AWWAL

                                                     Interim. Decision #3056




                           MATTER OF AWWAL

  In Rescission Proceedings Under Section 246 of the Immigration
                             and Nationality Act

                                    A-20282043

                       Decided by Board April 4, 1988

(1) A steprelationship under section 101(bX1)(13) of the Immigration and Nationality
  Act, 

(bX1)03) (1982), must be based on a marriage that was at some
  point a valid one.
(2) A sham marriage is invalid from lie iuceptiou and cannot under any circumstances be the basis of a steprelationship under section 101(b)(1)(13) of the Act.
(8) Even where there is an ongoing actual family relationship between a stepparent
  and a stepchild, that relationship cannot be recognized under section 101(bX1XB)
  of the Act where the marriage creating the steprelationship was a sham. Matter
  of Teng, 

 (BIA 1975), clarified.

ON BEHALF OF RESPONDENT:                         ON BEHALF OF SERVICE:
 Michael Maggio, Esquire                          David M. Dixon
 Maggio & Ratter                                  Appellate Counsel
 11 Dupont Circle, NW., 7th Floor
 washingizn, D.C. 20036                            Jane Leroe
                                                   General Attorney
  Byron B. Park, Esquire
  Park & Associates
  703 Market Street, Suite 1900
  San Francisco, California 94103

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members



 This is an appeal from a decision of the immigration judge, dated
October 4, 1983, rescinding the respondent's prior grant of adjustment of status. Oral argument was heard before the Board on
August 21, 1985. The appeal will be dismissed.
 The respondent is a 25 -year -old native and citizen of Bangladesh.
He apparently was paroled into the United States on September 9,



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1972. 1 On July 15, 1974, his status was adjusted to that of a lawful
permanent resident of the United States. His adjustment was based
on his status as the stepchild of his mother's United States citizen
husband. See section 101(b)(1)(B) of the Immigration and Nationality Act, 

(b)(1)(B) (1982). On August 18, 1975, a notice
of intent to rescind was sent to the respondent. The notice alleged
that the respondent's mother was separated from her husband at
the time his adjustment was granted, and that the respondent
therefore did not qualify as the stepchild of a United States citizen
at that time. A similar notice was sent to the respondent's mother.
Prior counsel of both the respondent and his mother apparently responded to the notices and requested a hearing. A rescission hear
ing relating only to the respondent's mother was held, and her adjustment was ordered rescinded on the ground that her marriage
was a sham entered into in order to procure immigration benefits.
This Board ultimately upheld the mother's rescission on August 15,
1979.
  On March 5, 1981, the respondent's parole was terminated, and
he was placed in exclusion proceedings, charged with excludability
under section 212(a)(20) of the Act, 

(a)(20) (1982), as
an immigrant not in possession of a valid immigrant visa. Counsel
for the respondent filed a trial brief in which it was argued, inter
alia, that there was no jurisdiction to hold an exclusion hearing because the respondent's lawful permanent resident status had never
been rescinded. The respondent noted that in rescission proceedings the Government bears the burden of proving ineligibility for
adjustment by clear, unequivocal, and convincing evidence. See,
e.g., Waziri v. INS, 

 (9th Cir. 1968); Matter of Suleiman,

 (BIA 1974). At a hearing held on May 18, 1982,
counsel reiterated his contention that exclusion proceedings were
improper because there had been no rescission proceedings. Because of the complex issues involved, the case was continued by the
immigration judge.
  A further hearing was held on October 4, 1983. On that date, the
immigration judge stated that he was conducting a rescission hearing. Counsel made a motion to terminate the exclusion proceedings
because the respondent had not had his lawful permanent resident
status rescinded. The immigration judge again noted that he was
conducting rescission, not exclusion, proceedings, so the motion was

   The respondent arrived in this country with a nonimmigrant visitor's visa And
there is some evidence that he was admitted as such. However, other evidence reflects that he was not actually admitted, and both parties appear to agree that he
was paroled.

