Interim Decision #2699 

MATTER OF DABAASE 

In Visa Petition Proceedings 

A-18375444 

Decided by Board April 10, 1979 

The "party affected" in visa petition cases is the petitioner, and the beneficiary does not 

have standing to move to reopen the proceedings. 

ON BEHALF OF ThixtriONER: Larry Carp, Esquire 

Carp & Morris 

Suite 1100, Parkway Tower 

225 South Meramec Avenue 

St. Louis (Clayton), Missouri 63105 

BY: Milhollan, Chairman; Maniatis, Appleman. Maguire, and Farb, Board Members 

This is a motion to reopen visa petition proceedings. The motion will 

be denied because it was improperly filed by the beneficiary of the visa 

petition, rather than the petitioner. 

The movant here is a native and citizen of Ghana, who last entered the 

United States on or about November 29, 1968, as a nonimmigrant 

student authorized to remain until January 27, 1971. He is the beneficiary of a visa petition filed by Eula M. DaBaRe to accord him 

immediate relative status as the spouse of a United States citizen. The 

petition was initially filed on August 15, 1973, three days before the 

beneficiary was to leave the United States pursuant to a grant of 

voluntary departure by an immigration judge_ The petition was initially 

denied on September 12, 1972, because both the petitioner and the 

beneficiary had previous marriages which had not been shown to have 

been dissolved. An appeal was filed on September 26, 1973; however, it 

was not forwarded to the Board and thus was never decided.' 

On October 24, 1973, a new petition was filed. It was denied by the 

District Director on February 18, 1976, because the petitioner had failed 

to show dissolution of one of the beneficiary's previous marriages. On 

October 1, 1976,* we remanded the record to the District Director to 

afford the petitioner an opportunity to present evidence that the former 

' In view of subsequent events, we find that the failure to forward the appeal to the 

Board resulted in no prejudice. 

*See Interim Decision 2534 (BIA 1976). 

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Interim Decision #2(m 

marriage had been validly terminated according to Ghanaian tribal 

custom. The record was subsequently returned to the Board by the 

District Director by a memorandum in which he stated that the petitioner had not submitted any further evidence. In a decision dated 

October 27, 1977, we remanded the record to the District Director for 

entry of a form al decision. On April 20, 1978, and in the absence of the 

evidence for which the record was remanded 18 months before, the 

Board dismissed the petitioner's appeal. 

In an oral decision on June 18, 1973, an immigration judge found the 

beneficiary (then respondent) deportable as a nonimmigrant who had 

remained in the United States longer than permitted. He did not appeal 

but remained in the United States while his wife pursued the visa 

petition proceedings discussed above. By letter dated June 13, 1978, he 

was advised that he was required to depart from the United States at 

his own expense on or before July 13, 1978. An extension of time was 

granted until December 29, 1978. On February 26, 1979, a "Notice to 

Deportable Alien of Departure Arrangements" (Form 1-166) was issued 

directing the beneficiary to report for deportation on March 2, 1979. On 

March 13, 1979, he filed with the immigration judge a MOTION TO 

REOPEN DEPORTATION PROCEEDINGS AND FOR STAY OF 

EXECUTION OF DEPORTATION ORDER. 

In a decision dated March 13, 1979, the immigration judge observed 

that the motion papers were deficient in that: (1) they wave unsigned, (2) 

did not conform to the requirements of 8 C.F.R. 3.5 and 242.22 in that 

the existence of the evidence sought to be introduced had been known to 

the beneficiary since May of 1978, and (3) the motion was not supported 

by affidavits or other evidentiary material which would warrant reopening. He ordered that the papers and the check for the filing fee be 

returned. The beneficiary has neither appealed that decision rim- refiled 

his motion. The deportation proceedings pertaining to the beneficiary 

have never been, and are not now, properly before the Board for 

deeision.2 

The beneficiary has cited no provision giving a beneficiary the right to 

pursue a visa petition in his own behalf. Those provisions of 8 C.F.R. 

cited by the beneficiary in support of his contention that he can move to 

reopen these proceedings apply specifically to deportation cases, or 

refer to the petitioner in visa petition cases. 

The "party affected" 3 in visa petition cases is the petitioner. Section 

2 By order dated March 2, 1979, we denied a telephonic request for a stay of deportation 

on the ground that the Board was without jurisdiction because the respondent had not 

filed an appropriate motion to reopen the deportation proceedings. 

3The beneficiary refers to "party affected" from the second sentence of 8 C.F.R. 3.2 in 

support of his allegation that the beneficiary may move to reopen vice petition proceedings. 

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interim iiecision #2699 

204(a) of the Immigration and Nationality Act, 8 U.S. C. 1154(a), provides that a United States citizen or lawful permanent resident may file 

a petition with the Attorney General to accord an alien immediate 

relative status under section 201(b), or preference by reason of the 

relationships described in paragraphs (1), (2), or (5) of section 203(a) of 

the Act. The regulation provides that the petition shall be filed in the 

office of the Service having jurisdiction over the place where the petitioner is residing. 8 C.F.R. 2041. The petitioner has the burden of 

establishing eligibility for the classification sought. Matter of Brantigan,11 I. & N. Dee. 493 (1966). Only the petitioner can appeal from the 

denial of a visa petition. 8 C.F.R. 204.1(a); cf. Matter of Arteaga, 14 I. & 

N. Dec. 226 (BIA 1972); Matter of Kurys,11 I. & N. Dec. 315 (BIA 

1965). Likewise, only the petitioner can appeal from the revocation of a 

previously approved visa petition. 8 C.F.R. 205.3; Matter of C—, 9 I. & 

N. Dec. 547 (BIA 1962). 

Even if the motion to reopen were properly filed by the petitioner, we 

would find it insufficient to warrant reopening because the evidence 

sought to be admitted would not establish the beneficiary's eligibility for 

the immediate relative status he seeks. Matter of Lam, 14 I. & N. Dec. 

98 (BIA 1072). In our opinion of October 1, 1976, we advised the 

petitioner that the beneficiary's alleged customary divorce could be 

proven by a court decree from Ghana or by other evidence. In that 

regard we advised: 

If the party to,the tribal divorce prefers to prove the validity of the proceeding without 

the assistance of the Ghanaian judicial system, he must provide evidence which establishes (1) the tribe to which he belongs, (2) the current customary divorce law of that 

tribe, (3) the fact that the pertinent ceremonial procedures were followed. 

The evidence the beneficiary would now submit to prove that divorce 

is an affidavit by Veronica Adabinge DaBaase, the prior spouse, and 

Adongo Abambire, the purported "Native Chief-of an unspecified 

tribe, which states simply that Veronica DaBaase divorced the be= 

neficiary pursuant to the Ghanaian tribal native custom. Obviously, this 

affidavit does not satisfy the requirements set forth in our previous 

order. 

ORDER: The motion to reopen is denied. 

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