Interim Decision #2469 

MATTER OF SOSA 

In Exclusion Proceedings 

A-50269209 

Decided by Board February 6, 1976 

Applicant, who was admitted to the United States for permanent residence in April 1972 

in possession of an immigrant visa issued on the basis of his marriage to a United States 

citizen on December 4, 1971, but who ceased living with his wife very shortly after the 

marriage and was separated from her at the time he obtained his visa and was admitted 

to the United States, did not have a viable marriage at the time of his visa application 

and admission to this country and, therefore, his immigrant visa was invalid (Matter of 

Gonzalez-Portillo, 13 I. & N. Dec. 309, distinguished). Accordingly, applicant, upon 

return to this country in 1974 following an absence to Mexico of approximately one year, 

is not entitled to status as a returning resident alien and is excludable under section 

212(a)(20) of tt e Immigration and Nationality Act for lack of a valid immigrant visa. 

EXCLUDABLE: Act of 1952—Section 212(a)(20) [8 U.S.C. 1182(a)(20))—Immigrant—no 

visa 

ON BEHALF OF APPLICANT: ON BEHALF OF SERVICE: 

Allan C. Skinner, Esquire Richard M. Casillas 

Post Office Bo:t 625 That Attorney 

Laredo, Texas 78040 

The applicant appeals from the August 12, 1975 decision of the immigration judge finding him excludable under section 212(a)(20) of the 

Immigration and Nationality Act as an immigrant without a valid immigrant visa. The appeal will be dismissed. 

The facts are set forth in detail in the immigration judge's opinion and 

need not be repeated at length. Suffice it to say that the applicant 

married a United States citizen on December 4, 1971, and on the basis of 

that marriage was admitted to the United States as a lawful permanent 

resident in April 1972. The Immigration and Naturalization Service 

does not challenge the validity of that marriage. However, the applicant 

ceased living with his wife very shortly after they were married, and the 

immigration j•.idge found that at the time the applicant originally applied 

for admission to the United States in Apri11972 "he did not have a viable 

marriage and therefore did not have a valid immigrant visa." The 

immigration judge concluded that the applicant had not proved by a 

preponderance of the evidence that he was adinissible to the United 

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Interim Decision #2469 

States as a returning resident because at the time of his original admission as a permanent resident he was not eligible for an immigrant visa. 

The applicant was admitted to the United States as a permanent 

resident in April 1972. He left this country on February 17, 1973, 

intending to take a two-month vacation in central Mexico, but he did not 

seek to reenter the United States until March 26, 1974. Because he had 

established a colorable claim to returning resident -status, it was the 

Government's burden to show why the applicant should be deprived of 

that status. Kwong Hai Chew v. Golding, 344 U.S. 590 (1953); Chew v. 

Rogers, 257 F.2d 607 (D.C. Cir., 1958); Matter of Kane, Interim Decision No. 2371 (BIA. 1975). 

The Service contends that the applicant obtained permanent resident 

status by misrepresentation because he failed to divulge his separation 

from his United States citizen wife during the entire visa-issuing process. The Service does not dispute the validity of the marriage at its 

inception, i.e., it does not contend that the marriage was a sham; 

however, the Service maintains that the marriage was not viable and, 

therefore, that the visa would have been denied had the true facts been 

known. As it is not contended that the marriage was a sham, the Bark 

case,' referred to by counsel, is inapposite. 

At the exclusion proceeding when the applicant was asked whether at 

various relevant times he was living with his wife as husband and wife, 

he answered that he was not, but that he was trying to and begging her 

to live with him. His counsel states that it was not until he finally sought 

a divorce in 1973 that he gave up his hope and efforts for a reconciliation. It does not appear from the record, however, that the applicant's 

wife ever gave him reason to believe that they would, be reconciled or 

that his hopes of reconciliation were realistic. 

The complaint and judgment of divorce show, that the applicant, who 

was the plaintiff in that action, and his wife lived together for only one 

week after their marriage; that the marriage was never consummated; 

and that the applicant's wif,e•efused to live with him. Thus, this case is 

distinguishable for Matter of Gonzalez-Pm-till°, 13 I. & N. Dec. 309 

(BIA 1969). In that case, although the respondent had been separated 

from his wife at the time of original entry, he was not found to have been 

excludable at entry because he had had a reasonable belief that he and 

his wife would be reconciled. In the present case the marriage was dead 

before the applicant obtained his visa and entered the United States in 

April 1972. 

