Interim Decision #2292 

MATTER OF VALIYEE 

In Section 246 Proceedings 

A-11923802 

Decided by Special Inquiry Officer 

Decided by Board June 3, 1974 

(1) The provisions of section 246 of the Immigration and Nationality Act are 

retroactive, notwithstanding the rights of a third party beneficiary not privy 

to the orrginal action, are involved_ 

(2) As a result of section 246 proceedings, the permanent resident status of 

respondent's wife was rescinded ab initio, thereby rendering respondent ineligible for preference classification as the spouse of a permanent resident alien, 

and likewise ineligible for adjustment of status under section 245 of the Act on 

December 1, 1962, on the basis of that classification, since an immigrant visa 

was not available to him at that time. Accordingly, his permanent resident 

status is rescinded. 

(3) Rescission proceedings against respondent are not premature by reason of 

the fact rescission proceedings against his wife, through whom he derived 

permanent resident status, are pending before the Board of Immigration 

Appeals on a motion for reconsideration, since under 8 CFA 3.8 the filing of a 

motion to reconsider does not stay execution of any decision made in the case, 

and execution of such decision shall proceed unless a stay is specifically 

granted. 

IN BEHALF OF RESPONDENT: IN BEHALF OF SERVICE: 

Mas Yonemura, Esquire Stephen M. Suffin 

405-14th Street, Suite 1015 Trial Attorney 

Oakland, California 94612 

DECISION OF THE SPECIAL INQUIRY OFFICER 

The Service seeks to rescind under Section 246 of the Immigration and Nationality Act the permanent resident status which was 

granted to the respondent under Section 245 of the Act on 

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December 1, 1962. 1The respondent contests the Service's attempt 

to rescind his status. 

The respondent is a 35-year-old male alien, a native citizen of 

Iran. He entered the United States at the port of New York on 

February 29, 1959, after having been admitted as a nonimmigrant 

student. On April 2, 1962, at Reno, Nevada, he married Mahviz 

Ettlinger nee Daneshforouz, a native citizen of Iran, who had been 

accorded permanent resident status under Section 245 on October 

6, 1961. (Exh. 8) On June 8, 1962, on the basis of a petition filed by 

Mahviz Valiyee nee Dancshforouz, he was accorded third preference status under then Section 203(a)(3) of the Act as the spouse of 

a lawful permanent resident alien. (Exh. 4) 

On September 13, 1962, the respondent applied for permanent 

resident status under Section 245, claiming immediate availability 

to him of an immigrant visa on the quota for Iran on the strength 

of the third preference status which had been accorded him. (Exh. 

5) On December 1, 1962, his application was granted. (Exh. 7) On 

that date numbers under the, nonpreference portion of the quota 

for Iran were unavailable. (Exh. 9) 

On August 17, 1966, at Sall Francisco, T ordered rescission under 

Section 246 of the permanent resident status that had been 

granted to Mahviz Ettlinger on October 6, 1961, under Section 245. 

(Exh. 8) On December 1, 1966, the Board of Immigration Appeals 

dismissed her appeal from my decision (Exh. 8) A motion to 

reconsider its decision of December 1, 1966, is pending before the 

Board. 

The rescission ground charged is that the respondent was not in 

fact eligible for adjustment of his status under Section 245 "because he was not entitled to status under Section 203(a)(3) of the 

Immigration and Nationality Act as the spouse of a lawful permanent resident alien, and a visa under the quota for Iran was not 

available to" him. (Exh. 1) 

The theory of the Service's case is that rescission of a permanent resident status under Section 246 has ab initio effect. Thus, 

as the respondent's wife's status has b -een rescinded, the respondSection 246 provides in pertinent part: 

"(a) ... If, at any time within five years after the status of a person has been 

otherwise adjusted under the provisions of section 245 or 249 of this Act or any 

other provision of law to that of an alien lawfully admitted for permanent 

residence, it shall appear to the satisfaction of the Attorney General that the 

person was not in fact eligible for such adjustment of status, the Attorney 

General shall rescind the action taken granting an adjustment of status to such 

person and canceling deportation in the case of such person if that flreurred and 

the person shall thereupon be subject to all provisions of this Act to the same , 

 extent as if the adjustment of status had not been made." 

