MATTER OF PHILLIS In Visa Petition Proceedings A-19320726 Decided by Board July 7, 1975 The United States citizen petitioner seeks to accord immediate relative status under section 201(b) of the Immigration and Nationality Act, as amended, to the beneficiary as his spouse. In view of evidence of record reflecting that the parties have never lived together in a husband and wife relationship; that petitioner has never listed beneficiary as his wife on any document nor contributed to her support; that there are contradictions in petitioner's statement regarding the living arrangements of the parties, as well as inconsistencies between the statements of petitioner and beneficiary with reference to their living arrangements and the date petitioner learned of beneficiary's immigration status; and the fact that at the time of the interview with beneficiary she was in the process of filing a divorce, it may reasonably be inferred that the parties entered into the marriage for the purpose of obtaining immigration benefits, and the evidence submitted by petitioner, principally in the form of testimony denying fraud, is insufficient to overcome the inference of fraud. Accordingly, the visa petition is denied for failure of petitioner to sustain his burden of submitting evidence to establish that this was a valid marriage from its inception. ON BEHALF OF PETITIONER: John L. Desmond, Esquire 123 Mohawk Avenue The United States citizen petitioner applied for immediate relative status for the beneficiary as his spouse under section 201(b) of the Immigration and Nationality Act. In a decision dated January 27, 1975, the district director denied the petition. The petitioner has appealed from that decision. The appeal will be dismissed. On the application submitted September 12, 1974, and in an interview conducted by the Immigration and Naturalization Service on November 13, 1974, the petitioner stated that he and the beneficiary had resided together since their marriage on May 17, 1974. However, in another interview conducted on January 15, 1975, the petitioner admitted that he and the beneficiary had never resided together. The petitioner then stated that his fear of telling his parents of his marriage was the reason for their separate living arrangements, and counsel again offers this explanation on appeal. Counsel also claims on the notice of appeal that the petitioner lived with the beneficiary "for a substantial period of time," but he concedes that the petitioner "did not stay overnight" with the beneficiary. In the January 15, 1975 interview, the petitioner also related that he had never listed the beneficiary as his wife on any document nor had he contributed toward her support. He admitted that the beneficiary had instituted a divorce action which she later terminated. In that same interview, the petitioner denied that he was offered payment for marrying the beneficiary, and he further denied that he married her in order to assist her to obtain an immigrant visa. He also stated that he had no knowledge of the beneficiary's immigration status until after the marriage. He claimed that he intended to enter into a "valid" marriage with the beneficiary and testified that the marriage was consummated. On appeal, counsel declares that, although the petitioner is separated from the beneficiary, they continue to see each other, and there exists a "reasonable possibility" that they will live together as husband and wife in the future. The record also contains the testimony of the beneficiary which was given in an interview with an Immigration Examiner on November 13, 1974. She asserted that she and the petitioner had lived together as husband and wife since the day of their marriage. She further claimed that she had advised the petitioner of her immigration status prior to their marriage. According to the petitioner's testimony, the date of this interview fell within the period during which the beneficiary was seeking a divorce. An alien spouse of a United States citizen can acquire lawful permanent resident status without regard to numerical limitations under section 201(b) of the Act. This provision was included in the Act in order to prevent the separation of families and preserve the family unit. H. Rept. No. 1365, 82nd Cong., 2d Sess. 1680 (1952). Although a marriage may be given legal effect in the United States or abroad, we are not required to recognize it for the purpose of conferring immigration benefits where the marriage was entered into for the purpose of evading the immigration laws. Matter of M, 8 I. & N. Dec. 217 (BIA 1958). See Lutwak v. United States, 344 U.S. 604 (1953); Johl v. United States, 370 F.2d 174 (1966). The burden is on the petitioner to establish eligibility for the benefits sought. Matter of Brantigan, 11 I. & N. Dec. 493 (BIA 1966). The petitioner, therefore, must present evidence to support the existence of the marriage, i.e., the marriage certificate and proof of termination of any prior marriages. 8 CFR 204.2(c)(2). Further, where there is reason to doubt the validity of the marital relationship, he must present evidence to show that it was not entered into the primary purpose of evading the immigration laws. That evidence could take many forms, including, but not limited to, proof that the beneficiary has been listed as the petitioner's spouse on any insurance policies, property leases, income tax forms, or bank accounts; and testimony or other evidence regarding courtship, wedding ceremony, shared residence and experiences. The conduct of the parties after marriage is relevant to their intent at the time of marriage. Lutwak v. United States, supra. Where the parties have never lived together, the amount of evidence required to establish that the marriage was not entered into for the fraudulent purpose of evading the immigration laws may be considerable. The record in the present case contains evidence from which it may reasonably be inferred that the parties entered into the marriage for the purpose of obtaining immigration benefits. The following evidence is particularly significant: the contradictions in the petitioner's statement regarding the living arrangements of the parties; the inconsistencies between the statements of the petitioner and the beneficiary, specifically, those made with reference to their living arrangements and the date the petitioner