Interim Decision #2374 

MATTER OF CASTILLO—PINEDA 

' In Exclusion Proceedings 

A-18326930 " 

Decided by Board April 16, 1975 

Applicant initially entered the United States for permanent residence on January 10, 1969 

as the spouse of a United States citizen. The'inarriage took place in the United States 

July 8, 1968, but was annulled ab initio for fraud on January 15, 1969. Applicant 

subsequently applied for admission on August 17, 1969, follwing a 10 day vacation in 

Mexico as a returning resident alien. He was found excludable under section 212(a)(20) 

of the Immigration and Nationality Act for lack of a valid immigrant visa, and under 

section 212(a)(14) of the Act, for lack of a valid labor certification. This decision was 

correct. because since the marriage was annulled ab initio, no basis exists for his 

classification as a permanent resident alien nor is he exempt from the labor certification 

requirement. 

EXCLUDABLE: Act of 1952—Section 212(a)(20) [8 U.S.C. 1182(a)(20))—Immigrantnot iu possession of a valid immigrant visa. 

Act of 1952—Section 212(a)(14) (8 U.S.C. 1182(a)(14))--Immigrantnot in possession of a valid labor certification. 

ON BEHALF OF APPLICANT: ON BEHALF OF SERVICE: 

Soil J. Schnitz, Esquire Irving A. Appleman, Esquire 

600 South Michigan Avenue Appellate Trial Attorney 

Chicago, Illinois 60605 

This is an appeal from a decision of an immigration judge dated 

November 19, 1969, finding the applicant excludable under the provisions of section 212(a)(20) and section 212(a)(14) of the Immigration and 

Nationality Act. On June 14, 1972, the Board entered an order terminating the exclusion proceedings pursuant to the unreported decision of 

Matter of Lerma-Acosta, A-30749574 (BIA June 13, 1972. The Board 

deferred execution of its order in this case indefinitely until it considered 

and rendered a decision on the Service motion for reconsideration in the 

unreported decision of Matter of Juan Hernandez-Almaquer, 

A-14231996 (BIA June 14, 1972), involving the same issue. In Matter of 

Maldonado-Sandoval, 14 I. & N. Dec. 475 (BIA October 31, 1973 as 

amended June 7, 1974) and unreported Matter of Juan HernandezAlmaquer, A-14231996 (BIA October 31, 1973), the Board receded from ' 

the position taken earlier in Matter of Lerma-Acosta, supra. On Feb- • 

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ruary 8, 1974, the Service submitted a motion requesting that the 

Board's order of June 14, 1972 be withdrawn, and that the case be 

remanded to the Service. The motion will be denied. However, the 

Board's order of June 14, 1972 will be vacated and another order will be 

entered dismissing the appeaL 

The record relates to an unmarried male alien, 27 years of age, who 

was admitted to the United States for permanent residence at Chicago, 

Illinois on January 10, 1969. He testified that he departed from the 

United States on August 7, 1969 for a short vacation in Mexico and 

returned to the United States on August 17, 1969. He applied for 

admission as a returning resident alien. His inspection was deferred and 

on September 3, 1969 he was served with a notice to appear for a 

hearing before an immigration judge to determine his admissibility to 

the United States. 

The applicant married a citizen of the United States in Cook County, 

Illinois on July 8, 1968. Based upon this marriage, he obtained an 

immigrant visa for permanent residence from the American Embassy at 

Mexico City on January 9, 1969. As the spouse of a United States 

citizen, he was exempt from the labor certification requirement of section 212(a)(14) of the Immigration and Nationality Act. The applic'ant's 

marriage to his citizen spouse was annulled for fraud in the Circuit 

Court of Cook County at Chicago, Illinois on January 15, 1969 (Exh. 

7—C). The decree reads in part as follows: 

"IT IS ORDERED, ADJUDGED AND DECREED that the marriage between the 

plaintiff and defendant be and the same is hereby annulled and dissolved, the same as if 

said marriage ceremony had never been entered into and the same is annulled and 

dissolved accordingly and the parties are and each of them is freed from the obligation 

thereof." 

