CONCEPCION

16 I. & N. Dec. 10

• Court: Board of Immigration Appeals
• Decided: July 1, 1976
• Docket: ID 2529
• Status: Published

Opinion

Interim Decision #2529

MATTER OF CONCEPCION In Visa Petition Proceedings A-34106980 Decided by Board September 8, 1976 The provision of section 204(c) of the Immigration and Nationality Act which provides that a visa petition shall not be approved for a beneficiary who has previously been accorded a nonquota or preference status based on a marriage entered into to evade the immigra- tion laws is not applicable to a beneficiary who had previously been accorded immediate relative status as the spouse of a United States citizen on the basis of a marriage which never took place but which in fact was a fiction based on falsified documents. Under the circumstances the beneficiary cannot be said to have entered into a marriage for the purpose of evading the immigration laws, notwithstanding the fact that the Service approved the prior immediate relative petition. ON BEHALF OF PETITIONER: Gerald L. McVey, Esquire Fallon, Hargreaves, Bixby & McVey 30 Hotaling Place San Francisco, California 94111

The lawful permanent resident petitioner applied for preference status for the beneficiary as his spouse under section 203(a)(2) of the Immigration and Nationality Act. In his decision of October 28, 1975, the Acting District Director denied the petition on the basis of section 204(c) of the Act. The petitioner and the beneficiary were married on May 9, 1975. The present petition was filed on June 3, 1975. The beneficiary had previ- ously been accorded immediate relative status as the spouse of a United States citizen when a visa petition in her behalf was approved on September 21, 1972, and she entered the United States with an immi- grant visa on October 30, 1972. It was determined subsequently, in deportation proceedings, that the marriage upon which the visa petition was based was a fiction and had never taken place, and the beneficiary was found deportable as an alien who was excludable at entry under section 212(a)(19) and section 212(a)(14). Section 204(c) of the Immigration and Nationality Act reads, in perti- nent part, as follows: . .. [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

10 Interim Decision #2529 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 immigra- tion laws. (Emphasis supplied.)

The beneficiary has previously been accorded immediate relative status as the spouse of a United States citizen. However, she was accorded that status on the basis of falsified documents. No marriage was entered into, and therefore it cannot be determined that she ob- tained immediate relative status on the basis of a marriage entered into for the purpose of evading the immigration laws. Although the beneficiary profited from the previous Service determi- nation that a marriage existed in the same way as if she had entered into a sham marriage, still the fact is that the marriage did not exist and therefore section 204(e) does not apply to the farts of this case. Because the Acting District Director based his decision on section 204(c), he does not appear to have considered or reached a decision as to whether the marriage between the petitioner and the beneficiary was entered into in good faith. Accordingly, we shall remand the record for further proceedings along these lines and so that the District Director may enter a new decision. ORDER: The appeal is sustained and the record is remanded to the District Director for further proceedings in accordance with the above opinion.