BRANTIGAN

Interim Decision #1553

Warta OF BRANTIGAN

In Visa Petition Proceedings
A-14680158
Decided by Board February 8, 1966
ru vigil 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 sus-
tain 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 re-
open 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 28, 1065 at San Francisco,
In our decision of October 28; 1965 we relied upon the Petition
of Sam Boo, 63 F. Supp. 439 (N.D. Cal. S.D., 1945), where the pe-
titioner 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 citi-
zenship never shifts, found there - was no satisfactory evidence of the
dissolution of the prior rharriag,e, and that the presumption of valid-
ity 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 dis-
solution of a prior marriage was unsatisfactory evidence of the ter-
mination of the prior marriage. We noted that in the event the
petitioner instituted an action (of which the Service would be no-
493
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tified) 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 Am-
erican wife and that she did not 'die until -the year after such mar-
riage took place. .
'While the facts of the cited case are as recited by counsel, the hold-
ing of the court appears to go further. The court stated that it may
well be the validity M petitioner's California. marriage, if attacked
by an interested party, would be sustained under California law be-
cause of the presumptions indulged in and recognized by the Cal-
ifornia courts. These presumptions clearly find their rationale in
the laudable desire to sustain, in the public interest and well being,
the stability of the marriage status in matters relating to legitimacy,
inheritance, and other relationships growing out of and dependent
upon the marital status_ But the burden upon petitioner, when he
seeks American citizenship, is different. The presumptions of Cal-
ifornia law must give way to the burden of proof required of an
applicant for United States citizenship. The court held that the evi-
dence as to the validity of petitioner's California marriage was 'not
satisfactory; that citizenship is not to be bestowed upon an applicant
by stowing that he has indulged in a ceremony of marriage with an
American citizen spouse which would leave the door open to fraud
if an applicant could rest his case upon a ceremony of marriage in a
so-called presumption of validity under California law. The burden
of proof never shifts from a petitioner for citizenship to the Gov-
ernment and the petitioner must by satisfactory evidence establish
the validity of his marriage before he may acquire the valued gift of
citizenship. The court overruled a recommendation by the Naturali-
zation. Service that the petition be granted and instead denied the
petition.
In Petition of Lujan, 114 F. Supp. 150 (D.C. Guam, 1956), the
petitioner, a citizen and resident of the Philippines, obtained a Mex-
ican mail-order divorce from her first husband in 1941 and married
her United States citizen husband in 1951. The court held the mail
•order Mexican divorce was invalid but the petitioner contended that
the court should follow the California law to the effect that the le-
gality a. regularly solemnized marriage is presumed and that the
494.
 Interim Decision #1553

burden of proof is upon him who seeks to attack such marriage, even
though such burden might involve the proof of a negative, citing
sections, 61 of the California Civil Code and the Guam Civil Code.
The court relied upon the holding of Petition of Sara Hoo, supra,
and stated that the court was making no attempt to pass upon the
validity of the-petitioner's marriage if the question were raised in a
different type of proceeding; however, the court held simply that the
petitioner had failed to sustain her burden of proof that she was the
wife of a United States citizen. 1
In visa petition proceedings, the burden of proof to establish el-
igibility sought for the benefit conferred by the immigration laws
rests upon the petitioner. Both the prior and present regulations 2
require that if a petition is submitted on behalf of a spouse, it must
be accompanied by a certificate of the marriage to the beneficiary
and proof of the legal termination of all previous marriages of both
spouses.
However, we note that the motion encloses an affidavit by petition-
er's daughter, now in the United States, regarding the absence of
her mother. In order to give the petitioner every opportunity to
establish the. validity of his present marriage, we. will reopen the
proceedings to permit the daughter to be questioned under oath by
a Service officer regarding the absence of her mother; and to as-
certain what efforts were made by the petitioner to communicate with
his first wife. A written memorandum should accompany the de-
cision.
ORDER: It is ordered that the proceedings be reopened in ac-
cordance with the preceding paragraph and to afford the petitioner
every opportunity to establish the validity of his present marriage.

2See also Matter of T—S—Y—, 7 I. & N. Dec. 582.
"8 CFR 205.5(b) and 8 CFR 204.2(d) (2).

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