ISBER

Interim Decision #3203




                           MATTER OF ISBER

                        In Visa Petition Proceedings
                                   A-28485883
                    Decided by Board August 10, 1993

  Section 204(c) of the Immigration and Nationality Act, 8          § 1154(c) (1988),
does not preclude approval of a second marital visa petition filed by a petitioner on
behalf of the same beneficiary.
ON BEHALF OF PETITIONER: Albert Armendariz, Sr., Esquire
                                   3431 Pershing Drive, Suite A-4
                                   El Paso, Texas 79903

BY: Milhollan, Chairman; Dunne, Vacca, and Heilman, Board Members. Concurring
     Opinion: Morris, Board Member.


   The instant case was last before us on December 18, 1991, when we
returned the record of proceedings to the Immigration and Naturalization Service because the beneficiary had filed the appeal. On January
6, 1992, the petitioner, through counsel, filed a motion to reconsider in
which she indicates that she wishes to pursue the appeal from the
denial of her visa petition.' See 

(a)(3)(i) (1993). In
view of the petitioner's stated desire to pursue her appeal, we hereby
vacate our prior decision and reinstate the proceedings on appeal. The
appeal will be dismissed.
   The petitioner is a 24-year-old United States citizen. The beneficiary is a 38-year-old native and citizen of Syria. In a decision dated
April 14, 1989, the district director denied the visa petition filed by the
petitioner in accordance with section 204(c) of the Immigration and
Nationality Act, 

(c) (1988). The petitioner had sought
to accord the beneficiary immediate relative status as her spouse
pursuant to section 201(b) of the Act, 

(b) (1988). The
petitioner filed her most recent visa petition on the beneficiary's behalf
  1 The petitioner also requests in her motion that the Board withhold consideration of
the beneficiary's appeal in his deportation proceedings pending our issuance of a
decision in the instant matter. We note that the Board issued decisions in the
beneficiary's deportation proceedings on August 26, 1992, and December 7, 1992, and
his case is not currently before the Board.
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on March 31, 1989. The petitioner and beneficiary married on
November 23, 1988.
   The record reflects that the petitioner initially filed an immediate
relative visa petition on behalf of the beneficiary on December 1,
1988. She withdrew the petition on January 31, 1989, and indicated in
an affidavit that she married the beneficiary as "a favor, so he could
get his residency." The petitioner stated further in her sworn statement
that she and the beneficiary were living together "so that it would look
good," but that they had not consummated the marriage.
  In support of her present visa petition, the petitioner submitted a
new affidavit in which she attests that she and the beneficiary have "a
true marriage based on mutual love and affection." She also states that
she was coerced by Service officers to withdraw the petition which she
had filed earlier on the beneficiary's behalf. The petitioner further
advises in her more recent affidavit that "[nixing [the beneficiary's]
papers is merely incidental to our desire to live with each other as
husband and wife in harmony and in the United States." The
petitioner also submitted an affidavit from her mother who indicates
that the petitioner and beneficiary's marriage is bona fide, affidavits
from friends who attended her wedding reception, as well as evidence
of a joint bank account and a joint income tax return.
   On appeal, the petitioner contends that the visa petition should be
approved because her marriage to the beneficiary is bona fide. The
petitioner asserts that her marriage to the beneficiary was not entered
into in order to evade the immigration laws, that her sworn statement
to that effect was coerced by Service officials when she was not
represented by counsel, and that her prior withdrawal of the visa
petition does not constitute evidence of a fraudulent marriage.
   Section 204(c) was added to the Act on October 3, 1965, by section
4 of 

 Stat. 911, 915 (1965). It provided as
follows:
  Notwithstanding the provisions of subsection (b) ... no petition shall be approved if
  the alien has previously been accorded a nonquota or preference status as the spouse
  of a citizen of the United States or the spouse of an alien lawfully admitted for
  permanent residence, by reason of a marriage determined by the Attorney General to
  have been entered into for the purpose of evading the immigration laws.

This language was intended to prohibit "approval of a petition for an
alien whose prior marriagewas determined by the Attorney General to
have been entered into for the purpose of evading the immigration
law." S. Rep. No. 748, 89th Cone., 1st Sess. (1965), reprinted in 1965
U.S.C.C.A.N. 3328, 3341-42 (emphasis added).
 Section 204(c) was amended by section 4(a) of the Immigration
Marriage Fraud Amendments of 1986 ("IMFA"), 