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found to be premature. Counsel appeared to accede to this. However, counsel then moved for termination of the rescission proceedings because 8 years had passed. since the notice of intent to rescind was served. It was argued that it would be "inappropriate
and unjust" to proceed with rescission after such a long delay. The
immigration judge denied this motion, finding no affirmative misconduct on the part of the Government. See generally INS v. Hibi,

 (1973). The rescission hearing went forward.
  Following the hearing, the immigration judge issued an oral decision rescinding the respondent's adjustment of status. He found the
respondent to be a truthful witness and to be innocent of any
wrongdoing. He further found that the respondent and his ex-stepfather had a familial relationship during and for some time after
the marriage. However, he concluded that because the underlying
marriage had been found to be a sham, there had never been a
valid marriage under the immigration laws and thus the respondent could not obtain immigration benefits through that marriage.
He relied fur this holding on our decision in Matter of Tang, 

 (BIA. 1975).
  On appeal, the respondent first makes two arguments regarding
the propriety of the proceedings. He argues that these are exclusion proceedings and the immigration judge was without authority
to conduct a rescission hearing in exclusion proceedings. It is alternatively argued that, because the Immigration and Naturalization
Service "abandoned" the rescission proceedings for 8 years, it
would be fundamentally unfair and excessively harsh to rescind
the respondent's adjustment of status now. The primary focus of
the respondent's appeal, however, is on the proper interpretation of
Matter of Teng, supra. He contends that under that decision immigration benefits are available through a stepparent-stepchild relationship even where the underlying marriage was a sham, so long
as there has been active parental interest shown by the stepparent
in the stepchild.
   On appeal, the Service argues first of all that the proceedings are
proper. The Service notes that the respondent requested a rescission hearing, and that request was granted. It is further contended
on this procedural issue that no prejudice to the respondent has
been shown as a result of the delay in holding the hearing. As to
the legal issue regarding steprelationships, the Service argues that
there can be no steprelationship under section 101(b)(1)(B) of the
Act without a valid underlying marriage.
   Preliminarily, we find that these rescission proceedings are
proper. As pointed out by Appellate Counsel for the Service, the respondent argued that he should be in rescission, not exclusion pro-

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ceedings. The immigration judge agreed with the respondent and a
rescission hearing was held. The respondent cannot now complain
that a rescission hearing should not have been held. We note that
counsel pled to the allegations set forth in the notice of intent to
rescind and did not protest that he was not prepared for rescission
proceedings. Nor has there been a showing that the respondent was
prejudiced by the holding of these rescission proceedings, or by the
delay in holding them. Moreover, even if we were to hold that, because of the delay, the proceedings were in some way unfair and
should be terminated, that would not result in the end of all proceedings against the respondent. Exclusion proceedings could still
be brought. See generally Matter of Belenzo, 

 (BIA
1980, 1981; A.G. 1981). While the delay in this case is unfortunate,
we conclude that the rescission proceedings were properly held. 2
  We turn next to the issue which both parties have stated is the
paramount one in this case. Simply stated, the question is, can
there be a stepchild-stepparent relationship within the meaning of
section 101(3)(1)(B) of the Act where the marriage creating the ateprelationship was a sham from its inception. We agree with the immigration judge and the Service that the answer is no.
  In Matter of Tong, supra, a stepfather had filed visa petitions on
behalf of his wife's children. His marriage to their mother was subsequently determined to be a sham. We held that, "where there is
a sham marriage and no actual familial relationship between the
stepchildren and the United States citizen stepparent has ever existed, the stepchildren are not entitled to be considered children of
a United States citizen for purposes of the Immigration and Nationality Act." Id. at 519. The immigration judge relied on this case
in finding that, because there was no valid marriage between the

    The respondent cites Matter of Qean, 

 (D.A.C. 1957), for his contention that the Service should not have instituted rescission proceedings in this
case because of the excessively harsh consequences that could result. Matter of
Quan was a decision made by the Deputy Associate Commissioner for the Immigration and Naturalization Service, who noted in the decision that "the Service may
exercise discretion in determining whether rescission proceedings should be instituted in any individual case." 