The immigration judge found that since the marriage had been .annulled ab initio, the applicant was not an immediate relative within the 

provisions of section 201(b) of the Act and, therefore, was not in possession of a valid immigrant visa at the time of his admission for permanent 

residence on January 10, 1969 and was excludable under section 212-

(a)(20). Also, the immigration judge found that the applicant had been 

improperly exempted from the labor certification requirement of section 

212(a)(14) and was excludable on that ground as well. 

While there is no statute with respect to annulment of marriage, the 

proceeding for annulment of marriage is recognized by the courts of 

Illinois, Cardenas v. Cardenas, 12 111. App. 2d 497 (1957), 118 N.E.2d 

262 (1957). Under the court decisions in Illinois, it is clear that after a 

decree of nullity a marriage is void ab initio, and not merely from the 

date of the decree. SeePeople ex rel. Byrnes v. Retirement Board, etc., 

272 Ill. App. 59 (1933). To further support the position that an annulment in Illinois renders a marriage void ab initio, the court in Long, v, 

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Interim Decision #2374 

Long, 15 Ill. App. 2d 276 (195'7), 145 N. E.2d 509 (1957), states in part as 

follows: 

"The purpose of an'annulment proceeding is to have a marriage which is void or 

voidable judicially declared void. In such a proceeding the marriage is not recognized, 

the theory being that no valid marriage ever came into existence (55 C.J.S. Title 

Marriage. sec. 48, p. 922)." 

The doctrine enumerated in Rosenberg v,Fleuti, 374 U.S. 449 (1963), 

is that an innocent, casual and brief excursion by a resident alien outside 

the country's borders may not have been "intended" as a departure 

disruptive of his resident alien status and that he, therefore, may not 

have subjected himself to the consequences of an "entry" into the 

United States on his return. The pertinent portion of secton ' 101(a)(13) 

interpreted by the Supreme Court in the Fleuti case, by its terms, 

related only to "an alien having lawful permanent residence in the 

United States." 

The applicant's immigrant visa (Exh. 4), provided by the Service at 

the exclusion hearing, shows that the applicant was admitted to the 

United States as an immigrant on January 10, 1969 at Chicago, Illinois 

in the nonquDta classification IR-1, the spouse of a United States citizen. In 'order to qualify for, admission as a returning resident alien as 

specifically specified in the statute, it was necessary that (1) the applicant have the status of a lawfully admitted immigrant for permanent 

residence and (2) that if he had tliat status, he was returning from a 

temporary visit abroad. Accordingly, 'when the immigration inspector 

had some doubt about this applicant's immigrant status, he properly 

detained him for' exclusion 'proceedings, Matter of Maldonado—

Sandoval, supra. 

Annulment; of the applicant's marriage ab initio meant that it was 

decreed that no valid marriage ever existed_ At the time 'of his original 

entry into tlui United States on January 10, 1969, the applicant was not 

the spouse of a citizen of the United States; and as an alien born in an 

independent country of the Western Hemisphere, he was not exempt 

from the labor certification requirement. Hence, the applicant did not 

acquire lawful pernfanent residence on January 10, 1969. 

Since the applicant was not an alien having lawful permanent residence in the United States, his attempted entry into the United States 

after a brief absence' in Mexico is not within the ambit of Rosenberg v. 

Fleuti, supra. Under the explicit terms of section 101(a)(13) of the Act, 

the applicant's return to the United States even though after a brief 

visit, is an "entry." Thus, an adjudication of the applicant's admissibility 

in exclusion proceedings is proper. 

Our evaluation of.the evidence convinces us that it has been estabUbhed that the respcirident is not a lawful permanent resident alien. We 

are satisfied that the record supports the immigration judge's finding 

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Interim Decision #2374 

that the applicant is excludable for admission under the provisions of 

section 212(a)(20) and section 212(a)(14) of the Act. After reconsideration of our previous decision, the following order will be entered. 

ORDER: The order of the Board of Immigration Appeals dated June 

14, 1972 is vacated. 

Further order: The motion for reconsideration and remand to the 

immigration judge is denied. 

Further order: The appeal is dismissed. 

Irving A. Appleman, Board Member, abstained from consideration of 

this case. 

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