Interim Decision #3086 

MATTER OF KAHY 

In Visa Petition Proceedings 

A-28379516 

Decided by Board November 23, 1988 

(1) Section 204(c) of the Immigration and Nationality Act, 8 U.S.C. § 1154(c) (Supp. 

IV 1986), as amended by the Immigration Marriage Fraud Amendments of 1986, 

Pub. L. No. 99-639, 100 Stet. 3537, applies to aliens who have conspired to enter 

into a fraudulent marriage or who have sought to obtain an immigration benefit 

based on a fraudulent marriage. 

(2) Where the record contains evidence that a visa petition was previously filed seeking nonquota status for an alien based on a fraudulent marriage, the burden then 

shifts to the petitioner to prove that the alien did not seek to be accorded nonquota status based on the prior marriage. Section 204(oX1) of the Act, 8 U.S.C. 

§ 1154(cX1) (Sapp. IV 1986). 

(3) A visa petition may be denied pursuant to section 204(cX2) of the Act, 8 U.S.C. 

§ 1154(cX2) (Stipp. IV 1986), where there is evidence in the record to indicate that 

an alien previously conspired to enter into a fraudulent marriage. 

ON BEHALF OF PETITIONER: ON BEIKALF OF SERVICE: 

Gordon W. Sacks, Esquire John B. Reid 

68 Court Street General Attorney 

Buffalo, New York 14202 

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

The United States citizen petitioner has applied for immediate 

relative status for the beneficiary as her spouse under section 

201(b) of the Immigration and Nationality Act, 8 U.S.C. § 1151(b) 

(1982). In a decision dated November 17, 1987, the district director 

denied the visa petition. The petitioner has appealed from that decision and requested oral argument. The appeal will be dismissed. 

The request for oral argument is denied. 8 C.F.E. § 3.1(e) (1988). 

The petitioner is a 21-year-old United States citizen. The beneficiary is a 24-year-old native and citizen of Lebanon. The beneficiary 

entered the United States as a nonimmigrant student on August 9, 

1985. He married Colleen M. O'Neill, a United States citizen, on 

August 8, 1986_ On October 27, 1986, an immediate relative visa pe803 
Interim Decision #3086 

tition, Form 1-130 (Petition to Classify Status of Alien Relative for 

Issuance of Immigrant Visa), was filed on the beneficiary's behalf; 

that visa petition included the name "Colleen M. Kahi" on the signature line. 

In a sworn statement made to an investigator of the Immigration 

and Naturalization Service on November 28, 1986, Ms. O'Neill 

stated that she had agreed to marry the beneficiary in exchange 

for $1,000 so that the beneficiary could remain in this country-. Ms. 

O'Neill also stated in her affidavit that she had not filed a visa petition on the beneficiary's behalf, and that the signature on the 

visa petition filed on October 27, 1986, was not hers. Ms. O'Neill 

and the beneficiary were subsequently divorced on May 1, 1987. 

The petitioner and the beneficiary were married on May 9, 1987. 

On. May 26, 1987, the petitioner filed the instant petition on the 

beneficiary's behalf. On October 9, 1987, the district director issued 

a notice to the petitioner that he intended to deny the petition. The 

petitioner responded to this notice by letter dated October 27, 1987. 

On November 17, 1987, the district director issued his decision denying the visa petition pursuant to section 204(c) of the Act, 8 

U.S.C. § 1154(c) (Supp. IV 1986). This appeal followed. 

Section 204(c) of the Act pravides: 

Notwithstsmding the provisions of subsection (b) no petition shall be approved if 

(1) the alien has previously been accorded, or has sought to be accorded, a nonquota or preference status as the spouse of a citizen of the United States or the 

spouse of an alien lawfully admitted for permanent residence, by reason of a marriage determined by the Attorney General to have been entered into for the purpose of evading the immigration laws, or (2) the Attorney General has determined 

that the alien has attempted or conspired to enter into a marriage for the purpose 

of evading the immigration laws. 

