Matter of M----

• Court: U.S. DOJ Board of Immigration Appeals
• Writing for the Court: Before The Board
• Citation: Matter of M----, 8 I&N Dec. 217 (B.I.A. 1958)
• Decision Date: 23 December 1958
• Docket Number: A-10335093
• Parties: MATTER OF M---- In DEPORTATION Proceedings

8 I&N Dec. 217

MATTER OF M----

In DEPORTATION Proceedings

A-10335093

Board of Immigration Appeals

Decided by Board December 23, 1958

Nonquota status—Alien spouse not entitled to nonquota status where marriage was contracted solely to obtain quota exemption.

Respondent's marriage to a United States citizen spouse, contracted solely to facilitate his admission to the United States, does not entitle him to issuance of a nonquota visa. Where no bona fide husband-wife relationship was intended, the marriage is deemed invalid for immigration purposes regardless of whether it would be considered valid under the domestic law of the jurisdiction where performed.

CHARGES:

Order: Act of 1952—Section 241(a)(1)—No valid immigrant visa.

Act of 1952—Section 241(a)(1)—Not nonquota immigrant as specified in immigrant visa.

BEFORE THE BOARD

Discussion: This is an appeal from the order of the special inquiry officer requiring respondent's deportation upon the charges shown above. The appeal will be dismissed.

The facts have been stated in detail by the special inquiry officer. Briefly, respondent, a 25-year-old male, native and citizen of Greece, obtained a nonquota visa on the basis of his marriage on May 11, 1956, to a United States citizen. On February 14, 1957, he was issued the visa and was admitted to the United States for permanent residence on the same day. The Service claimed, and the special inquiry officer found, that a valid marriage did not exist between the parties because neither of the parties intended to enter into a bona fide marriage relationship, the marriage being entered into merely to enable the respondent who was illegally in the United States to become a permanent resident. Counsel argues that this finding was wrong because the parties considered themselves married and because the State of Pennsylvania where the marriage occurred considers the marriage valid. In support of this argument, counsel alleges that the alien attempted to live with his wife but was frustrated by her refusal to co-operate. As further evidence that the parties regard themselves as married, counsel points out that the respondent has filed suit for divorce. Counsel cites Lannamann v. Lannamann, 171 Pa. Superior Ct. 147, 89 A. 2d 897, and Bove v. Pinciotti, 46 District Court 159, in support of the proposition that a valid marriage occurred here. The Service representative argues that the issue is the intent of the parties at the time they entered into the marriage, and that the record conclusively establishes that at that moment neither party intended to enter into a bona fide marriage relationship.

We believe the rule to be drawn from the cases is that an alien is not legally entitled to receive a nonquota visa as the spouse of a citizen unless a valid marriage existed when the visa was issued and that even if the marriage is considered valid in the place where it is performed, it cannot serve as the basis for the proper issue of a nonquota visa to a "spouse" of the marriage unless there is a bona fide husband and wife relationship in existence.

There is a serious question as to whether the marriage here would be considered valid by the State of Pennsylvania. Lannamann was an action for annulment on the ground that the marriage ceremony had been gone through in jest, neither party intending to contract a valid marriage. The parties to the marriage had married on a dare; they had agreed that they would get married but would wait about six months to decide whether they wanted to `take it seriously'. The marriage was never consummated. The court stated that the marriage ceremony had not been performed `in jest', and that it was not void ab initio because the parties had agreed that the marriage should be a trial marriage and that either of the parties had a six-month option to cancel it. Lannamann is distinguishable because the court found the parties had agreed to be married but would decide later whether to cancel it. In the instant case the parties...