W

                             MATrEa of W—

                  In VISA PETITION Proceedings

                               A-10073806

                    Decided by Board May n, 1962
Visa petition—Section 205(c), 1952 act, as amended—Retrospective as well as
  prospective in application.
Benenciary, to leriT, was accorded nonquota status as the spouse of a United
 States citizen under section 101(a) (27) (A) in connection with adjustment
 of status under section 245 of the 1952 Act. That adjustment was based
 upon her marriage to a United States citizen which was entered into for
 the purpose of evading the immigration laws. A visa petition on her behalf
 by a United States citizen spouse to whom she was subsequently married
 may not be approved because of he proscription of section 205(c),, as
 amended by section 10 of the Act of September 26, 1901. That statute has
 retrospective as vvoll as prospective application to nonquota status previously acquired by virtue of a sham marriage.

                          BEFORE THE BOARD

   DISCUSSION: The case comes forward on appeal from the order
of the District Director, New York District, dated April 3, 1962,
denying the visa petition for the reasons set forth in the order which
will be referred to below.•
   The petitioner, a native-born citizen of the United States, filed
a Form 1-130, petition to classify status of alien for issuance of
immigrant visa, on January 8, 1962. He seeks nonquota status on
behalf of his spouse, the beneficiary, a native and citizen of Jamaica,
British West Indies. The parties were married on January 1, 1960,
at NAW York, New York. The petition sets forth that he was married once previously and the beneficiary twice previously. The petitioner's prior marriage was terminated by decree of divorce entered
September 30, 1959, in the Circuit Court, 10th Judicial District of
Alabama.
   The file relating to the beneficiary discloses that she was actually
married three times previously. Her first marriage to D—B— was
terminated on July 18, 1943, by death; her second marriage, to
B  G W , was terminated by decree of divorce in the Circuit
    —   —   —



Court of Russell County, Alabama, on June 12, 1956; her third mar-

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riage, l,u J—F—R---, a native born citizen of the United States,     was
 terminated by his death on April 13, 1958.
    The order of the District Director, New York District, dated
 April 3, 1962, reflects that the beneficiary was admitted to the United
 States as a nonimmigrant visitor on August 6, 1954. On January 17,
 1957, she applied for adjustment of her status to that of a lawful
 permanent resident under section 245 of the Immigration and Nationality Act, claiming that she was entitled to nunquuta classification on
 the basis of her marriage to R—, a United States citizen. (The application indicates that her status was changed to that of a student
 on September 6, 1954.) Her application was granted and her status
 was adjusted to that of a permanent resident on August 7, 1957.
 Thereafter, as the result of an investigation conducted by the Service
 and by a special grand jury, evidence was obtained that the beneficiary's marriage to R— was a sham marriage. The beneficiary, in
 sworn statements made before a Service officer on June 3, 1959, and
on October 6, 1960, admitted that she had paid the sum of $500 to a
 third party for the purpose of arranging the marriage in order to
obtain permanent residence in the United States. She admitted that
pursuant to this arrangement she married R— on November 28, 1956,
without any intention of living with him and that she had never had
any marital relations with him. (Action has been instituted by the
Service to rescind her adjustment of status pursuant to section 246
of the Immigration and Nationality Act.) The order of denial of
the District Director is predicated upon section 205 ( c) of the Immigration and Nationality Act, as amended by section 10 of the Act of
September 26, 1961, providing that no petition shall be approved if
the alien previously has been accorded, by reason of marriage determined by the Attorney General to have been entered into for the
purpose of evading the immigration laws, a nonquots, status under
section 101(a) (27) (A) as the spouse of a citizen of the United
States. The order concludes that since the beneficiary previously on
August 7, 1957, was accorded nonquota status through the adjustment of her status to that of a lawful permanent resident, such
adjustment being based upon her marriage to a United States citizen, which, by her own admission, was entered into for the purpose
of evading the immigration laws, that pursuant to section 205(0)
the present vim petition may not be approved_
  In connection with the appeal, petitioner has filed a brief in
which he points out that he married the beneficiary in good faith on
January 1, 1960; that the amendment to section 205(c) of the Immigration and Nationality Act, on which the denial of the visa is based,
was not enacted until September 26, 1961. He point3 out that his
marriage preceded the enactment of the amendment and at the time
of his marriage his wife was eligible for nonquota status. He argues
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 that the amendment cannot be applied retroactively and suggests
 that a true construction of the amendment should be that the one
 who makes application for an alien, who was married subsequent to
 September 26, 1961, for the purpose of evading the immigration
 laws, would be barred from obtaining nonquota status.
    Section 205(c), as amended by section 10 of the Act - of Septem,
 ber 26, 1961, provides that no petition shall be approved if the
 alien previously has been accorded, by reason of marriage determined
by the Attorney General to have been entered into for the purpose
 of evading the immigration laws, a nonquota status under section
 101(a) (27) (A) as the spouse of a citizen of the United States. On
its face, the statute has retrospective as well as prospective application to nonquota status previously acquired by virtue of a sham
marriage. There is no support either in the statutory language or
in the legislative history for the position argued for by the petitioner.' The retrospective or retroactive application of immigration
laws has received judicial sanction?
   In the instant case, the beneficiary was previously accorded nonquota status as the spouse of a United States citizen under section
101(a) (27) (A) in connection with her application for adjustment of
status to that of a lawful permanent resident pursuant to section 245
of the Tmmigration and Nationality Act. The evidence establishes
that the previous marriage to a citizen was entered into for the purpose of evading the immigration laws. The case falls within the
proscription of section 205(c), as amended by section 10 of the
Act of September 26, 1961. The appeal from the denial of the visa
petition will be dismissed.
   ORDER: It is ordered that the appeal be and the same is hereby
dismissed
  1 2 U.S. Code Congressional and Administrative News (87th Cong., 1st Sces.,
1961, p. 2980) states that section 10 proposes to strengthen the existing law
by giving the Attorney General a new legal instrumentality to counteract the
increasing number of fraudulent acquisitions of nonquota status through sham
marriages between aliens and United States citizens.
  3 Untied States ex rel. Hartsiades v. Shaughnessy, 

; GaZvan v.
Press, 

; MarceZlo v. Bonds, 

; Lehman y. Carson, 

.




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