Matter of Tawfik

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, 8 U.S.C. § 1151(b) (1982). The petition was approved on September 14, 1987. In a decision dated July 25, 1989, the district director revoked approval of the petition on the ground that the beneficiary had previously attempted to be accorded immediate relative status as the spouse of a United States citizen by reason of a marriage determined by the Attorney General to have been entered into for the purpose of evading the immigration laws. The

美国公民申请人根据《移民与国籍法》第201(b)条、8 U.S.C. § 1151(b) (1982)，为受益人作为其配偶申请即时亲属身份。该申请于1987年9月14日获批。在1989年7月25日的决定中，地区主任撤销了该申请的批准，理由是受益人此前曾因一段被司法部长认定为为逃避移民法而缔结的婚姻，试图作为美国公民的配偶获得即时亲属身份。该

petitioner has appealed' , The appeal will be sustained and approval of the visa petition will lie reinstated. The petitioner's request for oral argument is denied. See 8 C.F.R. § 3.1(e) (1989). The beneficiary, a 40-year-old native and citizen of Egypt, married the petitioner in 1987. The record reflects that this was his third marriage, and his second marriage to a United States citizen. In the instant proceedings, the district director revoked the beneficiary's approved visa petition, filed on his behalf by the petitioner. 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." A notice of intention to revoke a visa petition is properly issued for "good and sufficient cause" when the evidence of record at the time of issuance, if unexplained and unrebutted, would warrant a denial of the visa petition based upon the petitioner's failure to meet his burden of proof. However, where a notice of intention to revoke is based upon an unsupported statement, revocation of the visa petition cannot be sustained. Matter of Arias, 19 I&N Dec. 568 (BIA 1988); Matter of Estime, 19 I&N Dec. 450 (BIA 1987). The notice of intention to revoke the visa petition at issue here, dated September 8, 1988, was issued based on the premise that the beneficiary had previously "engaged in and sought status through a marriage that was determined to have been entered into for the purpose of evading immigration laws." Section 204(c) of the Act, 8 U.S.C. § 1154(c) (1988), prohibits the approval of a visa petition filed on behalf of an alien who has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws. Accordingly, the district director must deny any subsequent visa petition for immigrant classification filed on behalf of such alien, regardless of whether the alien received a benefit through the attempt or conspiracy. As a basis for the denial it is not necessary that the alien have been convicted of, or even prosecuted for, the attempt or conspiracy. However, the evidence of such attempt or conspiracy must be documented in the alien's file and must be substantial and probative Matter of Kahy, 19 ISEN Dec. 803 (BIA 1988); Matter of Agdinaoay, 16 I&N Dec. 545 (BIA 1978); Matter of La Grotta, 14 I&N Dec. 110 (BIA 1972); 8 C.F.R. § 204.1(a)(2)(iv) (1989).

申请人已提出上诉。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驳回。见8 C.F.R. § 3.1(e) (1989)。 受益人为40岁埃及本土公民，于1987年与申请人结婚。记录显示这是他的第三次婚姻，也是他第二次与美国公民结婚。 在本程序中，地区主任撤销了由申请人为受益人提交并已获批的签证申请。根据该法第205条、8 U.S.C. § 1155 (1982)，司法部长可因其认为的“良好和充分理由”撤销其批准的任何签证申请。当签发时记录中的证据，若未予解释和反驳，将因申请人未能履行举证责任而足以支持拒绝签证申请时，即属有“良好和充分理由”适当签发撤销签证申请意向通知。然而，如果撤销意向通知基于无支持的陈述，则不能维持签证申请的撤销。Matter of Arias, 19 I&N Dec. 568 (BIA 1988); Matter of Estime, 19 I&N Dec. 450 (BIA 1987)。 此处争议的签证申请撤销意向通知日期为1988年9月8日，其签发前提是受益人此前“参与并寻求通过一段被认定为为逃避移民法而缔结的婚姻获得身份”。 该法第204(c)条、8 U.S.C. § 1154(c) (1988) 禁止批准为曾试图或共谋为逃避移民法而缔结婚姻的外侨提交的签证申请。因此，地区主任必须拒绝此后为该外侨提交的任何移民分类签证申请，无论该外侨是否通过该试图或共谋获得利益。作为拒绝的依据，外侨不必曾因该试图或共谋被定罪，甚至不必被起诉。然而，该试图或共谋的证据必须记录在外侨档案中，且必须是实质性和证明性的。Matter of Kahy, 19 I&N Dec. 803 (BIA 1988); Matter of Agdinaoay, 16 I&N Dec. 545 (BIA 1978); Matter of La Grotta, 14 I&N Dec. 110 (BIA 1972); 8 C.F.R. § 204.1(a)(2)(iv) (1989)。

