PIERCE

Interim Decision #2812




                                MATPER OF PIERCE

                             In Exclusion Proceedings

                                      A-20672721

                       Decided by Board August 1, 1980
(1) An applicant for admission into the United States as the spouse of a United States
   citizen or lawful permanent resident cannot be excluded under section 212(a)(20) of
   the Immigration and Nationality Act, 8 U.S.C. 1182(a)(20), solely because the marriage upon which such status is based is "nonviable" at the time of the application for
   admission. See Matter of Bore:nand, Interim Decision 2811 (BIA 1980).
(2) Where the record established that the applicant was separated from her United
   States citizen husband at the time she applied for admission, but there was no
   evidence of a legal separation or dissolution of the marriage, applicant found admis-
 • sible as the spouse of a United States citizen under section 201(b) of the Act, 8 U.S.C.
  1151(b).
EXCLUDABLE:
  Order. Act of 1952—Sec. 212(a)(20) [8 U.S.C. 1182(a)(20)]—Immigrant—not in possession of valid immigrant visa
ON BEHALF OF APPLICANT: James S. Brooks, Esquire
                        101 Citicorp Building
                        P.O. Box 1115
                        Agana, Guam 96910
BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members


  In a decision dated February 23, 1979, the immigration judge found
the applicant excludable under section 212(a)(20) of the Immigration
and Nationality Act, 8 U.S.C. 1182(a)(20) and ordered her excluded.
The applicant has appealed from this decision. The appeal will be
sustained.
  Since the time this appeal was filed, a factor has arisen that was not
previously present. This is the fact that the Board has altered its
position in regard to the question of viable marriages. In Matter of
McKee, Interim Decision 2782 (BIA 1980), we held that where the
parties enter into a valid marriage, and there is nothing to show that
they have since obtained a legal separation or dissolution of the
marriage, a visa petition will not be denied solely because the parties

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are not residing together.
  In keeping with our decision in McKee, id., we held in Matter of
Boromand, Interim Decision 2811 (BIA 1980), that where there is no
evidence of a fraudulent 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.
The principle set forth in Boromand applies to the instant case where
the issue is excludability based on section 212(a)(20) of the Act with
the underlying contention being that the marriage was not viable at
the time of the applicant's application for admission as an immigrant.
   The record shows that the applicant here was separated from her
husband at the time she applied for admission, but there was no
evidence of a legal separation or dissolution of the marriage. The
applicant is therefore admissible as the spouse of a United States
citizen under section 201(b) of the Act. The appeal is accordingly
sustained.
   ORDER: The appeal is sustained, and the applicant is admitted
into the United States.




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