A-10269543
Decided by Board September 11, 1957
Discretionary relief — Preexamination — Burden of proof — Presumption of validity of second marriage insufficient to establish eligibility for preexamination when evidence of termination of prior marriage is unsatisfactory.
(1) The respondent has the burden of proving his eligibility for discretionary relief. The burden never shifts to the Government.
(2) Where evidence of dissolution of respondent's first marriage is unsatisfactory, the presumption of validity attaching to his subsequent ceremonial marriage to a U.S. citizen is insufficient by itself to sustain respondent's burden of proving a valid marriage as the basis of his claim to eligibility for preexamination.
CHARGE:
Order To Show Cause: Act of 1952 — Section 241 (a) (2) ( 8 U.S.C. 1251 (a) (2)) — Nonimmigrant, remained longer than authorized.
BEFORE THE BOARD
Discussion: The case comes before us on motion of counsel requesting reconsideration of our decision dated June 20, 1957, in which we dismissed the appeal from the order of the special inquiry officer on February 19, 1957, granting voluntary departure but denying preexamination.
The record relates to a native and citizen of China, 50 years old, male, who last entered the United States at the port of New Orleans, Louisiana, on April 26, 1953, as a seaman and was admitted for a period not to exceed 29 days. Deportability on the charge stated in the order to show cause is not contested.
In order to qualify for preexamination under 8 CFR 235a.1, the respondent must establish, among other things, that he will be able to obtain the prompt issuance of an immigrant visa which, in turn, depends upon the nonquota status resulting as a consequence of his marriage to a United States citizen on November 19, 1956, at New York. However, the validity of that marriage has been brought into question because of the existence of a prior marriage in China and the type of evidence which the respondent has produced in his efforts to establish that the previous marriage was terminated.
The circumstances surrounding the alleged termination of the prior marriage and the present marriage entered into one week prior to the respondent's scheduled departure from the United States have been fully set forth in our prior order. Counsel's contention now, as before, is that the presumption of the validity of the respondent's marriage is stronger and overcomes the presumption of the continuance of the first marriage and should be regarded as valid. We have no doubt that the rule of the presumption of the validity of a ceremonial marriage is recognized in the State of New York and constitutes the law in that jurisdiction. However, the respondent is seeking the privilege of preexamination and the burden is upon him to show his eligibility therefor.
The facts in this case are almost identical with those present in Petition of Sam Hoo, 63 F. Supp. 439 (N.D. Calif., 1945), cited in our prior decision. In that case the petitioner rested on the presumption of validity accorded by California law to his marriage to an American citizen, producing evidence as to the alleged termination of a prior marriage in China which the court regarded as unsatisfactory. The court, while acknowledging the presumptions indulged in and recognized by California courts, observed that the burden upon the petitioner when he seeks American citizenship is different and that the presumptions of California law must give way to the burden of proof required of an applicant for United States citizenship. The court pointed out that the burden of proof never shifts from the petitioner for citizenship to the Government, found that there was no satisfactory evidence of the dissolution of the prior marriage and held 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 his claim to eligibility for citizenship.
We regard that case as dispositive of the issue in this case wherein the same burden of proof is upon the petitioner to establish his eligibility for preexamination and we regard the evidence as to the dissolution of the prior marriage as unsatisfactory. The motion to reconsider offers no further evidence to establish the termination of the prior marriage and will be denied.
Order: It is ordered that the motion be and the same is hereby denied.