SAMSEN

Interim Decision #2305




                              MATTER OF SAMSEN

                          In Visa Petition Proceedings

                                       A-14047005
                        Decided by Board July 19, 1974
An immigration judge's order rescinding beneficiary's section 245 adjustment of status as
 a second preference immigrant based on the existence of a legal impediment to his
 marriage to a lawful permanent resident, is not a conclusive determination in subsequent visa petition proceedings that beneficiary's prior marriage comes within the
 purview of section 204(c) of the immigration and Nationality Act, as amended, as a
 marriage entered into for the purpose of evading the immigration laws. Such section
 204(c) determination should be made independently by the district director, on the basis
 of the evidence actually before him, in the course of his adjudication of the subsequent
 visa petition.
ON BEHALF OF PETITIONER:                             ON BEHALF OF SERVICE:
  Triantafyllos Thanasoulis, Esquire                   Irving A. Appleman
  19 West 44th Street                                  Appellate Trial Attorney
  Nov York, New York 10036



   The lawful permanent resident petitioner applied for preference
status for the beneficiary as her spouse under section 203(a)(2) of the
Immigration and Nationality Act. In a decision dated March 22, 1974,
the district director denied the petition. The petitioner has appealed
from that denial. The appeal will be sustained and the record will be
remanded to the district director.
   The beneficiary is a 37-year-old native and citizen of Thailand. He
married the petitioner in 1971. The record shows that the beneficiary
had been married twice previously—first to another native and citizen of
Thailand, and then, in 1967, to a lawful permanent resident of the
United States.
   On the basis of his 1967 marriage, the beneficiary was granted preference status under section 203(a)(2) of the Aet as the spouse of a lawful
permanent resident, and his status was subsequently adjusted to that of
a lawful permanent resident under section 245 of the Act. On January
13, 1979, after proceedings under section 246 of the Act, an immigration
judge ordered the beneficiary's grant of status as a lawful permanent
resident rescinded. The basis for rescission was the existence of a legal
impediment invalidating the petitioner's marriage to his lawful perina-
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nent resident wife. :On appeal, we affirmed the immigration judge's
decision rescinding status.
   The district director has based his present decision on section 204(c) of
the Act, which states that "no petition shall be approved if the alien has
previously been accorded a nonquota or preference status as the spouse
of a citizen of the United States or the spouse of an alien 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." The district director apparently considered the prior decision of the immigration judge in rescission proceedings to be a conclusive determination that the beneficiary's prior
marriage to a lawful permanent resident was entered into for the purpose of evading the immigration laws. This conclusion was erroneous.
   Neither section 204(c) nor the regulations specify who may make the
Attorney General's section 204(c) decision and at what point it is to be
made. However, we have held that the determination is to be made in
behalf of the Attorney General by the district director in the course of
his adjudication of the subsequent visa petition. Matter of lezza,
A-10792574 (BIA November 17, 1970).
   In making that adjudication, the district director may rely on any
relevant evidence, including evidence having its origin in prior Service
proceedings involving the beneficiary, or in court proceedings involving
the prior marriage. But the determination is for the district director to
make (subject, of course, to possible review by us on appeal). In making
his decision, the district director should not ordinarily give conclusive
effect to the determinations made in the prior collateral proceedings,
but should reach his own independent conclusion based on the evidence
actually before him. See Matter of F , 

 (BIA 1962).
                                         -


  The present record does not support the district director's conclusion
that the beneficiary's prior marriage was entered into for the purpose of
evading the immigration laws. The rescission determination dealt only
with a legal impediment to the marriage; section 204(c) goes to the
underlying purpose of the marriage. A legally invalid marriage is not
necessarily one which was undertaken for the purpose of evading the
immigration laws. Although an examination of the entire record of the
rescission proceedings could conceivably shed some light on the issue of
whether there was an intent to evade the immigration laws, the present
record does not contain any of the evidence or testimony on which the
decision to rescind was grounded.
  The information presently before us is insufficient to enable us to
determine whether or not the beneficiary's prior marriage was undertaken to evade the immigration laws. In addition, the petitioner has
submitted several new items of evidence on appeal. Consequently, we
shall remand the record to the district director in order to give him an
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opportunity to consider the new evidence submitted by the petitioner,
and to make an independent determination regarding the beneficiary's
prior marriage as required under section 204(c) of the Act.
  ORDER: The appeal is sustained and the record is remanded to the
district director for further proceedings in accordance with the abow
opinion.




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