WONG

                                                             Interim Decision #2549




                                 MATTER OF WONG

                            In Deportation Proceedings
                                       A-31222365

                       Decided by Board January 12, 1977
(1) Respondent was admitted to the United States as a lawful permanent resident without
   a labor certification under section 203(a)(2) of the Immigration and Nationality Act as
   the unmarried child of a lawful permanent resident. However, two weeks before she
   entered the United States, she married. The immigration judge found her deportable
   under section 241(a)(1) of the Act as an alien who was excludable at the time of entry.
   Subsequent to this decision, respondent obtained an annulment of this marriage and
   moved to reopen deportation proceedings.
(2) Notwithstanding the grant of a judgment of nullity by the Superior Court of California
   rendering this marriage void ab initio, the doctrine of relation back which would
   ordinarily apply in a situation such as this will be deemed not to apply here because it
   does not promote the intended purpose. Although the annulment might be given
  retroactive effect by the California court annulling the marriage ah initin, it will not he
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  given retroactive effect for immigration purposes.
(3) Since the respondent married before leaving Burma, she was in violation of the
  immigration laws at the time of her entry into the United States. The Board is not
  obliged to give retroactive effect to the California decree of annulment to cure a
  violation of the immigration laws and the respondent was deportable as charged.
CHARGES:
  Order: Act of 1952—Section 241(a)(1) (8 U.S. C. 1251(a)(1)]--Excludable by law existing
                          at time of entry (sec. 212(a)(19) of the Act)
      Lodged: Act of 1952—Section 241(a)(1) E8 U.S.C. 1251(a)(1)]—Excludable—no valid
                              immigrant visa (sec. 212(a)(20) of the Act)
ON BEHALF OF RESPONDENT: Thomas N. Saldin, Esquire
                         4676 Admiralty Way, #632
                         Marina Del Rey, California 90291

BY: Milhollan, Chairman; Wilson, Torrington, Maniatis, and Appleman, Board Members



   In a decision dated August 28, 1974, the immigration judge found the
respondent deportable as an alien who was excludable at the time of
entry under section 241(a)(1) of the Immigration and Nationality Act
alid granted her voluntary deparlAwe hi lieu of deportation. The respondent had obtained an immigrant visa by representing herself to be the

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unmarried daughter of a lawful permanent resident. However, she had
married two weeks before actually entering the United States. Subsequent to the immigration judge's decision, the respondent obtained an
annulment of her disqualifying marriage and thereupon moved to reopen her deportation proceedings. The motion to reopen was granted by
the immigration judge and a hearing held_ In a decision dated June 10,
1976, the immigration judge denied a motion to terminate the deportation proceedings, finding that the annulment should not be given a
retroactive effect for immigration purposes_ Although the voluntary
departure was reinstated, the respondent has appealed the decision.
The appeal will be dismissed.
   The respondent was born on December 25, 1942, and she is a native of
Burma and a citizen of China. She entered the United States on May 20,
 1973, without a labor certification as the unmarried child of a lawful
permanent resident. Section 203(a)(2).
   During reopened proceedings, counsel moved to terminate, contending that the respondent is not deportable because her marriage was
judicially annulled by the Superior Court of California on October 30,
1975; and that the annulment rendered her marriage void ab initio, as of
the date of the marriage, May 11, 1973. The record contains a Judgment
of Nullity in support of her contention.
   The record also contains a notice from the Department of State
(FS 548) which informed the respondent that she would lose her prefer-
    -


ence status if she married prior to her application for admission to the
United States, and that she would also be subject to exclusion. That
notice was signed by the respondent and dated September 29, 1972.
Although the testimony is unclear, we find that the respondent entered
into a marriage prior to her admission into the United States despite the
fact that she had been previously warned that she would lose her
preference status if she married.
   Counsel cites Matter of Samedi, 14 1. & N. Dec. 625 (BIA 1974) and
Matter of V , 

 (BIA 1954), as requiring that the
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California decree of nullity be given a retroactive effect to void the
marriage as though it had never existed. Accordingly, the respondent
'would be the unmarried daughter of a lawful permanent resident at the
time of entry_ However, the immigration judge cites a more recent
Board decision, Matter of Castillo, Interim Decision 2427 (BIA 1975),
xvherein we held that the "relation back" doctrine should not be blindly
followed where to do so would result in a gross miscarriage of justice.
That decision was based on a California case, Sefton v. Sefton, 

, 

 (1955), wherein it was held that the "relation back"
doctrine was a legal fiction designed to fashion substantial justice beftween the parties to a voidable marriage. Thus, in keeping with the
decision in Castillo, supra, we will not give the California annulment

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retroactive effect in this case. The "relation back" doctrine must be
deemed to apply only where it promotes the purposes for which it was
intended. Matter of T—, 

 (BIA 1959). Even though
the annulment might be given retroactive effect, by the California
courts, annulling the marriage ab initio, it should mot be given a retroactive effect for immigration purposes.
   As the respondent married before leaving Burma, she was in violation
of the immigration laws at the time of her entry into the United States.
Regardless of what effect the courts might give to a decree of annulment, for immigration purposes, we are not obliged to give retroactive
effect to it so as to cure a violation of the law respecting entry into the
United States.
  ORDER: The appeal is dismissed.
  FURTHER ORDER: Pursuant to the immigration judge's order, the
respondent is permitted to depart from the United States voluntarily
within such time and under conditions of departure as may be set by the
District Director; in the event the respondent fails so to depart, the
respondent shall be deported as provided in the immigration judge's
order.




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