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 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) 

ON BEHALF OF SERVICE: 

Irving A. Appleman 

Appellate Trial Attorney 

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 petitioner 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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Interim Decision #2020 

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). 

2SCa/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 Natu455 
Interim Decision #2020 

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. 

456