Section 204(c) of the Act was amended by the Immigration Marriage Fraud Amendments of 1986, Pub. L. No. 99-639, 100 Stat. 

3537, which specified that the amended section 204(c) would be applicable "to petitions filed on or after" November 10, 1986. 1 Id. 

§ 4(b),100 Stet. 3543. 

The district director based his conclusion that the beneficiary 

had previously entered into a marriage for the purpose of evading 

As noted above, the petitioner filed her Form 1-130 on May 26, 1987. Prior to 

the 1986 amendment, a visa petition could not be denied under section 204(c) unless 

it was "established that a fraudulent marriage was entered into and that the beneficiary was issued a visa as a nonquota or preference immigrant on the basis of that 

marriage." Matter of Oseguera, 17 I&N Dec. 386, 387 (B1A 1980). The current section 

204(c) is considerably broader in scope; it applies to aliens who have conspired to 

enter into a fraudulent marriage, or who have sought to obtain an immigration benefit based on a fraudulent marriage. See H.R. Rep. No. 906, 99th Cong., 2d Sess. 8, 

reprinted in 1986 U.S. Code Cong. & Ad. News 5978, 5980. 

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Interim Decision #3086 

the immigration laws on the statements made by Ms. O'Neill in 

her affidavit. Ms. O'Neill explained that a "Jake Khoury" had introduced her to the beneficiary. in June 1986. She stated that in 

early August 1986, "Jake" invited her to his house, and she went 

there and spoke with him and the beneficiary. According to Ms. 

O'Neill, "Jake" and the beneficiary both told her that they wanted 

her to marry the beneficiary so that he would not have to return to 

Lebanon. Ms. O'Neill was then offered $1,000 to marry the beneficiary, and she agreed to do so. "Jake" and the beneficiary told her 

never to tell anyone that she had received money for marrying the 

beneficiary. 

Ms. O'Neill stated further in her affidavit that on August 8, 

1986, "Jake" and the beneficiary gave the $1,000 to her at her 

mother's house. She was paid before the wedding ceremony, which 

occurred that same day. Ms. O'Neill stated that, right after the 

ceremony, she, the beneficiary, and "Jake" went to have photographs taken for the immigration forms that they needed to file. 

She said that the beneficiary paid for the photographs, which were 

developed while they waited. Finally, Ms. O'Neill stated that she 

never resided with the beneficiary at the address which was listed 

as their shared residence nn the Form I-130. 

The results of a handwriting analysis which was performed on 

the first visa petition filed on behalf of the beneficiary are included 

in the record. The forensic document analyst concludes that Ms. 

O'Neill did not sign the Form I-130 which was filed with the Service on October 27, 1986. The analyst also concludes that "it is 

highly unlikely"that the person who actually signed the form 

could be identified because the signature is a simulated one. 

In a statement attached to her Notice of Appeal (Form I-290A), 

the petitioner makes the following reference to the beneficiary's 

marriage to Ms. O'Neill: 

The previous marriage of [the beneficiary] was not entered into in an attempt 

to evade the law; rather it was entered into because of a strong desire to remain 

in a free country at peace. He did not and does not want to return to Lebanon due 

to the war, which he previously fought in, and constant unrest. 2 

We find the evidence in this case to be clear and convincing that 

the beneficiary's marriage to Ms. O'Neill was a sham from its inception. No evidence has been submitted to rebut Ms. O'Neill's 

statements that she married the beneficiary so that he could 

2The petitioner also states that she An ci the beneficiary entered into their marriage in good faith, and that they are expecting a child. Even if his current marriage is unquestionably bona fide, however, the visa petition cannot be approved if 

the beneficiary sought to be accorded nonquota status based on a prior fraudulent 

marriage. 

