Interim Decision #1984
MATTER OF GONZALEZ-PORT/LLO
In Deportation Proceedings
A-17166529
Decided by Board June 12, 1969
Where respondent, the alien spouse of a United States citizen, at the time
of his admission for permanent residence had reason to believe that he
would be successful in reviving his floundering marriage, the fact that
after entry the marriage did not survive has no retroactive offset with
regard to the labor certification exemption as the alien spouse of a citizen
as of the time of his admission; hence, he is not deportable under section
241(a) (1) of the Immigration and Nationality Act, as amended, as one
excludable at entry under section 212(a) (14) of the Act, since he was
exempt from the presentation of a labor certification at the time of his
entry for permanent residence.
CHARGES ;
Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)3—Excludable under section 212 (a) (19), 8 U.S.C. 1182 (a) (19),
visa procured by fraud.
Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)]—Excludable under section 212(a) (20), 8 U.S.C. 1182 (a) (20),
invalid visa.
Act of 1062 — Section 241 (a) (1) [S U.S.C. 1251(a) (1)]53rolaciable at entry under section 212(a) (14), 8 U.S.C.
1182(a) (14), no valid labor certification.
The respondent, a native and citizen of El Salvador, has been
found deportable under the provisions of section 241(a) (1) of the
Immigration and Nationality Act as an alien who was excludable
at the time of entry under the provisions of section 212 (a) (20),
in that he presented an invalid immigration visa and as an alien
who was excludable at the time of entry under section
212 (a) (14) of the Act, in that he did not possess a valid labor
certification. The special inquiry officer found that the respondent
was not subject to deportation under the provisions of section
241 (a) (1) , as a person who was excludable under the provisions
of section 212 (a) (19) for having procured his visa by fraud. The
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Interim Decision # 1984
order entered by the special inquiry officer on March 20, 1969,
grants the respondent the privilege of voluntary departure in lieu
of deportation and provides that if the respondent fails to depart
when and as required, the privilege would be withdrawn and an
order of deportation entered. The respondent appeals from this
order. •
The respondent is a male alien, 25 years of age, who originally
entered the United States as a nonimmigrant on August 21, 1966.
He married a United States citizen on October 30, 1966, and during March of 1967, he departed for Mexico to secure an immigration visa for permanent residence. He was issued a special immigrant visa by the United States Consul at Hermosillo, Sonora,
Mexico on March 30, 1967. He reentered the United States on
March 31, 1967, at San Ysidro, California, and was admitted for
permanent residence upon presentation of the special immigrant
visa.
The order to show cause charges in substance that the respondent secured his special immigrant visa by fraud or by wilfully
misrepresenting a material fact, because prior to his application
his citizen wife had informed him that she intended to terminate
her marriage to the respondent, and he had ceased to reside with
his citizen wife at the address in Santa Monica, California, set
forth in the application for the visa. The order to show cause alleges that the respondent wilfully concealed the true facts of his
marriage and residence from the United States Consul, because
he then knew that he could not be issued an immigrant visa if the
true facts were known. It is further alleged that at the time of
the respondent's entry, he was entering for the purpose of performing unskilled label: in the United States -and did not possess
or present the required certification from the Secretary of Labor.
The evidence developed during the several hearings accorded
the respondent has been fully set forth in the opinion of the special inquiry officer and will not be repeated in detail. Briefly, the
evidence establishes that the respondent resided with his citizen
wife from October 30, 1966 until the latter part of February
1967. He was notified by the Immigration Service that he was required to depart from the United States on or before February
26, 1967. The respondent's citizen wife testified that there had
been marital difficulties prior to the respondent's departure to obtain his visa; that for three weeks during January 1967, she had
lived separate and apart from the respondent; that they had reconciled and were living together during February of 1967; that
the reconciliation was not successful; and that the respondent left
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Interim Decision #1984
their apartment on February 28, 1967, because he had no choice
as the immigration authorities were after him. The respondent
testified that when he obtained his immigration visa, he considered the apartment where his wife resided as his permanent residence; that he intended to return to this apartment; and that
when he was admitted he believed he had a reasonable chance of
effecting a reconciliation with his wife. He furtner testified that
following his return, he did see his wife for this purpose.
The Service maintains that the respondent made a false representation to the consul when he stated on his application for a
visa that he was residing at the apartment of his wife in Santa
Monica, California, and was returning to the United States to
continue his maritial relationship with her, since he knew that
his marriage was for all intents and purposes terminated. The
special inquiry officer finds that the charge laid under section
212 (a) (19) of the Act is not sustained, because there is affirmative evidence that the respondent believed that there was a possibility of a reconciliation with his wife, and that if this were
achieved he would resume his residence at the address stated in
his application for the visa. Accordingly, the misrepresentation
was not wilfully made as required by the Act. We affirm the conclusion reached by the special inquiry officer.
