis-

trict 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 sub-

mitted, 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 petition-

er 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 corrobo-

rated 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 be-

tween 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 re-

spect 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 peti-

tioned for him and that he felt compelled on subsequent applica-

tions to give consistent information.

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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 peti-

tioner's wife lived with her husband in Hong Kong and occasional-

ly 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 declara-

tion 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 petition-

er and his wife that, following the adoption of the beneficiary, the

petitioner's wife remained in the PRO to manage the family's farm-

lands. The report pointed out that "[d]uring the fifties and certain-

ly 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 "ex-

tremely 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 benefici-

ary whenever his mother was in Hong Kong. However, his mother,

the petitioner's wife, stated in her 1968 Hong Kong Statutory Dec-

laration 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 in-

tention to revoke based upon the consulate general's report. Subse-

quently, 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 ap-

proved 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 proceed-

ings 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 rev-

ocation 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 peti-

tion 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 pe-

tition 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 adjust-

ment 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 peti-

tioner, just as it does in visa petition proceedings. nrcgatapu Wood-

craft 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 condi-

tionality 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 Ac-

cordingly, "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 re-

quired 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 estab-

lish 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 pro-

ceedings and determined that a decision to revoke approval of a

visa petition, like a decision to deny a visa petition, will be sus-

tained 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 in-

tention 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 proceed-

ings. 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 direc-

tor'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 petition-

er 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 suffi-

cient cause for revoking his approval, provided the district direc-

tor'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 peri-

Continuer/

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Interim Decision #3051

In this regard, we note that evidence considered by the district

director may take on new significance when viewed from a differ-

ent perspective. For example, the district director apparently ac-

cepted 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 pre-

vailing economic and social conditions in the PRC, found that ac-

count 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 di-

rector 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 in-

tention 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 in-

dependent 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 adop-

tion, 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 require-

ments have been met, do not support the petitioner's claim_

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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 benefi-

ciary 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 suffi-

cient foundation for initiating revocation proceedings and that the

basis for revocation alleged has not been overcome by the petition-

er. 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