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. Dissenting 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 Zealand 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 petition 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 establishing 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 effectively 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 altogether 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 separation agreement or separation decree from a court) renders the relationship of the parties as if they were not married at all. The separation 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. [Separation 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 immigrant 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, Interim 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 inception, 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 relations. It justifies this by suggesting that a written separation agreement 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 desertion, 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, Surrogates 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 preMcKee error. 

I would sustain the appeal and grant the petition. • 

481