Interim Decision #2350 

MATTER OF RUBINO 

In Visa Petition Proceedings 

A-10747407 

Decided by Board January 9, 1975 

Where a prior visa petition classifying the beneficiary as the spouse of a United States 

citizen was apprwed, then subsequently revoked because the marriage was 'entered 

into for the purpose of according immigration benefits to the beneficiary and the 

beneficiary was not issued a visa or granted adjustment of status on the basis of the 

prior petition, se2tion 204(c) of the Immigration and Nationality Act did not operate to 

preclude approval of a subsequent petition filed to accord that same beneficiary fifth 

preference classification. - 

ON BEHALF or Pawnor:En: ON BEHALF OF SERVICE: 

Irving I. Freedman, Esquire Irving A. Appleman 

134 N. LaSalle Street, Suite 1616 Appellate Trial Attorney 

Chicago, Illinois 60602 

In a decision dated April 11, 1974, the district director revoked 

approval of a visa petition classifying the beneficiary as a preference 

immigrant under section 203(a)(5) of the Immigration and Nationality 

Act. The United States citizen petitioner has appealed from that decision. The appeal will be sustained and the record remanded to the 

district director for further action consistent with this opinion. 

The visa petition, filed in order to accord -the beneficiary status as the 

petitioner's brother, was approved on September 15, 1973. The district 

director does not appear to contest the existence of the claimed relationship. Although the record as forwarded on appeal does not contain the 

district director's decision, a copy of that decision supplied by counsel 

for the petitioner at oral argument indicates that the district director 

predicated his revocation of approval on section 204(c) of the Act. The 

record does contain a copy of the district director's letter to the petitioner, dated March 11, 1974, which gave notice of the intention to 

revoke approval of the petition and which specified section 204(c) as the 

authority upon which the district director was relying. 

Section 204(c) provides, in pertinent part: 

. no petition shall be approved if the alien has previously been accorded a nor's:mote 

or preference status as the spouse of a citizen of the United States or the spouse of an 

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Interim Decision #2350 

alien lawfully admitted for permanent residence, by reason of a marriage determined by 

the Attorney General to have been entered into for the purpose of evading the immigration laws. 

In October of 1972, an earlier visa petition classifying the beneficiary 

as the spouse of a United States citizen was approved. Approval of that 

petition was revoked in March of 1973 pursuant to a request by the 

earlier petitioner that the petition be withdrawn. At that time both the 

beneficiary and the earlier petitioner signed statements indicating that 

their marriage was entered into for the purpose of according immigration benefits to the beneficiary. 

The District Director relied an the beneficiary's earlier classification 

as the spouse of a United States citizen in determining that section 

204(c) prohibits the approval of the present petition. The beneficiary, 

however, was not issued a visa or granted adjustment of status on the 

basis of that earlier petition. 

An alien who merely has been classified as the spouse of a United 

States citizen has not been "accorded a nonquota or preference status," 

as that phrase of section 204(c) has been interpreted. Amarante v. 

Rosenberg, 326 F.2d 58 (C.A. 9, 1964); Matter of Piscotta, 10 I. & N. 

Dec. 685 (BIA 1964). Accordingly, the beneficiary does not fall within 

the prohibition of that section. The district director's decision revoking 

approval of the visa petition was incorrect. 

The record indicates that the district director was aware of the case 

law regarding section 204(c) prior to the forwarding of the record on 

appeal. While it may be that the decision to commence the proceeding to 

revoke approval of this visa petition was made without an appreciation 

of the case law, it is clear that the district director, or persons acting in 

his behalf, desired to challenge that case law. The manner in which that 

challenge was raised, however, presents some serious problems. 

Pursuant to 8 CFR 3.1(g), our precedent decisions are binding on the 

Service in all proceedings involving the same issue or issues. This 

regulation does not entirely foreclose the Service from attacking case 

law it deems erroneous. However, the Service is bound by the regulation and any such attack should be done in a manner which affords 

adequate protection to the interests of the person or persons affected. 

In this case, the district director could easily have instituted the 

proceeding to revoke appioval of the visa petition, then have made a 

finding in favor of the petitioner on the basis of Matter of Pisciotta, 

supra, and then have certified the record to us with a statement as to 

why that case should be overruled or modified. Such a sequence of 

events would assure our review of the record. We would be enlightened 

regarding problems in the application of a Board decision, and the 

protection of an individual's interests would not depend upon the accident of an appeal. 

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ORDER: The appeal is sustained and the approval of the visa petition 

is reinstated. 

Further order: The record is remanded to the district director for 

further action consistent with this opinion. 

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