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, 8 U.S.C. § 1101(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°, 20 I&N Dec. 94 (BIA 

1989). 

ON BEHALF OF PETITIONER: 

Donald L Ungar, Esquire 

Simmons, Ungar, Helbush, 

DiCostanro & Steinberg 

517 Washington Street 

San Francisco, California 941W 

ON BEHALF OF SERVICE 

Arthur R. George 

General Attorney 

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, 8 U.S.C. 

§ 1151(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, 8 U.S.C. § 1101(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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Interim Decision #3129 

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, 622 

F.2d 463 (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, 16 I&N Dec. 188, 

190 (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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Interim Decision #3129 

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. Reddy, supra, 

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, 344 U.S. 604 (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 

1103 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." 

2Wc 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, 19 I&N Dec. 

617 (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, 20 I&N 

Dec. 94 (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 

3We 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, 19 I&N Dec. 450 (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, 8 U.S.C. § 1151(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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Interim Decision #3130 

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 8 C.F.R. § 3.1(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, 8 U.S.C. § 1155 (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, 19 I&N Dec. 568 (BIA 1988); Matter of 

Estime, 19 I&N Dec. 450 (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, 8 U.S.C. § 1154(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, 19 I&N Dec. 803 (BIA 

1988); Matter of Agdinaoay, 16 I&N Dec. 545 (BIA 1978); Matter of 

La Grotta, 14 I&N Dec- 110 (BIA 1972); 8 C.F.R. § 204.1(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, 19 I&N Dec. 299 (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, 15 I&N Dec. 28 (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-, 9 I&N Dec. 684 (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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Interim Decision #3130 

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. 8 C.F.R. § 204_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. 

20n 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. 

17A