T

                                )MATTER OF T-----

                        In RESCISSION Proceedings

                                     A-84971RO

                Decided by Assistant Commissioner July 31, 1958

 Rescission of adjustment of status acquired under section 245 of the 1552 oil--
  Evidence required—Timely where district director's decision entered within
  5-year period after adjustment, although appellate action occurred subsequent
  to that period.
 (1) Adjustment of status acquired pursuant to section 245 of the 1952 act
   based on marriage to United States citizen and claim to nonquota status
   under section 101(a) (27) (A) of the act will not be rescinded where evidence
    fails to establish subject's lack of bona fide intent to enter into valid marital
   relationship, notwithstanding divorce obtained by citizen spouse on ground
   of desertion about 2 years later.
 (2) Action taken by district director on June 3, 1958, rescinding adjustment
   of status acquired on June 11, 1953, was timely, although appellate rights
   pieser,u for alien prevented final disposition of case within the 5-year
   period of limitation provided by the statute.

AcTioN: Proceedings under section 246(a) of the Immigration and Nationality
          Act and 8 CFIZ 246 to revoke adjustment of status granted under
          section 245 of the act.

                 BEFORE THE ASSISTANT COMMISSIONER

   Discussion:    On December 31, 1952, the subject filed application for adjustment of status to that of an alien lawfully admitted
 for permanent residence pursuant to section 245 of the Immigration
 and Nationality Act which was granted on June 11, 1953. On June
 3, 1958, the District Director at Chicago, Illinois, pursuant to section 246 of the act, ordered that the adjustment of the alien's status
be rescinded on the ground that the marriage which formed the
basis of the alien's claim to nonquota status under section 101(a)
 (27) (A) of the act upon which his application was predicated was
not a stable, enduring, and bona fide relationship. From that order
the alien appealed to the Regional Conunissioner, St. Paul, Minnesota, who has certified the case to the Assistant Commissioner, Examinations Division.
   Section 246(a) of the act provides that if at any time within 5
years after the status of a person has been otherwise adjusted under

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 the provisions of section 245 or 249 of the act or any other provision
of law to that of an alien lawfully admitted for permanent residence, it shall appear to the satisfaction of the Attorney General
that the person was not in fact eligible for such adjustment of
status, the Attorney General Audi receind the action taken granting
adjustment of status to such person and cancelling deportation in
the case of such person, if that occurred, and the person shall thereupon be subject to all provisions of the act to the same extent as if
the adjustment of status had not been made.
   As set out above, the subject's application was granted on June
11, 1953, and ordered rescinded on June 3. 1958. The district director is the official to whom the Attorney General's authority under
section 246 has been delegated. The entry of his order on June 3,
1958, tolled the 5-year period of limitation provided by that section
notwithstanding that the appellate rights to which the alien is entitled have prevented final disposition of this case within the 5 years_
   To be eligible for adjustment of status under section 245 of the
act an applicant must be admissible to the United States for permanent residence under the act and a quota or nonquota immigrant
visa must be immediately available to him both at the time of applimtion and at the time the application is approved.
    The evidence of record establishes that the alien was married by
 civil ceremony at Chicago, Illinois, on December 10, 1952, to a
 native-born citizen of the United States. The marriage was terminated on February 8, 1955, by an uncontested divorce obtained by
 the wife on the ground of desertion. The sole question to be resolved is whether the subject entered into a valid marital relationship in good faith or whether the marriage was fraudulent in that
 it was contracted solely for the purpose of establishing a basis for
 adjustment of his immigration status as a nonquota immigrant. If
 the marriage -Wee a fraudulent one he would not have been eligible
 for such adjustment (Lutwak v. United States, 

; United
States v. Rubenstein, 

). However, in view of his professional standing of surgeon, he could presumably have qualified
for adjustment as a quota immigrant inasmuch as numbers under
the first preference portion of the quota for Greece to which he
would have been chargeable were available (Report #1, January
13, 1953, and Report #5, May 29, 1953, Visa Office, Department of
State).
    The evidence establishes that the parties first met each other sometime in September of 1952 and that thereafter the parties met at
various times, resulting in a marriage by civil ceremony at Chicago,
Illinois, on December 10, 1952. According to the wife's statement,
subject proposed to her after a few dates, but she kept putting him
off until the parties were officially engaged on December 6, 1952.