Neither section 204(c) of the Act nor the regulations specify who may make the Attorney General's decision in such matters and at what point it is to be made. However, we have held that the determination is to be made on behalf of the Attorney General by the district director in the course of his adjudication of the subsequent visa petition. Matter of Samsen, 15 I&N Dec. 28 (BIA 1974). In making that adjudication, the district director may rely on any relevant evidence, including evidence having its origin in prior Service proceedings involving the beneficiary, or in court proceedings involv- ing the prior marriage. Ordinarily, the district director should not give conclusive effect to determinations made in a prior proceeding, but, rather, should reach his own independent conclusion based on the evidence before him. See Matter of F-, 9 I&N Dec. 684 (BIA 1962). However, for example, in a case where the beneficiary has previously been found deportable based on a determination, supported by clear, unequivocal, and convincing evidence, that that beneficiary became a party to a fraudulent marriage for the purpose of entering the United States as an immigrant, it would he appropriate for the district director to rely on that finding of deportability in a determination that the beneficiary would be precluded by section 204(c) of the Act from obtaining an immigration benefit by virtue of a subsequent marriage. Matter of Agdinaoay, supra. In this case, the district director noted that the evidence showing that the beneficiary had entered into a marriage for the purpose of evading the immigration laws had been "sufficient to warrant the denial of the petition" filed by the beneficiary's former United States citizen spouse, and, on that basis, the previously approved visa petition, filed by the beneficiary's current United States citizen spouse, was revoked on July 25, 1989. It is to be noted, however, that in the determination of the first visa petition submitted on behalf of the beneficiary, it was not found that the beneficiary had attempted or conspired to enter into a marriage for the purpose of evading the immigration laws. Rather, the district director involved in the determination of that petition noted that the record contained evidence, which had not been rebutted, "from which it [could] reasonably be inferred" that the beneficiary entered into a marriage for the primary purpose of obtaining immigration benefits. Such a reasonable inference does not rise to the level of substantial and probative evidence requisite to the preclusion of approval of a visa petition in accordance with section 204(c) of the Act. Since, with respect to the first visa petition submitted on behalf of the respondent, there was no affirmative finding that the marriage was entered into for the purpose of evading the immigration laws, resolution of whether the visa petition revocation can be sustained will

