Interim. Decision #1765
MAIM of GAGIZO
In Visa Petition Proceedings
A-11134868
Decided by Board August 11,19111
Since section 241(f), Immigration and Nationality Act, as amended, by its very
provisions relates to the deportation of aliens within the United State's, thebenefits of that section are not available in visa Petition Proceedings to na
alien beneficiary outside the United States.
ON Musts' or Pnrrrzoasz: Harry Kobel, Esquire
2156 Penobscot Building
Detroit, Michigan 48226
(Brief flied)
The case comes forward on appeal from the order of the District
Director, Detroit District, dated June 1, 1967 denying the visa petition under the provisions of section 204(e) of the Immigration and
Nationality Act, as amended, on the ground that the alien-beneficiary
has previously been accorded nonquota status as the spouse of a
United States citizen by reason of a previous marriage determined
by the Attorney General to have been entered into for the purpose of
evading the immigration laws.
The petitioner, a native born citizen of the United States, 21 years.
-
old, filed a visa petition at Palermo, Italy on September 16, 1966
seeking immediate relative status on behalf of the beneficiary as her
husband. The beneficiary is a, native and citizen of Italy, 30 years old.
The parties were married at Wyandotte, Michigan on July 30, 1966..
The visa petition indicates that the beneficiary was married oncepreviously. The immigration file relating to the beneficiary discloses
he was previously under deportation proceedings commenced July 30,
1957. The special inquiry officer on August 9, 1957 ordered the respondent deported under the provisions of section 241 (a) (1) as an alien
excludable by law at the time of his entry on April 15, 1057 as a
stowaway, under section 212(a) (18) of the Act. On appeal, the privilege of voluntary departure and preexamination was requested on the
basis of a marriage which occurred August 2S, 1957. We remanded.
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the case to the special inquiry officer for his consideration and action
in view of the provisions of 8 CFR 242.21 then in effect. The special
inquiry officer on December 5, 1957 withdrew the order of deportation
and ordered the proceedings reopened. The 'beneficiary apparently adjusted his status on the basis of his marriage to one Johnie Johnson,
a United States citizen, and was admitted as a nonquota immigrant
upon presentation of an immigrant visa.
Subsequently deportation proceedings were again commenced on
October 8, 1965, alleging that the beneficiary's prior marriage had
been terminated by a divorce on May 22, 1961 and charging that the
respondent was unable to establish that his marriage was not contracted for the purpose of evading the immigration laws and was
deportable under section 241(a) (1) as an immigrant without a valid
immigrant visa under section 212(a) (20) on the ground that the visa
had been obtained by fraud or wilful misrepresentation as provided
by section 212(a) (19). The special inquiry officer on October 7, 1966
indicated that the case was closed because the alien departed prior
to the conclusion of the hearing.
The visa petition was previously before us on April 10, 1967 on
appeal from the order of the officer in charge, Palermo, Italy dated
January 31, 1967 denying the visa petition pursuant to section 204(c)
for the reason that the beneficiary was previously accorded nonquota
status as the spouse of a citizen of the United States by reason of a
marriage determined by the Attorney General to have been entered
into for the purpose of evading the immigration laws. We pointed out
that the record failed to contain a determination by the Attorney General that the prior marriage was entered into for the purpose of evading the immigration laws. In view of the fact that the petitioner had
returned to the United States and was then residing in Detroit, Ifichigan, we remanded the case for further consideration by the District
Director and for such further action as might appear appropriate. The
District Director, the duly delegated representative of the Attorney
General, has now determined that the marriage was entered into for
the purpose of evading the immigration laws. This finding was apparently based upon the testimony of the first wife in the deportation
proceeding.
In connection with the appeal present counsel has suggested that
the question of the bar under section 204(c) of the Immigration and
Nationality Act may now be moot in view of the decision of this Board
in Matter of Marwitisi, Int. Dec. No. 1711 (March 7, 1967) which in
turn was based on the decision of the Supreme Court in Errico and
Scott v. Immigration and Naturrazation Service,
. ManoMdi held that despite the finding that the respondent was deportable
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under section 241(c) on the basis of a fraudulment marriage, he was.
nevertheless saved from deportation by section 241(f) of the Immigration and Nationality Act on the basis of the Supreme Court ruling in
the Errico and Scott cases, supra, that the respondent was "otherwise
admissible" at the time of such entry, and that his fraud in gaining
such entry had been excused under section 241(f).
Matter of Manchici would appear to be an inappropriate pre.:edent_
Section 241(f) by its very terms relates to the deportation of aliens
within the United States. Section 241(f) does not relate to visa petitions. Insofar as the present visa petition is concerned, there is ample
evidence, by whatever standard of proof is used, to conclude that the
beneficiary had previously been accorded nonquota status as a spouse
of the -United States citizen by reason of a marriage which has been
determined to have been entered into for the purpose of evading the
immigration laws. Insofar as the visa petition itself is concerned, the
appeal will be dismissed.
Present counsel submits that it is not necessary for the beneficiary
to obtain a new immigrant visa for reentry to the United States and
requests that an appropriate order be made for the beneficiary's return
to the United States for determination of his admissibility. However
the beneficiary is presently abroad. It is not known what documents
the beneficiary possesses or needs in order to return to the United States.
His application for determination of these matters in the first instance
is for the consular officer. In the event he requires a returning resident's
visa, the consul may give consideration to the exercise of the waiver
contained in section 212(i) of the Immigration and Nationality Act.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
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