ALDECOAOTALORA

Interim Decision #2948

MATTER OF ALDECOAOTALORA

In Visa Petition Proceedings

A-23693777

Decided by Board July 22, 1983

A visa petition filed by a petitioner seeking to accord immigration benefits to her

unmarried daughter under section 203(a)(2) of the Immigration and Nationality Act, 8

U.S.C. 1153(a)(2), is properly denied where the beneficiary admitted that she was divorced

for the sole purpose of obtaining immigration benefits and continued to reside with and

own property jointly with her former husband in what by all appearances is a marital

relationship; such a divorce is considered a sham and is not recognized for immigration

purposes.

ON BEHALF OF PETITIONER: James J. Kelly, Esquire

Valley Bank 114(.4

300 South Fourth Street

Las Vegas, Nevada 89101 ,

By: Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members

The lawful permanent resident petitioner filed a visa petition on behalf

of the beneficiary to accord her benefits as her unmarried daughter

under section 202(a)(2) of the Immigration and Nationality Ad, 8 U.S.C.

1159(a)(2). In a decision dated November 3, 1982, the District Director

denied the petition on the ground that the beneficiary does not qualify

as the petitioner's unmarried daughter because her divorce is a sham.

The District Director's decision has been certified to the Board for

review. The decision will be affirmed.

The petitioner is a 64-year-old native and citizen of the Philippines.

The beneficiary is a 31-year-old native of the Philippines. The record

reflects that she claims to be a citizen of Spain. It further reflects that

she was married to a citizen of Spain on April 15, 1973, in the Philippines

and that they have two United States citizen children born on March 17,

1976, and July 13, 1981. The beneficiary obtained a divorce from her

husband on July 28, 1981.

' Ili his decision the District Director concluded that the beneficiary's

divorce was entered into for the sole purpose of circumventing the

irrimigration visa pteference system. He based his findings primarily on

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Interim Decision #2948

the beneficiary's own statements made at an interview on May 18, 1982.

In her sworn statement, the beneficiary claimed that she was divorced

because of irreconcilable differences with her husband, but when ques-

tioned regarding those differenees she stated that she needed a green

card in order that her children could remain in the United States. She

further admitted that she had never stopped residing with her former

husband, that they still filet' joint tax returns, and that they -continued

to own their home and all other property jointly as community property.

The District Director further noted that the employment records of

the beneficiary's former husband indicate that he claims to be married

with three dependents. In addition, the telephone at the beneficiary's

residence is listed in the directory under the name of her divorced

spouse. From this evidence and the beneficiary's statements, the Dis-

trict Director determined that her divorce was a sham. He further

concluded that she could not obtain immigration benefits as an unmar-

ried person by virtue of such a divorce. We agree.

The legislative history of the Act reflects that the intent of Congress

in providing for preference status for unmarried sons and daughters of

lawful permanent residents was to reunite with their parents unmarried

children who, although not minors, were still part of a family unit. See

Matter of Coletti, 11 I&N Dec. 551 (BIA 1965); see also Matter of Lew,

11 I&N Dec. 148 (BIA 1900). By her own admissions, the beneficiary

has established that, although divorced from her husband, she has nei-

ther severed her relationship with him nor returned to the family unit of

her parents.

In Gregory v. Helvering , 293 U.S. 465 (1935), the Supreme Court

created the sham transaction doctrine in the context of tax law, holding

that where such a transaction on its face is outside the plain intent of the

statute involved, it should be disregarded because to do otherwise "would

be to exalt artifice above reality and to deprive the statutory provision

in question of all serious purpose." Id. at 470. See also Commissioner

v. Tower, 327 U.S. 280 (1946); Commissioner v. Court Holding

Company, 324 U.S. 331 (1945); Boynton v. Commissioner, 649 F.2d

1168 (5 Cir. 1981), cert. denied, 102 S.Ct. 1009 (1982); Davis v.

Commissioner, 585 F.2d 807 (6 Cir. 1978), cert. denied, 99 S.Ct. 1789

(1979). Following that decision, the Fourth Circuit Court of Appeals

recently determined that tlae sham transaction doctrine may apply to a

divorce obtained in order to avoid the "marriage penalty" imposed on

married taxpayers if "the parties intended merely to procure divorce

papers rather than actually' to effect a real dissolution of their marriage

contract." Boyter v. Commissioner, 668 F.2d 1382, 1387 (4 Cir. 1981).

There can be no doubt that the beneficiary's sole intention in seeking

a divorce was to obtain immigration benefits because she has admitted

as much. She has nevertheless continued to live with her former hus-

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banctin what by all appearances is a marital relationship. In so doing she

is clearly attempting to thwart the statutory purpose of the Act to unite

unmarried children with their lawful permanent resident parents. We

therefore agree with the District Director's conclusion that the benefi-

ciary's divorce is a sham and that it should not be recognized for immi-

gration purposes as qualifying her for preference status under section

203(a)(2) of the Act. Cf. Lutwak v. United States, 344 U.S 604 (1953);

McLat v. Longo, 412 F.Supp. 1021 (D.V.I. 1976); Matter of McKee, 17

I&N Dec. 332 (BIA 1980). Accordingly, we shall affirm the decision of

the District Director denying the visa petition.

ORDER: The decision of the District Director is affirmed.

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