U.S. Citizenship and Immigration Services

MATTER OF R-L-D-

APPEAL OF VERMONT SERVICE CENTER DECISION

Non-Precedent Decision of the Administrative Appeals Office

DATE: OCT. 5, 2015

PETITION: FORM I-360, PETITION FOR AMERASIAN, WIDOW(ER), OR SPECIAL IMMIGRANT

The Petitioner seeks immigrant classification as an abused spouse of a U.S. citizen. See Immigration and Nationality Act (the Act) § 204(a)(l)(A)(iii), 8 U.S.C. § 1154(a)(1)(A)(iii). The Director, Vermont Service Center, revoked the petition and upheld that decision on a subsequent motion. The matter is now before us on appeal. The appeal will be dismissed.

I. APPLICABLE LAW

Section 205 of the Act, 8 U.S.C. § 1155, states the following:

The Secretary of Homeland Security may, at any time, for what he deems to be good and sufficient cause, revoke the approval of any petition approved by him under section 204. Such revocation shall be effective as of the date of approval of any such petition.

The regulation at 8 C.F.R. § 205.2(a) states, in pertinent part, the following:

Any Service officer authorized to approve a petition under section 204 of the Act may revoke the approval of that petition upon notice to the petitioner on any ground other than those specified in § 205.1 [for automatic revocation] when the necessity for the revocation comes to the attention of [U.S. Citizenship and Immigration Services (USCIS)].

Section 204( a)(l )(A)(iii)(I) of the Act provides that an alien who is the spouse of a United States citizen may self-petition for immigrant classification if the alien demonstrates that he or she entered into the marriage with the United States citizen spouse in good faith and that during the marriage, the alien was battered or subjected to extreme cruelty perpetrated by the alien's spouse. In addition, the alien must show that he or she is eligible to be classified as an immediate relative under section 201(b)(2)(A)(i) of the Act, resided with the abusive spouse, and is a person of good moral character. Section 204(a)(l)(A)(iii)(II) ofthe Act, 8 U.S.C. § 1154(a)(l)(A)(iii)(II).

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Section 204( a)(l )(J) of the Act states, in pertinent part:

In acting on petitions filed under clause (iii) or (iv) of subparagraph (A) or clause (ii) or (iii) of subparagraph (B), or in making determinations under subparagraphs (C) and (D), the [Secretary of Homeland Security] shall consider any credible evidence relevant to the petition. The determination of what evidence is credible and the weight to be given that evidence shall be within the sole discretion of the [Secretary of Homeland Security].

The eligibility requirements for abused spouses are further explicated in the regulation at 8 C.F.R § 204.2( c )(1 ), which states, in pertinent part:

(v) Residence. . . . The self-petitioner is not required to be living with the abuser when the petition is filed, but he or she must have resided with the abuser ... in the past.

(vi) Battery or extreme cruelty. For the purpose of this chapter, the phrase "was battered by or was the subject of extreme cruelty" includes, but is not limited to, being the victim of any act or threatened act of violence, including any forceful detention, which results or threatens to result in physical or mental injury. Psychological or sexual abuse or exploitation, including rape, molestation, incest (if the victim is a minor), or forced prostitution shall be considered acts of violence. Other abusive actions may also be acts of violence under certain circumstances, including acts that, in and of themselves, may not initially appear violent but that are a part of an overall pattern of violence. The qualifying abuse must have been committed by the citizen ... spouse, must have been perpetrated against the self-petitioner ... and must have taken place during the self-petitioner's marriage to the abuser.

The evidentiary guidelines for a self-petition under section 204(a)(l)(A)(iii) of the Act are further explicated in the regulation at 8 C.F.R. § 204.2(c)(2), which states, in pertinent part:

Evidence for a spousal self-petition-

(i) General. Self-petitioners are encouraged to submit primary evidence whenever possible. The Service will consider, however, any credible evidence relevant to the petition. The determination of what evidence is credible and the weight to be given that evidence shall be within the sole discretion of the Service.

(ii) Relationship. A self-petition filed by a spouse must be accompanied by evidence of citizenship ofthe United States citizen .... It must also be accompanied by evidence of the relationship. Primary evidence of a marital relationship is a marriage certificate issued by civil authorities, and proof of the termination of all prior marriages, if any, of ... the self-petitioner ....

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(iii) Residence. One or more documents may be submitted showing that the self­petitioner and the abuser have resided together . . . . Employment records, utility receipts, school records, hospital or medical records, birth certificates of children ... , deeds, mortgages, rental records, insurance policies, affidavits or any other type of relevant credible evidence of residency may be submitted.

