FRISONE

Interim Decision #1255

MAW= or FRISONE

In DEPORTATION Proceedings

A-8836375

Decided by Board November 19,1960

An alien who has been the beneficiary of a visa petition based on a marriage

found later to have been contracted for the purpose of evading the immigration

laws (section 205(c)) cannot claim the benefit of the waiver provided by

section 241(f) of the Immigration and Nationality Act, as amended.

CHARGE:

Order: Act of 1932—Sections 241(a) (2) and (c) [8 U.S.O. 1251(a) (2) and

(c))—Visa procured by fraud in vioiation of section 212(a) ( 19)

[8 U.S.O. 1182].

Respondent is 35 years of age, married, male, alien, a native and

national of Italy. He first entered the United States in June 1954

as a deserting seaman. He was apprehended by the Immigration

and Naturalization Service in October 1954 and was paroled for one

week to arrange to post a $1,000 bond. He last arrived in the United

States on August 8, 1955 and was admitted for permanent residence

upon presentation of a nonouota immigrant visa. This case has been

before the Board on several occasions. It is necessary to retrace

briefly the proceedings to date. On August 21, 1958, following a

thorough hearing, during which respondent was represented by counsel

of his choice, the special inquiry officer ordered respondent deported

on the charge set forth above. Respondent appealed to this Board,

and his counsel filed a brief in support of the appeal. On October 22,

458 we dismissed the appeal. We found that respondent bad ob-

tained his visa on the basis of his marriage to a United States citizen

at Syracuse, New York on November 13, 1954, and that marriage was

annulled on July 9, 1956. We stated October 22, 1958, p. 3),

"Clearly, the respondent has failed to sustain his burden under the

statute and the Government has established by a preponderance of

the evidence that he entered into his marriage with Frances Buda to

evade the quota requirements of the immigration laws."

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During the proceedings in 1958 there was an indication that

respondent had entered into another marriage with a United States

citizen, but he offered no evidence regarding this marriage during the

deportation proceedings and made no request that the second marriage

be considered in any grant of discretionary relief. Counsel's memo-

rfundiim in support of the appeal to this Board stated that respondent

was married to a legally resident alien. The record indicates that

respondent's present wife is now a naturalized United States citizen

and that two citizen children have been born to this marriage.

There was no action taken in this matter after our order of October

22, 1958 until March 20, 1962 when the Board received a notice of

motion for a reopening, reconsideration and termination of warrant

proceedings filed by present counsel. The Board heard oral argu-

ment on the motion, ordered the outstanding order and warrant of

deportation withdrawn and the proceedings reopened. We agreed

that evidence relating to respondent's present marriage and his two

United States citizen children should be made a part of the record,

particularly in light of legislation enacted since the entry of the

outstanding order of deportation which, counsel alleged, made re-

spondent nondeportable. We pointed out that the proceedings also

should be reopened in order to give the Service an. opportunity to

consider or oppose the grant of relief sought by counsel under the

new legislation.

Following the reopened hearing on July 3, 1962, and the filing of

briefs by both counsel for the alien and by the examining officer, the

special inquiry officer denied respondent's application for the waiver

Hume pro tune provided by section 16 of the Act of September 26, 1961,

adding section 241(f) to the Immigration and Nationality Act?. The

special inquiry officer granted him voluntary departure. The special

inquiry officer found that deportation of respondent would result in

serious detriment and hardship to his citizen wife and children, that

the wife is unemployed and that respondent is the sole support of tha

family. The special inquiry officer denied the mono pro taw waiver

under section 241(f) solely on the ground that he found the alien

1 Section 16 of the Act of September 26, 1961 provides :

Sec. 16. Section 241 of the Immigration and Nationality Act (8 U.S.C. 1251)

is hereby amended by adding the following :

(f) The provisions of this section relating to deportation of aliens within

the United States on the ground that they were excludable at the time of entry

as aliens who have sought to procure, or have procured visas or other docu-

mentation, or entry into the United States by fraud or misrepresentation shall

not apply to an alien otherwise admissible at the time of entry who is the

spouse, parent, or a child of a tralted States citizen or of an alien lawfully

admitted for permanent residence.

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not to have been "otherwise admissible", as required by that section,

at the time of his last entry on August 8,1955.

At the time of his last entry respondent was the beneficiary of a

visa petition filed by his first wife and previously was accorded non-

quota status under section 101 (a) (27) (A). We have again reviewed

the entire record. The special inquiry officer's decision restates at

some length facts which were adjudicated by the special inquiry officer

and this Board in 1958. Counsel argues that this constituted a re-

opening of the entire record, and justifies his request to cross-examine

the alien's first wife. He seeks, first, to readjudicate the issue of

whether the first marriage was fraudulent upon the part of the alien,

asserting that the marriage broke up after seven or eight months of

genuine effort by the alien to make it a good marriage. Counsel

pleads that the marriage was basically a misalliance, and that the

religious barrier was only one of the obstacles.

