16 I. & N. Dec. 9 - CINTRON

Interim Decision #2528

MATTER. OF CINTRON

In Visa Petition Proceedings
A-20583637

Decided by Board September 3, 1976
The United States citizen petitioner submitted a letter to the District Director requesting
that the visa petition filed to accord his spouse immediate relative classification be
withdrawn. The letter request was acknowledged by the District Director, but he
subsequently ordered the petition denied. In view of the petitioner's letter request that
the petition be withdrawn, the denial by the District Director was erroneous, and it is
the order of the Board that the record reflect that the petition was withdrawn by
petitioner.
ON BEHALF or PE.iiiIONER: Fried, Fragomen & Del Rey, P.C.
515 Madison Avenue
New York, New York 10022

The United States citizen petitioner filed a visa petition in behalf of
the beneficiary as his spouse under section 201(b) of the Immigration
and Nationality Act. He subsequently submitted a letter withdrawing
the petition. In a decision dated October 9, 1975, the District Director
acknowledged having received the letter withdrawing the petition but
nevertheless ordered the petition be denied. The petitioner has appealed from the District Director's decision refusing to consider the
petition withdrawn. The appeal will be sustained.
Just as any United States citizen or lawful permanent resident may
file a visa petition in behalf of an alien, so may he withdraw the petition
before a decision has been rendered. The action of the District Director
in refusing to consider the petition withdrawn was erroneous. Accordingly, we shall sustain the appeal and order the record to reflect that the
petition has been withdrawn.
ORDER: The appeal is sustained; the visa petition filed by the petitioner in behalf of the beneficiary has been withdrawn.

9
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 fart that the Service
approved the prior immediate relative petition.
ON BEHALF OF PETITIONER: Gerald L. McVey, Esquire
Fallon, Hargreaves, Bixby & McVey
Hotanng 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 pertinemt 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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Interim Decision #2529

alien lawfully admitted for p ermanent 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(c) does not apply to the facts 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.