)MATTER OF T----- 

In RESCISSION Proceedings 

A-84971RO 

Decided by Assistant Commissioner July 31, 1958 

Rescission of adjustment of status acquired under section 245 of the 1552 oil-- 

Evidence required—Timely where district director's decision entered within 

5-year period after adjustment, although appellate action occurred subsequent 

to that period. 

(1) Adjustment of status acquired pursuant to section 245 of the 1952 act 

based on marriage to United States citizen and claim to nonquota status 

under section 101(a) (27) (A) of the act will not be rescinded where evidence 

fails to establish subject's lack of bona fide intent to enter into valid marital 

relationship, notwithstanding divorce obtained by citizen spouse on ground 

of desertion about 2 years later. 

(2) Action taken by district director on June 3, 1958, rescinding adjustment 

of status acquired on June 11, 1953, was timely, although appellate rights 

pieser,u for alien prevented final disposition of case within the 5-year 

period of limitation provided by the statute. 

AcTioN: Proceedings under section 246(a) of the Immigration and Nationality 

Act and 8 CFIZ 246 to revoke adjustment of status granted under 

section 245 of the act. 

BEFORE THE ASSISTANT COMMISSIONER 

Discussion: On December 31, 1952, the subject filed application for adjustment of status to that of an alien lawfully admitted 

for permanent residence pursuant to section 245 of the Immigration 

and Nationality Act which was granted on June 11, 1953. On June 

3, 1958, the District Director at Chicago, Illinois, pursuant to section 246 of the act, ordered that the adjustment of the alien's status 

be rescinded on the ground that the marriage which formed the 

basis of the alien's claim to nonquota status under section 101(a) 

(27) (A) of the act upon which his application was predicated was 

not a stable, enduring, and bona fide relationship. From that order 

the alien appealed to the Regional Conunissioner, St. Paul, Minnesota, who has certified the case to the Assistant Commissioner, Examinations Division. 

Section 246(a) of the act provides that if at any time within 5 

years after the status of a person has been otherwise adjusted under 

96 
the provisions of section 245 or 249 of the act or any other provision 

of law to that of an alien lawfully admitted for permanent residence, it shall appear to the satisfaction of the Attorney General 

that the person was not in fact eligible for such adjustment of 

status, the Attorney General Audi receind the action taken granting 

adjustment of status to such person and cancelling deportation in 

the case of such person, if that occurred, and the person shall thereupon be subject to all provisions of the act to the same extent as if 

the adjustment of status had not been made. 

As set out above, the subject's application was granted on June 

11, 1953, and ordered rescinded on June 3. 1958. The district director is the official to whom the Attorney General's authority under 

section 246 has been delegated. The entry of his order on June 3, 

1958, tolled the 5-year period of limitation provided by that section 

notwithstanding that the appellate rights to which the alien is entitled have prevented final disposition of this case within the 5 years_ 

To be eligible for adjustment of status under section 245 of the 

act an applicant must be admissible to the United States for permanent residence under the act and a quota or nonquota immigrant 

visa must be immediately available to him both at the time of applimtion and at the time the application is approved. 

The evidence of record establishes that the alien was married by 

civil ceremony at Chicago, Illinois, on December 10, 1952, to a 

native-born citizen of the United States. The marriage was terminated on February 8, 1955, by an uncontested divorce obtained by 

the wife on the ground of desertion. The sole question to be resolved is whether the subject entered into a valid marital relationship in good faith or whether the marriage was fraudulent in that 

it was contracted solely for the purpose of establishing a basis for 

adjustment of his immigration status as a nonquota immigrant. If 

the marriage -Wee a fraudulent one he would not have been eligible 

for such adjustment (Lutwak v. United States, 344 U.S. 604; United 

States v. Rubenstein, 151 F.2d 915). However, in view of his professional standing of surgeon, he could presumably have qualified 

for adjustment as a quota immigrant inasmuch as numbers under 

the first preference portion of the quota for Greece to which he 

would have been chargeable were available (Report #1, January 

13, 1953, and Report #5, May 29, 1953, Visa Office, Department of 

State). 

The evidence establishes that the parties first met each other sometime in September of 1952 and that thereafter the parties met at 

various times, resulting in a marriage by civil ceremony at Chicago, 

Illinois, on December 10, 1952. According to the wife's statement, 

subject proposed to her after a few dates, but she kept putting him 

off until the parties were officially engaged on December 6, 1952. 

