Interim Decision #2305 

MATTER OF SAMSEN 

In Visa Petition Proceedings 

A-14047005 

Decided by Board July 19, 1974 

An immigration judge's order rescinding beneficiary's section 245 adjustment of status as 

a second preference immigrant based on the existence of a legal impediment to his 

marriage to a lawful permanent resident, is not a conclusive determination in subsequent visa petition proceedings that beneficiary's prior marriage comes within the 

purview of section 204(c) of the immigration and Nationality Act, as amended, as a 

marriage entered into for the purpose of evading the immigration laws. Such section 

204(c) determination should be made independently by the district director, on the basis 

of the evidence actually before him, in the course of his adjudication of the subsequent 

visa petition. 

ON BEHALF OF PETITIONER: ON BEHALF OF SERVICE: 

Triantafyllos Thanasoulis, Esquire Irving A. Appleman 

19 West 44th Street Appellate Trial Attorney 

Nov York, New York 10036 

The lawful permanent resident petitioner applied for preference 

status for the beneficiary as her spouse under section 203(a)(2) of the 

Immigration and Nationality Act. In a decision dated March 22, 1974, 

the district director denied the petition. The petitioner has appealed 

from that denial. The appeal will be sustained and the record will be 

remanded to the district director. 

The beneficiary is a 37-year-old native and citizen of Thailand. He 

married the petitioner in 1971. The record shows that the beneficiary 

had been married twice previously—first to another native and citizen of 

Thailand, and then, in 1967, to a lawful permanent resident of the 

United States. 

On the basis of his 1967 marriage, the beneficiary was granted preference status under section 203(a)(2) of the Aet as the spouse of a lawful 

permanent resident, and his status was subsequently adjusted to that of 

a lawful permanent resident under section 245 of the Act. On January 

13, 1979, after proceedings under section 246 of the Act, an immigration 

judge ordered the beneficiary's grant of status as a lawful permanent 

resident rescinded. The basis for rescission was the existence of a legal 

impediment invalidating the petitioner's marriage to his lawful perina28 
Interim Decision #2305 

nent resident wife. :On appeal, we affirmed the immigration judge's 

decision rescinding status. 

The district director has based his present decision on section 204(c) of 

the Act, which states 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 or the spouse of an alien lawfully 

admitted for permanent residence, by reason of a marriage determined 

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

evading the immigration laws." The district director apparently considered the prior decision of the immigration judge in rescission proceedings to be a conclusive determination that the beneficiary's prior 

marriage to a lawful permanent resident was entered into for the purpose of evading the immigration laws. This conclusion was erroneous. 

Neither section 204(c) nor the regulations specify who may make the 

Attorney General's section 204(c) decision and at what point it is to be 

made. However, we have held that the determination is to be made in 

behalf of the Attorney General by the district director in the course of 

his adjudication of the subsequent visa petition. Matter of lezza, 

A-10792574 (BIA November 17, 1970). 

In making that adjudication, the district director may rely on any 

relevant evidence, including evidence having its origin in prior Service 

proceedings involving the beneficiary, or in court proceedings involving 

the prior marriage. But the determination is for the district director to 

make (subject, of course, to possible review by us on appeal). In making 

his decision, the district director should not ordinarily give conclusive 

effect to the determinations made in the prior collateral proceedings, 

but should reach his own independent conclusion based on the evidence 

actually before him. See Matter of F-, 9 I. & N. Dec. 684 (BIA 1962). 

The present record does not support the district director's conclusion 

that the beneficiary's prior marriage was entered into for the purpose of 

evading the immigration laws. The rescission determination dealt only 

with a legal impediment to the marriage; section 204(c) goes to the 

underlying purpose of the marriage. A legally invalid marriage is not 

necessarily one which was undertaken for the purpose of evading the 

immigration laws. Although an examination of the entire record of the 

rescission proceedings could conceivably shed some light on the issue of 

whether there was an intent to evade the immigration laws, the present 

record does not contain any of the evidence or testimony on which the 

decision to rescind was grounded. 

The information presently before us is insufficient to enable us to 

determine whether or not the beneficiary's prior marriage was undertaken to evade the immigration laws. In addition, the petitioner has 

submitted several new items of evidence on appeal. Consequently, we 

shall remand the record to the district director in order to give him an 

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Interim Decision #2805 

opportunity to consider the new evidence submitted by the petitioner, 

and to make an independent determination regarding the beneficiary's 

prior marriage as required under section 204(c) of the Act. 

ORDER: The appeal is sustained and the record is remanded to the 

district director for further proceedings in accordance with the abow 

opinion. 

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