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When plans for a marriage in a church were discussed, subject told
her that there would be no time for it, that his visa would expire on
December 26, 1952, and that he would be forced to go back to Greece
on such date unless his marriage to her took place. According to
her statement, subject at that time furthermore stated that she
should not get the wrong idea about the haste or the p6Ssibility of
his being deported but that he felt the marriage should take place
immediately if he was to remain in the United States. The marriage was not entered into by her for the purpose of helping him
remain in tlm United States_ In the gESITIP statement of November
  12, 1954, the wife alleged that in July 1953 subject stated that he
  never loved her; that he was in love with his common-law wife who
 resided in Greece; and that the 01117 reason for the marriage was
 the desire of subject to evade the immigration laws and remain in
 the United States. Subject has stated that he did not marry his
 wife so that he could remain in the United States permanently but,
 on the other hand, that the marriage took place because he thought
 she was the right girl to have as his wife.
    Subject claims that the marriage was consummated and that this
 occurred when visite were made by him and he wife to the home of
 the wife's parents or the home of subject's sister. He admitted,
 however, that it was the custom among the older Greek people that
 without a church marriage, a civil ceremony was not considered to
 be a valid marriage, although the younger set took a different view
 and that he considered himself married by the civil ceremony. On
 the other hand, the wife insists that the marriage was never consummated and that it was agreed beforehand that the marriage was
not to be consummated until after the church wedding Her statement is supported by the finding of the court in the divorce proceedings in its order granting her a divorce wherein it is stated that
the marriage was never consummated. While subject did not testify
in the divorce proceedings, personal service of the summons was
made and he was represented by an attorney. Furthermore, in support of the wife's statement of non-consummation are certifications
by 2 physicians as to the wife's physical condition. The parties
never actually lived together with each other as husband and wife
in a home of their own and subsequent to their marriage met each
other either at the home of the wile's parents or at the home of subject's sister. Apparently, shortly after their marriage, a dispute
arose as to the church ceremony with reference to whether or not
the marriage should take place according to the Roman Catholic or
the Greek Orthodox faith. Subject claims that as a result of the
interference of the wife's mother, discord resulted and consequently
the church ceremony never took place and a divorce resulted. The
wife on the other hand claims that the church ceremony did not

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take place for various reasons, one of the reasons given was that
subject admitted he was in love with a woman in Greece with whom
he had lived as common-law husband and wife for 3 years. In any
event, the parties could not got together and divoree action resulted.
   Proceedings under section 216 of the act for rescission of adjustment of status on the ground offered in this case arc analagous to
deportation proceedings brought under section 241(c) of the act. In
such proceedings it has been consistently held that the respondent
has the burden of showing that his marriage to a citizen was not
contracted for the purpose of evading the immigration laws; the
Government has the burden of establishing that its case rests upon
reasonable, substantial and probative evidence (Matter of 1-
A-10316169, 

; Matter of T—, A-6605'228, 

; Matt,,- of 21!     , A 10404027, 7 I. & N. Dee. col).
   As in other cases of this type, the facts regarding the difficulties
between the parties are in dispute. Based on the evidence of record,
it appears that no consummation took place. However, this fact by
itself does not warrant a conclusion that a valid marriage was not
entered into. It is only a factor to be considered in determining the
bona fides of the marriage (Matter of M , supra). Subject has
denied that he entered into the civil marriage for the purpose of
becoming a permanent resident of the -United States. The testimony
of the wife is conflicting as to the intent of subject in entering into
the marriage. There was disclosure to her of subject's immigration
status prior to their marriage and there was no conspiracy by both
parties to evade the immigration laws. Her testimony indicates a
meeting through mutual acquaintances, a period of courtship, and a
desire of the subject to marry her in order to establish a marital
relationship. The only evidence in the case that the marriage was
entered into to evade the immigration laws is the wife's statement
that in July 1953 subject admitted that this was his sole purpose in
marrying her. This statement by her, by itself, in light of the other
evidence of record, is insufficient to establish a willful attempt by
subject to enter into the marital relationship for the purpose of
adjusting his immigration status. It is, therefore, concluded that
the marriage relationship entered into by subject was made with a
bona fide intent to enter into a valid marital relationship and, consequently, there was no fraud in connection with subject's application for adjustment of status under section 245 of the Immigration
and Nationality- Act. This conclusion is further buttremed by the
fact that the alien could have adjusted status as a quota immigrant
as previously indicated. Therefore, the appeal will be sustained.
  Order: It is ordered that the subject's appeal be sustained.