Interim Decision #2811
MATTER OF BOROMAND
In Section 246 Proceedings
A-19278665
Decided by Board August 1, 1980
(1) In the absence of evidence to support a finding of a fraudulent or sham marriage or
legal dissolution of the marriage, the denial of an adjustment of status application or
the subsequent rescission of an adjustment grant cannot be based solely on the
nonviability of the marriage at the time of the adjustment application. See Matter of
McKee, Interim Decision 2782 (BIA 1980).
(2) To the extent that Matter of Sosa, Interim Decision 2469 (BIA 1976), holds that an
alien seeking admission, to the United States as the spouse of a United States citizen or
lawful permanent resident may be excluded solely because the marriage upon which
such status is based is "nonviable", it is overruled. Matter of!rondo, Interim Decision
2781 (BIA 1980), modified.
(3) Where investigation of marital relationship conducted and evidence'did not indicate
a fraudulent or sham marriage, respondent's misrepresentation that he and his wife
were residing together at the time of his adjustment application, did not constitute a
material misrepresentation to render him ineligible as a matter of law for adjustment
of status under section 245 of the Immigration and Nationality Act, 8 U.S.C. 1255. See
Matter of 8— and B—C—, 9 I&N Dec. 436 (BIA 1960; A.G. 1961). Rescission proceedings commenced pursuant to section 246 of the Act, 8 U.S.C. 1256, terminated.
ON BEHALF OF RESPONDENT. Mark A. Anvaripour, Esquire
11 East Adams Street, #604
Chicago, Illinois 60603
BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members
This is an appeal from a March 5, 1979, order of an immigration
judge, rescinding the adjustment of status which had been granted the
respondent under section 245 of the Immigration and Nationality Act,
8 U.S.C. 1255. The appeal will be sustained.
The respondent is a 29-year-old native and citizen of Iran who last
entered the United States on January 10, 1973, as a nonimmigrant
student. On August 8, 1973, the respondent married Patricia Seymour,
a United States citizen, in. Chicago, Illinois. The respondent's wife filed
an immediate relative visa petition on his behalf on January 24, 1974,
which was approved on February 23, 1974. On August 7, 1974, the
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respondent's status was adjusted to that of a lawful permanent resident based on his marriage to Patricia Seymour.
On March 11, 1975, the respondent was notified by the Service of its
intention to rescind the adjustment of status granted him on August 7,
1974. The notice of rescission charges that the respondent's adjustment of status is subject to rescission under section 246 of the Act, 8
U.S.C. 1256, since at the time of adjustment, the respondent and his
wife were not living together in a marital relationship. It further
charges that the respondent made false statements concerning his
relationship with his wife in order to secure permanent residence in
the United States.
In his decision rescinding the respondent's grant of adjustment of
status, the immigration judge found that although the respondent and
his wife had entered into p. lawful marriage, the parties had ceased
living together in March 1974, and that no bona fide husband and wife
relationship existed at the time, the respondent was granted his adjustment of status in August 1974. He found further that the respondent
had falsely stated at his August 7, 1974, Service interview conducted in
connection with his adjustment application, that he was residing with
his wife. Based on the materiality of this misrepresentation, the immigration judge concluded that the respondent was ineligible for the
adjustment of status granted him. See section 212(a)(19) of the Act, 8
U.S.C. 1182(a)(19).
On appeal, counsel for the respondent argues that since the respondent's marriage was not a fraudulent one, the grant of his adjustment of
status cannot now be rescinded based on the marital difficulties of the
parties. It is contended that the statements of the respondent and his
wife indicating that they were not living together were made in states
of anger and rage. Furthermore, it is maintained that a statement
made by the respondent on December 18, 1974, in which he averred
that he married Patricia Seymour for the sole purpose of obtaining
lawful permanent status, was made without the benefit of counsel and
that the respondent did not knowingly and intelligently sign the
statement. It is argued that the immigration judge erred by admitting
this statement into evidence.
At the rescission hearing, the respondent testified that he and his
wife were living together at the time of his adjustment application in
August 1974, and that they continued cohabiting until November 1974.