An alien spouse of a United States citizen Can acquire lawful permanent resident status without regard to numerical limitations under 

'Bark v. INS, 511 F.2d 1200 (C.A. 9, 1975), which has replaced the decision cited by 

counsel. In Bark, the issue was whether or not the marriage in question was a sham. 

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Interim Decision #2469 

section 201( b) of the Immigration and Nationality Act. This provision 

was included in the Act in order to prevent the separation of families 

and to preserve the family unit. H.R. Rept. No. 1365, 82d Cong., 2d 

Sess. 1680 (1952). Immigration benefits will not be conferred on the 

basis of a nonviable or a terminated marriage, because the Congressional purpose would not then be served. Matter of Lew, 11 I. & N. Dee. 

148 (D.D. 1965). See,M,atter of Harris, Interim Decision No. 2336 (BIA 

1974). We agree with the immigration judge in this case that the applicant's marriage to a United States citizen was not viable at the time he 

applied for an immigrant visa and sought admission to the United States 

and that, therefore, his immigrant visa was invalid. 

In exclusion proceedings it is the applicant's burden to show that he is 

admissible to the United States, section 291, Immigration and Nationality Act, although as stated above, in the case of a returning 

resident the burden falls upon the Service to prove that a person with a 

colorable claim to such status is not entitled to it. Kwong Hai Chew v. 

Golding, supra; Chew v. Rogers, supra; Matter of Kane, supra. We find 

that, by the evidence presented, the Service has borne its burden to 

establish that the applicant was not a returning resident, and that the 

applicant has not proven that he is otherwise admissible to the United 

States. 

ORDER... The appeal is dismissed. 

Irving A. Appleman, Member, Dissenting: 

This applicant is a native and citizen of Mexico, admitted to the 

United States for permanent residence at Chicago on April 4, 1972. His 

visa was ismed on. the basis of a 'marriage to a United States citizen on 

December 4, 1971. On August 5, 1972 he instituted an uncontested 

divorce action against his United States citizen wife; and on February 

17, 1973 he departed to Mexico. Judgement in the divorce action was 

entered in his favor on March 6, 1973.1n Mexico he proceeded to San 

Juan de Cracia, Michoacan, south of Mexico City, and while there 

married Guadalupe on Februa'ry 26, 1973. 1 

In March 1973 2he went to the United States Consul in Guadalajara, 

Mexico to attempt to secure a tourist visa for his Mexican spouse. At 

that time the United States consul took his Form 1-151 (alien registration and reentry permit) from him and sent it to the United States 

immigration authorities at Laredo. On March 26, 1974, pursuant to a 

letter of appointment received from the immigration authorities, he 

presented himself at Laredo and sought admission as a returning resiIt will be :iota' that this was prior to the entry of the final divorce decree in Illinois; 

this is not relevant to the deoision in the ease. 

2Either March 4 (Tr. p.66), or March 26 (Tr. p.26). 

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Interim Decision #2469 

dent alien to resume his permanent residence in this country. These 

exclusion hearings ensued, since it appeared that his admission for 

permanent residence on April 4, 1972 might have been unlawful. Initially he was not represented, but when the complexity of the case and 

lack of understanding of the applicant became apparent, the immigration judge, most commendably, _directed an adjournment to permit the 

alien to obtain counsel. The hearing thereafter was resumed with counsel. 

The applicant first met his United States citizen spouse in 1969 while 

she was visiting in Mexico. He renewed the acquaintance in Chicago in 

October 1969; they "went steady" for a period of time, and were married, as noted, on December 4, 1971. At the time, he was living at the 

home of his spouse and her mother. There is conflicting evidence as to 

the length of time that he continued to live with her after the marriage 

ceremony. The divorce decree states that on December 20, 1971, 16 

days after the marriage, his wife left him. A statement taken on March 

26, 1974 indicates that he lived with her for six or seven days after they 

were married (p. 24). He testified (Tr. p. 24) that he lived with her for 

some 24 days after the marriage. 

The divorce complaint alleged that the wife refused to consummate 

the marriage. He testified that they did have sexual relations, but that 

he was working a night shift, that his wife did not like his way of life and 

did not wish to stay with him, and that after the marriage she was rarely 

home. While they were separated he "begged" her to live with him (Tr. 

p.31), they went camping together, and would eat together. He was 

living close by and was almost continuously at the mother's house (Tr, 

pp. 29-32). They were separated at the time he obtained his visa and 

entered, but he continued his efforts at reconciliation for some time 

after his admission, until eventually, by mutual agreement, since he had 

the necessary funds and she did not,, he instituted the divorce action. 

