ARTHUR

Interim Decision #3173

MATTER OF ARTHUR

In Deportation Proceedings

A-29575767

Decided by Board May 5, 1992

(1) Under the rule of Matter of Garcia, 16 I&N Dec. 653 (BIA 1978), a motion to reopen

should generally be granted in cases involving an application for adjustment of status

filed simultaneously with a visa petition, notwithstanding the fact that the visa

petition has not yet been adjudicated, unless the applicant for adjustment appears

clearly ineligible for the preference, classification claimed in the underlying petition.

(2) Subsequent to our decision in Matter of Garcia, .supra, Congress amended sections

204(g) and 245(e) of the Immigration and Nationality Act, 8 U.S.C. §§ 1154(g) and

1255(e) (Supp. II 1990), to plecludo an alien from adjusting his status based on a

marriage that was entered into after the commencement of proceedings to determine

his right to enter or remain in the United States and to bar the approval of a visa

petition to accord immediate relative or preference status based upon such marriage

until after the beneficiary of the petition has resided outside the United States for a 2-

year period following the marriage, unless the alien establishes "by clear and

convincing evidence to the satisfaction of the Attorney General that the marriage was

entered into in good faith and ... was not entered into for the purpose of procuring

the alien's entry as an immigrant."

(3) The presumption established in Matter of Garcia, supra, that for purposes of

reopening, the relationship claimed on an unadjudicated visa petition filed simulta-

neously with an application for adjustment of status is bona fide unless clear

ineligibility is apparent in the record is inconsistent and incompatible with the

congressionally mandated presumption that marriages entered into after the institu-

tion of proceedings are fraudulent.

(4) Given the petitioner's burden of establishing the bona fides of a marriage described

in section 245(e) of the Act by clear and convincing evidence, an inquiry by an

immigration judge or this Board into whether the evidence submitted in support of a

visa petition based upon such marriage is sufficient to demonstrate prima facie

eligibility for the preference classification sought would necessarily involve an in-

depth examination into the merits of the petition, constituting a substantial and

unwarranted intrusion into the district director's authority over the adjudication of

visa petitions.

(5) Motions to reopen for consideration of applications for adjustment of status based

upon unadjudicated visa petitions which fall within the ambit of sections 204(g) and

245(e) of the Act will not be granted. Matter of Garcia, supra, modified.

CHARGE;

Order: Act of 1952—Sec 241(a)(2) [8 U.S.C. § 1251(a)(2))—Nonimmigrant—remained

longer than permitted

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Interim Decision #3173

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:

Eugene I. Flynn, Esquire Ronald Mullins

3141 Hood Street, Suite 615 General Attorney

Dallas, Texas 75219-5021

BY: MiMohan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members

In a decision dated October 23, 1990, an immigration judge found

the respondent deportable on the basis of his concessions at the

hearing under section 241(a)(2) of the Immigration and Nationality

Act, 8 U.S.C. § 1251(a)(2) (1988),' as a nonimmigrant who remained

in this country longer than permitted, but granted him the privilege of

voluntary departure in lieu of deportation until February 24, 1991,

with an alternative order of deportation to Nigeria in the event he

failed to depart voluntarily within the period specified. The respon-

dent did not appeal from that decision.

On February 20, 1991, the respondent filed a motion to reopen with

the immigration judge based upon a claim of eligibility for adjustment

of status under section 245 of the Act, 8 U.S.C. § 1255 (1988), as the

spouse of a United States citizen. The respondent married his wife on

January 18, 1991, subsequent to the immigration judge's decision in

the case. An Application for Permanent Residence (Form 1-485) and a

Petition for Alien Relative (Form 1-130) were filed simultaneously

with the motion to reopen.

In order to qualify for adjustment of status under section 245 of the

Act, an alien must apply for adjustment, establish that he is eligible to

receive an immigrant visa and is admissible to the United States for

permanent residence, and show that an immigrant visa is immediately

available to him at the time his application is filed. Section 245(a) of

the Act. Generally speaking, a motion to reopen for consideration of a

newly-acquired claim to relief from deportation will not be granted in

the absence of a prima facie showing of eligibility for the relief sought

upon reopening. INS v. Doherty, 502 U.S. 314, (1992); INS v. Abudu,

485 U.S. 94 (1988); Matter of Sipus, 14 I&N Dec. 229 (BIA 1972);

Matter of Lam, 14 I&N Dec. 98 (BIA 1972).

