Interim Decision #1984 

MATTER OF GONZALEZ-PORT/LLO 

In Deportation Proceedings 

A-17166529 

Decided by Board June 12, 1969 

Where respondent, the alien spouse of a United States citizen, at the time 

of his admission for permanent residence had reason to believe that he 

would be successful in reviving his floundering marriage, the fact that 

after entry the marriage did not survive has no retroactive offset with 

regard to the labor certification exemption as the alien spouse of a citizen 

as of the time of his admission; hence, he is not deportable under section 

241(a) (1) of the Immigration and Nationality Act, as amended, as one 

excludable at entry under section 212(a) (14) of the Act, since he was 

exempt from the presentation of a labor certification at the time of his 

entry for permanent residence. 

CHARGES ; 

Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)3—Excludable under section 212 (a) (19), 8 U.S.C. 1182 (a) (19), 

visa procured by fraud. 

Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)]—Excludable under section 212(a) (20), 8 U.S.C. 1182 (a) (20), 

invalid visa. 

Act of 1062—Section 241 (a) (1) [S U.S.C. 1251(a) (1)]53rolaciable at entry under section 212(a) (14), 8 U.S.C. 

1182(a) (14), no valid labor certification. 

The respondent, a native and citizen of El Salvador, has been 

found deportable under the provisions of section 241(a) (1) of the 

Immigration and Nationality Act as an alien who was excludable 

at the time of entry under the provisions of section 212 (a) (20), 

in that he presented an invalid immigration visa and as an alien 

who was excludable at the time of entry under section 

212 (a) (14) of the Act, in that he did not possess a valid labor 

certification. The special inquiry officer found that the respondent 

was not subject to deportation under the provisions of section 

241 (a) (1) , as a person who was excludable under the provisions 

of section 212 (a) (19) for having procured his visa by fraud. The 

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Interim Decision # 1984 

order entered by the special inquiry officer on March 20, 1969, 

grants the respondent the privilege of voluntary departure in lieu 

of deportation and provides that if the respondent fails to depart 

when and as required, the privilege would be withdrawn and an 

order. • 

order of deportation entered. The respondent appeals from this 

The respondent is a male alien, 25 years of age, who originally 

entered the United States as a nonimmigrant on August 21, 1966. 

He married a United States citizen on October 30, 1966, and during March of 1967, he departed for Mexico to secure an immigration visa for permanent residence. He was issued a special immigrant visa by the United States Consul at Hermosillo, Sonora, 

Mexico on March 30, 1967. He reentered the United States on 

March 31, 1967, at San Ysidro, California, and was admitted for 

permanent residence upon presentation of the special immigrant 

visa. 

The order to show cause charges in substance that the respondent secured his special immigrant visa by fraud or by wilfully 

misrepresenting a material fact, because prior to his application 

his citizen wife had informed him that she intended to terminate 

her marriage to the respondent, and he had ceased to reside with 

his citizen wife at the address in Santa Monica, California, set 

forth in the application for the visa. The order to show cause alleges that the respondent wilfully concealed the true facts of his 

marriage and residence from the United States Consul, because 

he then knew that he could not be issued an immigrant visa if the 

true facts were known. It is further alleged that at the time of 

the respondent's entry, he was entering for the purpose of performing unskilled label: in the United States -and did not possess 

or present the required certification from the Secretary of Labor. 

The evidence developed during the several hearings accorded 

the respondent has been fully set forth in the opinion of the special inquiry officer and will not be repeated in detail. Briefly, the 

evidence establishes that the respondent resided with his citizen 

wife from October 30, 1966 until the latter part of February 

1967. He was notified by the Immigration Service that he was required to depart from the United States on or before February 

26, 1967. The respondent's citizen wife testified that there had 

been marital difficulties prior to the respondent's departure to obtain his visa; that for three weeks during January 1967, she had 

lived separate and apart from the respondent; that they had reconciled and were living together during February of 1967; that 

the reconciliation was not successful; and that the respondent left 

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Interim Decision #1984 

their apartment on February 28, 1967, because he had no choice 

as the immigration authorities were after him. The respondent 

testified that when he obtained his immigration visa, he considered the apartment where his wife resided as his permanent residence; that he intended to return to this apartment; and that 

when he was admitted he believed he had a reasonable chance of 

effecting a reconciliation with his wife. He furtner testified that 

following his return, he did see his wife for this purpose. 