He maintained that his statement to the immigration officer on
December 18, 1974, that he and his wife stopped living together in
March 1974 was untrue and that he was upset at the time the statement was made. In a sworn statement dated December 10, 1974, and at
the hearing, the respondent's wife stated that she and the respondent
'eased living together in March 1974. She also testified that she was
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forced to tell the immigration officer that she and the respondent were
living together at the time the respondent applied for adjustment
because the respondent had threatened her. A friend of the respondent's wife verified this information in a sworn statement dated August
13, 1975. Contained in the record are a divorce complaint and countercomplaint filed by the parties in 1974 and 1975, which indicate that
they cohabited until on or about February 27,1974.
Based upon the demeanor of the witnesses and the inconsistencies of
the respondent's statements, the immigration judge found that the
respondent's testimony lacked credibility and that the testimony of his
wife was worthy of belief. An immigration judge's findings regarding
the credibility of witnesses appearing before him are entitled to considerable weight. Matter of Tertg,15 I&N Dec. 516 (BIA 1975); Matter of
-
S , 8 I&N Dec. 574 (BIA 1964 Furthermore, counsel's contention that
—
the immigration judge erred in admitting the respondent's December
18,1974, statement into evidence is without merit. The officer who took
the statement testified that he informed the respondent of his right to
counsel (Tr. p. 8). Moreover, we note that there is no right to counsel
during the taking of a preliminary statement in the investigation
stage. See Matter of Steele,
12 I&N Dec. 302 (BIA 1967); Metter of
Argyroe, 11 1&N Dec. 585 (BIA. 1966). There is no indication that the
respondent made the statement involuntarily or that he did not understand what he was signing. Therefore, we find that the immigration
judge properly admitted the statement into evidence.
Based on the foregoing evidence, we conclude that the respondent
misrepresented the status of his marriage at the time he applied for
adjustment of status. The inquiry in this case does not end here
however since it must also be determined whether the respondent's
misrepresentations regarding his marriage were material in order to
render him ineligible for adjustment of status under section 212(a)(19)
of the Act. In Matter of S— and B—C—,
9 I&N Dec. 436 (BIA 1960; A.G.
1961), it was held that a misrepresentation under section 212(a)(19) of
the Act is material if (1) the alien is excludable on the true facts, or (2)
the misrepresentation tends to shut off a line of inquiry which is
relevant to the alien's eligibility and which might well have resulted in
a proper determination that he, be excluded. The same test of materiality can be applied to the misrepresentation in this case since an
applicant for adjustment of status is placed in the same position as an
alien applying for admission to the United States as an immigrant.
In Matter of Sosa,15 I&11 Dee. 572 (BIA 1976), we addressed the issue
of separation and marriage viability and its relationship to an adjustment of status application in the context of the spousal visa petition
underlying the adjustment application. That case involved an alie n
who had originally been admitted to the United States as a lawf!
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permanent resident based on his marriage to a United States citizen
and who subsequently sought admission to this country as a returning
resident. We found there that since the applicant's marriage to his
United States citizen wife was not viable at the time he applied for his
immigrant visa and sought admission to the United States, his immigrant visa was invalid and he was therefore inadmissible to the
United States under section 212(a)(20) of the Act, 8 U.S.C. 1182(0(20).
This conclusion was based on our finding that the applicant and his
wife had ceased living together very shortly after their marriage and
that their marriage was "dead" prior to the issuance of the applicant's
immigrant visa and his admission to this country as a lawful
permanent resident. We stated there that since it was the intent of
Congress to exempt alien spouses of United States citizens from the
numerical limitations of the Act in order to prevent the separation of
families and to preserve the family unit, immigration benefits could
not be conferred on the basis of a nonviable or terminated marriage.
Our decision in Soso., id., was consistent with our previous decisions
which held that a visa petition could only be approved where the
petitioner established that he and the beneficiary had entered into a
bona fide marriage which is presently viable and ongoing. See Matter
of Mintah,
16 I&N Dec. 540 (BIA 1975), modified, Matter of McKee,
Interim Decision 2782 (BIA 1980). However, in Matter of McKee,
id., we
adopted the position expressed in Chan v. Bell,
464 F.Supp. 125 (D.D.C.
1978), wherein it was held that a visa petition filed on behalf of an alien
spouse could not be denied solely because the parties to the marriage
were no longer living together. Under Chan and McKee, the issue is
not whether there is a presently subsisting or "viable" marriage
(assuming there is no legal separation or dissolution of the marriage),
but rather whether the marriage was entered into for the primary
purpose of circumventing the immigration laws. See also Dabaghian v.