In a decision dated July 9, 1991, the immigration judge denied the

respondent's motion to reopen on the ground that the visa petition

filed to accord the respondent immediate relative status as the spouse

'This section of the Act has been revised and redesignated as section 241(a)(1)(B) of

the Act, 8 § 1251(a)(1)(B) (Supp. II 1990), by section 602(a) of the Immigration

Act of 1990, Pub. L. No. 101-049, 104 Stat. 4978, 5078, but that amendment does not

apply to deportation proceedings for which notice has been provided to the alien before

March 1, 1991. See section 602(d) of the Immigration Act of 1990, 104 Stat. at 5082.

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Interim Decision #3173

of a United States citizen had not yet been adjudicated and, unless and

until the petition is approved, the respondent may not establish

immediate visa availability, a statutory prerequisite to a grant of

adjustment of status. The respondent appealed from the denial of his

motion. The appeal will be dismissed?

In Matter of Garcia, 16 I&N Dec. 653 (BIA 1978), this Board

reexamined the general rule that reopening of the proceedings will be

denied in the absence of a showing that the statutory requirements for

the requested relief have been met, and we carved out an exception to

that rule in the case of motions to reopen for consideration of

applications for adjustment of status based upon as yet unadjudicated

visa petitions. The Board noted that the Immigration and Naturaliza-

tion Service had recently amended its regulations to permit an

adjustment application filed simultaneously with a visa petition to be

accepted for processing, even though the underlying visa petition had

not yet been approved, provided the approval of the petition would

make an immigrant visa immediately available as of the date the

adjustment application was filed. 8 C.F.R. § 2452(a)(2) (1991). Under

the amended regulations, if the visa petition is subsequently approved,

the adjustment application is deemed to have been filed on the date

the accompanying petition was filed. Id. Inasmuch as the date an

adjustment application is filed determines whether a visa is immedi-

ately available, the regulation allows an applicant who is subsequently

found to have been fully qualified for adjustment of status at the time

of simultaneous filing to preserve immediate visa availability and,

hence, eligibility for adjustment of status, until such time as the visa

petition supporting the adjustment application has been reached for

adjudication. Id.

In order to give appropriate effect to the simultaneous filing

provisions of the amended regulations, we determined that a motion

to reopen should generally be granted in cases involving an adjustment

application supported by an unadjudicated visa petition unless the

applicant for adjustment appears clearly ineligible for the preference

classification claimed in the underlying petition. Matter of Garcia,

supra. Stated another way, a pending prima facie approvable visa

petition would be treated as though it were already approved for

purposes of reopening. Id.; see also Matter of Guiragossian, 17 I&N

Dec. 161, 164 n. 5 (BIA 1979).

Inasmuch as the immigration judge denied the respondent's motion

to reopen solely on the ground that the visa petition underlying the

2 The Immigration and Naturalization Service opposed the motion to reopen on

grounds other than that cited by the immigration judge. Since we fmd the motion was

properly denied, we need not and do not consider possible alternative bases for denial

4.77

Interim Decision #3173

respondent's adjustment application had not been adjudicated, the

immigration judge's decision is inconsistent with our holding in

Matter of Garcia, supra. However, recent amendments to the Act

invite us to revisit Garcia.

In 1986, Congress enacted the Immigration Marriage Fraud

Amendments of 1986, Pub. L. No. 99-639, 100 Stat. 3537 ("1986

Amendments"), legislation designed to deter fraud by aliens seeking to

acquire lawful permanent residence in the United States through

marriage to a United States citizen or a lawful permanent resident

alien. The 1986 Amendments, among other provisions, precluded an

applicant from adjusting his status based on a marriage that was

entered into after the commencement of proceedings to determine his

right to enter or remain in the United States and barred the approval

of a visa petition to accord immediate relative or preference status

based on such marriage until after the beneficiary of the petition had

resided outside the United States for a 2-year period following the

marriage. See sections 5(a) and (b) of the 1986 Amendments, 100 Stat.

at 3543 (codified as amended at sections 204(h) and 245(e) of the Act,

8 U.S.C. §§ 1154(h) and 1255(e) (Supp. IV 1986)). 3

The Act was again amended by the Immigration Act of 1990, Pub.