The Service maintains that the respondent made a false representation to the consul when he stated on his application for a 

visa that he was residing at the apartment of his wife in Santa 

Monica, California, and was returning to the United States to 

continue his maritial relationship with her, since he knew that 

his marriage was for all intents and purposes terminated. The 

special inquiry officer finds that the charge laid under section 

212 (a) (19) of the Act is not sustained, because there is affirmative evidence that the respondent believed that there was a possibility of a reconciliation with his wife, and that if this were 

achieved he would resume his residence at the address stated in 

his application for the visa. Accordingly, the misrepresentation 

was not wilfully made as required by the Act. We affirm the conclusion reached by the special inquiry officer. 

The special inquiry officer finds the respondent deportable 

under the provisions of section 241 (a) (1) of the Act in that at 

the time of entry he was excludable as an alien who was seeking 

to enter for the purpose of performing unskilled labor and in 

whose cause the Secretary of Labor had not made the certification required by section 212 (a) (14) of the Act. The special inquiry officer reasons that at the time of the respondent's entry on 

March 31, 1967, there was no reasonable prospect of any resumption of the marital relationship with his citizen wife, nor any 

reasonable prospect of any immediate reconciliation, and accordingly the exemption conferred by section 212 (a) (14) of the Act 

to the spouse of a citizen of the United States would not be effective in accomplishing the reuniting of a family. The special inquiry officer in support of this conclusion cites cases based on 

the premise that exemptions from the quota requirements were 

granted by the Congress solely for the purpose of preserving the 

family unit and that such benefits are conferred only where it 

will serve this purpose. 

1'Shafer of LOU; 11 I. & N. Dee. 148 (D.D., 1965) ; Scalzo v. Hume% 225 

F. Supp. 560 (E.D. Pa., 1963), ard 338 F.2d 339 (3 Cir., 1964); Matter of 

M—, 8 I. & N. Dec. 217 (BIA, 1958). 

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Interim Decision #1984 

We agree with the special inquiry officer that his basic assumption is correct, namely, that Congress provided a waiver of the 

labor certification requirements for an alien spouse of a United 

States citizen in order to facilitate the preservation of the family 

unit. However, 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 have been contracted in good faith and which had subsisted until shortly before his departure to obtain a special immigration visa. 

The testimony of the respondent's wife lends support to his 

claim that he had a reasonable chance of effecting a reconciliation 

upon his return with a permanent residence visa. She testified 

that she told the respondent prior to his departure for Mexico 

that if he secured an immigration visa for permanent residence 

"the marriage would have worked" (p. 22). She further testified 

that she was in love with the respondent when she married him 

(p. 18) ; that she had every intention of "trying to make the marriage work" (p. 18); and that they "contributed to each others 

support" (p. 29). Furthermore, it is apparent from the testimony 

of the respondent's wife that when he saw her the latter part of 

March 1967 prior to his reentry for permanent residence on 

March 31, 1967, they discussed matters concerning their reconcili. 

ation (pp. 8144). 

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 requirement at the time of entry since it is the time 

of entry which controls, Matter of Paco, 12 I. & N. Dec. 599 

(BIA, 1968). We find nothing in the statute or its legislative history which supports a conclusion that Congress intended that a 

labor certification exemption would become unavailable to the 

spouse of a United Stites citizen at the time of entry if at that 

time there is an affirmatiVe showing that the applicant's marriage 

to a United States citizen has a reasonable chance of continuing. 

The fact that after entry it is established that the marriage did 

not survive has no retroactive effect with regard to a labor certification exemption for an alien spouse of a United States citizen 

as of the time he was, admitted for permanent residence. Under 

the circumstances, we find the charge laid under section 

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Interim Decision #1984 

241 (a) (1) and 212(a) (14) of the Act not sustained since the respondent was exempt from the presentation of a labor certification at the time of his entry on March 81, 1967. 

The order to show cause charges that the respondent was excludable at the time of entry because he did not present a valid 

immigration visa (sections 241 (a) (1) and 212 (a) (20), Immigration and Nationality Act). The special inquiry officer concludes 

that this charge is not sustained insofar as fradulent procurement is concerned since he did not find that the visa was obtained 

by a wilful and material misrepresentation to the United States 

Consul in Mexico. He did sustain the charge however, on the 

ground that it was not a valid immigration visa because it was 

not supported by a labor certification when issued. Sinee we have 

found that the respondent was exempt from the presentation of a 

labor certification at the time of his entry for permanent residence on March 81, 1967, the charge must fall. 

An appropriate order will be entered terminating the proceeding. 

ORDER: It is caused that the proceeding under the order to 

show cause issued on January 29, 1969 be and the same is hereby 

terminated. 

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