Interim Decision #2798 

MATTER OF A_DALATKHAH 

In Deportation Proceedings 

A-21096715 

Decided by Board June 12, 1980 

Alien married to a United States citizen, but not living with his spouse, is nevertheless 

an "immediate relative" within the exception to section 245(c)(2) of the Immigration 

and Nationality Act, 8 U.S.C. 1255(c)(2); and is not prohibited from filing an application for adjustment of status despite unauthorized employment after January I, 1977. 

CHARGE 

Order. Act of 1902—Sec. 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant visitor— 

remained longer than authorized 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE 

Jan M. Pederson. Esquire Timothy J. O'Leary 

Cramer, Visser, Lipsen & Smith Trial Attorney 

475 L'Enfant Plaza, S.W. 

Suite 4100 

Washington, D.C. 20024 

BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members 

On January 24, 1980, the immigration judge found the respondent 

deportable as charged and granted his application for adjustment of 

status pursuant to section 245 of the Immigration and Nationality Act, 

8 U.S.C. 1255. The Service has appealed. The appeal will be dismissed. 

The respondent is a native and citizen of Iran who entered the 

United States at New York, New York, on March 15, 1971, as a nonimmigrant student authorized to remain until March 1, 1975. At a 

deportation hearing on October 21, 1977, he conceded deportability as 

charged for having remained in the United States longer than 

authorized as defined under section 241(a)(2) of the Act, 8 U.S.C. 

1251(a)(2) (Tr. p. 1). We find that deportability has been established by 

clear, convincing, and unequivocal evidence as required by Woodby v. 

INS, 385 U.S. 276 (1966), and 8 C.F.R. 242.1(a). 

The only issue on appeal is the respondent's eligibility for adjustment of status. The Immigration. and Naturalization Service contends 

that the respondent is precluded from adjustment of status by section 

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Interim Decision #2798 

245(c)(2) of the Act, that excludes from adjustment aliens who engage 

in unauthorized employment after January 1, 1977, unless they are 

immediate relatives of United States citizens as defined under section 

201(b) of the Act, 8 U.S.C. 1151(b). The respondent has been married to 

a United States citizen since. February 21, 1975 (Tr. p. 3). The couple 

separated 3 months later, but resided together for brief intervals 

thereafter until July 1977, when she left him without coming back (Tr. 

pp. 4-7). There is no evidence that she divorced him or otherwise 

terminated their marriage. 

On appeal, the Service contends that the respondent cannot be 

considered an "immediate relative" exempt from the section 245(c)(2) 

adjustment preclusion because he has not had a viable marriage since 

1977. It contends that Congress did not intend to exempt from the 

245(c)(2) preclusion adjustment applicants who are "technically immediate relatives but who, in fact, have no existing family unit which 

needs extraordinary protection." The Service cites no supporting authority for its assertion regarding congressional intent 

The preclusion provision in section 34b(c)(2) was part of the 1976 

Amendments to the Act. P.L. 94-571, 90 Stat. 2703. The discussion of 

the legislative intent behind the adjustment preclusion for aliens who 

wurk without authorization does not evince a congressional intent to 

also preclude from adjustment aliens who are merely "technically 

immediate relatives," as the Service contends. It merely states that 

"aliens who are not defined as immediate relatives and who accept 

unauthorized employment prior to filing their adjustment application 

would be ineligible." H. Rep. No. 94-1553, 94th Cong. 2d Sess. 12, 

reprinted in 1976 U.S. Code Cong. and Ad. News 6084. 

The issue of separation and marriage viability in an adjustment of 

status application has previously been addressed by the courts and this 

Board in the context of spousal visa petitions underlying the application. In Dabaghian v. Civ'iletti, 607 F.2d 868 (9 Cir. 1979), the Court 

concluded that marriage nonviability would not affect eligibility for 

adjustment of status as the beneficiary of an immediate relative visa 

petition unless the marriage was a sham or fraudulent Id. at 871. 

However, in Menezes v. INS, 601 F.2d 1028 (9 Cir. 1979), the Court 

concluded that marriage nonviability and separations could be negative factors warranting the denial of an adjustment application as a 

matter of discretion. In Chan v. Bell, 464 F. Supp. 125 (D.D.C. 1978), the 

court also concluded that absent evidence that a marriage was a sham 

in its inception or entered into for the purpose of evading the immigration laws, the Service could not deny a spousal visa petition merely 

because the parties were no longer together. Finally, in Matter of 

McKee, Interim Decision 2782 (BIA 1980), we adopted the position of 

the Dabaghian and Chan opinions and concluded that separation of the 

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Interim Decision #2798 

parties to a marriage in and of itself was no longer a valid basis for 

denial of a visa petition, as it was merely a relevant factor in ascertaining the parties' intent at the time of the marriage. 

On the issue of adjustment preclusion pursuant to section 245(c)(2), 

we reach a similar conclusion. It is clear that the congressional intent 

refers exclusively to meeting the definition of "immediate relative" in 

the statute. There is no evidence of fraud in the respondent's marriage. 

In addition to being eligible for adjustment of status, there is also no 

important reason to deny the application in the exercise of discretion. 

See Matter of Arai, 13 'SW Dec. 494 (BIA 1970). 

After carefully considering the Service's argument, we do not find a 

legal basis to extend the preclusion provision of section 245(c)(2) to 

immediate relative spouses whose marriages are nonviable. Such an 

extension is unwarranted by congressional intent and runs counter to 

the recent interpretations by the courts and this Board of who can be 

classified as an immediate relative. Therefore, the appeal will be 

dismissed. 

ORDER. The appeal i3 dismissed. 

406