97 
When plans for a marriage in a church were discussed, subject told 

her that there would be no time for it, that his visa would expire on 

December 26, 1952, and that he would be forced to go back to Greece 

on such date unless his marriage to her took place. According to 

her statement, subject at that time furthermore stated that she 

should not get the wrong idea about the haste or the p6Ssibility of 

his being deported but that he felt the marriage should take place 

immediately if he was to remain in the United States. The marriage was not entered into by her for the purpose of helping him 

remain in tlm United States_ In the gESITIP statement of November 

12, 1954, the wife alleged that in July 1953 subject stated that he 

never loved her; that he was in love with his common-law wife who 

resided in Greece; and that the 01117 reason for the marriage was 

the desire of subject to evade the immigration laws and remain in 

the United States. Subject has stated that he did not marry his 

wife so that he could remain in the United States permanently but, 

on the other hand, that the marriage took place because he thought 

she was the right girl to have as his wife. 

Subject claims that the marriage was consummated and that this 

occurred when visite were made by him and he wife to the home of 

the wife's parents or the home of subject's sister. He admitted, 

however, that it was the custom among the older Greek people that 

without a church marriage, a civil ceremony was not considered to 

be a valid marriage, although the younger set took a different view 

and that he considered himself married by the civil ceremony. On 

the other hand, the wife insists that the marriage was never consummated and that it was agreed beforehand that the marriage was 

not to be consummated until after the church wedding Her statement is supported by the finding of the court in the divorce proceedings in its order granting her a divorce wherein it is stated that 

the marriage was never consummated. While subject did not testify 

in the divorce proceedings, personal service of the summons was 

made and he was represented by an attorney. Furthermore, in support of the wife's statement of non-consummation are certifications 

by 2 physicians as to the wife's physical condition. The parties 

never actually lived together with each other as husband and wife 

in a home of their own and subsequent to their marriage met each 

other either at the home of the wile's parents or at the home of subject's sister. Apparently, shortly after their marriage, a dispute 

arose as to the church ceremony with reference to whether or not 

the marriage should take place according to the Roman Catholic or 

the Greek Orthodox faith. Subject claims that as a result of the 

interference of the wife's mother, discord resulted and consequently 

the church ceremony never took place and a divorce resulted. The 

wife on the other hand claims that the church ceremony did not 

98 
take place for various reasons, one of the reasons given was that 

subject admitted he was in love with a woman in Greece with whom 

he had lived as common-law husband and wife for 3 years. In any 

event, the parties could not got together and divoree action resulted. 

Proceedings under section 216 of the act for rescission of adjustment of status on the ground offered in this case arc analagous to 

deportation proceedings brought under section 241(c) of the act. In 

such proceedings it has been consistently held that the respondent 

has the burden of showing that his marriage to a citizen was not 

contracted for the purpose of evading the immigration laws; the 

Government has the burden of establishing that its case rests upon 

reasonable, substantial and probative evidence (Matter of 1- 

A-10316169, 7 I. & N. Dec. 460; Matter of T—, A-6605'228, 7 I. & 

N. Dec. 417; Matt,,- of 21! , A 10404027, 7 I. & N. Dee. col). 

As in other cases of this type, the facts regarding the difficulties 

between the parties are in dispute. Based on the evidence of record, 

it appears that no consummation took place. However, this fact by 

itself does not warrant a conclusion that a valid marriage was not 

entered into. It is only a factor to be considered in determining the 

bona fides of the marriage (Matter of M , supra). Subject has 

denied that he entered into the civil marriage for the purpose of 

becoming a permanent resident of the -United States. The testimony 

of the wife is conflicting as to the intent of subject in entering into 

the marriage. There was disclosure to her of subject's immigration 

status prior to their marriage and there was no conspiracy by both 

parties to evade the immigration laws. Her testimony indicates a 

meeting through mutual acquaintances, a period of courtship, and a 

desire of the subject to marry her in order to establish a marital 

relationship. The only evidence in the case that the marriage was 

entered into to evade the immigration laws is the wife's statement 

that in July 1953 subject admitted that this was his sole purpose in 

marrying her. This statement by her, by itself, in light of the other 

evidence of record, is insufficient to establish a willful attempt by 

subject to enter into the marital relationship for the purpose of 

adjusting his immigration status. It is, therefore, concluded that 

the marriage relationship entered into by subject was made with a 

bona fide intent to enter into a valid marital relationship and, consequently, there was no fraud in connection with subject's application for adjustment of status under section 245 of the Immigration 

and Nationality- Act. This conclusion is further buttremed by the 

fact that the alien could have adjusted status as a quota immigrant 

as previously indicated. Therefore, the appeal will be sustained. 

Order: It is ordered that the subject's appeal be sustained.