该法第204(c)条和条例均未规定在此类事项中谁可以代表司法部长作出决定以及在何时作出。然而，我们已裁定，该认定应由地区主任在裁决后续签证申请过程中代表司法部长作出。Matter of Samsen, 15 I&N Dec. 28 (BIA 1974)。 在该裁决中，地区主任可以依赖任何相关证据，包括源自涉及受益人的先前移民局程序或涉及先前婚姻的法院程序的证据。通常，地区主任不应对先前程序中所作认定赋予结论性效力，而应基于其面前的证据作出自己的独立结论。见Matter of F-, 9 I&N Dec. 684 (BIA 1962)。然而，例如，如果受益人此前因有明确、毫不含糊且令人信服的证据支持认定该受益人为作为移民进入美国而参与欺诈婚姻，从而被裁定可驱逐，则地区主任在认定受益人将因该法第204(c)条而不得通过后续婚姻获得移民利益时，依赖该可驱逐性认定是适当的。Matter of Agdinaoay, 同上。 在本案中，地区主任指出，显示受益人曾为逃避移民法而缔结婚姻的证据“足以支持拒绝”受益人前美国公民配偶提交的申请，并在此基础上，于1989年7月25日撤销了受益人现任美国公民配偶此前提交并已获批的签证申请。然而，应当注意，在就为受益人提交的第一份签证申请所作认定中，并未认定受益人曾试图或共谋为逃避移民法而缔结婚姻。相反，参与该申请认定的地区主任指出，记录中包含未予反驳的证据，“可合理推断”受益人缔结婚姻的主要目的是获取移民利益。此种合理推断未达到根据该法第204(c)条阻止批准签证申请所需的实质性和证明性证据的水平。 由于就为答辩人提交的第一份签证申请而言，没有肯定性认定该婚姻是为逃避移民法而缔结，解决签证申请撤销能否维持的问题将

depend on a determination of whether there is, at present, sufficient evidence, inclusive of evidence relied upon in the determination of the first visa petition, to support the contention that the beneficiary's previous marriage to a United States citizen was entered into for purposes of evading the immigration laws. The beneficiary's first marriage to a United States citizen took place in 1985. The Petition to Classify Status of Alien Relative for Issuance of Immigrant Visa (Form 1-130) filed on behalf of the beneficiary by his first United States citizen wife was denied by the district director on January 30, 1987, based on the finding that the marriage was entered into for the primary purpose of obtaining immigration benefits for the beneficiary. The basis for the finding was the fact that the petitioner and beneficiary lived in different cities at the time of the denial, and on the conclusion that, at the same time, the beneficiary was living with his first wife, a citizen of Egypt. No evidence beyond these conclusions is contained in the record. We note that while the petition filed by the beneficiary's first United States citizen wife was still pending before the district director, the beneficiary divorced that wife, without knowledge as to what the outcome of the petition might be. The divorce decree, entered on December 17, 1936, 1 1/2 months prior to the denial of the petition, provides that the beneficiary and his wife "were a married couple and lived together as husband and wife until August 1986 and since then have lived separate and apart." The mere fact that, at the time of the visa petition denial, the petitioner was living separate from the beneficiary is not evidence of an attempt or conspiracy on the beneficiary's part to enter into a marriage for the purpose of evading the immigration laws. Quite to the contrary, his divorce, prior to a decision on the petition which may have been to his favor, tends to reflect the bona fide nature of the marriage that he chose to terminate. Further, the district director offered no evidence to support his conclusion that the petitioner never lived with the beneficiary. With respect to the concern that, during the course of the marriage of the beneficiary and his first United States citizen wife, the beneficiary was living with his former wife, we note that, according to the information contained in the divorce decree of the beneficiary and his first United States citizen wife, their separation occurred 4 months prior to their divorce and 5 months prior to the denial of the petition submitted on the beneficiary's behalf. Therefore, the conclusion of the district director that the beneficiary was living with his former wife at the time of the denial, a conclusion also unsupported by documentary evidence, is, of itself, of no relevance to the issue of whether the beneficiary