L. No. 101-649, 104 Stat. 4978 ("1990 Act"), to exempt Qualifying

aliens from the 2-year foreign residence requirement and the bar to

adjustment of status imposed by the 1986 Amendments. The 1990 Act

provides in pertinent part that the foreign residence requirement and

the section 245(e) bar to adjustment shall not apply in the case of an

alien who establishes "by clear and convincing evidence to the

satisfaction of the Attorney General that the marriage was entered into

in good faith and _ .. was not entered into for the purpose of procuring

the alien's entry as an immigrant." Section 702 of the 1990 Act, 104

Stat. at 5086 (codified as amended at section 245(e) of the Act, 8

U.S.C. § 1255(e) (Supp. II 1990)). The "clear and convincing evi-

dence" standard is, of course, more stringent than the "preponderance

of the evidence" standard ordinarily required to establish a claimed

relationship between a petitioner and a beneficiary. See Matter of

Patel, 19 I&N Dec. 774, 782 - 83 (BIA 1988).

By first enacting an absolute bar to adjustment of status based upon

a marriage entered into during the pendency of proceedings and to the

approval of a visa petition based upon such marriage unless the

marriage first survived a 2-year separation, and then by requiring a

substantially heightened showing to establish the bona fides of the

3 Section 204(h) of the Act was redesignated as section 204(g) of the Act, 8 U.S.C.

§ 1154(g) (Supp. II 1990), by section 162(b) of the Immigration Act of 1990, Pub. L. No.

101-649, 104 Stat. 4978, 5010-11.

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Interim Decision #3173

marriage, Congress rather clearly created a presumption that marriages

contracted after the institution of exclusion or deportation proceedings

are fraudulent. That presumption may, under present law, be over-

come only by a showing of evidence that is "clear and convincing."

Section 245(e)(3) of the Act. Matter of Garcia, supra, on the other

hand, established a contrary presumption: that is, for purposes of

reopening, the relationship claimed on the visa petition supporting the

application for adjustment of status is presumed to be bona fide unless

clear ineligibility is apparent in the record. See also Matter of

Guiragossian, supra. We find that the rule of Garcia is inconsistent and

incompatible with Congress' intent as expressed in the 1986 Amend-

ments and the 1990 Act.

We are concerned, too, with jurisdictional problems that would

likely result from attempts on the part of an immigration judge or this

Board to square the "clear ineligibility" rule of Garcia with Congress'

requirement that the bona fides of a marriage described in section

245(e) of the Act be proved by clear and convincing evidence. An

inquiry into whether the evidence submitted in support of a visa

petition is sufficient, in light of the heavy burden imposed on the

petitioner, to demonstrate prima facie eligibility for the preference

sought would necessarily involve an in-depth examination into the

merits of the petition. Such examination would, in our view, constitute

a substantial and unwarranted intrusion into the district director's

authority over the adjudication of visa petitions. See generally Matter

of Guiragossian, supra.

In light of the foregoing discussion, we shall hereafter decline to

grant motions to reopen for consideration of applications for adjust-

ment of status based upon unadjudicated visa petitions which fall

within the ambit of sections 204(h) [now section 204(g)] and 245(e) of

the Act. Our holding in Matter of Garcia, supra, is modified

accordingly.

In his motion to reopen, the respondent referred us to an

unpublished Board decision which, on seemingly similar facts, reached

a contrary result. The referenced decision is inapposite inasmuch as

the respondent in that case was the beneficiary of an approved visa

petition. In any event, the decision is without precedential value. The

appeal will be dismissed.

ORDER: The appeal is dismissed.

479