The special inquiry officer finds the respondent deportable
under the provisions of section 241 (a) (1) of the Act in that at
the time of entry he was excludable as an alien who was seeking
to enter for the purpose of performing unskilled labor and in
whose cause the Secretary of Labor had not made the certification required by section 212 (a) (14) of the Act. The special inquiry officer reasons that at the time of the respondent's entry on
March 31, 1967, there was no reasonable prospect of any resumption of the marital relationship with his citizen wife, nor any
reasonable prospect of any immediate reconciliation, and accordingly the exemption conferred by section 212 (a) (14) of the Act
to the spouse of a citizen of the United States would not be effective in accomplishing the reuniting of a family. The special inquiry officer in support of this conclusion cites cases based on
the premise that exemptions from the quota requirements were
granted by the Congress solely for the purpose of preserving the
family unit and that such benefits are conferred only where it
will serve this purpose.
1 'Shafer of LOU; 11 I. & N. Dee. 148 (D.D., 1965) ; Scalzo v. Hume% 225
F. Supp. 560 (E.D. Pa., 1963), ard
338 F.2d 339 (3 Cir., 1964); Matter of
M—,
8 I. & N. Dec. 217 (BIA, 1958).
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Interim Decision #1984
We agree with the special inquiry officer that his basic assumption is correct, namely, that Congress provided a waiver of the
labor certification requirements for an alien spouse of a United
States citizen in order to facilitate the preservation of the family
unit. However, we doubt that Congress, when it enacted the
waiver provisions in section 212 (a) (14), intended that this
bounty should be rescinded and become unavailable to an alien
spouse of a United States citizen who at the time of entry had
reason to believe that he would be successful in reviving a floundering marriage which, according to the evidence before us, appears to have been contracted in good faith and which had subsisted until shortly before his departure to obtain a special immigration visa.
The testimony of the respondent's wife lends support to his
claim that he had a reasonable chance of effecting a reconciliation
upon his return with a permanent residence visa. She testified
that she told the respondent prior to his departure for Mexico
that if he secured an immigration visa for permanent residence
"the marriage would have worked" (p. 22). She further testified
that she was in love with the respondent when she married him
(p. 18) ; that she had every intention of "trying to make the marriage work" (p. 18); and that they "contributed to each others
support" (p. 29). Furthermore, it is apparent from the testimony
of the respondent's wife that when he saw her the latter part of
March 1967 prior to his reentry for permanent residence on
March 31, 1967, they discussed matters concerning their reconcili.
ation (pp. 8144).
It is our position that the fact that the respondent was unsuccessful in resuming marital relations with his wife after entry
should not retroactively affect his status with regard to the-labor
certification requirement at the time of entry since it is the time
of entry which controls, Matter of Paco, 12 I. & N. Dec. 599
(BIA, 1968). We find nothing in the statute or its legislative history which supports a conclusion that Congress intended that a
labor certification exemption would become unavailable to the
spouse of a United Stites citizen at the time of entry if at that
time there is an affirmatiVe showing that the applicant's marriage
to a United States citizen has a reasonable chance of continuing.
The fact that after entry it is established that the marriage did
not survive has no retroactive effect with regard to a labor certification exemption for an alien spouse of a United States citizen
as of the time he was, admitted for permanent residence. Under
the circumstances, we find the charge laid under section
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Interim Decision #1984
241 (a) (1) and 212(a) (14) of the Act not sustained since the respondent was exempt from the presentation of a labor certification at the time of his entry on March 81, 1967.
The order to show cause charges that the respondent was excludable at the time of entry because he did not present a valid
immigration visa (sections 241 (a) (1) and 212 (a) (20), Immigration and Nationality Act). The special inquiry officer concludes
that this charge is not sustained insofar as fradulent procurement is concerned since he did not find that the visa was obtained
by a wilful and material misrepresentation to the United States
Consul in Mexico. He did sustain the charge however, on the
ground that it was not a valid immigration visa because it was
not supported by a labor certification when issued. Sinee we have
found that the respondent was exempt from the presentation of a
labor certification at the time of his entry for permanent residence on March 81, 1967, the charge must fall.
An appropriate order will be entered terminating the proceeding.
ORDER: It is caused that the proceeding under the order to
show cause issued on January 29, 1969 be and the same is hereby
terminated.
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