Interim Decision #1255
MAW= or FRISONE
In DEPORTATION Proceedings
A-8836375
Decided by Board November 19,1960
An alien who has been the beneficiary of a visa petition based on a marriage
found later to have been contracted for the purpose of evading the immigration
laws (section 205(c)) cannot claim the benefit of the waiver provided by
section 241(f) of the Immigration and Nationality Act, as amended.
CHARGE:
Order: Act of 1932—Sections 241(a) (2) and (c) [8 U.S.O. 1251(a) (2) and
(c))—Visa procured by fraud in vioiation of section 212(a) ( 19)
[8 U.S.O. 1182].
Respondent is 35 years of age, married, male, alien, a native and
national of Italy. He first entered the United States in June 1954
as a deserting seaman. He was apprehended by the Immigration
and Naturalization Service in October 1954 and was paroled for one
week to arrange to post a $1,000 bond. He last arrived in the United
States on August 8, 1955 and was admitted for permanent residence
upon presentation of a nonouota immigrant visa. This case has been
before the Board on several occasions. It is necessary to retrace
briefly the proceedings to date. On August 21, 1958, following a
thorough hearing, during which respondent was represented by counsel
of his choice, the special inquiry officer ordered respondent deported
on the charge set forth above. Respondent appealed to this Board,
and his counsel filed a brief in support of the appeal. On October 22,
458 we dismissed the appeal. We found that respondent bad obtained his visa on the basis of his marriage to a United States citizen
at Syracuse, New York on November 13, 1954, and that marriage was
annulled on July 9, 1956. We stated October 22, 1958, p. 3),
"Clearly, the respondent has failed to sustain his burden under the
statute and the Government has established by a preponderance of
the evidence that he entered into his marriage with Frances Buda to
evade the quota requirements of the immigration laws."
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During the proceedings in 1958 there was an indication that
respondent had entered into another marriage with a United States
citizen, but he offered no evidence regarding this marriage during the
deportation proceedings and made no request that the second marriage
be considered in any grant of discretionary relief. Counsel's memorfundiim in support of the appeal to this Board stated that respondent
was married to a legally resident alien. The record indicates that
respondent's present wife is now a naturalized United States citizen
and that two citizen children have been born to this marriage.
There was no action taken in this matter after our order of October
22, 1958 until March 20, 1962 when the Board received a notice of
motion for a reopening, reconsideration and termination of warrant
proceedings filed by present counsel. The Board heard oral argument on the motion, ordered the outstanding order and warrant of
deportation withdrawn and the proceedings reopened. We agreed
that evidence relating to respondent's present marriage and his two
United States citizen children should be made a part of the record,
particularly in light of legislation enacted since the entry of the
outstanding order of deportation which, counsel alleged, made respondent nondeportable. We pointed out that the proceedings also
should be reopened in order to give the Service an. opportunity to
consider or oppose the grant of relief sought by counsel under the
new legislation.
Following the reopened hearing on July 3, 1962, and the filing of
briefs by both counsel for the alien and by the examining officer, the
special inquiry officer denied respondent's application for the waiver
Hume pro tune provided by section 16 of the Act of September 26, 1961,
adding section 241(f) to the Immigration and Nationality Act?. The
special inquiry officer granted him voluntary departure. The special
inquiry officer found that deportation of respondent would result in
serious detriment and hardship to his citizen wife and children, that
the wife is unemployed and that respondent is the sole support of tha
family. The special inquiry officer denied the mono pro taw waiver
under section 241(f) solely on the ground that he found the alien
1 Section 16 of the Act of September 26, 1961 provides :
Sec. 16. Section 241 of the Immigration and Nationality Act (8 U.S.C. 1251)
is hereby amended by adding the following :
(f) The provisions of this section relating to deportation of aliens within
the United States on the ground that they were excludable at the time of entry
as aliens who have sought to procure, or have procured visas or other documentation, or entry into the United States by fraud or misrepresentation shall
not apply to an alien otherwise admissible at the time of entry who is the
spouse, parent, or a child of a tralted States citizen or of an alien lawfully
admitted for permanent residence.
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not to have been "otherwise admissible", as required by that section,
at the time of his last entry on August 8,1955.
At the time of his last entry respondent was the beneficiary of a
visa petition filed by his first wife and previously was accorded nonquota status under section 101 (a) (27) (A). We have again reviewed
the entire record. The special inquiry officer's decision restates at
some length facts which were adjudicated by the special inquiry officer
and this Board in 1958. Counsel argues that this constituted a reopening of the entire record, and justifies his request to cross-examine
the alien's first wife. He seeks, first, to readjudicate the issue of
whether the first marriage was fraudulent upon the part of the alien,
asserting that the marriage broke up after seven or eight months of
genuine effort by the alien to make it a good marriage. Counsel
pleads that the marriage was basically a misalliance, and that the
religious barrier was only one of the obstacles.
