LEW

11 I. & N. Dec. 148

• Court: Board of Immigration Appeals
• Decided: July 1, 1965
• Docket: 1460
• Status: Published

Opinion

Interim Decision #1460

MATTER OF Law

In Section 245 Proceedings A-8939220 Decided by District Director April 7, 1965 Adjustment of status under section 245, Immigration and Nationality Act, as amended, is denied an alien WOO, pursuant to section 203(a) (1) (B) of the Act, derived first preference classification through her husband but who is no longer entitled thereto since a bona fide husband-wife relationship has not existed since at least July 8, 1964, when an interlocutory decree of divorce was granted her husband.

Discussion: On February 2, 1965 subject's application for status as permanent resident was denied on the ground that an immigrant visa was not immediately available to her, she being no longer en- titled to derivative first preference classification through her hus- 'band by reason of an interlocutory decree of divorce granted to him upon her default. On March 22, 1965 the applicant filed the instant motion for reconsideration urging that the interlocutory decree of divorce did not terminate ,the marriage; that that would only occur at the time a final decree was entered; that until then she remained the wife entitled to derivative first preference classification thiough her husband; and, therefore, that her application for permanent residence status should be granted as the first preference portion of the Korean quota was immediately available. In the alternative, she requested that action in the case be deferred until the decree of di- vorce becomes final. The applicant, native and citizen of Korea by birth there on March 20, 1938, was admitted to the United States as a temporary student on September 30, 1953 and remained in lawful status until April 18, 1962 on which date her third period of practical training expired. Her application for permanent resident status was filed on January 30, 1963. The applicant's husband, Mr. Young Lew, the subject of Service file AS 956 238, a native and citizen of Korea by reason of birth

148 Interim Decision #1460 there on January 9, 1932, was admitted, to the United Sta.0• en March 10, 1955 as a student and remained in that status until April 12, 1962 when his third period of practical training expired. He married the applicant in the United States on August 20, 1960 of which marriage one child was born in the United States on December 14, 1961. A petition seeking first preference classification for the husband NM's filed June 22, 1962,. approved September 12, 1962, and was the basis for the grant of permanent resident status to the hus- band on April 8, 1963 pursuant to an application filed by him. Under section 203(a) (1) (B) of the Immigration and Nationality Act, the applicant became .entitied to first preference classification' under her appropriate qucita as the spouse of in immigrant who was found eligible for such classification. The instant record includes a certified 'copy of an interlocutory judgment of divorce by default dated July 8, 1964 adjudging that the husband is entitled: to a divorce from the applicant; that when one year shall have expired after the entry of the interlocutory judg- ment a final judgment dissolving the marriage be entered. A study of the provisions of the Immigration and Nationality Act and the legislative hisfory leading to its enactment clearly evidences a congressional desire to retain and unite family relationships To ac-: complish this objective, nonquota or preference quota cl assification is accorded the spouse, child, parent, son, daughter, brother or sister of designated "United States citizens or immigrants (sections 101(a) (27) and 203 of the Immigration and Nationality Act). The Congress in slated, however, that the claimed relationship exist -right up to the time that permanent status was acquired (section.. 205(d) of the Immigration and Nationality Act). Since the objeotive of the Congress was the preservation of the family unit, the 'Congress could only have intended to confer the quota•benefit where the bona fide relationship existed in fact as wall- ,

as in law. That a lawful marriage alone was not within the con- gressional contemplation is evidenced by -section 101(a) (35) of the Immigration and Nationality Act which provides that the terms "spouse, "Wife", or "husband", do not include a spouse, wife, or husband by reasons of any marriage ceremony where the contracting parties• thereto were not physically present in the presence Of each •

other, unless the marriage shall have been thereafter consummated (Matter of B , 5 L & N. Dec. 698). The alien spouse of such a proxy —

unconsummated marriage derives no quota benefit under . the 'immi- gration law eyen in a situation where the proxy marriage is re- garded as a lawful marriage in the place where it was performed and, therefore, lawful elsewhere. 149 Interim Decision #1460 In Matter of Ai—, 8I. & N. Dec. 217, 218, the Board of Immigration Appeals, after reviewing judicial decisions, stated the rule to be as follows: We believe the rule to be drawn from the eases is that an alien is 314 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 marratge is considered valid in the place where it is performed, it cannot serve as the basis for• the proper issue of a nonquota visa to a "spouse" of the marriage unless there is a bona fide husband and wife relationship in existence. In the instant case the evidence establishes and the applicant con- cedes that her marriage was the subject of an interlocutory decree of divorce and that she is not residing in a husband and wife rela- tionship with the person through whom she claims to be entitled to derivative first preference classification. Although the interlocutory decree was entered July 8, 1964, the parties thereto have not effected or evidenced an intention to effect a reconciliation. To the contrary, on October 28, 1964 Mr. Lew furnished the certified copy of the interlocutory decree. It must be concluded, therefore, that at the present time and con- tinuously since at least July 8, 1961, there has been no bona fide hus- band and wife relationship in existence between the applicant and Mr. Lew. While under the law of the State of California the mar- riage between the parties is not finally dissolved until the entry of a final decree of divorce some time after the expiration of one. year from the date .of filing of the interlocutory decree, for immigration , purposes the.inarriage entered into by the applicant, with Mr. Lew cannot'serve as the basis -for the proper issuance of a visa under the first preference classification of the quotatto a "spouse" of the mar- riage absent the existence of a bona Me husband and wife relation- ship. Such relationship is n.Onexistent in the instant ease. While a bona fide resumption of the' husband and wife relationship in the future and prior to the entry of the final decree wouldagain entitle this applicant to derive fires preference classification, that eventu- ality is not diapositive of the issue presently 'before this Service for consideration. ORDER: It is ordered that the motion for reconsideration be granted. It is further ordered that.upon reconsideration no change be made in the decision of the District Director dated February 2, 1965 deny- ing the application for status as a permanent. resident.