There is no claim of new evidence relating to the first marriage

which required the presence of the first wife at the reopened hearing.

The fraudulent nature of the first marriage was established in 1958.

The alien contracted a second marriage which is undoubtedly bona

fide. It was to give him an opportunity to show the facts of the new

marriage, asserted as the basis for relief, that this case was reopened

and returned to the special inquiry officer. The refusal of the special

inquiry officer to subpoena the first wife and to treat the case as a

hearing de novo was not error.

Counsel argues, second, that respondent did not commit a fraud

by entering as the nonquota spouse of a United States citizen, because

for some purposes an annulment does not annul the marriage from

the beginning, but only from the date of the annulment. Counsel

claims that the Domestic Relations Law of New York makes respond-

ent's first marriage void only from the Lime a judgment is rendered

by the court. He quotes section 7 of that statute as follows, "A mar-

riage is void from the time its nullity is declared by a court of com-

petent jurisdiction if either party thereto . . . (4) consents to such

marriage by reason of force, duress or fraud." Counsel admits that

the New York cases generally sustain the idea in spite of the statu-

tory declaration, that a voidable marriage declared void by a court

is void ab imitio. Counsel contends, however, there is a minority view

and cites Barker v. Barker,172 App. Div. 244 (1916) .

The special inquiry officer found respondent was not the lawful

spouse of a United States citizen at time of entry and was not, there-

fore, a nonquota immigrant. He states (special inquiry officer, August

9,1962, p.11) :

Had all the facts been known by the Government on August 8, 1055, the date

of respondent's entry, he would have been found inadmissible under section 212

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Interim Decision #1255

(a) (20) of the Immigration and Nationality Act (8 U.S.C. 1182 (a) (20) ) as an

immigrant who is not in possession of a valid unexpired immigrant visa or other

entry document. The respondent has failed to clearly establish that he was

"otherwise admissible" at the time of entry.. .

The special inquiry officer did not consider or refer to the provisions

of section 205 (c), as amended by section 10 of the Immigration and

Nationality Act of September 26, 1901. 2

The Service representative argued before this Board (1) that re-

spondent was either not a nonquota immigrant or he had no valid visa,

and (2) that even had the annulment not taken place, if the marriage

was in fact a fraudulent marriage, the no valid visa charge would be

sustainable, if the Service had chosen to bring that charge.

On several occasions the Board has had appeals from denials of visa

petitions, and we have said that a visa petition proceeding was not

the correct form in which to litigate the legality of a marriage. In

those cases we have returned the visa petition to the Service for the

purpose of having the validity of the marriages adjudicated in depor-

tation proceedings. This is just such a case, and it comes up now in

a deportation proceeding.

Counsel pleads that the equities of the ease justify waiving the fraud

of the respondent's first marriage, if there was fraud. Counsel admits

that if respondent is required to depart, he is not again eligible for

nonquota status as the spouse of a United States citizen because of the

prohibition of section 10 of the Act of September 26, 1961, amending

section 205(c) of the Immigration and Nationality Act (see foot-

note 2).

The Board has held routinely in visa petition cases where an alien

has been accorded nonquota status as the spouse of a United States

citizen and approval of the visa petition was later revoked for fraud,

that such a beneficiary could not qualify for nonquota status on the

basis of a subsequent marriage, even though the subsequent marriage

may be bona fide. Matter of 1V—, Int. Dec. No. 1222 (B.1-4.., May 22,

1962) ; Matter of A—, Int. Dec. No. 1223 (B.I.A., June 1, 1962).

Both the Service representative and counsel recognize that Public

Law 87401, September 26, 1961, contains two divergent provisions.

In application these provisions appear to be conflicting. Section 16

(see footnote 1) is an abbreviated but broadened reenactment of section

7 of the Act of September 11, 1957, which was conceived primarily to

' Section 10 of the Act of September 26, 1961, amends section 205(c) of the

Immigration and Nationality Act by adding: "Notwithstanding the provisions

of this subsection, no petition shall be approved if the alien previously has been

accorded, by reason of marriage determined by the Attorney General to have

been entered into for the purpose of evading the immigration laws—(1) a non-

quota status under section 101(a) (27) (A) as the spouse of a citizen of the

United States. . ."

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assist refugees and displaced persons who had made misrepresenta-

tions to avoid repatriation to certain geographical areas in Europe

following World War II, or for other defensive reasons.

The Board was precluded from granting advance waivers under

section 7 of the Act of September 11, 1957 to aliens within the United

States, as that provision was interpreted by the Attorney General in

Matter of DeF—, 8 I. & N. Dec. 68. Under that statute respondent in

the instant matter would have been precluded from the waiver, be-

cause he would have to depart from the United States to obtain it, and

then the prohibition of section 10 of the Act of September 26, 1961

(against granting a visa petition on the basis of his second marriage)

would have come into play. However, the waiver provided by section

16 of the Act of September 20, 1901 dearly gives the authority simply

to terminate proceedings when the waiver is granted.

