VARELA

13 I. & N. Dec. 453

• Court: Board of Immigration Appeals
• Decided: July 1, 1970
• Docket: 2020
• Status: Published

Opinion

Interim Decision #2020

MATTER OF VARELA In Visa Petition Proceedings A-19184691 Decided by Board February 6, 1970 Visa petition to accord beneficiary immediate relative status was properly denied since upon the death of the United States citizen petitioner, benefi- ciary was no longer the spouse of a citizen and, hence, not entitled to sta- tus as an immediate relative. ON BEHALF OF PETITIONER: ON BEHALF OF SERVICE: Esther M. Kaufman, Esquire Irving A. Appleman Room 102 Appellate Trial Attorney 1823 L Street, N.W. Washington, D.C. 20036 Norman Stiller, Esquire 995 Market Street, Suite 1018 San Francisco, California 94103 (Attorney of Record)

This case is before us on appeal from a decision rendered by the District Director at San Francisco on August 25, 1969, denying the petition because of the petitioner's demise. The appeal will be dismissed. There is no dispute as to the basic facts of this matter. The pe- titioner acquired United States citizenship through naturalization in 1943. On June 23, 1969, in Reno, Nevada, he married the bene- ficiary, a native and national of the Republic of the Philippines. On July 9, 1969, he submitted a petition to have the beneficiary classified as an immediate relative for issuance of an immigrant visa. This petition was received by the Service on the following day, July 10, 1969. In the same month the petitioner, a petty officer in the United States Naval Reserve, was recalled to active duty. On August 2, 1969, while still on active duty, he died of a heart attack. Obviously, the only issue presented for our consideration is whether the District Director properly denied the visa petition cm the ground that, with the death of the petitioner, the beneficiary

453 Interim Decision #2020 was not entitled to status as an immediate relative, as the spouse of a United States citizen. For the following reasons, our answer is in the affirmative. 1 Subsection (a) of section 204 of the Immigration and National- ity Act (8 U.S.C. 1154) provides that a United States citizen claiming that an alien is entitled to immediate relative status under section 201 (b) of the Act (8 U.S.C. 1151) may file a peti- tion with the Attorney General for such classification. Subsection (b) thereof stipulates that the Attorney General shall approve the petition if, after investigation of the facts, he determines that they are true as stated in the petition and that the alien on behalf of whom the petition is made is an immediate relative. Viewing these provisions of the law in the light of the facts te- Ated above, it is clear that the District Director properly denied :he petition. Simply stated, at the time of his decision the benefi- !iary was not the spouse of a United States citizen. His death had tripped her of that status. A question has been raised as to the beneficiary's standing alder the law to prosecute this appeal (oral argument, p. 6) 2 The ∎oint requires only this passing comment, however, since we will ispose of her supporting arguments on the merits. We find inapplicable here the case of Pierno v. INS, decided by ie United States Court of Appeals for the Second Circuit on uly 9, 1968 (397 F.2d 949). That case involved revocation of an pproved visa petition, under former section 206 of the Immigra- on and Nationality Act (8 U.S.C. 1156) and the related regula- ons, 8 CFR 206.1 (b) (2), whereas here the petition was never pproved. Second, there was an unduly prolonged delay in corn- etion of the investigation in the Pierno case because of a -oundless suit brought by a person not even a party to the immi- -ation proceedings, while here the death of the petitioner fol- wed the filing of the petition by approximately three weeks, and e District Director's denial followed approximately three weeks The District Director also denied the beneficiary's concomitant applica- m for adjustment of her status to that of a permanent resident, under Aion 245 of the Immigration and Nationality Act (8 U.S.C. 1255), finding r-to be a nonpreference immigrant for whom an immigrant visa was not mediately available under the nonpreference portion of the quota for the public of the Philippines, to which she was chargeable; and he granted r 25 days within which to depart from the United States voluntarily. Scalzo v. Hurney, 225 F. Supp. 560 (U.S.D.C., E.D. Pa., December 18, 33) ; aff'd 338 F.2d 339 (3 Cir., 1964); cert. denied 382 U.S. 849 (October 1965). Cf. Hum Sin v. Esperdy, 239 F. Supp. 903 (U.S.D.C., S.D.N.Y., )ruary 17, 1965).

454 Interim Decision #2020 later. Third, former section 206 of the Act, upon which the revo- cation was predicated in the Pierno case, was permissive, whereas section 204 on which the present case is predicated re- quires the existence of a citizen spouse as a condition precedent to the granting of status as an immediate relative. Finally, we are aware of the sympathetic features of this case stemming from the fact that the beneficiary is the widow Of a cit- izen who died while on active duty status in the Armed Forces of the United States. Nevertheless, we find it of no assistance to her here that section 319 of the Immigration and Nationality Act (8 U.S.C. 1430) was amended on June 29, 1968, to provide that a person similarly situated may be naturalized without any re- quired period of residence.3 Suffice it to say, in this connection, that the Congress has not seen fit to similarly amend section 204 of the Act, which controls here, and as that controlling section of the law now stands the District Director has correctly decided the case. Accordingly, no change is warranted in his decision, for the reasons hereinbefore set forth. ORDER: It is ordered that the appeal be and the same is hereby dismissed.

SEPARATE OPINION: Thomas J. Griffin, Membcr

In the interest of legal precision I find it necessary to file a separate opinion in these proceedings. It is my position that the appellant herein has no legal stand- ing to prosecute an appeal to this Board. Accordingly, any con- sideration of the merits of the appeal is totally unwarranted. The majority decision notes the issue of standing and cites two cases on this issue in its footnote at page 3. With the possible exception of the Hom Sin v. Esperdy case,' which is patently distinguishable from the proceedings herein, the courts have uni- formly and unanimously held that no-alien has a personal vested right to become beneficiary of a visa petition.' n Formerly, such a person lost all rights to the expeditious naturalization provided for spouses of citizens living with them in marital union, if their spouses died, even though death occurred in combat or while on an active duty status. 239 F. Supp. 903 (U.S.D.C., S.D.N.Y., February 17, 1956). 2 SCa/Z0 v. Hurney, 225 F. Supp. 560 (U.S.D.C., E.D. Pa., December 18, 1963), aff'd 338 F.2d 339 (3 Cir., 1964) ; cert. denied 382 U.S. 849 (October 11, 1965). Wright v. Immigration and Naturalization Service, iCe, 379 F.2d 275 (1967), cert. denied 19 L.Ed. 279. Pacheco Pereira v. Immigration and Natu-

455 Interim Decision #2020 The instant case suffers from greater infirmities than those cited above in that this petition was never even acted upon by the Immigration and Naturalization Service. For these reasons I would dismiss the appeal solely for lack of standing on the part of the appellant.

lization Service, 342 F.2d 422. United States ex rel. Stellas v. Esperdy, 9 F. Supp. 85 (1966), afrd 366 F.2d 266.