Matter of Arias

In a decision dated August 7, 1986, the Immigration and Natural- ization Service Regional Service Center ("RSC") director revoked his prior approval of the visa petition filed by the United States cit- izen petitioner to accord the beneficiary immediate relative status as her husband pursuant to section 201(b) of the Immigration and Nationality Act, 8 U.S.C. § 1151(b) (1982). The petitioner appealed from that decision and requested oral argument before the Board. The appeal will be sustained and approval of the visa petition will be reinstated. The petitioner's request for oral argument is denied. The record reflects that the visa petition was approved on August 9, 1983, and was forwarded to the American Embassy in Santo Domingo, Dominican Republic. The Embassy returned the visa petition. to the Service for possible revocation on the ground that the marriage between the petitioner and the beneficiary ap- peared, in the Embassy's view, to be a sham, entered into for the purpose of obtaining immigration benefits. In a memorandum accompanying the returned petition dated February 4, 1986, the Embassy reported that the beneficiary was

在1986年8月7日的决定中，移民和归化局区域服务中心（“RSC”）主任撤销了此前对美国公民申请人提交的签证申请的批准，该申请旨在根据《移民和国籍法》第201(b)条，8 U.S.C. § 1151(b) (1982)，赋予受益人作为其配偶的直接亲属身份。申请人对该决定提出上诉，并请求在委员会进行口头辩论。上诉将获支持，签证申请的批准将恢复。申请人的口头辩论请求被拒绝。 记录显示，签证申请于1983年8月9日获批，并转交至多米尼加共和国圣多明各的美国大使馆。大使馆将签证申请退回移民局，可能以申请人与受益人之间的婚姻在大使馆看来似乎是虚假的、为获取移民利益而缔结为由予以撤销。 在1986年2月4日随退回申请附上的备忘录中，大使馆报告称受益人

unable to provide evidence that he had corresponded with the peti- tioner since leaving the United States in 1984. 1 At a later point, however, the memorandum stated that, at a subsequent interview, the beneficiary presented letters which "appear to have been" writ- ten by another person. Photographs submitted in support of the visa petition were declared to have been "unconvincing." The memorandum noted that the beneficiary was 49 years of age while the petitioner was 26 years old. The memorandum continued that local inquiry revealed that the beneficiary's first wife had lived in the United States for several years and "was possibly living with him" during his stay in this country. The beneficiary was said to have had photographs of his first wife taken in New York, "some of them dedicated to him." The beneficiary reportedly spends a great deal of time with his daughters by his first marriage and with his former mother-in-law. The memorandum observed that the petitioner had never been in the Dominican Republic and stated that neighbors of the beneficiary "were unaware of his di- vorce from his first wife and of his remarriage!' The memorandum did note that twelve one-page letters, "possibly written by the peti- tioner," were submitted as evidence of a bona fide marriage. In a. notice of intention to revoke dated May 1, 1986, 2 the RSC director advised the petitioner that he proposed to revoke his ap- proval of the visa petition on the following ground:

无法提供证据证明自1984年离开美国以来曾与申请人通信。1 然而，备忘录后来指出，在随后的一次面谈中，受益人出示了“似乎由”他人书写的信件。为支持签证申请而提交的照片被宣布为“不具说服力”。备忘录指出，受益人49岁，而申请人26岁。备忘录继续称，当地调查显示受益人的第一任妻子曾在美国居住多年，并在他逗留美国期间“可能与他同住”。据称受益人拥有其第一任妻子在纽约拍摄的照片，“其中一些题献给他”。据报告，受益人花费大量时间与其第一段婚姻所生的女儿们及其前岳母在一起。备忘录观察到申请人从未去过多米尼加共和国，并称受益人的邻居“不知道他与第一任妻子离婚以及他再婚！”备忘录确实指出，提交了十二封一页长的信件，“可能由申请人书写”，作为真实婚姻的证据。 在1986年5月1日的撤销意向通知中，2 RSC主任告知申请人，他提议基于以下理由撤销对签证申请的批准：

A local investigation conducted by the American Embassy at Santo Domingo re- vealed that the beneficiary's neighbors were unaware of his divorce from his first wife and his remarriage to you. -According to his neighbors, you have never visited the beneficiary in the Dominican Republic. The petitioner was given 15 days within which to offer evidence in opposition to the alleged basis for revocation. On August 7, 1986, noting that no reply had been received in response to the notice of intention to revoke, the RSC director revoked his approval of the visa petition on the ground that the stated basis for revocation had not been overcome. 3 Under section 205 of the Act, 8 U.S.C. § 1155 (1982), the Attorney General may revoke the approval of any visa petition approved by him for what he deems to be "good and sufficient cause." This Board recently held that a notice of intention to revoke a, visa peti-

