11/12/2012 10:11:15 AM EST
Unpub. BIA Remand: New Delhi Spousal Visa Petition
Marc Ellis writes: "If anyone practices in New Delhi, this may be of interest. I just won a BIA appeal that should affect the way New Delhi denies spousal visas. I've seen this consulate more than once - allege that a Hindu couple's marriage was ceremonially deficient and thus, invalid under the applicable Hindu Law of Marriages. The normal way the consulate does this, is to get the beneficiary to confess that there was no ceremony held with a Hindu priest. The consulate never takes the extra step of actually researching the Hindu law of marriages in India. If it did, it would have known there are no ceremonial requirements mandated by the law. The word "shall" is not used. A priest "may" conduct the appropriate ceremonies. Or presumably...may not. Thus, when a beneficiary confesses no ceremony was held, he or she has actually confessed to nothing. In this case and in others, the beneficiary confessed to (i) no ceremony being held and also confessed (ii) the marriage was invalid under the law of India. Naturally the first confession is irrelevant. And the second confession is a legal conclusion which the beneficiary was unqualified to state. I was surprised when the Service allowed this to go onto the Board in Falls Church without submitting a reply brief. But it did. The result should at least remove that one arrow from the consulate's quiver. I felt really sorry for the couple here. The consulate said they were not married. The government of India said they were. But the government of India refused to inform the consulate unless it was asked. The consulate naturally, refused to ask. And if we'd lost, the government of India would refuse to certify the beneficiary's single status - because she was already married. And the couple might not even be eligible for a K-1 visa. But they wouldn't be eligible for a spousal visa either - because the Board would have ruled they weren't married. Kafka lives in immigration law." - Matter of X-, Nov. 7, 2012.