Interim Decision #2555
MATTER OF CALILA.0
In Visa Petition Proceedings
A-31174M6
Decided by Board February 7, 1977
(1) Beneficiary was admitted to the United States as the immediate relative spouse of a
United States citizen (beneficiary's second wife) under section 201(b) of the Immigration
and Nationality Act. Deportation proceedings were instituted against him under section
241(a)(1) and section 241(c) of the Act after his United States citizen wife submitted
sworn statements to the Service that the beneficiary had paid her to marry him and
arrange his entry into the United States. Prior to final determination of his deportability, beneficiary divorced both his first and second wives and married the present
petitioner who filed two immediate relative visa petitions under section 201(b) of the
Immigration and Nationality Act in his behalf. The second visa petition was denied on
the ground that the beneficiary had been previously accorded nonquota status on the
basis of a marriage entered into for the purpose of evading the immigration laws in
violation of section 204(c) of the Act.
(2) Notwithstanding the fact that the beneficiary possessed lawful permanent residence at
the time the second visa petition was filed by this third wife, the District Director had the
authority to consider the second petition.
(3) Matter of Concepcion, Interim Decision 2529, is not controlling in this case because
in that proceeding the marriage was based on falsified documents, whereas in this
proceeding the marriage actually took place. Therefore, section 204(c) applies.
(4) Where the District Director relied on the statements of the beneficiary's second wife to
the effect that they had been married solely for the purpose of circumventing the
immigration laws in rendering his decision and concluding that section 204(c) of the Act
was controlling in this case, and the record does not indicate that petitioner was made
aware of this derogatory evidence prior to entry of the decision as required by 3 C.F.R.
103.2(b)(2). the record will be remanded to the District Director to afford petitioner an
opportunity to rebut the adverse evidence.
ON BEHALF OF PETITIONER: William E. Thompson, III, Esquire
Suite 205, Hawaiian Savings Building
925 Bethel Street
Honolulu, Hawaii 96813
BY: 1VIilhollan, Chairman; Wilson, Torrington, Maniatis, and Appleman, Board Members
In a decision dated April 19, 1976, we dismissed the appeal from a
decision of a District Director denying the visa petition filed by the
petitioner on behalf of the beneficiary as her spouse -under section 201(b)
of the Immigration and Nationality Act. The petitioner has moved for
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reopening of the proceedings and reconsideration of our prior decision.
Oral argument will be denied; the motion will be granted and the record
remanded to the District Director for further proceedings.
The record indicates that the beneficiary, a native and citizen of the
Philippines, has been married at least three times: to Rufina Rarama in
1969, to 'Ulna Herrera in 1971, and to the present petitioner, Cres Cabo
Paa, in 1975. As a result of his marriage to Vilma Herrera, a United
States citizen, the beneficiary was admitted to the United States as a
lawful permanent rt;,si dent. He subsequently divorced both his first and
second wife before marrying the present petitioner. The record contains
a sworn statement by the beneficiary outlining the sequence of his
marriages and divorces as well as a sworn statement by his second wife
stating, in effect, that the beneficiary had paid her to marry him and to
arrange his entry into the United States. An Order to Show Cause was
issued to the beneficiary in 1974 charging him under sections 241(a)(1)
and 241(e) of the Act with having been excludable at entry into the
United States and with having procured his immigrant visa by fraud.
Prior to a final determination of his deportability, the beneficiary
married the present petitioner and a second visa petition was filed in his
behalf. Relying in part on the aforementioned sworn statements, the
District Director concluded that the beneficiary had previously been
accorded nonquota status on the basis of a marriage entered into for the
purpose of evading the immigration laws in violation of section 204(c) of
the Act and, therefore, denied the petition.
Counsel for the petitioner first argues that, inasmuch as the beneficiary was already a lawful permanent resident at the time of the
District Director's decision, the very status he would ultimately be
accorded should the visa petition be approved, the District Director was
without jurisdiction to consider the petition. Such a contention is clearly
incorrect.
We note that at the time the visa petition was filed, deportation
proceedings against the beneficiary had been initiated and that he has
since filed an application under section 245 of the Act to adjust his status
to that of a permanent resident alien. Such a procedure is clearly
permitted by the Act. Tibke v. INS, 335 F.2d 42 (2 Cir. 1964). In order
to be eligible for adjustment of status, the alien must be the beneficiary
of a valid unexpired visa petition filed in accordance with 8 C.F.R. 204
and approved to accord such status. See 8 C.F. R. 245.2(b). Therefore,
inasmuch as the approval of a visa petition is a prerequisite to a grant of
adjustment, it is clear that, despite the fact the beneficiary possessed
lawful permanent resident status at the time the visa petition was filed,
he may be the recipient of a second visa petition. The District Director
clearly had the authority to consider the petition.
Citing our recent decision in Matter of Concepcion, Interim Decision
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2529 (BIA September 8, 1976), counsel next argues that because the
beneficiary was already married to Rttfina Rarama at the time of his
"marriage" to Vilma Herrara, no marriage in fact existed upon which it
could be determined that the beneficiary obtained nonquota status for
the purpose of evading the immigration laws. In short, he maintains
that the marriage to Vilma Herrera never existed.
Counsel's reliance on Matter of Concepcion is misplaced. There we
held, for purposes of section 204(c), that no marriage is entered into
when the preference status as a spouse of a lawful permanent resident is
accorded on the basis of falsified documents rather than actual marriage.
Although the beneficiary had profited from the determination that a
marriage existed in the same way as if she had entered into a sham
marriage, the marriage did not exist and we held that section 204(c) did
not apply. Matter of Concepcion is clearly distinguishable from the
present case. Here, according to the sworn statements of the beneficiary and his second wife, an actual marriage was performed. Therefore, we conclude that a marriage was indeed entered into and that
section 204(c) does apply. See Ferrante v. INS, 399 F.2d 98 (6 Cir.
1968).
Lastly, counsel argues that the District Director failed to give the
petitioner prior notice of his intention to deny the petition.
8 C.F.R. 103.2(b)(2) states, in pertinent part, that:
... If the decision will be adverse to the . . . petitioner on the basis of derogatory
evidence considered by the Service and of which the . . . petitioner is unaware, he shall
be advised thereof and offered an opportunity to rebut it and present evidence in his
behalf before the decision is rendered . . .
In rendering his decision and concluding that section 204(c) applied to
the facts of this case, the District Director relied substantially on the
sworn statement of the beneficiary's second wife to the effect that they
had never lived together as man and wife and that they had been
married solely for the purpose of circumventing the immigration laws.
Apparently this statement was made with regard to the beneficiary's
pending deportation hearing. Although such proceedings had been initiated at the time of the District Director's decision, it appears that the
proceedings were not concluded until subsequent to the denial of the
visa petition. It is not clear from the record that the petitioner was made
aware of the derogatory evidence prior to entry of the decision as
required by 8 C.F.R. 103.2(b)(2). Matter of Arteaga Godoy, 14 I. & N.
-
Dec. 226 (BIA 1972). Therefore, we will remand the record to the
District Director for the purpose of affording the petitioner an opporturay to rebut the adverse evidence. Should such evidence be successfully
rebutted, the District Director could then consider whether the marxi age between the beneficiary and the present petitioner was entered
into in good faith.
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ORDER: The record is remanded to the District Director for further
proceedings consistent with the above opinion, and for entry of a new
decision.
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