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ent was not in fact eligible on December 1, 1962, for third preference status. As the nonpreference portion of the quota for Iran 

was unavailable on that date he was ineligible for adjustment 

under Section 245, which required that an immigrant visa be 

immediately available to the applicant. The status accorded him on 

December 1, 1962, was subject to rescission, therefore, on the 

ground he was ineligible for it, the only ground for rescission 

specified in Section 246. (Exh. 1; trial attorney's brief of 11-9-67) 

The respondent's first contention is that this proceeding is 

premature as there is pending before the Board of Immigration 

Appeals a motion for reconsiderition of the Board's order of 

December 1, 1966, which dismissed Mahviz Ettlinger's appeal from 

the rescission order of August 17, 1966. The trial attorney replies 

that 8 CFR 3.8 disposes of counsel's prematurity argument. 

8 CFR 3.8 provides that the filing of a motion to reconsider shall 

not stay the execution of any decision made in a case and that 

execution of such decision shall proceed unless a stay of execution 

is specifically granted. Thus, the motion to reconsider has not 

disturbed the administrative finality of the Board's order of 

December 1, 1966. The motion was not an essential step on the 

road to exhaustion of administrative remedies, a prerequisite for 

judicial review. Even the right to judicial review of a deportation 

order under Section 106 of the Act does not stay execution thereof, 

and although service of a petition for review thereunder stays 

deportation of alien pending determination of the petition by the 

Court, the Court may direct otherwise. Similarly neither the right 

to judicial review nor filing of an action under Section 10 of the 

Administrative Procedure Act results in automatic stay of execution of an administrative order. 

Accordingly, the first contention of counsel for the respondent is 

rejected. 

The respondent's second contention is that Section 246(a) is not 

retroactive, particularly where the rights of a third party beneficiary are involved. He argues that use of the term "thereupon" in 

Section 246, which provides that the person whose status has been 

rescinded "shall thereupon be subject to all provisions of this Act 

to the same extent as if the adjustment of status had not been 

made" can only mean "that immediately following the action 

taken in rescission the person . .. [whose status has been rescinded] shall be subject to all the provisions of the Act." He compares 

the language of Section 246 with that of Section 340 of the Act, 

which provides for revocation of naturalization, and also provides, 

"[S]uch revocation and setting aside of the order admitting such 

person to citizenship and such canceling of certificate of naturalization shall be effective as of the original date of the order and 

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certificate, respectively." He argues that in section 340 the retroactive effect of a denaturalization order is expressly spelled out, 

whereas section 246 is silent, and that as Congress considered both 

sections at the same time the difference in wording is significant. 

He continues that under Supreme Court decisions doubts regarding construction of a statute should be resolved in favor of the 

alien? 

But there is no doubt here. Agreed that section 340 is clearer 

than section 246 on the matter of ab initio effect. It is permissible 

in a statute as lengthy, complicated, and diversified as the Immigration and Nationality Act to use more than one mode of 

expression to achieve the same result. "[S]hall thereupon be 

subject to all provisions of this Act to the same extent as if the 

adjustment of status had not been made" (emphasis added) can only 

mean in my judgment "that immediately following the action 

taken in rescission the person shall be subject to all the provisions 

of the Act," as contended by counsel for the respondent, with one 

addition he conveniently omitted—as though the adjustment of 

status had not been made. In other words, the person whose 

status has been rescinded is in the same position he would have 

been in had he never been adjusted. 

Counsel contends further that as rescission of the respondent's 

status would make him automatically deportable, the clear, unequivocal, and convincing burden of proof imposed on the Government in deportation proceedings by the Supreme Court in Woodby 

v. I. & N. Service, 384 U.S. 904 (1966), should apply to section 246 

proceedings. I fail to see how adoption of the Woodby standard of 

proof would benefit the respondent because the facts alleged as 

ground for rescission have certainly been established by clear, 

unequivocal, and convincing evidence. 

Brancato v. Lehman, 239 F.2d 603 (CA. 6, 1956), cited by counsel 

for the respondent, is not pertinent as it dealt with interpretation 

of the term "entry" and whether Brancato, who in fact had worn 

the mantel of citizenship when he last entered, could be treated as 

having been an alien at that time, as a result of the revocation of 

his naturalization thereafter, and found deportable on the ground 

he had been convicted of a crime committed within five years after 

his entry. The Court, which had had no difficulty in giving a 

retroactive effect to the denaturalization order, declined to give a 

relation-back construction to the deportation statute. Brancato v. 

