Interim Decision #2540 

MATTER OF TAIISIR 

In Visa Petition Proceedings 

A-19450829 

Decided by Board December 8, 1976 

(1) This is an appeal of the denial of an immediate relative visa petition based on a report 

which was not shown to petitioner. 

(2) The regulations provide for the use of "classified" information without the petitioner's 

right to inspect it only upon a finding by the regional commissioner that the information 

is relevant and classified under E.O. 11652 (8 C.F.R. 103.2(b)(2)). In addition, the 

regional commissioner's authorization to use such classified information must be made a 

part of the record of proceeding. Also, petitioner should be given notice of the general 

nature of the information and an opportunity to rebut it if it can ha dorm without 

jeopardizing the safety of the information and its source. 

(3) Where denial of the petition is based upon "classified" information which is not shown 

to petitioner, and the requirements of 8 C.F.R. 103.2(b)(2) are not followed, the record 

will he remanded to afford petitioner an opportunity to inepeet and rebut tlac adverac 

information or for appropriate classification of the information by the regional commissioner in accordance with the above regulation. 

ON BEHALF OF PETITIONER: Alan E. Pilte, Esquire 

18 Tremont Street 

Boston, Massachusetts 02108 

BY: Milhollan, Chairman; Wilson, Torrington, Maniatis, and Appleman, Boar Members 

The United States citizen petitioner applied for immediate relative 

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

Immigration and Nationality Act. In a decision dated March 5, L 976, the 

District Director denied the petition on the ground that the petitioner 

bad failed to establish eligibility for the status sought. The record will 

be remanded for further proceedings. 

The visa petition is supported by certificates attesting to the petitioner's birth in the United States on May 22, 1953, and marriage to the 

beneficiary on February 3, 1975. The District Director's decision, on the 

other hand, appears to be based upon a report which has not been shown 

to the petitioner. 

The District Director's decision recites that the petitioner and the 

beneficiary appeared for an interview, together with their attorney, on 

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Interim Decision #2540 

March 2, 1976. During the course of this interview, on the advice of their 

attorney, the parties refused to answer specific questions which appear 

to have been raised by the aforementioned report. When their attorney 

advised the parties to answer no more questions until he could see 

whatever report the questions came from, he was informed that he 

could see only the record portion of the file. The interview was then 

terminated and the visa petition was subsequently denied for lack of 

prosecution. 

The report, upon which the District Director appears to have based 

his denial, is a part of the record before us. Although the report has 

some type of security classification, it does not appear to have been 

treated as such by the District Director_ The regulations provide for the 

use of "classified" information without the petitioner's right to inspect it, 

only upon a finding by the regional commissioner that the information is 

relevant and classified under Executive Order No. 11652 (37 FR 5209; 

March 10, 1972). 8 C.F.R. 103.2(b)(2). In addition, the petitioner should 

be given notice of the general nature of the information and an opportunity to offer opposing evidence, if it can been done without jeopardizing 

the safety of the information and its source. More importantly, the 

regional commissioner's authorization to use the "classified information" 

must be made a part of the record of proceeding. In this case, there is no 

evi dence in the rpeord that any of these procedures have been followed. 

There is nothing in the record to indicate that the petitioner was 

aware of the evidence impugning the beneficiary's capacity to contract a 

valid marriage with her. The regulations require that she be given an 

opportunity to inspect the record. See 8 C.F.R. 103.2(b)(2); Matter of 

Holmes, Interim Decision 2274 (BIA 1974); Matter of Arteaga-Godoy, 

Interim Decision 2171 (BIA 1972); Cf., Matter of Mata, Interim Decision 2454 (BIA 1975). 

Moreover, there is no indication that the District Director's 

memorandum to the Board, dated September 8, 1976, was ever served 

on the petitioner. The regulations require that "an appeal, cross-appeal, 

answers thereto and accompanying brief, if any, shall become part of the 

record of proceeding and, if filed by an officer of the Service, a copy shall 

be served on the party affected." 8 C.F.R. 103.3(a). Unless this 

memorandum is served on the petitioner it cannot become a part of the 

record. 

Accordingly, the record will be remanded in order that the petitioner 

may be given an opportunity to inspect and rebut the adverse evidence 

upon which the District Director relied, or for the classification of such 

evidence in accordance with 8 C.F.R. 103.2(b)(2). 

ORDER: The record is remanded to the District Director for further 

proceedings in accordance with the above opinion and the entry of a new 

ecision. 

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