There is no claim of new evidence relating to the first marriage
which required the presence of the first wife at the reopened hearing.
The fraudulent nature of the first marriage was established in 1958.
The alien contracted a second marriage which is undoubtedly bona
fide. It was to give him an opportunity to show the facts of the new
marriage, asserted as the basis for relief, that this case was reopened
and returned to the special inquiry officer. The refusal of the special
inquiry officer to subpoena the first wife and to treat the case as a
hearing de novo was not error.
Counsel argues, second, that respondent did not commit a fraud
by entering as the nonquota spouse of a United States citizen, because
for some purposes an annulment does not annul the marriage from
the beginning, but only from the date of the annulment. Counsel
claims that the Domestic Relations Law of New York makes respondent's first marriage void only from the Lime a judgment is rendered
by the court. He quotes section 7 of that statute as follows, "A marriage is void from the time its nullity is declared by a court of competent jurisdiction if either party thereto . . . (4) consents to such
marriage by reason of force, duress or fraud." Counsel admits that
the New York cases generally sustain the idea in spite of the statutory declaration, that a voidable marriage declared void by a court
is void ab imitio. Counsel contends, however, there is a minority view
and cites Barker v. Barker,172 App. Div. 244 (1916) .
The special inquiry officer found respondent was not the lawful
spouse of a United States citizen at time of entry and was not, therefore, a nonquota immigrant. He states (special inquiry officer, August
9,1962, p.11) :
Had all the facts been known by the Government on August 8, 1055, the date
of respondent's entry, he would have been found inadmissible under section 212
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(a) (20) of the Immigration and Nationality Act (8 U.S.C. 1182 (a) (20) ) as an
immigrant who is not in possession of a valid unexpired immigrant visa or other
entry document. The respondent has failed to clearly establish that he was
"otherwise admissible" at the time of entry.. .
The special inquiry officer did not consider or refer to the provisions
of section 205 (c), as amended by section 10 of the Immigration and
Nationality Act of September 26, 1901. 2
The Service representative argued before this Board (1) that respondent was either not a nonquota immigrant or he had no valid visa,
and (2) that even had the annulment not taken place, if the marriage
was in fact a fraudulent marriage, the no valid visa charge would be
sustainable, if the Service had chosen to bring that charge.
On several occasions the Board has had appeals from denials of visa
petitions, and we have said that a visa petition proceeding was not
the correct form in which to litigate the legality of a marriage. In
those cases we have returned the visa petition to the Service for the
purpose of having the validity of the marriages adjudicated in deportation proceedings. This is just such a case, and it comes up now in
a deportation proceeding.
Counsel pleads that the equities of the ease justify waiving the fraud
of the respondent's first marriage, if there was fraud. Counsel admits
that if respondent is required to depart, he is not again eligible for
nonquota status as the spouse of a United States citizen because of the
prohibition of section 10 of the Act of September 26, 1961, amending
section 205(c) of the Immigration and Nationality Act (see footnote 2).
The Board has held routinely in visa petition cases where an alien
has been accorded nonquota status as the spouse of a United States
citizen and approval of the visa petition was later revoked for fraud,
that such a beneficiary could not qualify for nonquota status on the
basis of a subsequent marriage, even though the subsequent marriage
may be bona fide. Matter of 1V—, Int. Dec. No. 1222 (B.1-4.., May 22,
1962) ; Matter of A—, Int. Dec. No. 1223 (B.I.A., June 1, 1962).
Both the Service representative and counsel recognize that Public
Law 87401, September 26, 1961, contains two divergent provisions.
In application these provisions appear to be conflicting. Section 16
(see footnote 1) is an abbreviated but broadened reenactment of section
7 of the Act of September 11, 1957, which was conceived primarily to
' Section 10 of the Act of September 26, 1961, amends section 205(c) of the
Immigration and Nationality Act by adding: "Notwithstanding the provisions
of this subsection, no petition shall be approved if the alien previously has been
accorded, by reason of marriage determined by the Attorney General to have
been entered into for the purpose of evading the immigration laws—(1) a nonquota status under section 101(a) (27) (A) as the spouse of a citizen of the
United States. . ."
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assist refugees and displaced persons who had made misrepresentations to avoid repatriation to certain geographical areas in Europe
following World War II, or for other defensive reasons.
The Board was precluded from granting advance waivers under
section 7 of the Act of September 11, 1957 to aliens within the United
States, as that provision was interpreted by the Attorney General in
Matter of DeF—, 8 I. & N. Dec. 68. Under that statute respondent in
the instant matter would have been precluded from the waiver, because he would have to depart from the United States to obtain it, and
then the prohibition of section 10 of the Act of September 26, 1961
(against granting a visa petition on the basis of his second marriage)
would have come into play. However, the waiver provided by section
16 of the Act of September 20, 1901 dearly gives the authority simply
to terminate proceedings when the waiver is granted.