Concerning his departure to Mexico on February 17, 1973, he took a 

two month vacation from his job, and left behind a bank account, his 

clothes, his radio, and everything he owned including some miscellaneous furniture. During his absence he sent money to pay a part of the 

rent for an apartment he had shared with his brother. His employment 

in Chicago is still available to him and he is seeking to enter to resume it. 

The immigration judge found that the Government had satisfactorily 

established that at the time the applicant secured his immigration visa 

in 1972, there was no "viable" marriage in existence; that he was not 

eligible for the visa which he had obtained as the spouse of a United 

States citizen; and that consequently his entry for permanent residence 

was unlawful and he is not entitled to admission as a lawfully returning 

resident alien. In view of this finding, no determination was made 

whether the applicant had abandoned permanent residence in the 

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Interim Deciaion #2469 

United States. subsequent to his departure in 1973. The majority has 

affirmed. • 

This case presents several significant issues. Initially, while neither 

the decision below nor the majority decision discusses the point, it 

appears that the ease is properly held in exclusion, rather than in 

expulsion proceedings. In view of the duration of the alien's absence 

from the United States, and the distance traveled, it cannot be found 

that his case is governed by the rule laid down in Rosenberg v. Rend, 

374 U.S. 449 (1963). Consequently, the issue presented in MaldonadoSandoval v. INS, 518 F.2d 278 (C.A. 9, 1975), and Matter of CastilloPineda, InterM Decision No. 2374 (BIA 1975) is not present here. (See 

Matter of Lea!, Interim Decision No. 2439 (BIA. 1975)). 

The major issue presented is whether or not the Government has 

satisfactorily met the burden of proof laid down by Matter of Kane, 

Interim Decision No. 2371, and Chew v. Golding, 344 U.S. 590 (1953). 

The "viable" marriage concept was enunciated in the framework of a 

visa petition :?roceeding in which a petitioner carries the burden of 

proving that he has a marriage in existence which can be recognized 

under the immigration laws, and that the grant of his application will 

serve the purpose of joining together a family unit.s This, on the other 

hand, is an exclusion proceeding in which, because the applicant has 

shown his prior admission for permanent residence, the Government's 

burden is not iissimilar to that of a deportation ease. 

Ws not alleged, nor has it been shown, that the marriage in 1971 was 

invalid at its inception. On the contrary, the immigration judge found 

otherwise, and the majority decision affirms that finding. The United 

States citizen petitioner satisfied the Immigration and Naturalization 

Service that there was a "viable" marriage at the time that her visa 

petition for this alien was approved. This marriage was not terminated 

until March 6, 1978, 15 months after its celebration, and 11 months after 

he entered the United States. It was not terminated by an annuhnent, 

so as to give rise to the issue of retroactivity ab initio presented in 

Matter of Sar,iedi, 14 I. & N. Dec. 625 (BIA. 1974), and Matter • of 

Castillo-Pineda, supra, but was ended by divorce. 

There is evidence that the marriage was consummated, and that the 

parties lived together for a substantial period of time prior to separation. The Audi rigs of an uncontested divorce decree are not determinative in this connection. See Matter ofF—, 9 I. & N. Dec. 684 (BIA 1962); 

See also Karayannis v. Brownell (D.C. Cir., 195'7) 251 F.2d 882. It will 

• be noted in any event, that while the decree finds nonconsummation, it 

also finds that the citizen spouse left the applicant and was responsible 

Even in visa petition pmeectlings the definition of "viability" is a matter of varying 

interpretation, see e.g. Bark v. INS, 511 F.2d 1200 (C.A. 9, 1975). 

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Interim Decision #2469 

for the disruption of the marriage. The circumstances of the marriage 

were such as could reasonably be expected to cause marital difficulties. 

The citizen spouse was only 17, some 14 years younger than the applicant. He worked on a night Shift, obviously a disruptive element to a 

new marriage. He has testified to a lack of funds at the time the 

marriage was celebrated. The citizen spouse was not called as a witness 

and the applicant's testimony is =contradicted that he made repeated 

efforts at reconciliation after his entry. 

The judge's findings concerning credibility are normally entitled to 

great Weight. At times the testimony of the applicant was quite confused; as noted by the judge. However, the applicant is far from the 

most literate person, as evidenced by his inability to read even in 

Spanish without assistance (Tr. pp. 32, 37, 42). Counsel noted for the 

record the alien's general lack of intelligence, (Tr. p. 71) and this is 

borne out by many of his answers, which, by their unresponsiveness, 

evidence* lack of understanding:of the question rather than an intent to 

deceive. For example, he testified repeatedly at the outset of the hearing that he was entering simultaneously "to visit" and to resume his 

employment in Chicago—answers which were inconsistent on their face. 

