Interim. Decision #1765 

MAIM of GAGIZO 

In Visa Petition Proceedings 

A-11134868 

Decided by Board August 11,19111 

Since section 241(f), Immigration and Nationality Act, as amended, by its very 

provisions relates to the deportation of aliens within the United State's, thebenefits of that section are not available in visa Petition Proceedings to na 

alien beneficiary outside the United States. 

ON Musts' or Pnrrrzoasz: Harry Kobel, Esquire 

2156 Penobscot Building 

Detroit, Michigan 48226 

(Brief flied) 

The case comes forward on appeal from the order of the District 

Director, Detroit District, dated June 1, 1967 denying the visa petition under the provisions of section 204(e) of the Immigration and 

Nationality Act, as amended, on the ground that the alien-beneficiary 

has previously been accorded nonquota status as the spouse of a 

United States citizen by reason of a previous marriage determined 

by the Attorney General to have been entered into for the purpose of 

evading the immigration laws. 

The petitioner, a native-born citizen of the United States, 21 years. 

old, filed a visa petition at Palermo, Italy on September 16, 1966 

seeking immediate relative status on behalf of the beneficiary as her 

husband. The beneficiary is a, native and citizen of Italy, 30 years old. 

The parties were married at Wyandotte, Michigan on July 30, 1966.. 

The visa petition indicates that the beneficiary was married oncepreviously. The immigration file relating to the beneficiary discloses 

he was previously under deportation proceedings commenced July 30, 

1957. The special inquiry officer on August 9, 1957 ordered the respondent deported under the provisions of section 241 (a) (1) as an alien 

excludable by law at the time of his entry on April 15, 1057 as a 

stowaway, under section 212(a) (18) of the Act. On appeal, the privilege of voluntary departure and preexamination was requested on the 

basis of a marriage which occurred August 2S, 1957. We remanded. 

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the case to the special inquiry officer for his consideration and action 

in view of the provisions of 8 CFR 242.21 then in effect. The special 

inquiry officer on December 5, 1957 withdrew the order of deportation 

and ordered the proceedings reopened. The 'beneficiary apparently adjusted his status on the basis of his marriage to one Johnie Johnson, 

a United States citizen, and was admitted as a nonquota immigrant 

upon presentation of an immigrant visa. 

Subsequently deportation proceedings were again commenced on 

October 8, 1965, alleging that the beneficiary's prior marriage had 

been terminated by a divorce on May 22, 1961 and charging that the 

respondent was unable to establish that his marriage was not contracted for the purpose of evading the immigration laws and was 

deportable under section 241(a) (1) as an immigrant without a valid 

immigrant visa under section 212(a) (20) on the ground that the visa 

had been obtained by fraud or wilful misrepresentation as provided 

by section 212(a) (19). The special inquiry officer on October 7, 1966 

indicated that the case was closed because the alien departed prior 

to the conclusion of the hearing. 

The visa petition was previously before us on April 10, 1967 on 

appeal from the order of the officer in charge, Palermo, Italy dated 

January 31, 1967 denying the visa petition pursuant to section 204(c) 

for the reason that the beneficiary was previously accorded nonquota 

status as the spouse of a citizen of the United States by reason of a 

marriage determined by the Attorney General to have been entered 

into for the purpose of evading the immigration laws. We pointed out 

that the record failed to contain a determination by the Attorney General that the prior marriage was entered into for the purpose of evading the immigration laws. In view of the fact that the petitioner had 

returned to the United States and was then residing in Detroit, Ifichigan, we remanded the case for further consideration by the District 

Director and for such further action as might appear appropriate. The 

District Director, the duly delegated representative of the Attorney 

General, has now determined that the marriage was entered into for 

the purpose of evading the immigration laws. This finding was apparently based upon the testimony of the first wife in the deportation 

proceeding. 

In connection with the appeal present counsel has suggested that 

the question of the bar under section 204(c) of the Immigration and 

Nationality Act may now be moot in view of the decision of this Board 

in Matter of Marwitisi, Int. Dec. No. 1711 (March 7, 1967) which in 

turn was based on the decision of the Supreme Court in Errico and 

Scott v. Immigration and Naturrazation Service, 385 U.S. 214. ManoMdi held that despite the finding that the respondent was deportable 

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under section 241(c) on the basis of a fraudulment marriage, he was. 

nevertheless saved from deportation by section 241(f) of the Immigration and Nationality Act on the basis of the Supreme Court ruling in 

the Errico and Scott cases, supra, that the respondent was "otherwise 

admissible" at the time of such entry, and that his fraud in gaining 

such entry had been excused under section 241(f). 

Matter of Manchici would appear to be an inappropriate pre.:edent_ 

Section 241(f) by its very terms relates to the deportation of aliens 

within the United States. Section 241(f) does not relate to visa petitions. Insofar as the present visa petition is concerned, there is ample 

evidence, by whatever standard of proof is used, to conclude that the 

beneficiary had previously been accorded nonquota status as a spouse 

of the -United States citizen by reason of a marriage which has been 

determined to have been entered into for the purpose of evading the 

immigration laws. Insofar as the visa petition itself is concerned, the 

appeal will be dismissed. 

Present counsel submits that it is not necessary for the beneficiary 

to obtain a new immigrant visa for reentry to the United States and 

requests that an appropriate order be made for the beneficiary's return 

to the United States for determination of his admissibility. However 

the beneficiary is presently abroad. It is not known what documents 

the beneficiary possesses or needs in order to return to the United States. 

His application for determination of these matters in the first instance 

is for the consular officer. In the event he requires a returning resident's 

visa, the consul may give consideration to the exercise of the waiver 

contained in section 212(i) of the Immigration and Nationality Act. 

ORDER: It is ordered that the appeal be and the same is hereby 

dismissed. 

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