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, 3543 (1986)„2 in two ways. First, the words "or has
sought to be accorded," were added after the words "has previously
been accorded." Prior to this amendment, section 204(c) did not apply
where the alien had not actually been granted an immigration benefit
on the basis of his or her marriage, even though it was indubitably
fraudulent and even though the alien had sought to obtain such a
benefit. If, for instance, the petitioner withdrew the visa petition on
being confronted with evidence that the marriage was a sham, the
beneficiary was not thereafter barred from deriving an immigration
benefit from another marriage or otherwise. The addition of the words
"or has sought to be accorded" closed this loophole. There is nothing
in the legislative history, however, which suggests that Congress was
not still referring to a "prior marriage." See H.R. Rep. No. 906, 99th
Cong., 2d Sess. (1986), reprinted in 1986 U.S.C.C.A.N. 5978.
   IMFA also amended section 204(c) to add a new clause prohibiting
the approval of a visa petition if "the Attorney General has determined that the alien has attempted or conspired to enter into a
marriage for the purpose of evading the immigration laws." 100 Stat.
at 3543. Congress thereby extended the perpetual bar of section 204(c)
to cases where an alien had entered, or attempted or conspired to
enter, ink, a sham marriage for the purpose of obtaining an immigration benefit, but no benefit was actually sought. Situations such as
these could result, for instance, in connection with undercover Service
investigations of marriage fraud rings. Again, there was no suggestion
that Congress was not still referring to prior marriages.
   In the case before us, the district director is seeking to interpret
section 204(c) as applying where the marriage on the basis of which an
immigration benefit is sought is not a prior marriage, but the same
marriage which the petitioner has previously sought (unsuccessfully) to
establish as bona fide. While the language of section 204(c) is broad
enough to carry this interpretation, it ignores the original legislative
history, is not necessary to carry out the purposes of section 204(c),
and conflicts with other policies contained in the Act. The clear policy
of the Act is to allow United States citizens and lawful permanent
residents to be united with their alien spouses where the marriage is
bona fide. There are cases in which the petitioner files a visa petition
on behalf of a spouse, fails for some reason to establish the bona fides
of the marriage, files a second visa petition with additional evidence,
and on the second try convinces the Service that the marriage is bona
fide. Under the district director's interpretation of section 204(c), the

  2 Section 204(c) was also amended by section 9(g) of the Immigration Technical
Corrections Act of 1988, 

 Stat. 2609, 2620 (1988) to change
"nonquota" to "immediate relative."
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petitioner could never have a second chance to establish the bona fides
of the marriage. In those cases where the marriage was in fact bona
fide, the spouses would be perpetually barred from being united,
contrary to well-established immigration policy of the United States.
We accordingly conclude that the district director here erred by
denying the visa petition pursuant to section 204(c) of the Act.
    Based upon our further review of the record, though, we find that
the ultimate decision to deny the visa petition was correct. In Mauer of
Laureano, 

 (BIA 1983), the Board held that a
petitioner who has previously withdrawn a visa petition and admitted
that the marriage was not bona fide bears a "heavy burden" of
explaining the circumstances surrounding the prior withdrawal. We
held further that where a visa petition has once been withdrawn under
these circumstances, any subsequently filed visa petition must include:
(a) an explanation of the prior withdrawal and (b) evidence supporting
the bona fides of the parties' relationship.
    The petitioner's admissions when she withdrew her first petition
that she married the beneficiary as "a favor" and to help him obtain
permanent residence, indicate that the petitioner and beneficiary did
not intend to establish a life together as husband and wife when they
married. See Bark v          51 

 (9th Cir. 1975); Matter of
McKee, 

 (MA 1980). We are not persuaded by the
petitioner's claim on appeal that she executed her sworn statement to
Service officers under duress. The petitioner's general claim of duress
is insufficient to retract her detailed admissions as to the fraudulent
nature of her marriage to the beneficiary. Moreover, the petitioner has
not submitted sufficient objective evidence to substantiate her claim
that her marriage to the beneficiary is now bona fide; the letters from
acquaintances who allegedly attended the marriage ceremony, as well
as the statement from the petitioner's mother and the meager
historical evidence submitted, are inadequate to meet the petitioner's
"heavy burden" of proving that she and the beneficiary are now
residing together as husband and wife. Matter of Laureano, supra;
Matter of McKee, supra.
   We therefore conclude that the district director's decision denying
this visa petition was ultimately correct, and the petitioner's appeal
will therefore be dismissed.
   ORDER:         The appeal is dismissed.