取决于对以下问题的认定：目前是否有充分证据（包括在第一次签证申请裁定中所依据的证据）支持这一主张，即受益人与一名美国公民的先前婚姻是为了规避移民法而缔结的。 受益人与一名美国公民的第一次婚姻发生于1985年。由受益人的第一任美国公民妻子代表受益人提交的《外籍亲属身份分类以签发移民签证的申请》（Form 1-130）于1987年1月30日被地区主任驳回，依据是认定该婚姻缔结的主要目的是为受益人获取移民利益。该认定的依据是：在驳回时申请人与受益人居住在不同城市，以及认定在同一时期受益人与其第一任妻子（一名埃及公民）同居。记录中除这些结论外并无其他证据。 我们注意到，在受益人的第一任美国公民妻子提交的申请仍在地区主任处待决期间，受益人与该妻子离婚，且并不知晓该申请的结果可能如何。离婚判决于1936年12月17日作出，1 1/2个月后申请被驳回，该判决载明受益人与妻子“曾为夫妻并作为夫妻共同生活至1986年8月，此后分居”。仅仅在签证申请被驳回时申请人与受益人分居这一事实，并不构成受益人为规避移民法而试图或共谋缔结婚姻的证据。恰恰相反，他在申请可能对其有利的裁定作出之前离婚，反而倾向于反映其选择终止的婚姻具有真实性质。此外，地区主任未提供任何证据支持其关于申请人从未与受益人同居的结论。关于在受益人与第一任美国公民妻子婚姻期间受益人与其前妻同居的疑虑，我们注意到，根据受益人与第一任美国公民妻子离婚判决中所载信息，他们的分居发生于离婚前4个月、代表受益人提交的申请被驳回前5个月。因此，地区主任关于受益人在驳回时与其前妻同居的结论（该结论同样无书面证据支持），本身与受益人是否

entered into the marriage with his first United States citizen wife in an attempt to evade the immigration laws. 2 In order to sustain the district director's revocation of the visa petition at issue here, it would be necessary to show that approval of that visa petition was precluded by section 204(c) of the Act, which bars approval of a visa petition for the benefit of an alien who has attempted to enter into a marriage for the purpose of evading the immigration laws. If that were the case, the previously approved visa petition would have been revoked for "good and sufficient cause." Matter of Arias, supra; Matter of Estime, supra. However, the language of the Code of Federal Regulations is clear that in order to find that an alien has attempted to enter into a marriage for the purpose of evading the immigration laws, the evidence of such an attempt must be documented in the alien's file. 8 C.F.R. § 204_1(a)(2)(iv) (1989); Matter of Kahy, supra. No such documentation is contained in the record before us, and, therefore, there is no basis to support the district director's conclusion that the beneficiary's prior marriage to a United States citizen was entered into for the purpose of evading the immigration laws. Since the beneficiary's prior marriage provided the sole basis for the revocation of his approved visa petition and there is no substantial and probative evidentiary basis for a finding that that marriage was entered into for the purpose of evading the immigration laws, the revocation of the previously approved visa petition cannot be sustained. Accordingly, the petitioner's appeal will be sustained, and the district director's decision will be reversed. ORDER: The appeal is sustained, and the approval of the visa petition is reinstated.

为规避移民法而与其第一任美国公民妻子缔结婚姻这一问题无关。2 为维持地区主任对本案所涉签证申请的撤销，必须证明该签证申请的批准被该法第204(c)条所排除，该条禁止为曾试图为规避移民法而缔结婚姻的外国人批准签证申请。若属此种情形，先前已批准的签证申请将因“正当且充分的理由”而被撤销。Matter of Arias，同上；Matter of Estime，同上。 然而，《联邦法规汇编》的措辞明确表明，要认定外国人曾试图为规避移民法而缔结婚姻，此种企图的证据必须记录在该外国人的档案中。8 C.F.R. § 204_1(a)(2)(iv) (1989)；Matter of Kahy，同上。我们面前的记录中不包含此类记录，因此，没有依据支持地区主任关于受益人与一名美国公民的先前婚姻是为规避移民法而缔结的结论。由于受益人的先前婚姻是撤销其已批准签证申请的唯一依据，且没有实质性和有证明力的证据依据可认定该婚姻是为规避移民法而缔结，对先前已批准签证申请的撤销不能维持。据此，申请人的上诉将获支持，地区主任的决定将被撤销。 命令： 上诉获支持，签证申请的批准予以恢复。