OrIK 
Interim Decision #3086 

remain in this country, that she was paid $1,000 for doing so, and 

that she never resided with the beneficiary after their wedding 

ceremony. Accordingly, we conclude that the beneficiary's marriage to Ms. O'Neill was "entered into for the purpose of evading 

the immigration laws." 

The petitioner asserts in the brief in support of her appeal, however, that her visa petition does not fall within the scope of section 

204(0(1) of the Act because Ms. O'Neill did not file a visa petition 

on behalf of the beneficiary, and thus the beneficiary has not 

"sought to be accorded" nonquota status by virtue of a fraudulent 

marriage to a United States citizen. Indeed, the record reflects that 

Ms. O'Neill did not file a Form 1-130 on the beneficiary's behalf 

and that the identity of the person who did file that document is 

not likely to be discovered. The petitioner's argument is stated succinctly in her brief: "Lacking evidence that an 1-130 application 

had been submitted to the Immigration Service on behalf of the 

beneficiary by an immediate relative, there can be no finding of 

disqualification under section 204(c) of the . . . Act." 

We reject the petitioner's argument, however, for two reasons. 

First, the district director concluded that the beneficiary had 

sought to be accorded nonquota status because the beneficiary had 

submitted an Application for Status as Permanent Resident (Form 

1-485). The record reflects that the Form 1-485 was filed simultaneously with the Form 1-130 that was submitted on behalf of the 

beneficiary on October 27, 1986. The petitioner has not denied that 

the beneficiary filed an Application for Status as Permanent Resident, and the district director's conclusion that the beneficiary 

"sought to be accorded nonquota status" on the basis of his submission of an. 1-485 application is therefore supported by the record. 

Second, even if there were no indication in the record that the 

beneficiary had applied for status as a permanent resident, we 

would not require the Service to prove that the beneficiary's previous spouse was the person who filed the fraudulent Form 1-130 in 

order for section 204(c)(1) to become applicable. The statute itself 

does not mention actions taken by United States citizen or lawful 

permanent resident spouses but instead focuses on aliens who have 

previously sought to be accorded nonquota or preference status by 

reason of a fraudulent marriage. We therefore find that a requirement that the Service establish that a United States citizen spouse 

actually filed. the Form I-120 is too demanding a test for section 

204(c)(1) purposes. We further conclude that where there is evidence in the record to indicate that the beneficiary has been an 

active participant in a marriage fraud conspiracy, the burden shifts 

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Interim Decision #3086 

to the petitioner to establish that the beneficiary did not seek nonquota or preference status based on a prior fraudulent marriage. 

The record in this case reflects that a visa petition was filed on 

behalf of the beneficiary seeking nonquota status for him as the 

spouse of a United States citizen. Although the visa petition was 

not filed by Ms. O'Neill, the beneficiary's prior spouse, the petitioner has submitted no evidence to establish that the visa petition was 

filed without the knowledge or approval of the beneficiary. Absent 

such evidence, we find that the petitioner has failed to rebut the 

charge that the beneficiary previously sought to be accorded nonquota status based on a marriage entered into for the purpose of 

evading the immigration laws, and we find that the instant visa petition was properly denied pursuant to section 204(c)(1) of the Act. 3 

Because we find no error in the district director's decision denying the visa petition in accordance with section 204(c) of the Act, as 

amended, the petitioner's appeal will be dismissed. 

ORDER: The appeal is dismissed. 

