Interim Decision #2999 

MATTER OF SANO 

In Visa Petition Proceedings 

A-23114185 

Decided by Board October 29, 1985 

(1) An appeal from the denial or revocation of a visa petition may be filed only by 

the petitioner. 

(2) Since the appellate jurisdiction of the Board of Immigration Appeals is defined 

by the regulations set forth in 8 C.F.R. § 3.1(b) (1985), the Board has no jurisdiction over a particular matter unless it has been affirmatively granted by the regulations. 

(3) Under 8 C.F.R. § 3.1(bX5) (1985), the Board's authority to review decisions on visa 

petitions is limited to that accorded by Part 204 of the regulations, which provides 

only for an appeal by the petitioner. 

(4) Since the Board's jurisdiction over decisions on visa petitions is limited to appeals by the petitioner, the Board lacks jurisdiction to address an appeal by the 

beneficiary from the denial of a visa petition. Matter of Varela, 13 I&N Dec. 453 

(BIA 1970), modified. 

(5) The regulation at 8 C.F.R. § 3.1(c) (1985), which grants the Board power to certify 

cases, permits certification only to matters within the Board's appellate jurisdiction as set forth in 8 C.F.R. § 3.1(b) (1985). 

(8) Since the Board lacks authority to review an appeal by a beneficiary from the 

denial of a visa petition, such an appeal also may not be reviewed upon certification. Matter of Arteaga-Godoy, 14 I&N Dee. 226 (BIA 1972), overruled. 

ON BEHALF OF BENEFICIARY: 

William F. Thompson III, Esquire 

Blackfield Hawaii Building 

1221 Kapiolani Blvd., Penthouse Suite 

Honolulu, Hawaii 96814 

ON BEHALF OF SERVICE: 

Terry A. Smith 

General Attorney 

BY: Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members 

The United States citizen petitioner, now deceased, filed a visa 

petition on behalf of the beneficiary to accord her immediate relative status as his spouse on May 24, 1983_ The petition was not approved by the time of the petitioner's death on September 14, 1983, 

and was therefore denied by the district director in a decision 

dated December 1, 1983. The beneficiary, through counsel, has ap299 
Interim Decision #2999 

pealed from that decision. The appeal will be dismissed for lack of 

jurisdiction. 

On appeal the beneficiary argues that she should be accorded immediate relative status because the Immigration and Naturalization Service unreasonably delayed adjudication of the visa petition. 

She claims that such actions constitute affirmative misconduct, 

which warrants a grant of the petition. The Service contends that 

the beneficiary has no right to appeal the district director's decision following the death of the petitioner and that, in any case, the 

beneficiary's estoppel argument is without merit. 

We must first address the question of the beneficiary's standing 

to pursue this appeal. According to the regulation at 8 C.F.R. 

§ 204.1(a)(3) (1985), when the district director renders a decision denying a visa petition, the "petitioner will be notified of the decision 

. . . and of the petitioner's right to appeal to the Board. . . ." See 

also 8 C.F.R. § 204.1(d)(4) (1985). In interpreting this regulation the 

Board has determined that an appeal from the denial of a visa petition may be filed only by the petitioner. See Mutter of DaBaase, 16 

I&N Dec. 720 (BIA 1979); Matter of Kurys, 11 I&N Dec. 315 (BIA 

1965); see also Matter of Anabo, 18 I&N Dec. 87 (BIA 1981); Matter 

of Arteaga-Godoy, 14 I&N Dec. 226 (BIA 1972); lA C. anrdon & a 

Rosenfield, Immigration Law and Procedure § 3.5h (rev. ed. 1985). 

We have likewise held that only the petitioner can appeal from the 

revocation of a previously approved visa petition. Matter of C-, 9 

I&N Dec. 547 (BIA 1962); see also 8 C.F.R. § 205.2(b) (1985). Judicial 

opinion has been in accord. See Joseph v. Landon, 679 F.2d 113 (7th 

Cir. 1982); Scalzo v. Harney, 225 F. Supp. 560 (E.D. Pa. 1963), Nerd 

per curiam, 388 F.2d 339 (3d Cir. 1964), cert. denied, 382 U.S. 849 

(1965); see also Wright v. INS, 379 F.2d 275 (6th Cir.), cert. denied, 

389 U.S. 928 (1967); Pacheco Pereira v. INS, 342 F.2d 422 (1st Cir. 

1965). But see Horn Sin v. Esperdy, 239 F. Supp. 903 (S.D.N.Y. 1965). 

The beneficiary asserts that the Board can assume jurisdiction 

upon certification pursuant to 8 C.F.R. § 3.1(c) (1985) to avoid the 

question of the beneficiary's standing to appeal and requests that 

we do so in this case. She cites our decision in Matter of Varela, 13 

I&N Dec. 453 (BIA 1970), where the Board considered a similar 

appeal by a beneficiary following the petitioner's death. In that 

case we noted the question of standing but proceeded to decide the 

issue presented on its merits. We have also previously accepted jurisdiction upon certification to circumvent the issue of the beneficiary's lack of standing. Matter of Artpaga -Codoy, supra. We now 

find our review in those cases to have been inappropriate. 

As we recently stated in Matter of Zaidan, 19 I&N Dec. 297 BIA 

1985), the Board's appellate jurisdiction is defined by the regula300 
Interim Decision #2999 

tions set forth in 8 C.F.R. § 3.1(b) (1985). Unless the regulations affirmatively grant us power to act in a particular matter, we have 

no appellate jurisdiction over it. Matter of Sum, 13 I&N Dec. 65 

(BIA 1968). Under 8 C.F.R. § 3.1(b)(5) (1985), an appeal will lie to 

the Board from "[d]ecisions on petitions filed in accordance with 

section 204 of the act . . . as provided in Parts 204 and 205, respectively, of this chapter." (Emphasis added.) As we have noted, the 

regulations in Part 204 provide solely for an appeal to the Board by 

the petitioner. See 8 C.F.R. § 204.1(a)(3) (1985). Inasmuch as the 

only authority accorded to the Board by the regulations under Part 

204 relates to appe-als by the petitioner, we find that our jurisdiction. is limited to such appeals. We therefore conclude that we lack 

jurisdiction to address an appeal by the beneficiary from the denial 

of a visa petition. CI Matter of Zaidan, supra. To the extent that 

our decision in Matter of Varela, supra, conflicts with this conclusion, it is hereby modified. 

Since we have not been granted authority by the regulations to 

review the beneficiary's appeal, we are also unable to assume jurisdiction over the matter by certification. The regulation that gives 

us the power to certify cases permits certification only to matters 

within our appellate jurisdiction as set forth in 8 C.F.R. § 3.1(b) 

(1985). See 8 C.F.R. § 3.1(c) (1985); Matter of Vrettakos, 14 I&N Dec. 

593 (BIA 1973, 1974). Inasmuch as the Board lacks authority to 

review an appeal by a beneficiary from the district director's denial 

of a visa petition, we conclude that we are likewise precluded from 

certifying such a case. To the extent that Matter of Arteaga-Godoy, 

supra, is contrary, it is overruled. 

Accordingly, the beneficiary's appeal will be dismissed for lack of 

jurisdiction. 

As the Board lacks jurisdiction over the appeal, 

IT IS ORDERED: that the record of proceedings be returned 

to the local office of the Immigration and Naturalization Service 

without further action.