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Victor Hugo Alvarado Cortez, A070 781 971 (BIA Mar. 10, 2014)

Victor Hugo Alvarado Cortez, A070 781 971 (BIA Mar. 10, 2014)

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In this unpublished decision, the Board of Immigration Appeals (BIA) vacated the denial of a Form I-130 filed by the petitioner and remanded to permit the submission of additional evidence demonstrating her relationship with her step-father. The Board noted that the “case law does not require proof of active parenting and continuing financial support by a step-parent in order to find a child eligible for a visa petition.” The decision was written by Member Teresa Donovan and joined by Member Sharon Hoffman and Vice Chairman Charles Adkins-Blanch.
In this unpublished decision, the Board of Immigration Appeals (BIA) vacated the denial of a Form I-130 filed by the petitioner and remanded to permit the submission of additional evidence demonstrating her relationship with her step-father. The Board noted that the “case law does not require proof of active parenting and continuing financial support by a step-parent in order to find a child eligible for a visa petition.” The decision was written by Member Teresa Donovan and joined by Member Sharon Hoffman and Vice Chairman Charles Adkins-Blanch.

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Published by: Immigrant & Refugee Appellate Center, LLC on Mar 18, 2014
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10/07/2014

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U.S.

Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office of the Clerk
5107 Leesburg Pike, Suite 2000 Falls Church, Virginia 20530

Andrew Knapp, Esquire Immigrant Access to Justice Assistance 1301W.2nd St. #100 Los Angeles, CA 90026

DHS/CIS- California Serv.Ctr./CSC 24000 Avila Rd., Div. Vll/CRU Laguna Niguel, CA 92677

Immigrant & Refugee Appellate Center | www.irac.net

Name: ALVARADO CORTEZ, VICTOR H ...

A 070-781-971

Date of this notice: 3/10/2014

Enclosed is a copy of the Board's decision and order in the above-referenced case. Sincerely,

Don.ttL ctVlAJ
Donna Carr Chief Clerk

Enclosure Panel Members: Donovan, Teresa L. Hoffman, Sharon Adkins-Blanch, Charles K.

IUCHd Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Victor Hugo Alvarado Cortez, A070 781 971 (BIA Mar. 10, 2014)

U.S. Department of Justice
Executive Office for Immigration Review Falls

Decision of the Board of Immigration Appeals

20530

File:

A070 781 971 - California Service Center

Date:

M.L\R 1 0 2014

In re: VICTOR HUGO ALVARADO CORTEZ, CLAUDIA YVETTE TAMAYO, Petitioner

Beneficiary of a visa petition filed by

Immigrant & Refugee Appellate Center | www.irac.net

IN VISA PETITION PROCEEDINGS APPEAL ON BEHALF OF PETITIONER: ON BEHALF OF DHS: Andrew Knapp, Esquire

Brenda Leanhart Associate Counsel

APPLICATION:

Petition to classify status of alien relative for issuance of immigrant visa

In a decision dated March 12, 2013, the Department of Homeland Security's ("DHS") California Service Center's Acting Director ("Director") denied the petitioner's visa petition filed on behalf of the beneficiary, her step-father. The record of proceedings will be remanded. Prior to denying the visa petition, the Director issued a Request for Information because, although the petitioner submitted extensive evidence to support the validity of the relationship between herself and her step-father, most of the evidence related to their relationship prior to December 6, 2009, when her mother and step-father divorced. Therefore, in order to establish that the relationship continued, the Director requested additional information including evidence to show that the petitioner's step-father supported her financially, such
as

money order receipts,

canceled checks, tax returns, or medical/insurance records, as well as school records for the petitioner, correspondence between the petitioner and her step-father, and affidavits from friends, family, and other knowledgeable parties. In response, the petitioner submitted evidence, including a statement, photographs, affidavits, greeting cards, and other documents, but the Director found the evidence insufficient to meet the petitioner's burden of proof. Specifically, the Director noted that, while there was extensive evidence of a step-father/child relationship while the beneficiary was married to the petitioner's mother, the only evidence demonstrating a continuing relationship after the 2009 divorce was photos and a 2012 Dodgers game ticket. On appeal, the petitioner cites an unpublished Board case for the proposition that where the relationship at issue involves
an

adult child, evidence would generally come in the form of cards,

letters, family photos, and evidence of visits; she asserts that she provided just this type of evidence. Furthermore she argues that the DHS's policy in adult child/parent cases results in few cases being granted because the "child" will no longer reside with the parent making evidence more difficult to obtain. As noted by the petitioner on appeal, her burden of proof in visa petition proceedings requires that she establish the relationship with her step-father by a preponderance of the

Cite as: Victor Hugo Alvarado Cortez, A070 781 971 (BIA Mar. 10, 2014)

A070 781 971

evidence. Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966). A preponderance of the evidence is less stringent than other standards used, e.g., "beyond a reasonable doubt," or "clear, convincing, unequivocal, and convincing evidence," but it does require that what the petitioner seeks to establish is "probably true." Matter of E-M-, 20 I&N Dec. 77, 79-80 (BIA 1989) Matter of (discussing the preponderance of the evidence standard by comparing it to other standards). The evidence should show that the fact to be proven is more probable than not. Lemhammad, 20 I&N Dec. 316, 320 n.5 (BIA 1991). While the petitioner is correct that case law does not require proof of active parenting and continuing financial support by a step-parent in order to find a child eligible for a visa petition (Petitioner's Br. at 2 (citing Palmer
v.

Immigrant & Refugee Appellate Center | www.irac.net

Reddy,

622 F .2d 463 (9th Cir. 1980); Matter of Vizcaino, 19 I&N Dec. 644, 648 (BIA 1988))), here the evidence must show that the parent-child relationship more probably than not continued since the parents' relationship was terminated, see Matter ofMowrer, 17 I&N Dec. 613, 615 (BIA 1981). As pointed out by the Director, most of the evidence submitted by the petitioner in support of the visa petition documents her relationship with the beneficiary prior to the beneficiary's divorce from the petitioner's mother. There was evidence that the parties attended a Dodgers game together in 2012 and that the beneficiary attended the petitioner's graduation from college. The Director noted that most of the affidavits submitted by the petitioner document the time that the petitioner and beneficiary resided together prior to the petitioner's parents' divorce. Furthermore, the affidavits are all very vague with no specific information about how often the petitioner and beneficiary currently see each other, what activities they undertake together, and how they maintain a close relationship since the divorce. Nevertheless, we find that a remand is warranted in order to allow the petitioner to submit additional evidence to show a continuing relationship with her step-father following her parents' divorce. The petitioner and beneficiary clearly had a relationship, and the respondent provided evidence which specifically responded to the Director's Request for Information. The Director's denial focuses on a lack of evidence which was not specifically addressed in the Request for Information, such as telephone records, greeting cards, and correspondence. Therefore, it is not clear that the petitioner was given an adequate opportunity to respond to the Director's reasons for denying the visa petition. We will remand in order to give the petitioner an opportunity to respond to the Director's finding that certain additional evidence, beyond that listed in the formal Request for Evidence, should have been provided. See 8 C.F.R. § 103.2(b)(16)(i) (2013); Matter of Cuello, 20 I&N Dec. 94, 96-98 (BIA 1989); Matter of Obaigbena, 19 I&N Dec. 533, 537 (BIA 1988). ORDER: The record of proceedings is remanded for further proceedings consistent with this order and for a new decision assessing the evidence in support of the petitioner's visa petition.

FOR THE BOARD

2

Cite as: Victor Hugo Alvarado Cortez, A070 781 971 (BIA Mar. 10, 2014)

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