CONCURRING OPINION.' James P. Morris, Board Member
  I respectfully concur.
  I agree with the majority in rejecting the petitioner's claim on
appeal that she acted under duress when she withdrew her first petition
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on behalf of the beneficiary. I also agree that she has not established
that her marriage to the beneficiary is now bona fide. However, I am
persuaded that approval of the petition would be barred by section
204(c) of the Immigration and Nationality Act, 

(c)
(1988), even if the petitioner could show that her marriage to the
beneficiary is now a bona fide relationship.
   I would first point out that, contrary to the argument made by the
majority, my interpretation of the statute would not preclude parties to
a marriage from having a second chance to establish the bona fides of
the marriage. They should have every opportunity to prove that the
marriage was bona fide at its inception. It is only in circumstances in
which the parties engaged in a sham marriage with intent to commit
fraud under the immigration laws that the beneficiary would be
forever barred by section 204(c) from certain immigration benefits.
   Again, contrary to the position taken by the majority, such a result
would not be inconsistent with the policy of our immigration laws of
uniting spouses. While that policy is well established, the statute itself
bars the application of that policy in the case of an alien who has
engaged in a sham marriage under the immigration laws. Such an alien
is specifically precluded from benefitting even though he may have
subsequently entered into a bona fide marital relationship with a
United States citizen or lawful permanent resident.
  The majority opinion suggests that as a matter of policy an alien
who has engaged in a sham marriage should be placed in a more
favorable position if he subsequently enters into a bona fide relationship with the same spouse, rather than a different spouse. This strikes
me as being a rather odd policy. In each case the beneficiary has
engaged in a fraudulent scheme. The offense is complete at the time it
is committed. The object of the statute appears to be to punish that
offense. It is not altered by the subsequent conduct of entering a bona
tide relationship. As a matter of policy, I find less reason to extend
benefits to parties to a sham marriage who subsequently enter a bona
fide relationship with each other than to those who enter bona fide
marriages with other persons. In the latter case only the beneficiary has
engaged in the fraudulent scheme. In the former situation both the
beneficiary and the petitioner have been involved in the fraud.
Logically, there is even less reason to look favorably on such marriages
than those in which at least the petitioner is innocent of fraud.
   I conclude from the foregoing discussion that policy considerations
provide no sound basis to hold that the beneficiary here should not be
subject to the provisions of section 204(c)_ I turn now to consideration
of the language of the statute and the effect, if any, of the legislative
history.
   The majority holds that the language of section 204(c) was intended
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to prohibit the approval of a petition only in the case of an alien whose
prior marriage was determined by the Attorney General to have been
entered into for the purpose of evading the immigration laws. The
majority acknowledges that the underlined language is not contained
in the statute itself and that the language of the statute is broad enough
to carry the interpretation that I support. However, the majority relies
on language in the legislative history of the statute which refers to a
prior marriage.
    Language of the statute, itself, is ordinarily conclusive in the
absence of clearly expressed legislative intent to the contrary. Burlington N. R.R. Co. v. Oklahoma Tax Comm n, 

 (1987).
The majority has treated the language in the legislative history as being
equivalent to language of the statute. It is not. The legislative history
can be used only to resolve ambiguities in the statutory language.
There are no such ambiguities in section 204(c). Even if one were to
find some ambiguity in the language of section 204(c)(1), which refers
to an alien having been previously accorded an immigration benefit,
section 204(c)(2) contains no such ambiguity. That section bars
benefits to an alien if "the Attorney General has determined that the
alien has attempted or conspired to enter into a marriage for the
purpose of evading the Immigration laws." That language does not
contain the word "previously" or any other word that would suggest an
intention to restrict the bar under the statute to a prior marriage.
    The purpose of considering legislative history obviously is to find
the intent of Congress in enacting the statute. The courts have wisely
restricted the use of legislative histories to those cases in which the
language of the statute is ambiguous and the legislative intent is clear. I
have already indicated that I do not find the statute to be ambiguous.
Moreover, I find that the language in the legislative history relied upon
by the majority falls far short of establishing the clear intent of
Congress. While the words "prior marriage" were used, there was no
discussion or explanation of that language. Its use appears to be casual.
The words could easily have been incorporated in the statute, but they
were not. In all likelihood it never occurred to the framers of the
statute that some parties might enter into a marriage for the purpose of
defrauding the United States but subsequently develop a bona fide
marital relationship. Finally, the language cited by the majority could
very well be construed as an example of how the statute might apply,
i.e., to a prior marriage that was entered into to evade the immigration
laws. An example contained in the legislative history is not a definitive
interpretation of the scope of a statute and does not suggest a clear
congressional intent. Pension Benefit Guaranty Corp. v. LTV Corp.,

 (1990). The legislative history relied upon by the
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majority does not establish any congressional intent, much less an
intent that is clear enough to restrict the plain language of the statute.
   I would hold that the record supports a finding that the parties
entered into a sham marriage and that they have not established that
their marriage has subsequently become a bona fide one. Further, I
would hold that even if they could establish that their marriage is now
bona fide, the beneficiary would be barred from the benefits of an
approved visa petition under the provisions of section 204(c).




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