. In fact, what is complained of here is not the
institution of rescission proceedings, but the delay in holding the rescission hearing.
In any event, Matter of Quan can be of no help to the respondent since neither the
immigration judge nor this Board has any authority to terminate proceedings as improvidently begun. The decision whether or not to institute proceedings is a matter
of prosecutorial discretion, and once the Service, in the exercise of that discretion,
institutes proccedingo, we are required to go forward to determine whether the evi.
deuce warrants a decision to rescind. See Matter of Saunders, 

 BIA
197'1); cf. Matter of Ramirez-Sanche4 

 (BIA 1980); Matter of Lennon,

 (BIA 1974), and cases cited therein.

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respondent's mother and stepmother, the respondent was ineligible
for immigration benefits through the stepfather. The Service
agrees with this interpretation. The respondent, however, finds
that Matter of Teng, .supra, supports his position. He argues that
because he did have an actual family relationship with his stepfather, he could obtain immigration benefits through him despite the
sham nature of the marriage.
  We can understand the respondent's view that Matter of Teng,
supra, favors his position because it talks of a "sham marriage and
no actual familial relationship." Id. at 519 (emphasis added). We
are unwilling, however, to adopt that approach now that we are
squarely faced with a situation involving not only a sham marriage
but also an actual family relationship between the stepparent and
child. A steprelationship under section 101(b)(1)(B) of the Act is, of
course, based on a marriage, and it seems clear to us that the marriage forming the basis for the steprelationship must at some point
have been a valid one. Where there is not and never has been a
valid marriage, there cannot be a ateprelationship under the immigration laws. Thus, a marriage which is a sham from the outset
cannot form the basis for a steprelationship under section
101(3)(1)(3). We withdraw from the holding in Matter of Teng,
supra, insofar as it may indicate that a sham marriage may form
the basis for a steprelationship if there is an actual family relationship between the stepparent and stepchild.
  The respondent cites Matter of Pagnerre, 

 (BIA.
1971), as support for his position. See also Matter of Mowrer, 

 (BIA 1981). These cases are clearly distinguishable
from the present one, however, since in Pagnerre and Mowrer there
had been valid marriages at some point, whereas here there never
was a valid marriage.
  Counsel for the respondent recognizes the potential for fraud if
steprelationships based on sham marriages are recognized under
the immigration laws. However, he urges us to deal with the problem of fraud, not by adopting a "per se" rule that sham marriages
can never form the basis for steprelationships, but rather by placing the burden. of proof on the party seeking to establish the steprelationship to show that there is no "sham steprelationship." The
respondent's approach would not answer the real problem here: the
fact that steprelationships, regardless of any family relationship,
must be based on a marriage which has at one time been a valid
marriage. A sham marriage is invalid from its inception. See, e.g,
Matter of Laureano, 

 (BIA 1983); Matter of Romero,

 BIA 1975); Matter of M-, 

 (BIA
 958). See generally Lutwak v. United States, 

 (1953). It
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Interim Decision #3056

cannot under any circumstances be the basis of a steprelationship
under section 101(b)(1)(B) of the Act.
  The respondent's eligibility for immigration benefits depended
entirely on his mother's marriage to a United States citizen. That
marriage has been found to have been a sham, and the mother's
own adjustment of status was rescinded because of the fraudulent
marriage. Based on our discussion above, that marriage cannot
form the basis for the respondent's adjustment of status. His adjustment was therefore properly ordered rescinded, and his appeal
must be accordingly be dismissed.°
   ORDER: The appeal is dismissed.




  3 We note that the respondent may be eligible for legalization under section 201 of
the Immigration Reform and Control Act of 1986, 

 Stet. 3359.

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