(iv) Abuse. Evidence of abuse may include, but is not limited to, reports and affidavits from police, judges and other court officials, medical personnel, school officials, clergy, social workers, and other social service agency personnel. Persons who have obtained an order of protection against the abuser or have taken other legal steps to end the abuse are strongly encouraged to submit copies of the relating legal documents. Evidence that the abuse victim sought safe-haven in a battered women's shelter or similar refuge may be relevant, as may a combination of documents such as a photograph of the visibly injured self-petitioner supported by affidavits. Other forms of credible relevant evidence will also be considered. Documentary proof of non-qualifying abuses may only be used to establish a pattern of abuse and violence and to support a claim that qualifying abuse also occurred.

II. FACTS AND PROCEDURAL HISTORY

The Petitioner is a native and citizen of the Philippines. The Petitioner married L-J- 1 in the Philippines on , 1985. The Petitioner married A-D-R-,2 a U.S. citizen, on 2003,3 and again on 2005, in the Philippines. The Petitioner filed the instant Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, on March 23, 2009, and it was approved on September 7, 2010. On June 16, 2014, the Director issued a notice of intent to revoke (NOIR) approval of the Form I-360 because the Petitioner's marriage to L-J- was not legally tetminated in the Philippines and, therefore, his marriage to A-D-R-, upon which his petition was based, was not valid. The Director requested evidence that the Petitioner's prior marriage to L-J- was legally terminated prior to his marriage to A-D-R-. The Petitioner submitted additional evidence which the Director did not find sufficiently persuasive, and she revoked approval of the petition. The Petitioner then filed a motion to reconsider which the Director considered but ultimately concluded that the grounds for revocation had not been overcome. The Director affirmed the previous decision to revoke the Form I-360 approval. The petitioner submitted a timely appeal.

On appeal, the Petitioner asserts that his first maniage to L-J- was annulled, and therefore he has established his qualifying relationship with A-D-R-. In support of the appeal, the Petitioner submits a previously submitted marriage contract for his marriage to L-J-, a certification letter that indicated that his marriage to L-J- was annulled, and a case from the Supreme Court of the Philippines in

1 Name withheld to protect individual ' s identity. 2 Name withheld to protect individual's identity. 3 The record contains a Decree of Declaration of Nullity of Marriage indicating that this declared "null and void."

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2003 marriage was

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which it was held that certifications from the National Statistics Office (NSO) of the Philippines carry a presumption of regularity.

We review these proceedings de novo. A full review of the record does not establish the Petitioner's eligibility. The Petitioner' s statements and evidence on appeal do not overcome the Director's determinations and the appeal will be dismissed for the following reasons.

III. ANALYSIS

A. Qualifying Relationship

The regulation at 8 C.F.R. § 204.2(c)(2)(ii) provides that evidence for immigrant classification pursuant to section 204(a)(l)(A)(iii) of the Act requires that the Petitioner submit evidence of the marital relationship, including proof that any prior marriage of the Petitioner has been legally terminated. The Petitioner initially submitted letters indicating that he filed a declaration for nullification of his marriage to L-J- on 2005, and a 2005 decision by the

Philippines, Court that indicated that his marriage to L-J- was declared null and void. The Petitioner submitted additional documents with notations that his marriage to L-J- was null and void based upon the 2005 decision. However, the Director's NOIR notified the Petitioner that a USCIS investigation of documents on file with the Philippines, Court did not locate the

2005 court decision that the Petitioner submitted as evidence that his marriage was annulled. Instead, the investigation documented a Motion to Archive Case, filed by the Petitioner through his counsel in the Philippines on April 27, 2005, requesting that the case be archived because the Petitioner would be abroad and unable to pursue his petition. The Petitioner's motion was granted on May 13, 2005. This evidence provided the Director with good and sufficient cause to revoke approval of the instant petition.

On appeal, the Petitioner submits previously submitted copies of his marriage contract and a letter from the Office of the City Civil Registrar of the City of Philippines, dated 2014, both of which contain the notation that the Petitioner's marriage to L-J- is declared null and void.4

However, the Petitioner does not address or explain the evidence acquired through the USCIS investigation indicating that the 2005 decision could not be found in the court records and which showed that the Petitioner filed for and was granted a motion to archive his case. Although the Petitioner conectly asserts that the certified notation on his marriage contract canies a presumption of regularity, that presumption is overcome when, as in this case, there is evidence showing an irregularity or inconsistency. The findings of the USCIS investigation that the Petitioner's declaration for nullification was archived, directly contradict the petitioner's assertion that the annulment was granted. The Petitioner has offered no explanation for this inconsistency or why he sought to archive a case if he believed his request for nullification had already been granted. Further, the Petitioner has not addressed the finding that the court docket did not contain any

4 The notation on the marriage contract refers to the date of order of the judge as casts further doubt on the veracity of the Petitioner' s documentation.

