LENNING

Interim Decision #2817

MATTER OF LENNING

In Visa Petition Proceedings

A-24019786

Decided by Board August 12, 1980

A visa petition filed on behalf of an alien spouse is properly denied where the parties

legally separated pursuant to the terms of a formal, written separation agreement

notwithstanding fact that their marriage was entered into in good faith and had not

been finally dissolved by an absolute divorce decree. Chan v. Bell, 464 F.Supp. 125

1978), and Matter of McKee, Interim Decision 2782 (BIA 1980), distinguished.

ON BEHALF OF PETITIONER: Lydia Savoyka, Esquire

Migration and Refugee Services

1250 Broadway

New York, New York 10001

Br. Milhollan, Chairman; Maniatis, Appleman, and Maguire, Board Members. Dissent-

ing Opinion, Farb, Board Member

The petitioner has appealed from the decision of a District Director,

dated February 21, 1980, denying the visa petition filed on behalf of the

beneficiary as his spouse under section 201(b) of the Immigration and

Nationality Act, 8 U.S.C. 1151(4 The appeal will be dismissed.

The petitioner is a 65-year-old native and citizen of the United

States. The beneficiary is a 61-year-old native and citizen of New Zea-

land and is the wife of the petitioner. They were married on July 13,

1974, in Nev York City. That the marriage was valid at its inception

and entered into in good faith has not been put into question. However,

on September 27, 1979, the petitioner and beneficiary entered into and

executed a formal, written separation agreement in which they settled

financial, property, and other rights between the parties. The visa peti-

tion was not filed until October 16, 1979, after the separation agreement

took effect. It was solely on the basis of this separation agreement that

the District Director denied the visa petition. The petitioner appeals

from that finding, citing Chan v. Bell, 464 F.Supp. 125 (D.D.C. 1978)

from which. he asserts that a marriage entered into in good faith an

Still "legally unterrninated" is sufficient to support a spouse's visa pe'

tion and eligibility for section 245 adjustment We disagree.

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Interim Decision #2817

In visa petition proceedings, the petitioner has the burden of estab-

lishing proof of the claimed relationship under which benefits are

being sought. Matter of Branagan, 11 I&N Dec. 493 (BIA 1966). Under

section 204(b) of the Act, if an alien can show that the facts stated in a

petition filed in his behalf as an immediate relative as defined in

section 201(b) are true, he is entitled to admission in that status

without regard to numerical limitations. This provision was included

in the Act in order to prevent the separation of families and to

preserve the family unit. H.R. Rep. No. 1365, 82d Cong., 2d Sess. 1680

(1952).

Previous Board decisions attempting to carry out the Congressional

intent to retain and unite family relationships led the Board to apply a

"viability" test to any marital relationship being put forth as the basis

for conferral of immediate relative status as the spouse of a United

States citizen. See Matter of Lew, 11 I&N Dec. 148 (D.D. 1965), Matter

of Sosa, 15 I&N Dec. 572 (BIA 1976). However, the ability of the Board

and Service to fairly determine which marriages are viable and which

are not has been seriously questioned. See Dabaghiavi, v. Civiletti, 607

F.2d 868 (9 Cir. 1979), Chan v. Bell, supra. Accordingly, we expressly

overrode the viability test of Matter of Sosa, supra, within the Ninth

Circuit, Matter of Kondo, Interim Decision 2781 (RTA 1980), and effec-

tively put an end to the test as applied in Matter of Sosa in Matter of

McKee, Interim Decision 2782 (BIA 1980). There we adopted the

reasoning of the Chan court and held that where the parties enter into

a valid marriage, and there is nothing to show that they have since

obtained a legal separation or dissolution of that marriage, a visa

petition filed on behalf of the alien spouse should not be denied solely

because the parties are nut residing together. Physical separation

from one another had long been one of the key factors used in

determining the viability of the marital relationship. At this time,

physical separation after the marriage is a relevant factor only insofar

as it bears upon the intent of the parties at the time of their marriage,

i.e., whether the marriage is a sham. See Bark v. INS, 511 F.2d 1200

(9 Cir. 1975).

