CONCEPCION

Interim Decision #2529




                            MATTER OF CONCEPCION
                           In Visa Petition Proceedings
                                      A-34106980
                     Decided by Board September 8, 1976
The provision of section 204(c) of the Immigration and Nationality Act which provides that
  a visa petition shall not be approved for a beneficiary who has previously been accorded
  a nonquota or preference status based on a marriage entered into to evade the immigration laws is not applicable to a beneficiary who had previously been accorded immediate
  relative status as the spouse of a United States citizen on the basis of a marriage which
  never took place but which in fact was a fiction based on falsified documents. Under the
  circumstances the beneficiary cannot be said to have entered into a marriage for the
  purpose of evading the immigration laws, notwithstanding the fact that the Service
  approved the prior immediate relative petition.
ON BEHALF OF PETITIONER: Gerald L. McVey, Esquire
                         Fallon, Hargreaves, Bixby & McVey
                         30 Hotaling Place
                                  San Francisco, California 94111



  The lawful permanent resident petitioner applied for preference
status for the beneficiary as his spouse under section 203(a)(2) of the
Immigration and Nationality Act. In his decision of October 28, 1975, the
Acting District Director denied the petition on the basis of section 204(c)
of the Act.
  The petitioner and the beneficiary were married on May 9, 1975. The
present petition was filed on June 3, 1975. The beneficiary had previously been accorded immediate relative status as the spouse of a United
States citizen when a visa petition in her behalf was approved on
September 21, 1972, and she entered the United States with an immigrant visa on October 30, 1972. It was determined subsequently, in
deportation proceedings, that the marriage upon which the visa petition
was based was a fiction and had never taken place, and the beneficiary
was found deportable as an alien who was excludable at entry under
section 212(a)(19) and section 212(a)(14).
   Section 204(c) of the Immigration and Nationality Act reads, in pertinent part, as follows:
  . .. [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

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  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. (Emphasis supplied.)

   The beneficiary has previously been accorded immediate relative
status as the spouse of a United States citizen. However, she was
accorded that status on the basis of falsified documents. No marriage
was entered into, and therefore it cannot be determined that she obtained immediate relative status on the basis of a marriage entered into
for the purpose of evading the immigration laws.
   Although the beneficiary profited from the previous Service determination that a marriage existed in the same way as if she had entered into
a sham marriage, still the fact is that the marriage did not exist and
therefore section 204(e) does not apply to the farts of this case.
   Because the Acting District Director based his decision on section
204(c), he does not appear to have considered or reached a decision as to
whether the marriage between the petitioner and the beneficiary was
entered into in good faith. Accordingly, we shall remand the record for
further proceedings along these lines and so that the District Director
may enter a new decision.
  ORDER: The appeal is sustained and the record is remanded to the
District Director for further proceedings in accordance with the above
opinion.




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