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2005. This discrepancy

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evidence of the 2005 decision. Accordingly, the Petitioner has not established, by a preponderance of the evidence, that his marriage to L-J- was terminated prior to his marriage to A-D-R-. He, he has therefore, not shown that he had a qualifying spousal relationship with A-D-R-, as required by section 204(a)(l)(A)(iii)(II)(aa)(AA) ofthe Act.

B. Joint Residence

Beyond the Director's decision,5 the Petitioner has not demonstrated that he resided with A-D-R­after their marriage. On the Form I-360, the Petitioner claimed that he lived with A-D-R- in the Philippines for one month during January 2002. In his initial affidavit, dated March 11, 2009, the Petitioner did not indicate that he and A-D-R- ever lived together. In his second affidavit dated March 27, 2010, in response to a request for evidence, the Petitioner stated that after they were married in

2003, A-D-R- "stayed at [the Petitioner's] house" in the Philippines after the marriage ceremony. There is no discussion ofhow long A-D-R- stayed with him, nor is there any information to suggest she was residing with him as opposed to visiting the Petitioner's residence. The Petitioner also generally stated that after their second wedding in June 2004, "we were living together. .. as a family . .. for a shm1 period of time," but did not further elaborate on their purported residence during this time.

The Petitioner also submitted a letter from in which she indicated that the Petitioner lived in the Philippines while A-D-R- lived in the United States, and that when A-D-R­"visited" the Philippines, she stayed "at [the Petitioner's] house." _ stated that when A-D-R- went to the Philippines to visit the Petitioner she stayed in a hotel. The Petitioner provided no other evidence of joint residence. The record further reflects that after his entry into the U.S. in 2007, the Petitioner and A-D-R- resided at separate residences.

The relevant evidence does not demonstrate that the Petitioner resided with A-D-R- after their marriage. There is no mention in any of the Petitioner's affidavits of the Petitioner and A-D-R­residing together in January 2002, and the Petitioner's indication that A-D-R- lived with him briefly during visits in 2003 and 2004 contradicts his statement on the Form I-360 that they last shared a residence in January 2002. Furthermore, the Petitioner does not describe his and A-D-R-'s shared residence and residential routines in any detail, and the letters from friends do not support that A-D-R­resided with him. The relevant evidence submitted does not demonstrate, by a preponderance of the evidence, that the Petitioner resided with A-D-R-, as required by section 204(a)(l)(A)(iii)(II)(dd) of the Act.

5 An application or petition that fails to comply with the technical requirements of the law may be denied by the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d I 025, I 043 (E. D. Cal. 200 I), ajj'd. 345 F.3d 683 (9th Cir. 2003).

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C. Battery or Extreme Cruelty

Beyond the Director's decision, the Petitioner also did not show that he was subjected to battery or extreme cruelty by A-D-R-. The Petitioner submitted affidavits in which he indicated that A-D-R- told him that she had learned to live without him, initially would not let him see his daughter when he arrived in the U.S. , and that she made him feel worthless. The Petitioner also submitted a psychological evaluation prepared by a licensed psychologist, in which _______ found that the Petitioner was experiencing a Major Depressive Episode because A-D-R- left him and limited his contact with his daughter. makes no mention of battery or extreme cruelty in his report.

A review of the record does not establish that A-D-R- battered the Petitioner or that she subjected him to extreme cruelty. Neither the Petitioner nor described any instances of battery or extreme cruelty, and the Petitioner provided no other evidence to indicate that he was subjected to battery or extreme cruelty. The relevant evidence does not show that A-D-R-'s behavior involved battery or psychological or sexual abuse, or otherwise constituted extreme cruelty, as that term is defined at 8 C.F.R. § 204.2(c)(l)(vi). The Petitioner also did not describe any behavior of A-D-R- or establish that any acts perpetrated against him by A-D-R- were part of an overall pattern of violence. ld. Accordingly, the Petitioner has not established by a preponderance of the evidence that A-D-R­subjected him to battery or extreme cruelty during their marriage, as required by section 204(a)(l)(A)(iii)(I)(bb) of the Act.

IV. CONCLUSION

In these proceedings, the Petitioner bears the burden of proof to establish his eligibility by a preponderance ofthe evidence. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. Accordingly, the appeal will be dismissed and the approval of the petition will remain revoked for the reasons stated above.

ORDER: The appeal is dismissed.

Cite as Matter ofR-L-D-, ID# 13767 (AAO Oct. 5, 2015)