Interim Decision *3081 

MATTER OF SORIANO 

In Visa Petition Proceedings 

A-27259'736 

Decided by Board October 5, 1988 

(1) Where a visa petition has once been denied based on a finding that the marriage 

was entered into solely to bestow an immigration benefit, the petitioner bears a 

heavy burden of proof with respect to any subsequently filed visa petition involving the same beneficiary. 

(2) A petitioner may be put on notice of evidentiary requirements by means such as 

a requirement in the regulations that a particular document be submitted with 

the visa petition; a notice of intent to deny, letter, or form noting the deficiency or 

requesting additional evidence; or an oral statement at an interview that additional evidence is required. 

(3) Where a visa petition is denied based on a deficiency of proof, the petitioner had 

not been put on notice of the deficiency and given a reasonable opportunity to 

address it before the denial, and on appeal the petitioner proffers additional evidence addressing the deficiency, the record will, in the ordinary course, be remanded to allow the Immigration and Naturalization Service to initially consider 

and address the new evidence. 

(4) Where the petitioner was put on notice of the required evidence and given a reasonable opportunity to provide it for the record before the visa petition is adjudicated, evidence submitted on appeal will not be considered for any purpose, and 

the appeal will be adjudicated based on the record of proceedings before the Service. 

ON BEHALF OF PETITIONER: 

Scott T. Strack, Esquire 

Central Pacific Plaza 

220 S. King Street, Suite 368 

Honolulu, Hawaii 96813 

ON BEHALF OF SERVICE: 

Joanna London 

District Counsel 

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 husband under section 201(b) 

of the Immigration and Nationality Act, 8 U.S.C. § 1151(b) (1982). 

In a decision dated September 8, 1986, the district director denied 

the petition. The record will be remanded. 
Interim Decision #3081 

The petitioner is 45 years old. The beneficiary is a 38-year-old 

native and citizen of the Philippines. The parties were married on 

October 2, 1985. The petitioner filed a visa petition on behalf of the 

beneficiary on December 2, 1985. 

On March 14, 1986, the district director denied the visa petition. 

He concluded that the marriage was a sham, based on the nature 

and magnitude of the inconsistencies in the parties' statements at 

their separate interviews on February 12, 1986, the petitioner's inability to explain them, and the inadequacy of the evidence submitted by the petitioner. 

The petitioner did not appeal from the district director's March 

14, 1986, decision. On August 7, 1986, she filed a second visa petition on. behalf of the beneficiary as her husband. Attached to the 

visa petition were undated affidavits of her sons, ages 16 and 17, 

concerning the bona fides of the marriage. 

The district director denied the second visa petition on September 8, 1986, on the basis of the conclusions regarding the validity of 

the marriage expressed in his March 14, 1986, decision, stating also 

that the petitioner had not submitted any evidence indicating that 

her marriage was valid. The petitioner appealed. On October 20, 

1986, the district director wrote to counsel for the petitioner, noting 

that he had failed to file a brief on appeal and advising him that 

he had 30 days "to submit additional evidence in support of your 

appeal.' 

On appeal, the petitioner, who maintains that the marriage is 

bona fide, submitted additional evidence.' 

A marriage that is entered into for the primary purpose of circumventing the immigration laws, referred to as a fraudulent or 

sham marriage, has not been recognized as enabling an alien 

spouse to obtain immigration benefits. Matter of Laureano, 19 I&N 

Dec. 1 (BIA 1988); Matter of McKee, 17 I&N Dec. 332 (BIA 1980); see 

also, e.g, Lutwak v. United States, 344 U.S. 604 (1953); Chan v. 

Bell, 464 F. Supp. 125 (D.D.C. 1978); McLat v. Longo, 412 F. Supp. 

1021 (a.V.I. 1976); Matter of Pereira, 19 I&N Dec. 169 (BIA 1984); 

Matter of M-, 8 I&N Dec. 217 (BIA 1958). See generally Johl v. 

United states, 370 F.2d 174 (9th Cir. 1966). The central question is 

whether the bride and groom intended to establish a life together 

at the time they were married. See, e.g., Bu Roe v. INS, 771 F.2d 

1328 (9th Cir. 1985); Bark v. INS, 511 F.2d 1200 (9th Cir. 1975); 

Matter of Laureano, supra; Matter of McKee, supra. 

The conduct of the parties before and after marriage is relevant 

to their intent at the time of marriage. Lutwak v. United States, 

1 Some of the evidence submitted is not in the record. 
Interim Decision #3081 

supra; Garcia-efaramillo v. INS, 604 F.2d 1236 (9th Cir. 1979), cert. 

denied, 449 U.S. 828 (1980); Bark v. INS, supra. Where there is 

reason to doubt the validity of the marital relationship, the petitioner must present evidence to show that the marriage was not 

entered into for the purpose of evading the immigration laws. Such 

evidence could take many forms, including, but not limited to, 

proof that the beneficiary has been listed as the petitioner's spouse 

on insurance policies, property leases, income tax forms, or bank 

accounts, and testimony or other evidence regarding courtship, 

wedding ceremony, shared residence, and experiences. Matter of 

Laureano, supra; Matter of Phillis, 15 I&N Dec. 385 (BIA 1975). 

In visa petition proceedings, the petitioner has the burden of establishing eligibility for the benefits sought. Matter of Brantigan, 

11 I&N Dec. 493 (BIA 1966). Where a visa petition has once been 

denied based on a finding that the marriage was entered into solely 

to bestow an immigration benefit, the petitioner bears a heavy 

burden of proof with respect to any subsequently filed visa petition 

involving the same beneficiary. cf. Matter of Laureano, supra. 

Where a visa petition is denied based on a deficiency of proof, 

the petitioner was not put on notice of the deficiency and given a 

reasonable opportunity to address it before the denial, and the petitioner proffers additional evidence addressing the deficiency with 

the appeal, then in the ordinary course we will remand the record 

to allow the district or Regional Service Center director to consider 

and address the new evidence. A petitioner may be put on notice of 

evidentiary requirements by various means, such as a requirement 

in the regulations that a particular document be submitted with 

the visa petition; a notice of intent to deny, letter, or form noting 

the deficiency or requesting additional evidence; or an oral statement at an interview that additional evidence is required. Where, 

however, the petitioner was put on notice of the required evidence 

and given a reasonable opportunity to provide it for the record 

before the denial, we will not consider evidence submitted on 

appeal for any purpose. Rather, we will adjudicate the appeal 

based on the record of proceedings before the district or Regional 

Service Center director. See Matter of Obaigbena, 19 I&N Dec. 533 

(BIA 1988). In such a case, if the petitioner desires further consideration, he or she must file a new visa petition. 

The district director first pointed out the deficiencies of proof 

with respect to the second visa petition when he denied that petition, and he suggested thereafter that the petitioner submit new 

evidence. We note also that the district director was in error in 

stating that the petitioner had submitted no evidence with the 

nee 
Interim Decision #3081 

second visa petition. The affidavits of the petitioner's children were 

evidence, albeit of weak probative value. 

Accordingly, we shall remand this matter to the district director 

so that he may consider the evidence submitted on appeal, bearing 

in mind the petitioner's heavy burden of proof. 

ORDER: The record is remanded to the district director for 

further proceedings consistent with the foregoing opinion and the 

entry of a new decision.