Lehman, supra at 666. The Supreme Court of the United States 

2 The cases cited by counsel for the respondent in support of this principle are 

1. & N. Service v. Errico, 225 U.S. 214 (1566); Fong Haw Tan v. Phelan, 333 U.S. 6 

(1948). 

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acted similarly in Costello v. I. & N. Service, 376 U.S. 120 (1964). It 

had been asked to find deportable a denaturalized person who had 

been convicted of two crimes involving moral turpitude while he 

was a naturalized person. It refused to do so, because to apply a 

relation-back construction to Section 241(a)(4) of the Act, the 

deportation statute under consideration, would have rendered 

nugatory Section 241(b)(2), which it was not prepared to do in the 

absence of a clear expression from Congress. In the instant case, 

however, we are dealing with the effect on the respondent's status 

of revocation of the status of his wife, from whose status, while she 

had it, he had derived a benefit. The Government is not trying 

here, as it had tried in Brancato and Costello, to strip him of his 

status and then subject him to disabilities arising from occurrences while he had the status, with which he was unable to cope 

because of its existence. True, if the respondent was a deportable 

alien before he acquired permanent resident status and his status 

is revoked, he will most likely be deportable on the same basis as 

before. But that is considerably different from saying that a 

person whose citizenship has been revoked is deportable for 

occurrences while he wore the mantle of citizenship. Brancato and 

Costello are not analogous, therefore, to the situation of the 

respondent who is and to date always has been an alien. 

Counsel for the respondent urges that the respondent's status 

should not be disturbed under the "well established principle _ 

that regardless of the express retroactive provisions of a statute or 

a rule of law applicable to a party or parties who are in privity, 

such a law will not be mechanically applied nuns pro tune to a 

third party beneficiary who was not in privity in the original 

transaction." (Counsel's brief, p. 9) He cites as illustrations of the 

principle Matter of F—, 1 I. & N. Dec. 84, BIA 5-7-41, approved by 

the A.G., Matter of P—, 5 I. & N. Dec. 218, BIA 5-7-53, and Matter of 

G—, 5 I. & N. Dec. 517,11-13-53. Matter of F—, supra, held that an 

alien who had been admitted to the United States as a nonquota 

immigrant, the spouse of a naturalized citizen, whose naturalization was subsequently cancelled on the ground of fraud, is not 

deportable in the absence of evidence that the naturalization had 

been obtained for the purpose of procuring the wife's admission or 

that she was a party to the fraudulent transaction. The case was 

decided, however, on the basis of a departmental policy set forth in 

a letter quoted in the opinion. 

Matter of P—, supra, and Matter of G—, supra, decided that a 

person who had been admitted into the United States as a citizen 

thereof at birth through his father under an erroneous administrative view of the effect of cancellation of his father's citizenship 

would be regarded as having been lawfully admitted to the United 

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States for permanent residence as an alien unless he had knowingly participated in the unlawful naturalization or had had 

knowledge thereof prior to his admission into the United States. 

The result in both cases was an application of an "administrative 

view" formulated, after a court had ruled that the child had lost 

his citizenship claim upon revocation of his father's naturalization, 

to alleviate the hardship resulting to persons who had been 

admitted to the United States as citizens under the erroneous 

administative interpretation. Again, this policy was limited to 

entirely innocent parties who had been placed in their predicament through no fault of their own. 

I know of no policy similar to those described above in favor of 

one who acquired permanent resident status on the basis of 

marriage to an alien whose permanent resident status was subsequently rescinded. But if there were such a policy it would most 

certainly apply only to innocent third parties who had obtained 

their status before revocation of their spouse's status and who 

established they had been placed in their predicament through no 

fault of their own. It can hardly be contended with probity that 

the respondent was the innocent beneficiary of the status which 

Mahviz Ettlinger enjoyed from October 6, 1961, to December 1, 

1966, and that his predicament has arisen through no fault of his 

own. Both the majority and dissenting opinions of the Board of 

Immigration Appeals in her case, which were entered in evidence 

as Exhibit 8 herein without objection or restriction, amply illustrate the contrary. 

Counsel's contentions regarding third party beneficiaries is, 

therefore, rejected. 

Likewise, counsel's attempt to assimilate the respondent's situation to that of a child of a void marriage who has been held on the 

basis of the legitimacy statute to be entitled to rights of a 

legitimate child under the Workmen's Compensation Law of California, or to a third party beneficiary of a voidable contract who 

had acted in good faith are not persuasive. 

