Matter of Brantigan

• Decision Date: 08 February 1966
• Docket Number: Interim Decision Number 1553,A-14680158
• Citation: 11 I&N Dec. 493
• Parties: MATTER OF BRANTIGAN In Visa Petition Proceedings
• Court: U.S. DOJ Board of Immigration Appeals

11 I&N Dec. 493

MATTER OF BRANTIGAN

In Visa Petition Proceedings

Interim Decision Number 1553

A-14680158

Board of Immigration Appeals.

Decided by Board February 8, 1966.

In visa petition proceedings the burden of proof to establish eligibility for the benefit sought rests with the petitioner, and in the absence of proof of the legal termination of a U.S. citizen petitioner's prior marriage, reliance on the presumption of validity accorded by California law to his subsequent ceremonial marriage in that State to beneficiary is not satisfactory evidence of the termination of his prior marriage and is insufficient by itself to sustain petitioner's burden of proof of a valid marriage on which to accord beneficiary nonquota status.

The case comes forward on motion of counsel that the Board reopen the proceedings and reconsider its decision rendered on October 28, 1965.

The record relates to a native of the Philippines, a naturalized citizen of the United States, who seeks nonquota status on behalf of the beneficiary, a native and citizen of the Philippines. The parties were married on February 23, 1965 at San Francisco, California.

In our decision of October 28, 1965 we relied upon the Petition of Sam Hoo, 63 F. Supp. 439 (N.D. Cal. S.D., 1945), where the petitioner rested on a presumption of validity accorded by California law to his marriage to an American citizen, and the court held that the burden of proof required of an applicant for United States citizenship never shifts, found there was no satisfactory evidence of the dissolution of the prior marriage, and that the presumption of validity was not a sufficient basis upon which to sustain the burden of proving a valid marriage as the basis of a claim to eligibility for citizenship. We held the reliance upon presumption as to the dissolution of a prior marriage was unsatisfactory evidence of the termination of the prior marriage. We noted that in the event the petitioner instituted an action (of which the Service would be notified) and secured a declaratory judgment affirming the validity of his marriage, a motion to reopen would be entertained.

In the present motion counsel indivates that a declaratory judgment in the California courts as to the validity of the marriage cannot be obtained and seeks to differentiate Petition of Sam Hoo on the ground that the petitioner in that case knew his second wife to be alive within the five-year period antedating his California marriage, that he had no reason to believe her dead when he married his American wife and that she did not die until the year after such marriage took place.

While the facts of the cited case are as recited by counsel, the holding of the court appears to go further. The court stated that it may well be the validity of petitioner's California marriage, if attacked by an interested party, would be sustained under California law because of the presumptions indulged in and recognized by the California courts. These presumptions clearly find their rationale in the laudable desire to sustain, in the public interest and...