Interim Decision #2568 

MATTER OF ANSELMO 

In Visa Petition Proceedings 

A-34394164 

Decided by Board March 18, 1977 

(1) The beneficiary of the instant second-preference visa petition filed under section 

203(a)(2) of the Immigration and Nationality Act had previously been admitted to the 

United States as a lawful permanent resident as the beneficiary of an immediate relative 

visa petition filed by a U.S. citizen spouse. Subsequently, she indicated in a sworn 

statement to the Service that the marriage on which the prior immediate relative visa 

petition had been based and granted vas a fiction, had never taken place, and that she 

had never met nor married the man listed in the petition as her spouse. 

(2) The District Director denied the inntetit eel ence petition nuclei section 204(c) 

of the Act on the ground that the previous petition had been granted on the basis of a 

marriage entered into to evade the immigration laws, and it did not appear that he had 

considered the bona fides of the second marriage. 

(a) Since no marriage took place in connection with the filing of the previous immediate 

relative petition, section 204(c) was inapplicable, and the record will be remanded to the 

District Director for consideration of the bona fides of the second marriage and entry of a 

new decision. 

(4) Matter of Concepcion, Interim Decision 2529 (BIA 1976), followed. 

ON BEHALF OF PETMONER: William. J. Lawler, Esquire 

Suite 320 

615 Montgomery Street 

San Francisco, California 94111 

14filhollan, Chairman; Wilson, Maniatis, and Appleman, Board Members. Board 

Member Torrington dissenting. 

The lawful permanent resident petitioner applied for preference 

status for the beneficiary as his spouse ender section 20S(a)(2) of the 

Immigration and Nationality Act. In a decision dated March 29, 1976, 

the District Director denied the petition and the petitioner has appealed 

from that denial. The record will be remanded to the District Director 

for further proceedings. 

Both the petitioner and the beneficiary are natives and citizens of the 

Philippine Islands. The beneficiary had previously been accorded immediate relative status as the spouse of a United States citizen and had 

entered the United States as a lawful permanent resident on July 14, 

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1973. In a sworn statement to the Service, dated October 31, 1974, the 

beneficiary admitted that the marriage upon which the first visa petition 

had been based was a fiction and that she had neither met nor married 

the man listed as her spouse. On February 22, 1975, the beneficiary 

married the present petitioner who subsequently filed another visa 

petition in her behalf. The District Director concluded that the beneficiary had previously been accorded immediate relative status as the 

spouse of a United States citizen by reason of a marriage entered into in 

order to circumvent the immigration laws. Relying on section 204(c) of 

the Act, the District Director denied the petition. 

Section 204(c) states, in pertinent part, that- 

. .. no petition shall be approved if the alien has previously been accorded a nonquota 

or preference 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. (Emphasis supplied) 

The beneficiary has previously been accorded immediate relative 

status as the spouse of a United States citizen. However, she was 

accorded that status, according to her sworn statement, on the basis of 

falsified documents, not on the basis of a marriage entered into fur the 

purpose of evading the immigration laws. Although the beneficiary 

benefited from the Service determination that a valid marriage existed, 

a marriage did not in fact exist. In the absence of an actual marriage, 

section 204(c) does not apply. Matter of Concepcion, Interim Decision 

2529 (BIA September 8, 1976). 

We note from the record that, at present, the beneficiary apparently 

possesses the very status that ultimately would be accorded her should 

the visa petition be approved. Although she has admitted that her 

present lawful permanent resident status was fraudulently obtained, 

the record is silent as to whether the Service has as yet instituted 

deportation or rescission proceedings. Should, the Service take such 

action, the beneficiary would then be eligible, as an "alien" within the 

meaning of section 245 of the Act, to seek to adjust her status to that of a 

permanent resident alien. See Matter of Callao, Interim Decision 2555 

(BIA. February 7, 1977). Under 8 C.F.R. 245.1(d), an applicant for 

preference status is not eligible for adjustment of status unless he or she 

is the beneficiary of a valid unexpired visa petition filed in accordance 

with 8 C.F.R. 204 and approved to accord such status. Accordingly, 

while the need for this visa petition has not been conclusively demonstrated, in view of the beneficiary's apparent deportable status, and the 

possibility that approval may be needed as a prerequisite for adjustment, we would normally entertain the petition on its merits. 

However, the District Director based his decision on section 204(e), 

and it does not appear that he considered whether the beneficiary's 

pres ent marriage is bona fide. Therefore, on remand, the District Direc153 
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for may determine whether the marriage between the petitioner and 

the beneficiary is bona fide. See Matter of Phillis, Interim Decision 2407 

(BIA 1975). 

ORDER: The record is remanded to the District Director for further 

proceedings consistent with the above opinion, and for entry of a new 

decision. 

Warren R. Torrington, Member, Dissenting: 

I respectfully dissent. 

At the time when Mager of Concepcion, Interim Decision 2529 (BIA 

September 8, 1976), was before us, I was unable to express my disagreement with the Board's holding, in a dissenting opinion. I now avail 

myself of the opportunity to do so. 

In my view, the language of section 204(c) of the Immigration and 

Nationality Act is broad enough to encompass the situations encountered in Concepcion and in the case now before us. A person who has not 

even bothered to go to the trouble of entering into a sham marriage 

(that is, a marriage entered into for the purposes of evading the immigration laws), but has merely pretended to be married, and has presented false documents as evidence of a marriage, should not, on what 

appears to me to be specious reasoning, be considered outside the 

provisions of section 204(c) of the Act. In my view, he is less entitled to 

approval of a second visa petition than the person who has previously 

gone through the formalities of a (sham) marriage; and a holding which 

treats him better than it does a person who has gone through the 

motions of a sham marriage does not make good sense. Concepcion 

permits aliens to avoid the clear provisions of section 204(c) of the Act 

by not even going to the trouble of entering into actual sham marriages. 

I cannot consider that a commendable outcome. 

This is strictly a visa petition matter. The matter of possible future 

adjustment of the beneficiary's status is not before us. I therefore fail to 

see the relevance of the references, in the majority opinion, to a possible 

future application for adjustment of the beneficiary's status, and to the 

fact that the record does not reveal whether rescission or deportation 

proceedings are pending. 

As I read the Second .Circuit's decision in Tiblco v. INS, 835 F.2d 42 (2 

Cir. 1964), which the majority opinion does not mention, but which was 

relied on in the here cited decision in Matter of Calilao, Interim Decision 2555 (BIA February 7, 1977), Tibke does not make rescission or 

deportation proceedings a prerequisite for approval of visa petitions 

filed for potentially deportable permanent resident aliens. All we have 

now before us is such a visa petition. 

I would overrule Matter of Concepcion, supra, and would dismiss Lbe 

appeal. 

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