However, the existence of a valid legal separation presents an al-

together different set of considerations. The problems noted in Chan,

supra, concerning the application of a viability standard for marriages

are not present when there is presented a legal separation in which,

with precise language, the appropriate documentation (i.e., a separa-

tion agreement or separation decree from a court) renders the rela-

tionship of the parties as if they were not married at all. The separa-

tion agreement in the, record before us presents us with such a

situation.

The petitioner and beneficiary were married in the state of New

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Interim Decision #2817

York on July 13, 1974. At the time their separation agreement was

executed, they were both residents of the state of New York.' Under the

law of New York, a married couple can 'obtain a divorce if

(b) The husband and wife have lived separate and apart pursuant to a written

agreement of separation, subscribed by the parties thereto and acknowledged or

proved in the form required to entitle a deed to be recorded, for a period of one or more

years after the execution of such agreement and satisfactory proof has been submitted

by the plaintiff that he or she has substantially performed all the terms and conditions

of such agreement... . [14 McKinney, Domestic Relations Law t ri0(b)]'

A divorce obtained on grounds of living apart pursuant to a written

separation agreement is referred to as a "conversion divorce" in that it

is permissible to convert the separation agreement into an absolute

divorce decree. Christian v. Christian, 42 N.Y.2d 63, 396 N.Y.S.2d 817,

865 N.E.2d 849 (1977).

The separation agreement here states that the parties

... have heretofore separated and are now living separate and apart ... [and that]fflhe

Husband and Wife shall continue to live separate and apart from each other, and each

shall be free from interference, authority and control by the other, as fully as if he or

she were sole and unmarried . ... Neither of the parties shall interfere with the other

in his or her respective liberty of action or conduct, and each agrees that the other may

at any and all times reside and be in such place and with such relatives, friends and

acquaintances as he or she may choose, and each party agrees that he or she will not

molest the other or compel or seek to compel the other party to cohabit or dwell with

him or her or institute any proceedings for the restoration of conjugal rights. [Separa-

tion Agreement, pp. 1-2] [Emphasis added.]

The agreement contains a division and settlement of their property,

both real and personal, which shall be enjoyed "by him or separately as

if he or she were unmarried." (Separation Agreement, p. 8). The

husband petitoner's obligation for maintenance and support is not to

-

extend beyond a period of five years from the date the agreement took

effect (p. 9). And while neither party is precluded from seeking an

absolute divorce, the agreement is not to be merged with any divorce

decree and instead, "shall survive the same and shall be binding and

conclusive upon the parties for all time." (P. 15) The agreement also

addresses matters concerning taxes, estates and its ultimate finality

insofar as other jurisdictions and any heirs, next of kin, executors,

administrators and other personal representatives are concerned.

The petitioner, through counsel, asserts that since the marriage has

' The record indicates that petitioner's current address is in Palm Beach, Florida.

There is no indication concerning the current status of his property holding in New York

City.

The final requirement of the statute is that the agreement, or a memorandum

thereof, be filed in the office of the clerk of the county wherein either party resides. Since

this agreement was offered by the petitioner as proof of his support of the beneficiary, we

assume compliance with this provision.

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Interim Decision I/ 2817

not yet been legally terminated the visa petition should have been

approved. He cites Chan, supra, in support of that view. His reliance on

that case is misplaced. The pertinent language in Chan states

The construction proposed by the Service is inherently incompatible with due process,

as it would -vest in that agency an unreasonably wide, and essentially unreviewabie,

discretion to determine which marriages are or are not viable. [At 1291 [Emphasis

added.]

We are not confronted here with the problem associated in applying an

untenable standard of "inherent unworkability" in which the Service

attempts "to establish the vague and elusive concept of marriage

viability .. .." Chan, at 130. Courts routinely review the terms of

separation agreements and therefore Service decisions based on such

agreements may be subject to review by the courts on appeal. Hence,

the fears of unreviewability alluded to in Chan are not present in the

instant case. And in New York, where there has been full disclosure of

all relevant facts in proper context and no inequitable conduct or other

infirmity which might vitiate the execution of the agreement, the

courts are encouraged to fully uphold the agreement. Christian v.

Christian, supra.

It is also of no small import that Chan made reference to the

distinctions we have noted here. There, it was pointed out that

It is equally undisputed that, although the parties now live apart, no divorce or legal

separation has taken place and no proceedings for divorce or legal separation have

been instituted. [At 127] [Emphasis added.]

