Interim Decision #2568
MATTER OF ANSELMO
In Visa Petition Proceedings
A-34394164
Decided by Board March 18, 1977
(1) The beneficiary of the instant second-preference visa petition filed under section
203(a)(2) of the Immigration and Nationality Act had previously been admitted to the
United States as a lawful permanent resident as the beneficiary of an immediate relative
visa petition filed by a U.S. citizen spouse. Subsequently, she indicated in a sworn
statement to the Service that the marriage on which the prior immediate relative visa
petition had been based and granted vas a fiction, had never taken place, and that she
had never met nor married the man listed in the petition as her spouse.
(2) The District Director denied the inntetit eel ence petition nuclei section 204(c)
of the Act on the ground that the previous petition had been granted on the basis of a
marriage entered into to evade the immigration laws, and it did not appear that he had
considered the bona fides of the second marriage.
(a) Since no marriage took place in connection with the filing of the previous immediate
relative petition, section 204(c) was inapplicable, and the record will be remanded to the
District Director for consideration of the bona fides of the second marriage and entry of a
new decision.
(4) Matter of Concepcion, Interim Decision 2529 (BIA 1976), followed.
ON BEHALF OF PETMONER: William. J. Lawler, Esquire
Suite 320
615 Montgomery Street
San Francisco, California 94111
14filhollan, Chairman; Wilson, Maniatis, and Appleman, Board Members. Board
Member Torrington dissenting.
The lawful permanent resident petitioner applied for preference
status for the beneficiary as his spouse ender section 20S(a)(2) of the
Immigration and Nationality Act. In a decision dated March 29, 1976,
the District Director denied the petition and the petitioner has appealed
from that denial. The record will be remanded to the District Director
for further proceedings.
Both the petitioner and the beneficiary are natives and citizens of the
Philippine Islands. The beneficiary had previously been accorded immediate relative status as the spouse of a United States citizen and had
entered the United States as a lawful permanent resident on July 14,
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1973. In a sworn statement to the Service, dated October 31, 1974, the
beneficiary admitted that the marriage upon which the first visa petition
had been based was a fiction and that she had neither met nor married
the man listed as her spouse. On February 22, 1975, the beneficiary
married the present petitioner who subsequently filed another visa
petition in her behalf. The District Director concluded that the beneficiary had previously been accorded immediate relative status as the
spouse of a United States citizen by reason of a marriage entered into in
order to circumvent the immigration laws. Relying on section 204(c) of
the Act, the District Director denied the petition.
Section 204(c) states, in pertinent part, 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 . . . , 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, according to her sworn statement, on the basis of
falsified documents, not on the basis of a marriage entered into fur the
purpose of evading the immigration laws. Although the beneficiary
benefited from the Service determination that a valid marriage existed,
a marriage did not in fact exist. In the absence of an actual marriage,
section 204(c) does not apply. Matter of Concepcion, Interim Decision
2529 (BIA September 8, 1976).
We note from the record that, at present, the beneficiary apparently
possesses the very status that ultimately would be accorded her should
the visa petition be approved. Although she has admitted that her
present lawful permanent resident status was fraudulently obtained,
the record is silent as to whether the Service has as yet instituted
deportation or rescission proceedings. Should, the Service take such
action, the beneficiary would then be eligible, as an "alien" within the
meaning of section 245 of the Act, to seek to adjust her status to that of a
permanent resident alien. See Matter of Callao, Interim Decision 2555
(BIA. February 7, 1977). Under 8 C.F.R. 245.1(d), an applicant for
preference status is not eligible for adjustment of status unless he or she
is the beneficiary of a valid unexpired visa petition filed in accordance
with 8 C.F.R. 204 and approved to accord such status. Accordingly,
while the need for this visa petition has not been conclusively demonstrated, in view of the beneficiary's apparent deportable status, and the
possibility that approval may be needed as a prerequisite for adjustment, we would normally entertain the petition on its merits.
However, the District Director based his decision on section 204(e),
and it does not appear that he considered whether the beneficiary's
pres ent marriage is bona fide. Therefore, on remand, the District Direc-
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for may determine whether the marriage between the petitioner and
the beneficiary is bona fide. See Matter of Phillis, Interim Decision 2407
(BIA 1975).
ORDER: The record is remanded to the District Director for further
proceedings consistent with the above opinion, and for entry of a new
decision.
Warren R. Torrington, Member, Dissenting:
I respectfully dissent.
At the time when Mager of Concepcion, Interim Decision 2529 (BIA
September 8, 1976), was before us, I was unable to express my disagreement with the Board's holding, in a dissenting opinion. I now avail
myself of the opportunity to do so.
In my view, the language of section 204(c) of the Immigration and
Nationality Act is broad enough to encompass the situations encountered in Concepcion and in the case now before us. A person who has not
even bothered to go to the trouble of entering into a sham marriage
(that is, a marriage entered into for the purposes of evading the immigration laws), but has merely pretended to be married, and has presented false documents as evidence of a marriage, should not, on what
appears to me to be specious reasoning, be considered outside the
provisions of section 204(c) of the Act. In my view, he is less entitled to
approval of a second visa petition than the person who has previously
gone through the formalities of a (sham) marriage; and a holding which
treats him better than it does a person who has gone through the
motions of a sham marriage does not make good sense. Concepcion
permits aliens to avoid the clear provisions of section 204(c) of the Act
by not even going to the trouble of entering into actual sham marriages.
I cannot consider that a commendable outcome.
This is strictly a visa petition matter. The matter of possible future
adjustment of the beneficiary's status is not before us. I therefore fail to
see the relevance of the references, in the majority opinion, to a possible
future application for adjustment of the beneficiary's status, and to the
fact that the record does not reveal whether rescission or deportation
proceedings are pending.
As I read the Second . Circuit's decision in Tiblco v. INS, 835 F.2d 42 (2
Cir. 1964), which the majority opinion does not mention, but which was
relied on in the here cited decision in Matter of Calilao, Interim Decision 2555 (BIA February 7, 1977), Tibke does not make rescission or
deportation proceedings a prerequisite for approval of visa petitions
filed for potentially deportable permanent resident aliens. All we have
now before us is such a visa petition.
I would overrule Matter of Concepcion, supra, and would dismiss Lbe
appeal.
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