While the district director's decision appears to be grounded in section 204(cX1) 

of the Act, this visa petition could have alternatively been denied under section 

204(cX2). Aecordkkg to the evidence in the record, the beneficiary, Ms. O'Neill, and 

"Jake" agreed at a meeting in early August 1986 that Ms. O'Neill would marry the 

beneficiary in exchange for $1,000, so that the beneficiary would not have to return 

to Lebanon. When the beneficiary and Ms. O'Neill reached this agreement prior to 

their marriage, the beneficiary had at that point "attempted or conspired to enter 

into a marriage for the purpose of evading the immigration laws." During the pendency of this appeal, the Service has promulgated regulations which support the foregoing interpretation of section 204(cX2): 

Section 204(c) of the Act prohibit° the approval of a visa petition filed on behalf of 

an alien who has attempted or conspired to enter into a marriage for the purpose 

of evading the immigration laws. The director shall deny any immigrant visa petition for immigrant visa classification filed on behalf of such alien, regardless of 

whether that alien received a benefit through the attempt or conspiracy. Although it is not necessary that the alien have been convicted of, or even prosecuted for, the attempt or conspiracy, the evidence of such attempt or conspiracy must 

be documented in the alien's file. 

53 Fed. Reg. 30,016 (1988) (to be codified at 8 C.F.R. § 204.1(a)(2XivD. The evidence of an "attempt or conspiracy" is included in the record file in this case—

specifically, Ms. O'Neill's testimony that she agreed to enter into a fraudulent 

marriage with the beneficiary at a meeting with the beneficiary and "Jake" in 

early August 1986. 
Interim Decision # 3087 

MATTER OF CIn Adjustment of Status Proceedings 

Designated by Commissioner November 15, 1988 

(1) A reason which "comes unexpectedly into being" is an "emergent reason" for the 

purpose of determining continuous residence under 8 C.F.R. § 245a.1(cX1)(1) (1988). 

(2) Notwithstanding an absence from the United States of 58 days, the applicant 

maintained continuous residence because she intended to return after 30 days, 

and her return was unexpectedly delayed by the failure of the postal service to 

timely deliver a letter containing the necessary travel funds. 

ON BEHALF OF APPLICANT: Pro se 

This case is before the Legalization Appeals Unit ("LAU") for the 

second time. The first time the case was certified to the LAU by 

the director, Western Regional Processing Facility ("WRPF"). The 

LAU remanded the case to the WRPF to determine whether the 

applicant's absence from the United States for more than 45 days 

was due to "emergent reasons." The WRPF concluded that the absence was not due to an emergent reason and denied the application. The applicant timely filed this appeal. The appeal will be sustained. 

The applicant is a 23-year-old native and citizen of Mexico. She is 

married to a 29-year-old native and citizen of Mexico. The couple 

has three children, all of them United States citizens. The applicant's husband has been granted temporary resident status under 

section 245A of the Immigration and Nationality Act, 8 U.S.C. 

§ 1255a (Supp. IV 1986). 

On May 19, 1987, the applicant filed an Application for Status as 

a Temporary Resident (Form I-887) under section 245A of the Act. 

In her application, she stated that she entered the United States 

without inspection on April 16, 1984). Between January 1, 1982, and 

May 19, 1987, the applicant stated that she only had one trip outside the United States. The trip was from "4-84" to. "6-84." It appears, however, that upon examination at the legalization office, an 

Immigration and Naturalization Service examiner entered the 

exact dates of the trip. The examiner found that the applicant left 

the United States on April 16, 1984, and returned on June 13, 1984. 

Thus, the length of her absence from the United States was for 58 

days_ 

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Interim Decision # 3087 

The immigration examiner at the legalization office, after interviewing the applicant, recommended to the director of the WRPF 

that the application for temporary residence be granted. On 

August 4, 1987, the director of the WRPF denied the application on 

the ground that the applicant's absence from the United States had 

"exceeded the maximum allowable time for a single absence." The 

director further noted that there was "no evidence in the record to 

establish that [the applicant's] departure from the United States 

. . . was of an emergent reason." The director, however, certified 

his decision to the LAU. 

On October 15, 1987, the LAU remanded the case to the director, 

WRPF, to determine whether the applicant's absence from the 

United States of more than 45 days was due to "emergent reasons." 

