In re Riero, Interim Decision No. 3577.

• Decision Date: 15 August 2007
• Docket Number: File A78 391 418.,File A78 391 417.,Interim Decision No. 3577.
• Court: U.S. DOJ Board of Immigration Appeals
• Parties: In re Luis Samuel JARA RIERO, Respondent. In re Paul Andres JARA ESPINOL, Respondent.

24 I&N Dec. 267

In re Luis Samuel JARA RIERO, Respondent.

In re Paul Andres JARA ESPINOL, Respondent.

Interim Decision No. 3577.

File A78 391 417 - Hartford.

File A78 391 418.

Board of Immigration Appeals.

Decided August 15, 2007.

An alien seeking to establish eligibility for adjustment of status under section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i) (2000), on the basis of a marriage-based visa petition must prove that the marriage was bona fide at its inception in order to show that the visa petition was "meritorious in fact" pursuant to 8 C.F.R. § 1245.10(a)(3) (2007).

FOR RESPONDENT: Joseph M. Tapper, Esquire, Bloomfield, Connecticut.

BEFORE: Board Panel: COLE, FILPPU, and PAULEY, Board Members.

PAULEY, Board Member.

In a decision dated October 21, 2005, an Immigration Judge found the respondents ineligible for adjustment of status under section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i) (2000). The respondents have timely appealed that decision. The respondents' request for oral argument is denied under 8 C.F.R. § 1003.1(e)(7) (2007). The appeal will be dismissed.

The respondents, who are natives and citizens of Ecuador, are a father and son. They are the beneficiaries of a pending visa petition filed by Karina Gause, their wife and mother, respectively. For purposes of this decision, the father will be referred to as the lead respondent. The respondents assert that they are eligible for adjustment of status under section 245(i) of the Act because the lead respondent was previously the beneficiary of a visa petition filed by his former wife on April 30, 2001. His first wife's visa petition was denied.

At issue in this case is whether the lead respondent's first wife's visa petition meets the grandfathering requirements under 8 C.F.R. § 1245.10 (2007). Pursuant to 8 C.F.R. § 1245.10(i), the denial of a qualifying immigrant visa petition that was properly filed on or before April 30, 2001, and that was "approvable when filed," will not preclude its grandfathered alien beneficiary from seeking adjustment of status under section 245(i) of the Act on the basis of another approved visa petition. The respondents contend that the Immigration Judge erred in finding that the visa petition filed by the lead respondent's first wife was not "approvable when filed" within the meaning of 8 C.F.R. § 1245.10(a)(3).

The term "approvable when filed" is defined in the regulations as follows:

Approvable when filed means that, as of the date of the filing of the qualifying immigrant visa petition under section 204 of the Act or qualifying application for labor certification, the qualifying petition or application was properly filed, meritorious in fact, and non-frivolous ("frivolous" being defined herein as patently without substance). This determination will be made based on the circumstances that existed at the time the qualifying petition or application was filed. A visa petition that was properly filed on or before April 30, 2001, and was approvable when filed, but was later withdrawn, denied, or revoked due to circumstances that have arisen after the time of filing, will preserve the alien beneficiary's grandfathered status if the alien is otherwise eligible to file an application for adjustment of status under section 245(i) of the Act.

8 C.F.R. § 1245.10(a)(3) (emphasis added).¹ In order for a visa petition to be "approvable when filed," therefore, the visa petition must have been (1) properly filed, (2) meritorious in fact, and (3) not frivolous. Inasmuch as the record indicates that the visa petition was properly filed and there is no evidence that it was patently without substance, the dispositive issue in this case is whether the visa petition was "meritorious in fact."

There is little case law construing the terms "approvable when filed" or "meritorious in fact." However, as a matter of first impression, we agree with the United States Court of Appeals for the First Circuit that in order for a visa petition to be "approvable when filed" in this context, there must be a showing that the marriage on which it is based was bona fide. See Lasprilla v. Ashcroft, 365 F.3d 98 (1st Cir. 2004). It is not enough to show merely that a marriage existed. Furthermore, in order to be "meritorious in fact," the visa petition must be based on a genuine marriage in which the parties intended to share a life as husband and wife, not a marriage of convenience designed solely to confer an immigration benefit on one of the parties. This is confirmed by the explanation of the "approvable when filed" standard in the Federal Register, which provides as an example that a visa petition is not approvable when filed if it "is fraudulent or if the named beneficiary did not have, at the time of filing, the appropriate family relationship or employment relationship that would support the issuance of an immigrant visa." Adjustment of Status To That Person Admitted for Permanent Residence; Temporary Removal of Certain Restrictions of Eligibility, 66 Fed. Reg. 16,383, 16,385 (Mar. 26, 2001) (Supplementary Information). In the marriage context, a "fraudulent" visa petition would include one where the marriage was not entered into in good faith.

The burden of establishing that the visa petition filed by the lead respondent's first wife was meritorious in fact rests on the lead respondent. See 8 C.F.R. § 1240.8(d) (2007). He must show that the marriage was bona fide at its inception. Evidence to establish that the marriage was not entered into for the purpose of evading the immigration laws may take many forms, including, but not limited to, "proof that the beneficiary [of the visa petition] has been listed as the petitioner's spouse on insurance policies, property leases, income tax forms, or bank accounts, and testimony or other evidence regarding courtship, wedding ceremony, shared residence, and experiences." Matter of Laureano, 19 I&N Dec. 1, 3 (BIA 1983); see also Matter of Phillis, 15 I&N Dec. 385 (BIA 1975).

In the instant case, the district director denied the visa petition filed by the lead respondent's first wife. The denial of the visa petition, although significant, is not determinative of whether the visa petition was meritorious in fact. Nevertheless, as stated above, the lead respondent bears the burden of establishing that the marriage was meritorious in fact. We find that he failed to do so.

The Immigration Judge took testimony from the respondents and Karina Gause at the hearing. We approve of this action by the Immigration Judge and find the taking of such testimony to be helpful in our decision making. According to this testimony and the documents submitted, the following evidence was presented. The lead respondent had a relationship in Ecuador with Karina Gause, who gave birth to their son in April 1993. The lead respondent entered the United States without inspection in November 1992, and Karina Gause entered shortly after the birth in 1993, but without the child. The lead respondent and Karina Gause both settled in East Haven, Connecticut. The child respondent entered the United States with false documents in 1998. In 1997, Karina...