ALDECOAOTALORA

Interim Decision #2948




                        MATTER OF ALDECOAOTALORA

                          In Visa Petition Proceedings

                                     A-23693777
                        Decided by Board July 22, 1983


  A visa petition filed by a petitioner seeking to accord immigration benefits to her
unmarried daughter under section 203(a)(2) of the Immigration and Nationality Act, 8
U.S.C. 1153(a)(2), is properly denied where the beneficiary admitted that she was divorced
for the sole purpose of obtaining immigration benefits and continued to reside with and
own property jointly with her former husband in what by all appearances is a marital
relationship; such a divorce is considered a sham and is not recognized for immigration
purposes.
ON BEHALF OF PETITIONER: James J. Kelly, Esquire
                         Valley Bank 114(.4
                         300 South Fourth Street
                         Las Vegas, Nevada 89101 ,
By: Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members



  The lawful permanent resident petitioner filed a visa petition on behalf
of the beneficiary to accord her benefits as her unmarried daughter
under section 202(a)(2) of the Immigration and Nationality Ad, 8 U.S.C.
1159(a)(2). In a decision dated November 3, 1982, the District Director
denied the petition on the ground that the beneficiary does not qualify
as the petitioner's unmarried daughter because her divorce is a sham.
The District Director's decision has been certified to the Board for
review. The decision will be affirmed.
   The petitioner is a 64-year-old native and citizen of the Philippines.
The beneficiary is a 31-year-old native of the Philippines. The record
reflects that she claims to be a citizen of Spain. It further reflects that
she was married to a citizen of Spain on April 15, 1973, in the Philippines
and that they have two United States citizen children born on March 17,
1976, and July 13, 1981. The beneficiary obtained a divorce from her
husband on July 28, 1981.
' Ili his decision the District Director concluded that the beneficiary's
divorce was entered into for the sole purpose of circumventing the
irrimigration visa pteference system. He based his findings primarily on

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the beneficiary's own statements made at an interview on May 18, 1982.
In her sworn statement, the beneficiary claimed that she was divorced
because of irreconcilable differences with her husband, but when questioned regarding those differenees she stated that she needed a green
card in order that her children could remain in the United States. She
further admitted that she had never stopped residing with her former
husband, that they still filet' joint tax returns, and that they -continued
to own their home and all other property jointly as community property.
   The District Director further noted that the employment records of
the beneficiary's former husband indicate that he claims to be married
with three dependents. In addition, the telephone at the beneficiary's
residence is listed in the directory under the name of her divorced
spouse. From this evidence and the beneficiary's statements, the District Director determined that her divorce was a sham. He further
concluded that she could not obtain immigration benefits as an unmarried person by virtue of such a divorce. We agree.
   The legislative history of the Act reflects that the intent of Congress
in providing for preference status for unmarried sons and daughters of
lawful permanent residents was to reunite with their parents unmarried
children who, although not minors, were still part of a family unit. See
Matter of Coletti, 

 (BIA 1965); see also Matter of Lew,

 (BIA 1900). By her own admissions, the beneficiary
has established that, although divorced from her husband, she has neither severed her relationship with him nor returned to the family unit of
her parents.
   In Gregory v. Helvering , 

 (1935), the Supreme Court
created the sham transaction doctrine in the context of tax law, holding
that where such a transaction on its face is outside the plain intent of the
statute involved, it should be disregarded because to do otherwise "would
be to exalt artifice above reality and to deprive the statutory provision
in question of all serious purpose." 

. See also Commissioner
v. Tower, 

 (1946); Commissioner v. Court Holding
Company, 

 (1945); Boynton v. Commissioner, 

 (5 Cir. 1981), cert. denied, 

 (1982); Davis v.
Commissioner, 

 (6 Cir. 1978), cert. denied, 

(1979). Following that decision, the Fourth Circuit Court of Appeals
recently determined that tlae sham transaction doctrine may apply to a
divorce obtained in order to avoid the "marriage penalty" imposed on
married taxpayers if "the parties intended merely to procure divorce
papers rather than actually' to effect a real dissolution of their marriage
contract." Boyter v. Commissioner, 

 (4 Cir. 1981).
  There can be no doubt that the beneficiary's sole intention in seeking
a divorce was to obtain immigration benefits because she has admitted
as much. She has nevertheless continued to live with her former hus-

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banctin what by all appearances is a marital relationship. In so doing she
is clearly attempting to thwart the statutory purpose of the Act to unite
unmarried children with their lawful permanent resident parents. We
therefore agree with the District Director's conclusion that the beneficiary's divorce is a sham and that it should not be recognized for immigration purposes as qualifying her for preference status under section
203(a)(2) of the Act. Cf. Lutwak v. United States, 344 U.S 604 (1953);
McLat v. Longo, 

 (D.V.I. 1976); Matter of McKee, 

 (BIA 1980). Accordingly, we shall affirm the decision of
the District Director denying the visa petition.
  ORDER: The decision of the District Director is affirmed.




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