NETO/DOMINGOS

Interim Decision #2386




                        MATTER OF NETo/DOMINGOS

                           In Deportation Proceedings
                                      A-31192232

                        Decided by Board May 22, .1975
When deportatim is sought under the charge of violation of section 241(a)(2) and 241(c) of
 the Immigration and Nationality Act, based on the existence of fraud at the time the
 marriage was contracted, the Service is entitled to the presumption of fraud when the
 marriage mitt red into less than two years prior to entry was terminated by divorce less
 than two years after entry. However, that presumption is overcome when the respondent establishes that there was in fact a valid marriage not entered into for immigration
 purposes, even though at the time of obtaining his visa there was no subsisting
 marriage. The respondent's appeal is sustained and the proceedings terminated.
CHARGE:
  Order: Act of 1952—Section 241(a)(2) and 241(c)(1251(a)(2) and 1251(c))—In the United
                       States in violation of law—obtained visa by fraud based on
                         marriage entered into less than two years.
ON BEHALF OF RESPONDENT:           John E. Bassett, Esquire
                                   12402 A West Dixie Highway
                                   N. Miami, Florida 33161


  In a decision dated April 18, 1974, the immigration judge found the
respondent deportable under section 241(e)(1) of the Immigration and
Nationality Act and ordered him deported to Brazil. The respondent has
appealed from that decision. The appeal will be sustained, and the
proceedings will be terminated.
  The alien respondent is a native and a citizen of Brazil. He was
admitted to the United States for permanent residence on Apr114, 1973,
with a visa issued on the basis of his classification as the immediate
relative spouse of a United States citizen.
   In order to establish deportability under section 241(c)(1) of the Act,
the Service must show by clear, convincing, and unequivocal evidence
that (1) the respondent's marriage took place less than two years prior
to his entry into the United States, and (2) the marriage was judicially
terminated within two years after entry. If the Service establishes the
foregoing, it is entitled to the statutory presumption that the visa was
procured by :i•aud. The burden under section 241(c)(1) then shifts to the

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respondent to establish by a preponderance of the evidence that the
marriage was not entered into for the purpose of evading the immigration laws. Matter of Oliveira, 

 (BIA 1970).
   The evidence shows that the respondent married a United States
citizen, a fellow hotel employee whom he had known for about six
months, in February 1972. They lived together as husband and wife and
worked together at various hotels; the respondent worked as a waiter,
and his wife as a waitress and in the office. Various marital disagreements arose, evidently stemming from the respondent's domineering nature and his belief that his wife was going out with other men. In
October 1972, the respondent's wife abandoned him after informing him
that she did not wish to live with him any longer. Thereafter, the
respondent became friendly with Elsa Patricia Garaycochea. In October
1973, the respondent obtained a divorce from his United States citizen
wife in New York on the ground of abandonment. He married Elsa
Patricia Garayeochea in November 1973.
   The Service has established that it is entitled to the presumption of
fraud contained in section 241(c)(1). However, we find that the respondent has sustained his burden of establishing by a preponderance of the
evidence that his marriage to a United states citizen was not entered
into for the purpose of evading any provision of the immigration laws.
Consequently, the respondent's deportability under section 241(c)(1)
has not been established, and the proceedings will be terminated.
   The Service devoted a large portion of its ease to attempting to, show
that there was no subsisting marriage between the respondent and his
citizen wife •at the time he obtained his immigrant visa. Nevertheless,
we do not believe that this fact is determinative when a charge related
to a marriage contracted (entered into) for the purpose of evading the
immigration laws is brought under section 241(c)(1) of the Act. See
Matter of Oliveira, supra; Matter of T—, 

 (BIA 1957);
Matter of V—, 

 (BIA 1957).
   The immigration judge's decision was incorrect. The appeal will be
sustained, and the proceedings will be terminated.
   ORDER: The appeal is sustained, and the proceedings are terminated.
  Warren.R. Torrington, Board Member, dissenting without opinion,
would remand the matter to the immigration judge to enable the Service
to lodge a proper charge.




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