Interim Decision #2452 

MATTER OF TENG 

In Deportation Proceedings 

A-34395590-1-2-3-4 

Decided by Board November 26, 1975 

(1) Where the re is a sham marriage and no actual familial relationship between the 

stepchildren and the United States citizen stepparent has ever existed, the stepchildren 

are not entitled to be considered the children of the United States citizen stepparent 

within the meaning of section 101(b)(1)(B) of the Immigration and Nationality Act, as 

amended, notwithstanding the stepchildren may be innocent of any fraudulent intent. 

(2) Since, in the instant cases, the marriage between respondents' mother and the U.S. 

citizen petitioner has been found to be a sham marriage and no actual familial relationship between the respondents (stepchildren) and the petitioner (stepfather) has ever 

existed, respnndents, who were admitted in possession of immigrant visas issued them 

as the benefiziaries of approved visa petitions filed by the citizen petitioner/stepfather 

to accord them immediate relative classification as "stepchildren", were not entitled to 

such status and are deportable under section 241(a)(1) of the Act because exeltidable at 

entry for lac:t of valid immigrant visas_ This is true even though respondents may be 

innocent of any fraudulent intent, the marriage between their mother and the petitioner 

has not been terminated, and there is still a legal step-relationship in existence. 

(3) The fact that the visa petitions on behalf of the respondents were approved at a time , 

when the Service was investigating the validity of the marriage (apparently in connection with the mother's application for adjustment of status) does not amount to the type 

of "affirmative misconduct" required to find that the Service is equitably estopped from 

deporting reapondents. 

CHARGE: 

Order: Act of 1952—Section 241(a)(1) [8 U.S.C. 1251(a)(1)]—Excludable at time of 

entry—no valid immigrant visas. 

ON BEHALF OF RESPONDENTS: Norman Stiller, Esquire 

995 Market Street 

San Francisco, California 94103 

This case is before us on certification of the immigration judge of his 

decision dated August 20, 1975 in which he ordered the deportation 

proceedings against the respondents terminated. The decision of the 

immigration judge will be reversed. 

The respondents, all brothers and sisters, are natives of the Philippines and citizens of China_ They range in age from fifteen to twenty 

years old. The mother of the respondents entered the United States in 

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1968 as a nonimmigrant visitor. On July 31, 1970 she married a United 

States citizen in Reno, Nevada. He thereafter submitted a visa petition 

for the mother as his spouse, and for the respondents as his stepchildren. The latter petitions were approved and the respondents were then 

issued immigrant visas as immediate relatives of a United States citizen. See section 201(b) of the Immigration and Nationality Act. They 

were admitted to the United States on August 13, 1973. The petition for 

the mother was withdrawn. 

The Service alleges that the marriage between the respondents' 

mother and the citizen who petitioned on their behalf was a sham 

marriage entered into solely for the purpose of obtaining immigration 

benefits. The order to show cause charges that the respondents were 

not, and are not, entitled to be considered the children of a United 

States citizen within the meaning of section 101(b)(1)(B) of the Immigration and Nationality Act and, therefore, they are deportable under 

section 241(a)(1) of the Act. 

The immigration judge found that the marriage in question was in fact 

a sham marriage in that the partners never resided together and never 

intended to. He nonetheless concluded that this did not render the 

respondents deportable. The immigration judge found that the respondents did not participate in any fraudulent scheme and in fact were 

unaware that the marriage was a sham. 

At the hearing, the respondents disputed the allegation that the 

marriage between their mother and the claimed stepfather was entered 

into solely for the purpose of obtaining immigration benefits for either 

the mother or the respondents. It is not disputed that the mother 

presently lives in San Francisco, California and her husband resides in 

Seattle, Washington. However, the mother testified that for at least six 

months after the marriage she resided in San Francisco with her husband and that they intended to live as husband and wife. A witness, who 

with her husband owns the house in which the mother lived at the time 

in question, gave similar testimony. 

