Interim Decision #2781
MATTER OF KONDO
In Rescission Proceedings
A-19855118
Decided by Board February 20, 1980
(1) A marriage legally valid but "factually dead" (nonviable) at the time of the adjustment of status cannot be the basis.for rescission for cases arising in the Ninth Circuit.
Dabaghiatt v. INS, 607 F2d 868 (9 Cir. 1979) followed. Matter of Si:4(41518W Dec. 572
(BIA 1976) no longer applied in that circuit.
ON Harr u' or Rrarosniuvr. ON Btatate us SERVICE:
William F. Thompson, III Esquire
, Gary Y. Fujiwara, Esquire
925 Bethel Street Trial Attorney
Suite 205
Honolulu, Hawaii 96810
Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members
The respondent through his counsel moves the Board to reconsider
our decision of August 1, 1978, where we dismissed his appeal ruling
that respondent's adjustment of status to that of a lawful permanent
resident must be rescinded pursuant to section 246 of the Immigration
and Nationality Act, 8 U.S.C. 1256, since it was based upon a marriage
that was nonviable at the time of his adjustment. In reaching that
result, we relied upon our precedent decision of Matter of Sosa,15 MN
Dec. 572 (BIA 1976). The pertinent facts in the instant matter we fully
stated in our previous opinion and need not be repeated here. For the
reasons stated below, the motion will be granted and rescission
proceedings terminated.
Recently, the United States Court of Appeals for the Ninth Circuit,
the circuit in which the instant case arose, has held that a marriage
legally valid but "factually dead" (nonviable) at the time of the adjustment of status cannot be the basis for rescission. Dabaghian v. INS,
(9 Cir. 1979). We find that case controlling here and must
follow its holding in the Ninth Circuit. In that respect, Sosa, is no
longer applicable law in the Ninth Circuit on this issue. Furthermore,
there is nothing in the record to support a finding that respondent's
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Interim Decision #2781
marriage was a sham or fraudulent from its inception.
ORDERI The motion is granted and the rescission proceedings are
terminated.
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