美国大使馆在圣多明各进行的当地调查显示，受益人的邻居不知道他与第一任妻子离婚以及与你再婚。据其邻居称，你从未去多米尼加共和国探望受益人。 申请人被给予15天时间提供证据反对所指称的撤销依据。1986年8月7日，RSC主任指出未收到对撤销意向通知的回复，以所述撤销依据未被克服为由撤销了对签证申请的批准。3 根据该法第205条，8 U.S.C. § 1155 (1982)，司法部长可以以其认为的“良好和充分理由”撤销其批准的任何签证申请。本委员会最近裁定，撤销签证申请的意向通知

tion is properly issued for "good and sufficient cause" when the evi- dence of record at the time of issuance, if unexplained and unre- butted, would warrant a denial of the visa petition based upon the petitioner's failure to meet his burden of proof. Matter of Estime, 19 I&N Dec. 450 (BIA 1987). Assuming regulatory requirements have been satisfied,4 the decision to revoke approval of a visa peti- tion will be sustained, notwithstanding the submission of evidence on appeal, where a petitioner fails to offer a timely explanation or rebuttal to a properly issued notice of intention to revoke. Howev- er, where a notice of intention to revoke is based upon an unsup- ported statement or an unstated presumption, or where the peti- tioner is unaware and has not been advised of derogatory evidence, revocation of the visa petition cannot be sustained, even if the peti- tioner did not make a timely response to the notice of intention to revoke. Id. In the instant case, the sole basis for the proposed revocation cited in the notice of intention to revoke was the statement, not further elaborated upon in the Embassy's memorandum, that the beneficiary's neighbors did not know that the beneficiary had di- vorced and remarried and that, according to the neighbors, the pe- titioner had not visited the beneficiary in the Dominican Republic. Hence, the revocation could only be grounded upon, and the peti- tioner was only obliged to respond to, those two factual allegations. 8 C.F.R. § 205.2(b) (1986). We find that the reasons stated in the notice of intention to revoke did not provide "good and sufficient cause" for the issuance of the notice and cannot serve as the basis for revoking approval of the visa petition, notwithstanding the peti- tioner's failure to respond in timely fashion to the notice. Matter of Estime, supra. Furthermore, we would have reached the same con- clusion even had the RSC director relied upon the Embassy's memorandum in its entirety in his notice of intention to revoke. The observations made in the memorandum are conclusory, spec- ulative, equivocal, and, in at least one instance, e.g., the benefi- ciary's frequent contacts with his daughters and former mother-in- law, irrelevant to the issue of the bona fides of the petitioner's marriage to the beneficiary. The observations are those of the con- sular officer, not the words of the person who conducted the actual investigation. Such observations are more appropriately made by the RSC director or this Board in reviewing the factual record. Spe-

在签发时记录中的证据，如果未予解释和反驳，将因申请人未能履行其举证责任而足以导致签证申请被拒，则基于“良好和充分理由”适当签发。Estime案，19 I&N Dec. 450 (BIA 1987)。假设已满足监管要求，4 即使申请人在上诉时提交了证据，如果申请人未能对适当签发的撤销意向通知及时提出解释或反驳，撤销签证申请批准的决定将获维持。然而，如果撤销意向通知基于无支持的陈述或未明示的推定，或者申请人不知道且未被告知不利证据，则即使申请人未及时回应撤销意向通知，签证申请的撤销也不能维持。同上。 在本案中，撤销意向通知中引用的拟撤销的唯一依据是以下陈述，大使馆备忘录未进一步阐述：受益人的邻居不知道受益人已离婚并再婚，且据邻居称，申请人未去多米尼加共和国探望受益人。因此，撤销只能基于且申请人仅有义务回应这两项事实指控。8 C.F.R. § 205.2(b) (1986)。我们认定，撤销意向通知中所述的理由未提供签发通知的“良好和充分理由”，且不能作为撤销签证申请批准的依据，尽管申请人未能及时回应通知。Estime案，同上。此外，即使RSC主任在撤销意向通知中完全依赖大使馆备忘录，我们也会得出相同结论。备忘录中的观察意见是结论性、推测性、模棱两可的，并且至少在一个实例中，例如受益人与女儿们和前岳母的频繁接触，与申请人与受益人婚姻真实性的问题无关。这些观察意见是领事官员的，而非实际进行调查的人的言辞。此类观察意见更适宜由RSC主任或本委员会在审查事实记录时作出。具

cific, concrete facts are meaningful, not unsupported speculation and conjecture. Taken individually or collectively, the allegations as set forth in the memorandum did. not provide a sufficient foun- dation for initiating revocation proceedings. The appeal will there- fore be sustained. Approval of the visa petition will be reinstated. ORDER: The appeal is sustained and the approval of the visa petition is reinstated.

体、具体的事实才有意义，而非无支持的推测和猜想。无论是单独还是集体来看，备忘录中所述的指控均未为启动撤销程序提供充分基础。因此，上诉将获支持。签证申请的批准将恢复。 命令：上诉获支持，签证申请的批准恢复。