A good deal of the confusion in his testimony occurred during the earlier 

part of the hearing when he did not have counsel present. The immigrationjudge clearly recognized the alien's confusion when he adjourned to 

allow an opportunity to obtain counsel.. The Government's case rests 

entirely on the alien's own testimony, which has now been found credi -

ble in the part which renders him excludable, and not credible as to his 

explanation of what occurred. Under the circumstances the finding as to 

lack of credibility must be treated with reservation, particularly in the 

absence of any countervailing evidence whatsoever, except the divorce 

decree. 

For the purpose of this proceeding the validity of the marriage must 

be determined as of the time of entry. If valid then, the entry was 

lawful. One cannot escape the conclusion, from examination of this 

record, that, had the alien been successful in his efforts to effect a 

reconciliation after his entry we would not have these proceedings 

today. It is possible that the majority decision rests to a degree on 

hindsight. That the marriage ended in divorce does not mean that it was 

invalid at the time of entry_ 

There is a limit to the extent to which there may be an administrative 

challenge to the validity of a marriage duly celebrated and consummated, and in my opinion that limit has been exceeded here. Whatever 

license may exist for the Service to scrutinize the "viability" of a marriage in processing a visa petition, cannot extend to nonrecognition of a 

marriage, duly celebrated, valid in its inception, consummated, in existence over a year, recognized as valid by the Government at the time of 

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Interim Decision #2469 

the alien's admission, and terminated by divorce, under the circumstances ?resented in this case. 

Matter of Gonzalez -P ortillo, 13 I. & N. Dec. 309 (BIA 1969), is a much 

closer case in that it was contended there that the alien had obtained his 

visa by fraud because prior to his application for a visa his citizen wife 

had told him she intended to terminate the marriage and he had ceased 

to reside with her. The finding in Matter of Gonzalez-Portillo has equal 

applicability here,— 

. . . we doubt that Congress, when it enacted the waiver provisions in section 212 

(a)(14), intended that this bounty should be rescinded and become unavailable to an 

alien spouse of a United States citizen who at the time of entry had reason to believe 

that he would be successful in reviving a floundering marriage which, according to the 

evidence before us, appears to be contracted in good faith and which. had subsisted until 

shortly before his departure to obtain a special immigration visa. . . . It is our position 

that the fact that the respondent was unsuccessful in resuming marital relations with his 

wife after entry should not retroactively affect his status with regard to the labor 

certification raquirement at the time of entry since it is the time of entry which controls, 

Matter of Paco, 12 I. & N. Dec. 599 (BIA 1968). [Emphasis added.] 

Like the applicant, Gonzalez-Portillo had a marriage valid in its 

inception, was separated from his spouse when he got his visa, and was 

unsuccessful in reviving the floundering marriage. Even assuming the 

applicability of the "viable" concept in this proceeding, Matter of 

Gonzalez-Portillo is either dispositive of the issue of "viability", or must 

be overruled. One can find no rational basis for distinction. This record 

is a long, long way from establishing that the marriage was hopelessly 

and irretrievably "dead" at the time the applicant entered. The Government has not met its burden of establishing that the alien either 

perpetrated a fraud when he entered in 1972, or that he was inadmissible at that time for lack of a valid labor certification, or a valid visa. 

If the applicant is held to have obtained lawful permanent residence in 

1972, it must then be determined whether he abandoned his residence 

during his extended absence. This raises a grave question concerning 

the reason for the duration of his absence. There is clear evidence he had 

no intention of abandoning when he left. lie took steps to retain residence even while abroad. Within approximately a month after leaving 

the United States he was making efforts to bring his new spouse to this 

country. The record is silent as to why the United States counsul took 

away his Form 1-151 in March of 1973, or why he was not summoned to 

hearing in connection with the matter until over a year later. If the 

delay was occasioned by his own actions, then there is reason to believe 

he may have abandoned his residence, and even if lawfully admitted in 

1972, he would not be admissible today. On the other hand, if the delay 

was brought about by circumstances outside of his control, and by 

possibly u/tm, wires actions of Government officials, it is a different 

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Interim Decision #2469 

matter entirely. This aspect of the case was not explored, apparently 

because of the charges and findings below. The case should be remanded 

for a full exploration and a determination as to whether or not he did in 

fact abandon his lawful residence in this country. 

579