Interim Decision #2798
MATTER OF A_DALATKHAH
In Deportation Proceedings
A-21096715
Decided by Board June 12, 1980
Alien married to a United States citizen, but not living with his spouse, is nevertheless
an "immediate relative" within the exception to section 245(c)(2) of the Immigration
and Nationality Act, 8 U.S.C. 1255(c)(2); and is not prohibited from filing an application for adjustment of status despite unauthorized employment after January I, 1977.
CHARGE
Order. Act of 1902—Sec. 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant visitor —
remained longer than authorized
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE
Jan M. Pederson. Esquire Timothy J. O'Leary
Cramer, Visser, Lipsen & Smith Trial Attorney
475 L'Enfant Plaza, S.W.
Suite 4100
Washington, D.C. 20024
BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members
On January 24, 1980, the immigration judge found the respondent
deportable as charged and granted his application for adjustment of
status pursuant to section 245 of the Immigration and Nationality Act,
8 U.S.C. 1255. The Service has appealed. The appeal will be dismissed.
The respondent is a native and citizen of Iran who entered the
United States at New York, New York, on March 15, 1971, as a nonimmigrant student authorized to remain until March 1, 1975. At a
deportation hearing on October 21, 1977, he conceded deportability as
charged for having remained in the United States longer than
authorized as defined under section 241(a)(2) of the Act, 8 U.S.C.
1251(a)(2) (Tr. p. 1). We find that deportability has been established by
clear, convincing, and unequivocal evidence as required by Woodby v.
INS, 385 U.S. 276 (1966), and 8 C.F.R. 242.1(a).
The only issue on appeal is the respondent's eligibility for adjustment of status. The Immigration. and Naturalization Service contends
that the respondent is precluded from adjustment of status by section
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245(c)(2) of the Act, that excludes from adjustment aliens who engage
in unauthorized employment after January 1, 1977, unless they are
immediate relatives of United States citizens as defined under section
201(b) of the Act, 8 U.S.C. 1151(b). The respondent has been married to
a United States citizen since. February 21, 1975 (Tr. p. 3). The couple
separated 3 months later, but resided together for brief intervals
thereafter until July 1977, when she left him without coming back (Tr.
pp. 4-7). There is no evidence that she divorced him or otherwise
terminated their marriage.
On appeal, the Service contends that the respondent cannot be
considered an "immediate relative" exempt from the section 245(c)(2)
adjustment preclusion because he has not had a viable marriage since
1977. It contends that Congress did not intend to exempt from the
245(c)(2) preclusion adjustment applicants who are "technically immediate relatives but who, in fact, have no existing family unit which
needs extraordinary protection." The Service cites no supporting authority for its assertion regarding congressional intent
The preclusion provision in section 34b(c)(2) was part of the 1976
Amendments to the Act. P.L. 94-571, 90 Stat. 2703. The discussion of
the legislative intent behind the adjustment preclusion for aliens who
wurk without authorization does not evince a congressional intent to
also preclude from adjustment aliens who are merely "technically
immediate relatives," as the Service contends. It merely states that
"aliens who are not defined as immediate relatives and who accept
unauthorized employment prior to filing their adjustment application
would be ineligible." H. Rep. No. 94-1553, 94th Cong. 2d Sess. 12,
reprinted in 1976 U.S. Code Cong. and Ad. News 6084.
The issue of separation and marriage viability in an adjustment of
status application has previously been addressed by the courts and this
Board in the context of spousal visa petitions underlying the application. In Dabaghian v. Civ'iletti,
607 F.2d 868 (9 Cir. 1979), the Court
concluded that marriage nonviability would not affect eligibility for
adjustment of status as the beneficiary of an immediate relative visa
petition unless the marriage was a sham or fraudulent
Id. at 871.
However, in Menezes v. INS,
601 F.2d 1028 (9 Cir. 1979), the Court
concluded that marriage nonviability and separations could be negative factors warranting the denial of an adjustment application as a
matter of discretion. In Chan v. Bell,
464 F. Supp. 125 (D.D.C. 1978), the
court also concluded that absent evidence that a marriage was a sham
in its inception or entered into for the purpose of evading the immigration laws, the Service could not deny a spousal visa petition merely
because the parties were no longer together. Finally, in Matter of
McKee, Interim Decision 2782 (BIA 1980), we adopted the position of
the Dabaghian and Chan opinions and concluded that separation of the
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Interim Decision #2798
parties to a marriage in and of itself was no longer a valid basis for
denial of a visa petition, as it was merely a relevant factor in ascertaining the parties' intent at the time of the marriage.
On the issue of adjustment preclusion pursuant to section 245(c)(2),
we reach a similar conclusion. It is clear that the congressional intent
refers exclusively to meeting the definition of "immediate relative" in
the statute. There is no evidence of fraud in the respondent's marriage.
In addition to being eligible for adjustment of status, there is also no
important reason to deny the application in the exercise of discretion.
See Matter of Arai, 13 'SW Dec. 494 (BIA 1970).
After carefully considering the Service's argument, we do not find a
legal basis to extend the preclusion provision of section 245(c)(2) to
immediate relative spouses whose marriages are nonviable. Such an
extension is unwarranted by congressional intent and runs counter to
the recent interpretations by the courts and this Board of who can be
classified as an immediate relative. Therefore, the appeal will be
dismissed.
ORDER. The appeal i3 dismissed.
406