Accordingly, I conclude that there is outstanding a final order of 

revocation of the permanent resident status which had been 

granted to Mahviz Ettlinger, that revocation thereof wiped out 

her status ab initio, and that at the time the respondent was 

granted his permanent resident status under Section 245 on the 

basis of a third preference on the quota for Iran, there was not 

immediately available to him a quota immigrant visa. He was 

therefore, ineligible for Section 245 relief. His permanent resident 

status, which had been granted thereunder, is revoked on that 

ground. 

It is ordered that the respondent's status under Section 245 of the 

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Immigration and Nationality Act, which had been granted to him 

on December 1, 1962, be revoked under Section 246 of the Act. 

BEFORE THE BOARD 

This is an appeal from an order of an immigration judge 

rescinding the respondent's permanent resident status previously 

granted under section 245 of the Immigration and Nationality Act. 

The appeal will be dismissed. 

The facts are not in dispute. The respondent is an alien, a native 

and citizen of Iran, who was admitted to the United States on 

February 26, 1959 as a nonimmigrant student. On April 2, 1962, he 

married Mahviz Ettlinger, a native and citizen of Iran who had 

been accorded permanent resident status under section 245 of the 

Immigration and Nationality Act on October 6, 1961. Thereafter, 

the respondent was accorded preference status under section 

203(a)(3) of the Act as the spouse of a lawful permanent resident 

alien. 

On December 1, 1962, the respondent's application for permanent resident status under section 245 of the Act was granted. On 

that date numbers under the nonpreference portion of the quota 

for Iran were unavailable. Thereafter, on August 17, 1966, the 

immigration judge ordered rescission pursuant to the provisions of 

section 246 of the Act, 8 U.S.C. 1256, of the adjustment of status 

granted to Mahviz Ettlinger. Having accomplished this the Service then proceeded against the respondent on the theory that as 

the respondent's wife's status had been rescinded, the respondent 

was not in fact eligible on December 1, 1962 for a third preference 

status. As the nonpreference portion of the quota for Iran was 

unavailable on that date, he was ineligible for adjustment of 

status under section 245, which specifically requires that an 

immigrant visa be immediately available to the applicant. 

On appeal counsel argues: (1) that the rescission proceedings 

against the respondent are premature and cannot be sustained 

while the related rescisson proceedings of Mahviz Ettlinger are 

pending before this Board on a motion for reconsideration; (2) that 

section 246 is not retroactive particularly where the rights of a 

third-party beneficiary are involved; and (3) that section 246 does 

not apply nuns pro tune to a third-party beneficiary not in privy to 

the original transaction. 

In a well-reasoned decision, the immigration judge has succinctly set forth the facts and applied the pertinent legal principles 

and case law. He concluded that as a result of rescission proceedings, the permanent resident status granted to Mahviz Ettlinger 

had been nullified ab matzo and rendered the respondent ineligible 

for relief under section 203(a)(3) of the Act as the spouse of a lawful 

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permanent resident alien, and a visa under the quota for Iran was 

not then available to him. Accordingly, his permanent resident 

status was revoked. 

We reject counsel's argument that this rescission proceeding is 

premature because Mahviz Ettlinger had filed a motion to reconsider the decision ordering rescission of her permanent resident 

status. The answer to this contention is found in 8 CFR 8.8 which 

states that the filing of a motion to reconsider shall not stay the 

execution of any decision made in the case, and the execution of 

such decision shall proceed unless a stay of execution is specifically 

granted by the Board or the officer of the Service having administrative jurisdiction over the case. 

We also reject counsel's argument that section 246 does not 

operate retroactively. It is clear that Congress intended to authorize the Attorney General, after voiding thew alien's permanent 

resident status, to subject the alien to such provisions of the Act 

as were appropriate prior to the grant of section 245 relief. The key 

to this problem is found in the following language: "... and the 

person shall thereupon be subject to. all provisions of this Act to 

the same extent as if the adjustment of status had not been 

made." Inasmuch as an immigrant visa was not readily available 

to him at the time he was granted his permanent resident status 

under section 245, he was ineligible for section 245 relief. The 

immigration judge properly revoked the respondent's permanent 

resident status. Accordingly, we affirm his decision and dismiss 

the appeal. 

ORDER: The appeal is dismissed. 

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