M

                             HOTTER OF

                    In DEPORTATION Proceedings
                                  A-10335093
                     Decided by Board December 23, 1958

Nonoonto status—Alien spouse not entitled to nonquota status where marriage
  was contracted solely to obtain quota exemption.
Respondent's marriage to a United States citizen spouse, contracted solely to
 facilitate his admission to the 'United States, does not entitle him to issuance of a nonquota visa. Where no bona fide husband-wife relationship was
 intended, the marriage is deemed invalid for immigration purposes regardless of whether it would be considered valid under the domestic law of the
 jurisdiction where performed.

CHARGES;

  Order: Act of 1912—Section 241(a) (1)—No valid immigrant visa.
         Act of loan — Section 241(a) (1)—Not nonquota immigrant as specified in immigrant visa.

                            BEFORE THE BOARD

   Discussion: This is an appeal from the order of the special
inquiry officer requiring respondent's deportation upon the charges
shown above. The appeal will be dismissed.
  The facts have been stated in detail by the special inquiry Maer.
Briefly, respondent, a 25-year-old male, native and citizen of Greece,
obtained a nonquota visa on the basis of his marriage on May 11,
1956, to a United States citizen. On February 14, 1957, he was
issued the visa and was admitted to the United States for permanent residence on the same day. The Service claimed, and the
special inquiry officer found, that a valid marriage did not exist
between the parties because neither of the parties intended to enter
into a board fine marriage relationship, the marriage being entered
into merely to enable the respondent who was illegally in the United
States to become a permanent resident. Counsel argues that this
finding was wrong because the parties considered themselves married
and because the State of Pennsylvania where the marriage occurred
considers the marriage valid. In support of this argument, counsel
alleges that the alien attempted to live with his wife but was frustrated by her refusal to co-operate. As further evidence that the

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  parties regard themselves as married, counsel points out that the
   respondent has filed suit for divorce. Counsel cites Lamictmann v.
  Leovewoom.‘, 

, 

, and Bose v.
  Pineiotti, 46 District Court 159, in support of the proposition that
  a valid marriage occurred here. The Service representative argues
  that the issue is the intent of the parties at the time they enterd
  into the marriage, and that the record conclusively establishes that
  at that moment neither party intended to enter into a band fide
  marriage relationship.
     We believe the rule to be drawn from the cases is that an alien
  is not legally entitled to receive a nonquota visa as the spouse of a
  citizen unless a valid marriage existed when the visa was issued and
  that even if the marriage is considered valid in the place where
  it is performed, it cannot serve as the basis for th e proper inane of
  a nonquota visa to a "spouse" of the marriage unless there is a
  bona fide husband and wife relationship in existence.
     There is a serious question as to whether the marriage here would
 be, considered valid by the State of Pennsylvania. Lanli.ennamt was
 an action for annulment on the ground that the marriage ceremony
 had been gone through in jest, neither party intending to contract
 a valid marriage. The parties to the marriage had married on a
 dare; they had agreed that they would get married but would wait
 about six months to decide whether they wanted to 'take it seriously'. The marriage was never consummated. The mart ;dated
 that the marriage ceremony had not been performed 'in jest', and
 that it was not void oh initio because the parties had agreed that
 the marriage should be a trial marriage and that either of the
 parties had a six-month option to cancel it. Lannetnuinn is distinguiohoblo because the court found the parties had agreed to be
 married but would decide later whether to cancel it. In the instant
case the parties did not agree to take the marriage seriously for any
period of time.
    Bo-re was an action for annulment. It concerned two minors who
had sexual relations and married upon the understanding they
would not live together as husband and wife, and that they were
going through the ceremony for the sole purpose of giving a name
to a child whom they believed had been conceived from their relations. In fact, the child was never born. Later, the wife did bear
a child, which according to her testimony was begotten by another
man subsequent to the marriage. The court refined to greet an
annulment stating it would not permit the child to be bastardized
by the presumed parents, and that the marriage had been entered
into in due form and was therefore not void at initio. While this
case is some support for counsel's position, it can be differentiated
from the instant situation on the ground that declaration of the
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 marriage's invalidity would have bastardized a child. This would
 have been against public policy. In the instant case, the only child
 involved is an illegitimate child had by the wife prior to the "marriage." There is no claim that the respondent is the father of the
 child. Moreover, counsel has failed to take cognizance of the existence of authority, contrary to her position, also from a court of
 original jurisdiction. In Osgood v. Moore, 38 D. & C. 263, C. P.
Tioga County (1941), a petition for divorce was filed by Osgood.
 Osgood and Moore had gone through a marriage ceremony with the
 understanding that the ceremony was not to be effectual to make
 them man and wife; that it was not to be consummated; and that
 they were not to live together as man and wife. The purpose of the
 marriage was to give a name to the unborn child of Moore who
 claimed that Osgood was the father of the child. Osgood denied
 paternity. After the marriage, the parties went to the homes of
their respective parents and the marriage was never consummated.
The court held that no valid marriage had taken place. The court
stated "mutual consent and bona fide agreement of the parties,
freely given and with the intention of entering into the valid state
of wedlvek, are fundamental and essential elements, without which
the marriage is invalid unless consummated by cohabitation." The
 court held that since there had been no agreement to enter into the
relation s hip, there was no marriage.
    Questions of public policy which require a state to hold a marriage valid where it was entered into with the understanding that
it was one of form only, should not be determinative in cases interpreting the immigration laws. The matter of primary importance
in the immigration case involving the quota is the maintenance of
quota safeguards which have been enacted into the law. These
quota safeguards are waived for the alien spouse of a -United States
citizen. He is given the right to join his citizen spouse without
the delay involved in qualifying under the quota. This facilitation
of the entry of the alien was not done to create an exemption from
the quota, but to expedite the reunion of families in the United
States. Therefore, we must interpret the law so that it will not
create the waiver if the actual reunion of a family is not involved.
This requires the alien who seeks the waiver to establish that his
"marriage" is one which envisions life together with the citizen
spouse. The evidence of record here strongly proves that this marriage was not entered into to establish a life together or to create
the relationship commonly understood as a "marriage," but rather
that it was entered into to obtain an exemption tinder the quota
and for no other reason and that this was the situation at the time
the visa was granted. Such a marriage where a bane fide husband
and wife relationship is not, seated does not entitle the alien to the

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issuance of a nonquota visa (Lutwal,- v. United States, 

;
Giznyoulias.v. Landon., 226 F2d 356 (C.A. 9, 1955); United States
v. Itubenseet,,, 151 Fed 91.5 (C.A. 2, 1945), cart, den. 

).
   We have carefully examined the evidence of record and contentions of counsel concerning it. We find that the record clearly
justifies the finding of the special inquiry officer that the parties did
not intend to consider themselves as husband and wife. We find
no prejudicial error committed. The appeal will be dismissed.
   Order: It is ordered that the appeal be and the same is hereby
dismissed.




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