Interim Decision *1720
MAryER OF FERRANTE
In Visa Petition Proceedings
A-12164106
Decided by Board March, 81, 1967
Where beneficiary's section 245 adjustment of status granted in 1961 upon
approval of his tirst United States citizen wife's visa petition to Reenrd him
nonquota status was rescinded in 1964 because the marriage was not bona tide,
baying been entered into solely to obtain nonquota status, he comes within the
provisions of section 204(c) of the Act, as amended; hence, the order of the
District Director revoiang approval of a ffabseanent visa petition (19(16) to
accord beneficiary immediate relative status on the basis of his present marriage to a United States citizen is approved.
ON renr/Lia, oc Farm/mess1: ON BEHALF or SERVICE
Henry C. Lavine, Esquire B. A. Vielbaber
1013 Williamson Building Appellate Trial Attorney
Cleveland, Ohio 44114 (Oral argument)
(Oral argument) Thomas M. Pederson
District Director
(Brief filed)
The case tomes forward on appeal from the order of the District
Director, Cleveland District, dated November 18, 1966 revoking the
approval of the visa petition approved on September 13, 1966 under
the provisions of section 204(c) of the Immigration and Nationality
Act (8 U.S.C. 1154(c)) as more fully set forth in an accompanying
order dated November 15, 1966.
The petitioner, a native of Italy, a citizen of the United States by
naturalization on August 20, 1965, filed a visa petition seelriuf immediate relative status on behalf of the beneficiary as her spouse. The
visa petition was approved on September 13, 1966. It is now alleged
that the approval of the visa petition was erroneous for the reason
which will be more fully set forth below.
Tho record shows that the beneficiary entered the United States on
August 22, 1960 and was admitted as a temporary visitor for pleasure.
He married Ruth E. Moore, a United States citizen, on February 22,
1961. She filed a visa petition for nonquota status on behalf of the
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beneficiary which was approved on May 17, 1961 and an application
for adjustment of status under section 245 of the Immigration and
Nationality Act, as amended, was approved on November 7, 1961. The
beneficiary divorced Ruth Moore on June 1, 1962. Ruth Moore's prior
marriages had been terminated by divorce on June 13, 1947 and on
September 6, 1957. Evidence was presented that the beneficiary's wife,
Ruth, lived with one Charles C. Lowe since January or February 1961
and that this relationship continued at the time the case was before us
on June 26, 1964 in an appeal from the order of the special inquiry
officer dated March 13, 1964 ordering the adjustment of status of the
beneficiary on the basis of his marriage to Ruth Moore be rescinded.
In our order of June 26, 1964, we reviewed all the evidence fully, stated
that a determination as to the data of the commencement of the common law relationship of Ruth Moore and Charles Lowe was not pertinent to the case, concluded that the marriage entered into by the
beneficiary was not a bona fide marriage but was entered into solely
to obtain nonquota status for the beneficiary and must be deemed
invalid for immigration purposes, rescinded the adjustment of status
and dismissed the appeal from the order of the special inquiry officer.
Deportation proceedings were instituted against the respondent-beneficiary and he was found deportable under section 241 (a) (2) (8
U.S.C. 1251 (a) (2) ) as a visitor for pleasure who had remained longer.
The special inquiry officer granted him the discretionary relief of
voluntary departure in lieu of deportation with the automatic order
of deportation in the event he failed to depart voluntarily as directed.
The special inquiry officer held he lacked authority to reconsider the
decision of 'the Beard of Immigration Appeals in the rescission proceedings, which could only be done upon motion to the Board to reopen
or reconsider such prceedings.
On appeal, this Board found no basis to reconsider the rescission
proceedings and dismissed the appeal from the order of the special
inquiry officer. However, the Board agreed that there was a preponderance of evidence that a common law marriage existed between Ruth
and one Charles Lowe at the time the beneficiary married Ruth Lowe;
and under the circumstances the Board stated for the record that there
was no fraud in the inception on the part of the beneficiary when he
allegedly married a United States citizen because that marriage was
void ab intro.
Counsel has seized upon this language to argue that the beneficiary
is not barred by the provisions of section 204(c) of the Immigration
and Nationality Act which provides that no petition shall be approved
if the alien has previously been accorded a nonquota or preference
status as.the spouse of a United States citizen or the spouse of an alien
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Interim Decision #1720
lawfully admitted for permanent residence, by reason of a marriage
determined by the Attorney General to have been entered into for the
purpose of evading the immigration laws. He argues that this finding
of no fraud in the inception on the part of the beneficiary when he
married his previous wife overcomes our previous finding.
We do not agree. When we previously considered this case on
June 26, 1961 in connection with an appeal from the order of rescission
under section 216 of the Immigration and Nationality Act, we found.
that the prior marriage entered into by the respondent-beneficiary was
not a bona fide marriage but was entered into solely to obtain nonquota
status for the respondent-beneficiary and must be deemed invalid for
immigration. purposes.
In our order of May 19, 1965 in deportation proceedings, we stated.
that regardless of whether the respondent-beneficiary's marriage to a
United States citizen was void ab initio because of an existing common law marriage of his citizen wife or whether it was not a bona fide
marriage because entered into solely for the purpose of obtaining nonquota status for the respondent-beneficiary, the fact remained that in
either event the respondent-beneficiary was not entitled to nonquota
status based upon his marriage to a citizen of the United States.. We
found the deportation order supported by substantial and credible
evidence. In our order dated June 26, 1964 in rescission proceedings,
we concluded that a determination as to the commencement of the
common law relationship was not pertinent to the case. The reason for
this statement was that we found that the respondent-beneficiary's
prior marriage to a United States citizen spouse was contracted solely
to facilitate his admission to the United States and did. not entitle him
to the issuance of the nonquota visa. Where no bona Me husband-wife
relationship was intended by the marriage, the marriage is deemed
invalid for immigration purposes regardless of whether it would be
considered valid under the domestic law of the jurisdiction where per . -
formed. Matter of M—, 8 I. & N. Dec. 217.
The thrust of the find
ing of a sham and invalid marriage is that
despite the marriage ceremony, the parties did not intend to consider
themselves as husband and wife and that where no bona fide husband
and wife relationship is created, it floes not entitle the alien to the
issuance of a nonquota visa.1 The immigration law, which grants
advantages to those who marry a United States citizen, refers not to
taking of steps which enable a couple to live together in a marital
relationship but to the marital relationship itself, an actual joining
Lutwak v. United States, 344 U.S. 604; Giannoutias v. Landon,
226 F. 2d 358
(9th Cir. 1955) ; United States v. Rubenstein,
151 F. 2d 915 (2nd Cir. 1945), cert.
den.
326 U.S. 766.
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Interim Decision #1720
together as husband and wife. 2 We have found that even in a case of
a marriage in name only which is not bona fide, such a marriage is
invalid for immigration purposes. We are unable to follow counsel's
reasoning that a marriage which is void because of a prior existing
marriage but which was entered into for the same purpose of evading
the immigration laws and where no bona fide husband and wife
relationship ever existed, or was ever intended, stands in any better
position. Approval of the visa petition was properly revoked because
of the bar of section 204(c) of the Immigration and Nationality Act
(8 U.S.C. 1154 (c) ). The appeal will be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
itoltl v. United States, 570 F. 2d 174 (9th Cir. 1986).
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