Interim Decision #2473 

MATTER OF AVILES 

In Visa Petition Proceedings 

A-19500272 

Decided by Board January 16, 1976 

Since a District Director loses jurisdiction over a case once an appeal from his decision has 

been filed, and thereafter any motions must be directed to the Board of Immigration 

Appeals, the reopening of the instant proceedings by the District Director subsequent 

to the filing of petitioner's appeal from the January 21, 1975 order of denial of the visa 

petition for lack of prosecution, was improper, and the District Director's second order 

subsequently eatered on May 9, 1975, was of no effect. 

ON BEHALF OF :PETITIONER: Pro se 

The United States citizen petitioner applied for immediate relative 

status for the beneficiary as his spouse under section 201(b) of the 

Immigration and Nationality Act. In a decision dated January 21, 1975, 

the district director denied the petition for lack of prosecution. On 

January 31, 1975, the petitioner appealed. On March 21, 1975, the 

petitioner and the beneficiary were interviewed by a Service officer. The 

district director issued a second order on May 9, 1975 which "reaffirmed" 

the decision dated January 21, 1975, and certified this case to us for 

review and final decision. To avoid any questions as to our jurisdiction, we 

have decided to certify the entire record file to ourselves. 

Once an appeal has been filed, the district director loses his jurisdiction 

over the case. Thereafter, any motions must be directed to this Board. 

The pertinent regulation, 8 CFR 3.5, provides that when an appeal is 

taken, the record is to be forwarded to the Board. The only exception 

arises in the instance of a withdrawal of an appeal, a situation not present 

in this case. Tae reopening of these proceedings by the district director 

subsequent to the filing of the petitioner's appeal was not proper, and his 

order of May 9, 1975 was of no effect. 

The petitioner is a 25-year-old male who resides in Amityville, New 

York. The beneficiary is a 44-year-old female alien, native and citizen of 

Columbia. A copy of a marriage certificate is on record which shows that 

the petitioner and the beneficiary went through a marriage ceremony on 

March 28, 1972 in Amityville, New York. 

On May 2, 1974, the petitioner and the beneficiary were separately 

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Interim Decision #2473 

interviewed by a Service officer. Their statements disclosed discrepancies with respect to their residence and their whereabouts on the night 

before the interview. A thorough investigation conducted by the Service 

following the interview revealed that the petitioner and the beneficiary 

were not living together and maintained separate residences. The petitioner failed to appear for a scheduled Service interview on October 8, 

1974. 

In visa petition proceedings, the petitioner has the burden of establishing eligiblity for the benefit sought under the immigration laws, Matter of 

Brantigan, Ll I. & N. Dec. 493 (BIA 1966). The petitioner has not shown 

that his marriage to the beneficiary was not entered into for the primary 

purpose of evading the immigration laws. We consequently agree with 

the District Director's decision that the beneficiary should not be accorded immediate relative status as the spouse of the petitioner. See 

Matter of Phillis, 15 L & N. Dec. 385 (BIA 1975). Accordingly, the 

decision of the district director will be affirmed. 

ORDER: The district director's decision of January 21, 1975 is 

affirmed. 

589