The mother's husband did not appear at the hearing. However, his 

deposition was taken and made part of the record. 1In the course of the 

deposition, the husband repudiated substantial portions of earlier 

statements he had.made. Moreover, statements made by the husband, 

and which were made part of the record, show' that on almost each 

occasion on which he was questioned, he has given inconsistent statements. Despite this apparent unreliability, he nonetheless has consistently maintained that he never lived with the respondents' mother. 

Investigations made by the Service, the reports of which were introThe deposition was taken before an immigration judge in Seattle, Washington. Counsel for the respondent, as well as a trial attorney, wore present and questioned the 

husband. 

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duced into evidence, also support a conclusion that the respondents' 

mother never lived with her husband. The immigration judge found, on 

the basis of demeanor evidence as well as on the basis of inconsistencies 

in the statements made by the mother and the other witness, that 

neither of them were credible witnesses. The finding of an immigration 

judge with respect to the credibility of a witness will ordinarily be given 

great weight. Matter of 7 1. & N. Dec. 417 (BIA 1957). We are 

satisfied from a review of all the evidence in the record that the Service 

has established by clear,. convincing and unequivocal evidence that the 

marriage between the mother of the respondents and her husband was 

entered into solely for the purpose of conferring immigration benefits, 

and that they never resided together in a marital relationship. 

It is clear that such a relationship would not be sufficient to confer 

immigration benefits on the mother of the respondents. Matter of 

Phillis, Interim Decision #2407 (BIA July 7, 1975); Matter of Kitsalis, 

11 I. & N. Dec. 613 (BIA 1966); Matter of M—, 8 I. & N. Dee. 217 (BIA 

1958). Cf. Li,1wak v. United States, 244 U.S. 604 (1953); Johl v. United 

States, 370 i'.2d 174 (C.A. 9, 1966). 

The record shows that the respondents did not know that their 

mother and her husband had entered into a sham relationship. The 

testimony of the oldest child also indicates that until the respondents 

arrived in the United States, they believed that their mother was in fact 

living with her husband. It also appears from the record that only one of 

the respondents has ever met their mother's husband. That meeting 

was evidently very brief. The other respondents have never met their 

"stepfather". The marriage still exists in form and apparently no attempts have been made to dissolve it. 

The narrow question here is whether the respondents were entitled to 

be considered the stepchildren of their mother's husband within the 

meaning of section 10I(b)(1)(B) of the Act where the underlying marital 

relationship was a sham and the respondents have never lived with the 

stepparent. 

One of the primary concerns of the Immigration and Nationality Act 

is the preservation of the family unit. See H.R. Rep. No. 1365, 82d 

Cong., 2d Sess., [1954] 2 U.S. Code Cong. & Adm. News 1653, 1680. 

Where a marriage is terminated by divorce, a step-relationship created 

by that marriage is also considered terminated. Matter of Simicevic, 10 

I. & N. Dec. 363 (BIA 1963). Where the marriage is terminated by 

death of the natural parent but there is an ongoing relationship, the 

step-relationship is deemed to continue. Matter of Pagnerre, 13 I. & N. 

Dec. 688 (BIA 1971). 

In the present case, no family tie has ever existed between the 

respondents and their mother's husband, nor between the mother and 

the husband. We do not lightly disregard the fact that the marriage has 

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Interim Decision #2452. 

not been terminated and that there is still a legal step-relationship in 

existence. However, we conclude that where there is a sham marriage 

and no actual familial relationship between the stepchildren and the 

United States citizen stepparent has ever existed, the stepchildren are 

not entitled to be considered children of a United States citizen for 

purposes of the Immigration and Nationality Act. The fact that the 

respondents may be innocent of any fraudulent intent does not protect 

them. An alien who has derived an immigration benefit from another 

may be deportable where the person from whom the status was derived 

was not in fact eligible to confer any benefits. Cf. Matter of Ideis, 14 L & 

N. Dec. 701 (BIA 1974). The respondents consequently are deportable 

under section 241(a)(1) of the Act. 

