FUENTES

                                                             Interim Decision #3140




                         MATTER OF FUENTES
                         In Visa Petition Proceedings
                                    A 28024485
                                      -




                    Decided by Board January 10, 1991

(1)Issuance of an Order to Show Cause is sufficient to commence proceedings against an
  alien for purposes of section 204(h) of the Immigration and National ty Act, 

(h) (1988). Matter of Enriquez, 

 (BIA 1911), superseded.
(2) A visa petition based on a marriage which occurred after proceedings have
  commenced against the beneficiary may be approved if he can show by clear and
  convincing evidence that his marriage to the petitioner was entered into in good faith.
ON BEHALF OF PETITIONER:                             ON BEHALF OF SERVICE:
 William Van Wyke, Esquire                             Elizabeth S. Dolan
  1624 U Street, N.W., Suite 200                       General Attorney
 Washington, D.C. 20009

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


ORDER:
   PER CURIAM. In a decision dated November 24, 198 9, the district
director applied section. 204(h) of the Immigration and Nationality
Act, 

(h) (1988), to the instant petition and concluded
that the beneficiary was ineligible for the immigration benefit sought.
The petitioner has appealed from the district director's denial of the
visa petition. The record is remanded for further proceedings. The
petitioner's request for oral argument before the Board is denied. See 

(e) (1990).
   On appeal, the petitioner argues that the district director erred in
finding that deportation proceedings were "pending" against her alien
spouse at the time that the couple married. In her Notice of Appeal to
the Board of Immigration Appeals (Form I-290A), she a Lieges that the
district director's interpretation of when proceedings are pending
under section 245(e)(2) of the Act, 

(e) 2) (1988),' is
   Section 204(h) of the Act prohibits approval of a visa petition w aich would grant
immediate relative or preference status by reason of a marriage which was entered into
"during the period described in section 245(e)(2)."

                                          227
Interim Decision #3140

inconsistent with the applicable regulations and contradicts this
Board's holding in Matter of Enriquez, 

 (BIA 1988).
Counsel for the petitioner notes in a supporting brief that the record
does not show that the Order to Show Cause and Notice of Hearing
(Form I 221), issued on September 19, 1988, was served on the
        -


beneficiary prior to his marriage to the petitioner on November 30,
1988. He cites several regulations, in particular 

.5a(c)(1) and 242.1(c) (1989), as support for the contention that
immigration proceedings cannot be "pending" without service of the
Order to Show Cause.
  In its reply brief, the Service argues that both issuance and service
of the Order to Show Cause occurred prior to the November 30, 1988,
marriage between the petitioner and the beneficiary. The Service also
cites 

(a)(2)(iii) (1989), which provides that proceedings are deemed to have commenced with the issuance of the Order to
Show Cause_
   The regulation at 

(a)(2)(iii) (1989), cited by the
Service, was promulgated on August 10, 1988, as part of the final
regulations under the Immigration Marriage Fraud Amendments of
1986, 

 Stat. 3537. In promulgating these
regulations, the Attorney General, quoting from section 245(e)(2) of
the Act, stated that —the period during which administrative or
judicial proceedings are pending regarding the alien's right to enter or
remain in the United States' encompasses more than just the period
when the matter is pending before an immigration judge or is on
appeal to this Board, or is under judicial review; it includes "all
administrative (Service or EOIR [Executive Office for Immigration
Review]) and judicial (the Federal court system) proceedings, including Service proceedings occurring before and after EOIR of [sic]
judicial proceedings." 

, 30,013 (1988).
   In Matter of Enriquez, supra, cited by the petitioner, we applied the
regulations in effect as of March 2, 1987, to hold that proceedings
before an immigration judge are commenced by the filing of the Order
to Show Cause with the Office of the Immigration Judge. We note that
Matter of Erriquez was issued in January 1988, before the Attorney
General had promulgated 

(a)(2)(iii) (1989). A regulation promulgated by the Attorney General has the force and effect of
law as to immigration judges and this Board. Matter of Fede, 

 (BIA 1989). We therefore find that, insofar as it applied to the
commencement of proceedings for purposes of section 204(h) of the
Act, our holding in Matter of Enriquez, supra, has been superseded by
the subsequent promulgation of 

(a)(2)(iii) (1989).
  Pursuant to the regulations, we find that proceedings were pending
against the beneficiary within the meaning of section 204(h) of the Act

                                  228
                                                 Interim Decision #3140

as of September 19, 1988, the date the Order to Show Cause was
issued. Thus, we find it unnecessary to decide whether the Order to
Show Cause was served on the beneficiary prior to his marriage to the
petitioner on November 30, 1988. We hold that the district director
properly denied the visa petition under section 204(h) of the Act
because proceedings had commenced against the beneficiary at the
time the parties were married.
   In light of a recent amendment to section 204(h), however, we find
that the record in this case should be remanded to the district director
for further consideration of the visa petition. While the petitioner's
appeal was pending, Congress enacted the Immigration Act of 1990,

 Stat. 4978, which provides in pertinent part
at section 702(a) that "section 204(h) shall not apply with respect to a
marriage if the alien establishes by clear and convincing evidence to
the satisfaction of the Attorney General that the marriage was entered
into in good faith." 104 Stat. at 5086. Section 702(c) of the
Immigration Act of 1990 further provides that the amended section
204(h) "shall apply to marriages entered into before, on, or after"
November 29, 1990. Id.
   Accordingly, the record is remanded to the district director for
further proceedings consistent with the foregoing opinion and the
catty of a new decision.




                                  229