Thus, our holding here today is not based upon any notion of the

viability of the marriage, but rather is determined on the basis of the

separation agreement between the petitioner and beneficiary. Since it

is clear that the Congressional policy of retaining and uniting family

relationships will not be furthered through the issuance of an im-

migrant visa to the beneficiary, the decision of the District Director to

deny the visa petition was correct and the appeal shall be dismissed.

ORDERS The appeal is dismissed.

DISSENTING OPINION: Ralph Farb, Board Member

I respectfully dissent.

The Board, which only recently declared in Matter of McKee, In-

terim Decision 2782 (BIA 1980), that it would no longer deny a visa

petition solely because the spouses were separated under conditions

making the marriage appear to be no longer viable, has backslided_

Seizing on two aspects. of this particular New York case, the Board

pretends to distinguish Chan v. Bell, 464 F.Supp. 125 (D.D.C. 1978),

from which McKee is derived.

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Interim Decision #2817

Although we said in McKee that the separation of spouses is a

relevant fact only as evidence, and that the only ultimate fact for

petitioner to establish is that the marriage was bona fide in its incep-

tion, the Board is once again fatally attracted to the proposition that it

will be carrying out the will of Congress if it strikes down petitions

when granting them would not serve to retain and unite family rela-

tions. It justifies this by suggesting that a written separation agree-

ment is a big step closer to dissolution of a marriage than uncontraeted

separation is. It also points to a peculiarity of New York law that when

parties have been separated for over one year following execution of a

separation agreement either may sue for divorce on that ground alone.

Domestic Relations Law, section 170(6).

New York, after being the last of the 50 states to permit divorce on

only one ground, adultery, has now gone to the other extreme. Of the

six permitted grounds for divorce in section 170, two are "no-fault." To

show how far New York has gone in liberality, I quote from American

Jurisprudence 2d, Divorce and Separation, section 148:

In the absence of a statute specifically so providing, the fact that husband and wife

have lived separate and apart, for however long a time, is not a ground for divorce. In

many jurisdictions, however, the statutes authorize an absolute divorce where there

has been a separation and the husband and wife have lived apart for a specified length

of time. The policy of these statutes is based on the proposition that where a husband

and wife have lived apart for a long period of time, without any intention ever to

resume conjugal relations, the best interests of society and the parties themselves will

be promoted by a dissolution of the marital bond. (Underscoring supplied.)

It is significant that unlike the norm next stated in American

Jurisprudence, that divorce based on separation usually requires at

least double the period of waiting specified for divorce based on deser-

tion, New York will permit a suit after a waiting period of one year on

either of these grounds.

All the same, the marital bond is not dissolved by mere separation,

either with or without a separation agreement. The premise on which

the Board's interpretation rests, that people who execute separation

agreements are set irreversibly on a permanent course away from each

other is unsound. There are cases both ways. Sometimes the parties

will reconcile and resume marital relations. From this a court may

even infer an intent to abandon the separation agreement. In re

Whiteford's Estate, 35 A.D.2d 751, 314 N.Y.S.2d 811, App. Div. 3d Dept.

(1970); cf. Will of Granchelli, 90 Mise2d 103, 393 N.Y.S.2d 894, Surro-

gates Ct. Monroe Cty. (1977).

Even if the separation agreement herein were in existence for over a

year, there would be no normal and natural inference that the parties

will never effect a reconciliation as married partners. The court in

Chan questioned both our right and our wisdom in speculating on that.

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So did the Court in Bark v. INS, 511 F.2d 1200 (9 Cir. 1975). Nothing in

the statute suggests a "viability" test. The key statement in Chan is,

"In the first place, an agency's interpretation cannot vary the plain

words of a statute ..." 464 F.Supp. at 181.

The fact that New York State has reduced the waiting period for a

divorce based on a separation agreement to as little as one year should

have the cautionary effect of inhibiting inferences that the parties to

any separation agreement intend never to resume marital relations.

Such short-term data as is found here is clearly insufficient for any

"viability" conclusion. Instead, dazzled by the cleverness of the phrase

"conversion divorce," the Board blunders into a repetition of its pre-

McKee error.

I would sustain the appeal and grant the petition. •

481