Interim Decision #2020

Interim Decision #2020

MATTER OF VARELA

In Visa Petition Proceedings

A-19184691

Decided by Board February 6, 1970

Visa petition to accord beneficiary immediate relative status was properly

denied since upon the death of the United States citizen petitioner, beneficiary was no longer the spouse of a citizen and, hence, not entitled to status as an immediate relative.

ON BEHALF OF SERVICE:

Irving A. Appleman

Appellate Trial Attorney

ON BEHALF OF PETITIONER:

Esther M. Kaufman, Esquire

Room 102

1823 L Street, N.W.

Washington, D.C. 20036

Norman Stiller, Esquire

995 Market Street, Suite 1018

San Francisco, California 94103

(Attorney of Record)

This case is before us on appeal from a decision rendered by the

District Director at San Francisco on August 25, 1969, denying

the petition because of the petitioner's demise. The appeal will be

dismissed.

There is no dispute as to the basic facts of this matter. The pe-

titioner acquired United States citizenship through naturalization

in 1943. On June 23, 1969, in Reno, Nevada, he married the beneficiary, a native and national of the Republic of the Philippines.

On July 9, 1969, he submitted a petition to have the beneficiary

classified as an immediate relative for issuance of an immigrant

visa. This petition was received by the Service on the following

day, July 10, 1969. In the same month the petitioner, a petty

officer in the United States Naval Reserve, was recalled to active

duty. On August 2, 1969, while still on active duty, he died of a

heart attack.

Obviously, the only issue presented for our consideration is

whether the District Director properly denied the visa petition cm

the ground that, with the death of the petitioner, the beneficiary

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was not entitled to status as an immediate relative, as the spouse

of a United States citizen. For the following reasons, our answer

is in the affirmative. 1

Subsection (a) of section 204 of the Immigration and Nationality Act (8 U.S.C. 1154) provides that a United States citizen

claiming that an alien is entitled to immediate relative status

under section 201 (b) of the Act (8 U.S.C. 1151) may file a petition with the Attorney General for such classification. Subsection

(b) thereof stipulates that the Attorney General shall approve

the petition if, after investigation of the facts, he determines

that they are true as stated in the petition and that the alien on

behalf of whom the petition is made is an immediate relative.

Viewing these provisions of the law in the light of the facts teAted above, it is clear that the District Director properly denied

:he petition. Simply stated, at the time of his decision the benefi!iary was not the spouse of a United States citizen. His death had

tripped her of that status.

A question has been raised as to the beneficiary's standing

alder the law to prosecute this appeal (oral argument, p. 6) 2 The

∎oint requires only this passing comment, however, since we will

ispose of her supporting arguments on the merits.

We find inapplicable here the case of Pierno v. INS, decided by

ie United States Court of Appeals for the Second Circuit on

uly 9, 1968 (397 F.2d 949). That case involved revocation of an

pproved visa petition, under former section 206 of the Immigraon and Nationality Act (8 U.S.C. 1156) and the related regulaons, 8 CFR 206.1 (b) (2), whereas here the petition was never

pproved. Second, there was an unduly prolonged delay in cornetion of the investigation in the Pierno case because of a

-oundless suit brought by a person not even a party to the immi-ation proceedings, while here the death of the petitioner folwed the filing of the petition by approximately three weeks, and

e District Director's denial followed approximately three weeks

The District Director also denied the beneficiary's concomitant applicam for adjustment of her status to that of a permanent resident, under

Aion 245 of the Immigration and Nationality Act (8 U.S.C. 1255), finding

r-to be a nonpreference immigrant for whom an immigrant visa was not

mediately available under the nonpreference portion of the quota for the

public of the Philippines, to which she was chargeable; and he granted

r 25 days within which to depart from the United States voluntarily.

Scalzo v. Hurney, 225 F. Supp. 560 (U.S.D.C., E.D. Pa., December 18,

33) ; aff'd 338 F.2d 339 (3 Cir., 1964); cert. denied 382 U.S. 849 (October

1965). Cf. Hum Sin v. Esperdy, 239 F. Supp. 903 (U.S.D.C., S.D.N.Y.,

)ruary 17, 1965).

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later. Third, former section 206 of the Act, upon which the revocation was predicated in the Pierno case, was permissive,

whereas section 204 on which the present case is predicated requires the existence of a citizen spouse as a condition precedent to

the granting of status as an immediate relative.

Finally, we are aware of the sympathetic features of this case

stemming from the fact that the beneficiary is the widow Of a citizen who died while on active duty status in the Armed Forces of

the United States. Nevertheless, we find it of no assistance to her

here that section 319 of the Immigration and Nationality Act (8

U.S.C. 1430) was amended on June 29, 1968, to provide that a

person similarly situated may be naturalized without any required period of residence.3 Suffice it to say, in this connection,

that the Congress has not seen fit to similarly amend section 204 of

the Act, which controls here, and as that controlling section of

the law now stands the District Director has correctly decided the

case. Accordingly, no change is warranted in his decision, for the

reasons hereinbefore set forth.

ORDER: It is ordered that the appeal be and the same is

hereby dismissed.

SEPARATE OPINION: Thomas J. Griffin, Membcr

In the interest of legal precision I find it necessary to file a

separate opinion in these proceedings.

It is my position that the appellant herein has no legal standing to prosecute an appeal to this Board. Accordingly, any consideration of the merits of the appeal is totally unwarranted.

The majority decision notes the issue of standing and cites two

cases on this issue in its footnote at page 3. With the possible

exception of the Hom Sin v. Esperdy case,' which is patently

distinguishable from the proceedings herein, the courts have uniformly and unanimously held that no-alien has a personal vested

right to become beneficiary of a visa petition.'

n Formerly, such a person lost all rights to the expeditious naturalization

provided for spouses of citizens living with them in marital union, if their

spouses died, even though death occurred in combat or while on an active

duty status.

239 F. Supp. 903 (U.S.D.C., S.D.N.Y., February 17, 1956).

2 SCa/Z0 v. Hurney, 225 F. Supp. 560 (U.S.D.C., E.D. Pa., December 18,

1963), aff'd 338 F.2d 339 (3 Cir., 1964) ; cert. denied 382 U.S. 849 (October

11, 1965). Wright v. Immigration and Naturalization Service,

iCe, 379 F.2d 275

(1967), cert. denied 19 L.Ed. 279. Pacheco Pereira v. Immigration and Natu-

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The instant case suffers from greater infirmities than those

cited above in that this petition was never even acted upon by the

Immigration and Naturalization Service. For these reasons I

would dismiss the appeal solely for lack of standing on the part

of the appellant.

lization Service, 342 F.2d 422. United States ex rel. Stellas v. Esperdy,

9 F. Supp. 85 (1966), afrd 366 F.2d 266.

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