learned of the beneficiary's immigration status; the fact that the interview with the beneficiary was conducted at a time when the beneficiary was in the process of filing a divorce. We find that the parties have never lived together in a husband and wife relationship. The evidence submitted by the petitioner, principally in the form of his testimony denying fraud, is insufficient to overcome the inference of fraud. We accordingly find that the petitioner has not sustained his burden under Matter of Brantigan, supra. We note that the record supports the district director's statement that the petitioner "never lived with the beneficiary as husband and wife" and "failed to establish any clear intent to live with the beneficiary as man and wife." However, the district director does not indicate the proper basis for the denial in his decision. The evidence in the record leads us to conclude that the marriage was fraudulently entered into in order to confer immigration benefits upon the beneficiary. The petition will be denied because the petitioner failed to submit sufficient evidence to establish that this was a valid marriage from its inception. This decision is without prejudice to submission of a new visa petition. However, it should be supported by evidence which establishes the existence of a valid marriage, recognizable under the immigration laws. The appeal will be dismissed. ORDER: The appeal is dismissed. MATTER OF VERGARA In Deportation Proceedings A-20527143 Decided by Board July 15, 1975 The immigration judge's refusal to issue a subpoena requiring respondent's father to testify in conjunction with a claim to United States citizenship which she began to explore during the course of deportation proceedings, did not result in a denial of due process since the whereabouts of the father was unknown and there was considerable uncertainty as to obtaining his testimony at all, and the issuance of the subpoena would require a further substantial delay in the proceedings which was unjustified in view of respondent's failure to obtain necessary evidence during an earlier adjournment of three and one-half months. Further, there has been no showing that the testimony of the respondent's father was "essential" within the meaning of 8 CFR 287.4(a)(2), because respondent had failed in other respects to present a substantial claim to derivative citizenship. CHARGE: Order: Act of 1952-Section 241(a)(1) [8 U.S.C. 1251(a)(1)]-Excludable at entry under section 212(a)(20)—immigrant without visa. ON BEHALF OF RESPONDENT: Williard Hastings, Jr., Esquire 906 Garden Street Santa Barbara, California 93101 In a decision dated December 3, 1973, the immigration judge found the respondent deportable, but granted her the privilege of voluntary departure. The respondent has appealed from that decision. The appeal will be dismissed. The respondent is a native of Mexico who entered the United States in May of 1973. The Service has alleged that she is deportable under section 241(a)(1) of the Immigration and Nationality Act as an alien who was excludable at entry under section 212(a)(20). The respondent contests deportability. The respondent contends that she was denied due process at her hearing because the immigration judge refused to issue a subpoena requiring the respondent's father to testify. The respondent sought the testimony of her father in conjunction with a claim to United States citizenship which she evidently began to explore during the course of these proceedings. Our review of the record, however, convinces us that the immigration judge properly refused to issue the subpoena. The hearing in the respondent's case was commenced on August 13, 1973. The respondent was then represented by a person described in the transcript as a "friend" (Tr. p. 1). At that hearing, the respondent admitted that she was not a citizen or national of the United States, and that she was a native and citizen of Mexico (Tr. pp. 1-2). However, during the Service's cross-examination of the respondent on her application for voluntary departure, the respondent indicated that her father had been born in the United States (Tr. p. 6). The immigration judge then began questioning the respondent with regard to the possibility that the respondent might have derived United States citizenship through her father. According to the respondent, her father had lived in the United States as a child, and had returned to the United States for at least two years prior to the respondent's birth in 1955 (Tr. pp. 7-8; 8-9). Any possible claim to derivative citizenship which the respondent may have would appear to be based on section 301(a)(7) of the Act. One of the requirements of section 301(a)(7) is that the parent, through whom citizenship is derived, have been physically present in the United States for a total period of at least ten years prior to the birth of the child, and that five of those years were after the parent reached the age of fourteen. The respondent did not have precise information regarding her father's periods of residence in the United States, and her own testimony failed to set forth the essential elements of a claim to derivative citizenship. The immigration judge, however, granted an adjournment in order to permit the respondent the opportunity to gather evidence in support of her claim. The hearing was resumed approximately three and one half months later on December 3, 1973. At that time the respondent presented only a birth certificate evidently relating to her father in support of her claim to derivative citizenship. She did not produce any documentary evidence relating either to her own birth or to her parents' marriage. However, counsel, who apparently entered the case during the adjournment, requested that a subpoena be issued directing the respondent's father to testify. It appears that the respondent's father is a migrant worker who makes a permanent home in Mexico, but who works a substantial part of the year at various locations in the United States. The respondent had been unable to ascertain the whereabouts of her father, but she suspected that he would be working certain fields in California within approximately four months of the December 1973 hearing. The immigration judge refused to issue the subpoena on the grounds that it was not sufficiently shown that the respondent's father could be |