Civiletti,
607 F.2d 868 (9 Cir. 1979). Therefore, to the extent that Matter
of Sosa, supra, holds that an alien seeking admission to the United
States as the spouse of a United States citizen or lawful permanent
resident may be excluded solely because the marriage upon which such
status is based is "nonviable", it is hereby overruled' However, Sosa
remains valid precedent to the extent that it stands for the proposition
that an alien seeking admission as an immigrant may be found inadmissible if the marriage upon which his visa petition was based has
We note that in Dabagitian v. Civiletti, supra, the Ninth Circuit held that a marriage
legally valid but "factually dead" (nonviable) at the time of adjustment of status cannot
be the basis for rescission. In light of that decision, we held in Matter of Kondo, Interim
Decision 2791 (BIA 1980), that Sosa, supra, is no longer applicable law in the Ninth
Circuit. To the extent that our decision in Kmato implies that Sosa is applicable in
circuits other than the Ninth Circuit it is hereby modified.
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been legally terminated.
In keeping with this line of cases, we conclude that in the absence of
evidence to support a finding of a fraudulent or sham marriage or
evidence showing the legal dissolution of the marriage at the time of
the adjustment, the denial of an adjustment of status application or
the subsequent rescission of such grant cannot be based solely on the
nonviability of the marriage at the time of the adjustment application.
In the present case, it does not appear that the respondent married
Patricia Seymour for the sole purpose of evading the immigration
laws. See Lutwak v. U.S., 344 U.S. 604(1953); Barkv. INS,
511 F.2d 1200
(9 Cir. 1975); Matter of Phillis, Interim Decision 2407 (MA 1975). The
parties were married two months after they met. At the hearing, the
respondent's wife testified that the parties had a good relationship for
the first month of their marriage until the respondent left to attend
school in Louisiana. It appears from her testimony that it was only
after the respondent returned from Louisiana three months later that
the parties' differences surfaced (Tr. p. 34). Subsequent to his return,
the respondent and his wife cohabited for a three month period. In a
sworn statement dated December 10, 1974, the respondent's wife
claimed that the respondent informed her prior to their marriage that
his school tuition would be less expensive if he married a United States
citizen and became a lawful permanent resident. She further maintained in that statement that the respondent offered her a Persian rug
if she would marry him. At the hearing however, she stated that the
respondent gave her the rug after their marriage and that he did not
pay her any money for the marriage (Tr. pp. 25, 39). In addition, she
maintained that she married the respondent because she loved him
(Tr. p. 38). Although the respondent's wife at one time stated that she
believed that the respondent had married her in order to obtain
immigration benefits, she later testified that she did not think the
respondent's immigration problems were his only reasons for marrying her (Tr. pp. 34, 35). Based on the facts and circumstances in the
present case, we find that the parties entered into a bona fide marriage
with the intent of joining together as husband and wife and that the
respondent did not marry Patricia Seymour for the primary purpose of
obtaining immigration benefits.
Based on the foregoing, we conclude that in this particular case the
respondent's adjustment of status grant cannot be rescinded based on
the charge that he materially misrepresented his living arrangements
with his wife at the time of his adjustment application. Since we have
concluded that an adjustment application cannot be denied based
solely on the nonviability of the marriage at the time of adjustment,
the respondent's misrepresentation cannot be considered material in
this regard. Furthermore, since we find that the respondent's marriage
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was not a sham, the respondent's misrepresentations did not cut off a
line of inquiry which would have lead to a denial of his adjustment
application.' See generally, Matter of S— and B—C—, supra. Accordingly, the appeal will be sustained and the proceedings shall be
terminated.
ORDER: The appeal is sustained. The proceedings commenced
pursuant to section 246 of the Act are hereby terminated.
2 The record indicates that there was no legal separation or dissolution of the marriage
at the time of the adjustment application. Therefore, we need only address the question
of whether the marriage was a sham or fraudulent at its inception.
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