The LAU noted the fact that the examiner at the legalization office 

had recommended the application be approved. However, the examiner did not explain the basis for the recommendation and whether 

he elicited information which tended to prove the applicant's absence was due to emergent reasons. The LAU asked the director, 

WRPF, to reinterview the applicant in more detail to determine 

"the nature of her visit and whether her inability to return within 

forty-five days was due to emergent reasons." It was also noted 

that the applicant left from and returned to the same address in 

the United States. 

On November 27, 1987, the director, WRPF, issued a decision denying the application. The director stated inter alias 

Your absence from the United States from April 16, 1984 until June 13, 1984 exceeded the maximum lensallowable time for a single absence. When contacted telephonically on October 23, 1987, you claimed that you could not return to the 

United States prior to June 13, 1984 because you did not have the necessary 

money to pay for your return trip. You stated that your husband sent the money 

to you, but because the ranch you were staying at was in such a remote location, 

it took a long time for you to receive it. The fact that you did not have sufficient 

funds for your return trip does not qualify as an emergent reason for your failure 

to return to the United States within the time limit allowed. 

The applicant timely filed a notice of appeal. 

Section 245A(a) of the Act sets forth the statutory requirements 

for eligibility for temporary resident status. Among those is the requirement that the applicant must prove continuous unlawful residence in the United States before January 1, 1982, and through the 

date the application is filed. Section 245A(aX2) of the Act. The regulations implementing this provision state, inter ails., that the continuous residence requirement is met when 

[n]o single absence from the United States has exceeded forty-five (45) days, and 

the aggregate of all absences has not exceeded one hundred and eighty (180) days 

between January 1, 1982 through the date the application fur temporary resident 
Interim Decision #3087 

status is filed, unless the alien can establish that due to emergent reasons, his or 

her return to the United States could not be accomplished within the time period 

allowed. 

8 C.F.R. § 245a.1(c)(1)(i) (1988) (emphasis added). 

Thus, we must determine here whether the applicant's absence 

of 58 days, 13 days more than permitted by the regulations, was 

because of an "emergent reason." This term is not defined in the 

regulations. In seeking to interpret and apply this terra we are 

mindful of congressional intent "that the legalization program 

should be implemented in a liberal and generous fashion, as has 

been the historical pattern with other forms of administrative 

relief granted by Congress." H.R. Rep. No. 682(I), 99th Cong., 2d 

Sess. 72, reprinted in 1986 U.S Code Cong. & Admin. News 5649, 

5676. Congress also expected "INS to incorporate flexibility into the 

standards for legalization eligibility." Id. at 73. 

The Immigration and Naturalization Service has adopted the definition. found in Webster's II New Riverside University Dictionary 

where the word "emergent" is defined as "coming unexpectedly 

into being." 1The application of this definition requires us to examine on a case-by-case basis the reasons why an applicant remained abroad longer than the prescribed period. The record in 

this case indicates that when the applicant was reinterviewed to 

explain her absence, she stated she only intended to stay in Mexico 

for 30 days. However, because she was staying on a ranch distant 

from a town, a letter from her husband enclosing money for her 

return trip to the United States was delayed. The Service examiner 

who reinterviewed her noted in the record that the applicant "has 

the letter from her husband showing when he mailed it and how 

long it took to get to her." 

The credibility of the applicant has not been questioned. Based 

on the record before us, we must conclude that she planned to stay 

in Mexico for 80 days, but the unexpected delay in receiving the 

money from her husband caused her to be absent from the United 

States for 58 days. In summary, her inability to return within the 

time allowed was because of an emergent reason. 

ORDER: The appeal is sustained. The application is approved. 

1 Subsequent to the issuance of this decision but prior to its designation as a 

precedent, the court in Hernandez v. Meese, No. CIV-S-88-385 (E.D. Cal. Aug. 11, 

1988), cited with approval the Service definition of "emergent reason," stating that 

"the standard enunciated by the Legalization Appeals Unit appears to be generous 

and in keeping with the Congressional directive to administer the program in a liberal and generous fashion." 

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