Section 10 of the Act of September 26, 1961 is an entirely new

provision of law. Referring to section 10, this Board said in Matter

of R—, Int. Dec. No. 1188 :

The legislative history indicates that the amendment was proposed to

strengthen existing law by giving the Attorney General a new legal instru-

mentality to counteract the increasing number of fradulent acquisitions of non-

quota status through sham marriages between aliens and United States citizens.

The legislation was prompted by a recent report of the Attorney General to

Congress about the increasing number of such sham marriages, indicating the

existence of marriage schemers operating in various parts of the country

arranging for high fees, for deceitful marriages involving in most instances alien

seamen,

Sections 12, 14, 15 and 16 of the Act of September 26, 1961 give en-

larged rights and special consideration to aliens who are the spouse,

parent or child of a United States citizen or legally resident alien, and

who otherwise, would be excludable or deportable. However, section

10 of the same Act indicates that Congress intended that the expanded

privileges are not to be available even to a Zrona fide spouse, if he has

in the past been party to a sham marriage entered into for the purpose

of evading the immigration laws. Even though section 10 of the

Act of 'September 26, 1961 specifically forbids only the approval of a

visa petition in his behalf, it indicates the intention of Congress that

the immigration status of such a person is not to be adjusted under any

of the ameliatory acts.

Counsel maintains that the words "otherwise admissible" in sec-

tion 16 are not a' ar to a grant of the waiver, claiming that this phrase

refers to a state of inadmissibility which might exist apart from the

fraud, e.g., criminality, feeble-mindedness, insanity, epilepsy. Coun-

sel asserts that the words "otherwise admissible" mean that, except

3 B. Rept. No. 1086, S7th Cong., 1st Sess., pp. 36, 37.

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for the fraud and the impediment of the fraud, respondent must not

have had some other impediment at the time of entry that would

make him inadmissible.

The -Service asserts that to be "otherwise admissible" means that the

respondent must have been in possession of a valid visa at the time of

his entry, and that respondent cannot receive the waiver. He was

actually a quota immigrant, who entered as a nonquota immigrant.

See Matter of D'O—, 8 I. & N. Dec. 215 (1958), wherein we held that

proceedings could not be terminated under section 7 of the Act of

September 11, 1957 (P.L. 85-316) where respondent evaded the quota

restrictions by securing entry as a nonquota immigrant. We stated in

D'O that there is nothing in the history of section 7 of the Act of Sep-

—

tember 11, 1957 which indicates that it was the intention of Congress to

remove the careful protection which had been built into the immigra-

tion laws regarding quotas. We stated, "Section 7 excuses the pres-

ence of fraud. It does not wipe out the existence of all other grounds

of inadmissibility which may have been present. Section 7 also ex-

cuses the fact that an alien had been charged to the wrong quota."

We agree with the Service contention that respondent was not "other-

-wise admissible" at the time of his last entry as required by section 16

of the Act of September 26, 1961.

We are well aware of the hardship factors on which counsel has

dwelt at length. The same factors exist in the visa petition eases, of

which Interim Decisions Nos. 1222 and 1223 are examples. There are

certain to be family ties in. the alien's favor in these cases; otherwise,

this problem in statutory construction could not arise since there would

be no visa petition filed in his behalf, and no request for a waiver under

section 241(f) which is available only to a spouse, parent or child of a

United States citizen or lawfully resident alien.

We find nothing in the record to justify reexamination of the issue

of the good faith of respondent's first marriage. Aside from the testi-

mony of respondent's first wife, he admitted that he would have left

the United States when he was first apprehended if he had not found

someone to post the $1,000 bond for him. He also testified that he

knew that some of his friends from Sicily had married in the United

States and had been permitted to remain here. Respondent was repre-

sented 'throughout the 1958 proceedings by counsel who was vigorous

and knowledgeable.

Section 16 of the Act of September 26, 1961 provides an absolute

waiver for an alien who has procured documentation by fraud and who

comes within the other requirements of the provision. If respondent

were given such a waiver he and the Government would be in an un-

tenable position. He could not get a visa, because of the prohibition

contained in section 10 of the Act of September 26, 1961, but neither

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could he be deported. He could not be granted a legal status, but

neither could his illegal status be litigated, because these proceedings

would have been terminated. Aside from the finding that respondent

was not "otherwise admissible" at entry, it is our conclusion that an

alien who has been the beneficiary of a visa petition based on a marri-

age found later to have been contracted for the purpose of evading

the immigration laws, cannot claim the benefit of the waiver provided

by section 16 of the Act of September 26, 1961, adding section 241(f)

to the Immigration and Nationality Act. This is the only interpre-

tation which reconciles section 205 (c) as amended, with section 241(f)

of the Immigration and Nationality Act.

ORDER: It is ordered that the appeal be and is hereby dismissed.

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