We do not find that the Service is equitably estopped from deporting 

these aliens. The visa petitions submitted on behalf of the respondents 

were approved at a time when the Service was investigating the validity 

of the marriage, apparently in connection with the mother's application 

for adjustment of status. This, however, does not amount to the type of 

affirmative misconduct which is required to find equitable estoppel. See 

Immigration and Naturalization Service v. Hibi, 414 U.S. 5 (1973); 

Matter of Morales, Interim Decision #2416 (BIA, July 28, 1975). 

The respondents applied for voluntary departure. The immigration 

judge did not consider the request because of the disposition he made of 

the ease. Aeenrdingly, we shall remand, the record for the immigration 

judge to consider the respondents' application. 

ORDER: The decision of the immigration judge is reversed. 

Further order: The record is remanded for further proceedings. 

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* * * * 

(6) Being a person who has no nationality he is, because the circumstances in 

connexion with which he has been recognized as a refugee have ceased to exist, able to 

return to the ccuntry of his former habitual residence. . . . 

The respondent's refugee certificate is dated January 6, 1969. In 

January 1970 the Civil War in Nigeria ended and the Federal Military 

Government declared a general amnesty. In a case decided by the 

Regional Commissioner in December 1971, only several months after 

the hearing in this case, a State Department communication was quoted 

as saying: "In January, 1970, at the conclusion of the war, the Federal 

Military Government declared a general amnesty, invited Nigerians 

living abroad to return, and announced a policy of reconciliation and 

reintegration of Nigerians (mostly Ibos) who had supported the secession." The communication went on to say that there had been no evidence of mass arrests, trials, imprisonments, or executions and that, 

despite some problems, there was ample evidence that the Federal 

Military Government was sincerely interested in bringing about the 

reintegration of the Ibos, including former government officials. Matter 

of Iregbuiem, 13 I. & N. Dee. 805, 806-807 (Reg. Corn. 197],). Although 

there has been a change in the government of Nigeria since January 

1970, we are unaware of any policy changes affecting the treatment of 

former supporters of the Biafran secession. 

Counsel contends that the United States is compelled to honor the 

finding of the delegation in Belgium of the United Nations High Commissioner for :Refugees, made in 1969, that the respondent is a refugee. 

We disagree. The United Nations Convention does not provide that a 

person considered a refugee in one contracting nation must, for that 

reason, also be considered a refugee in the other contracting nations. 

We have nevErtheless given sympathetic consideration to the determination made in Belgium. However, we have also considered the circumstances under which that determination was made. We find, under 

Article 1, seelon C(6) of the United Nations Convention, supra, that 

the circumstances in connection with which the respondent was found 

by the United Nations authorities in Belgium to be a refugee have 

ceased to exist. 

The respondent has been given the time and the opportunity to 

pursue his claim that he is a refugee and therefore either is not deportable or is entitled to the temporary withholding of his deportation pursuant to section 243(h) of the Act, He has not come forward with any 

evidence to support any of these claims except for the 1969 refugee 

certificate. Whether he relies upon the United Nations Protocol and 

Convention Relating to the Status of Refugees or upon section 243(h) of 

the Immigration and Nationality Act, the burden is still his to establish 

that he has a well-founded fear that his life or freedom will be 

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threatened in Nigeria on account of his race, religion, nationality, membership in a particular social group, or political opinion. Matter of 

Dunar, supra. He has not sustained his burden. 

Upon the record before us, we conclude that the respondent is not a 

refugee. Moreover, we find, on the basis of the record before us, that 

the deportation hearing was far, and that deportability has been established by clear, convincing and unequivocal evidence. Accordingly, the 

following order will be entered. 

ORDER: The appeal is dismissed. 

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