KONDO

17 I. & N. Dec. 330

• Court: Board of Immigration Appeals
• Decided: July 1, 1980
• Docket: ID 2781
• Status: Published

Opinion

Interim Decision #2781

MATTER OF KONDO In Rescission Proceedings

A-19855118

Decided by Board February 20, 1980

(1) A marriage legally valid but "factually dead" (nonviable) at the time of the adjust- ment of status cannot be the basis.for rescission for cases arising in the Ninth Circuit. Dabaghiatt v. INS, 607 F2d 868 (9 Cir. 1979) followed. Matter of Si:4(41518W Dec. 572 (BIA 1976) no longer applied in that circuit. ON Harr u' or Rrarosniuvr. ON Btatate us SERVICE: William F. Thompson, III Esquire , Gary Y. Fujiwara, Esquire 925 Bethel Street Trial Attorney Suite 205 Honolulu, Hawaii 96810 Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members

The respondent through his counsel moves the Board to reconsider our decision of August 1, 1978, where we dismissed his appeal ruling that respondent's adjustment of status to that of a lawful permanent resident must be rescinded pursuant to section 246 of the Immigration and Nationality Act, 8 U.S.C. 1256, since it was based upon a marriage that was nonviable at the time of his adjustment. In reaching that result, we relied upon our precedent decision of Matter of Sosa,15 MN Dec. 572 (BIA 1976). The pertinent facts in the instant matter we fully stated in our previous opinion and need not be repeated here. For the reasons stated below, the motion will be granted and rescission proceedings terminated. Recently, the United States Court of Appeals for the Ninth Circuit, the circuit in which the instant case arose, has held that a marriage legally valid but "factually dead" (nonviable) at the time of the adjust- ment of status cannot be the basis for rescission. Dabaghian v. INS, 607 F.2d 868 (9 Cir. 1979). We find that case controlling here and must follow its holding in the Ninth Circuit. In that respect, Sosa, is no longer applicable law in the Ninth Circuit on this issue. Furthermore, there is nothing in the record to support a finding that respondent's 330 Interim Decision #2781

marriage was a sham or fraudulent from its inception. ORDERI The motion is granted and the rescission proceedings are terminated.