Section 10 of the Act of September 26, 1961 is an entirely new
provision of law. Referring to section 10, this Board said in Matter
of R—, Int. Dec. No. 1188 :
The legislative history indicates that the amendment was proposed to
strengthen existing law by giving the Attorney General a new legal instrumentality to counteract the increasing number of fradulent acquisitions of nonquota status through sham marriages between aliens and United States citizens.
The legislation was prompted by a recent report of the Attorney General to
Congress about the increasing number of such sham marriages, indicating the
existence of marriage schemers operating in various parts of the country
arranging for high fees, for deceitful marriages involving in most instances alien
seamen,
Sections 12, 14, 15 and 16 of the Act of September 26, 1961 give enlarged rights and special consideration to aliens who are the spouse,
parent or child of a United States citizen or legally resident alien, and
who otherwise, would be excludable or deportable. However, section
10 of the same Act indicates that Congress intended that the expanded
privileges are not to be available even to a Zrona fide spouse, if he has
in the past been party to a sham marriage entered into for the purpose
of evading the immigration laws. Even though section 10 of the
Act of 'September 26, 1961 specifically forbids only the approval of a
visa petition in his behalf, it indicates the intention of Congress that
the immigration status of such a person is not to be adjusted under any
of the ameliatory acts.
Counsel maintains that the words "otherwise admissible" in section 16 are not a' ar to a grant of the waiver, claiming that this phrase
refers to a state of inadmissibility which might exist apart from the
fraud, e.g., criminality, feeble-mindedness, insanity, epilepsy. Counsel asserts that the words "otherwise admissible" mean that, except
3 B. Rept. No. 1086, S7th Cong., 1st Sess., pp. 36, 37.
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for the fraud and the impediment of the fraud, respondent must not
have had some other impediment at the time of entry that would
make him inadmissible.
The -Service asserts that to be "otherwise admissible" means that the
respondent must have been in possession of a valid visa at the time of
his entry, and that respondent cannot receive the waiver. He was
actually a quota immigrant, who entered as a nonquota immigrant.
See Matter of D'O—, 8 I. & N. Dec. 215 (1958), wherein we held that
proceedings could not be terminated under section 7 of the Act of
September 11, 1957 (P.L. 85-316) where respondent evaded the quota
restrictions by securing entry as a nonquota immigrant. We stated in
D'O that there is nothing in the history of section 7 of the Act of Sep-
—
tember 11, 1957 which indicates that it was the intention of Congress to
remove the careful protection which had been built into the immigration laws regarding quotas. We stated, "Section 7 excuses the presence of fraud. It does not wipe out the existence of all other grounds
of inadmissibility which may have been present. Section 7 also excuses the fact that an alien had been charged to the wrong quota."
We agree with the Service contention that respondent was not "other-
-wise admissible" at the time of his last entry as required by section 16
of the Act of September 26, 1961.
We are well aware of the hardship factors on which counsel has
dwelt at length. The same factors exist in the visa petition eases, of
which Interim Decisions Nos. 1222 and 1223 are examples. There are
certain to be family ties in. the alien's favor in these cases; otherwise,
this problem in statutory construction could not arise since there would
be no visa petition filed in his behalf, and no request for a waiver under
section 241(f) which is available only to a spouse, parent or child of a
United States citizen or lawfully resident alien.
We find nothing in the record to justify reexamination of the issue
of the good faith of respondent's first marriage. Aside from the testimony of respondent's first wife, he admitted that he would have left
the United States when he was first apprehended if he had not found
someone to post the $1,000 bond for him. He also testified that he
knew that some of his friends from Sicily had married in the United
States and had been permitted to remain here. Respondent was represented 'throughout the 1958 proceedings by counsel who was vigorous
and knowledgeable.
Section 16 of the Act of September 26, 1961 provides an absolute
waiver for an alien who has procured documentation by fraud and who
comes within the other requirements of the provision. If respondent
were given such a waiver he and the Government would be in an untenable position. He could not get a visa, because of the prohibition
contained in section 10 of the Act of September 26, 1961, but neither
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could he be deported. He could not be granted a legal status, but
neither could his illegal status be litigated, because these proceedings
would have been terminated. Aside from the finding that respondent
was not "otherwise admissible" at entry, it is our conclusion that an
alien who has been the beneficiary of a visa petition based on a marriage found later to have been contracted for the purpose of evading
the immigration laws, cannot claim the benefit of the waiver provided
by section 16 of the Act of September 26, 1961, adding section 241(f)
to the Immigration and Nationality Act. This is the only interpretation which reconciles section 205 (c) as amended, with section 241(f)
of the Immigration and Nationality Act.
ORDER: It is ordered that the appeal be and is hereby dismissed.
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