Matter of Samedi, Interim Decision Number 2271
| Decision Date | 19 March 1974 |
| Docket Number | A-11186335,Interim Decision Number 2271 |
| Parties | MATTER OF SAMEDI In Section 246 Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
This is an appeal from the immigration judge's order of November 4, 1970, rescinding the adjustment of status which had been granted the respondent on April 24, 1969 pursuant to the provisions of section 245 of the Immigration and Nationality Act. The respondent obtained visa availability as an immediate relative, pursuant to section 201(b) of the Immigration and Nationality Act, as the spouse of a United States citizen. The appeal will be dismissed.
The record relates to a 36-year-old unmarried male alien, a native and citizen of Iran. The marriage which entitled him to immediate relative status was annulled in California on October 3, 1969. The annulment action was brought by his wife on the ground of his fraud in representing falsely that he would have children with her. He defaulted in the action.
In California, judgments of annulment relate back to the date of the marriage and constitute a finding that no marriage ever existed, irrespective of whether they be voidable or void marriages, Matter of V----, 6 I. & N. Dec. 153 (BIA 1954). Counsel seeks to distinguish the annulment in Matter of V----, supra, on the ground that the fraud there involved related to the immigration laws and was a fraud on the United States Government, whereas the fraud for which the respondent's marriage was annulled (refusal to have children) was unrelated to the immigration laws and was upon his spouse only.
We see no basis for distinguishing Matter of V----, supra, on the grounds suggested. The relation-back doctrine applies to all annulments in California, irrespective of the ground. The result of the decree is a judicial determination that no marriage ever existed. Because the respondent's status was based on a marriage which has been decreed never to have existed, the respondent was not in fact eligible for the adjustment of status which he was granted. Accordingly, the immigration judge was correct.
ORDER: The appeal is dismissed.
Maurice A. Roberts, Chairman, Dissenting:
I respectfully dissent from the decision of the Board. I would reverse and remand for further proceedings.
The facts of record are not in substantial dispute. The respondent is a 36-year-old alien, a native and citizen of Iran, who was admitted to the United States on August 31, 1960 as a nonimmigrant student and remained longer than permitted. On April 12, 1968, during the pendency of deportation proceedings against him, he married Patty Gale Terry, a United States citizen, on whose visa petition he was accorded immediate relative status on October 17, 1968 under section 201(b) of the Immigration and Nationality Act. On April 24, 1969, the immigration judge granted respondent's application for adjustment of status under section 245 of the Act. His wife thereafter filed a complaint for annulment in a California court, alleging that the marriage had been induced by the respondent's fraudulent concealment of his intention not to have children. A default judgment of annulment was entered by the court on October 3, 1969. Rescission proceedings under section 246 of the Act were initiated on March 30, 1970 by the filing of a notice of intention to rescind, based on a series of factual allegations (Ex. 1). Respondent contested the action and demanded a hearing.
At the hearing, the Service relied exclusively on the record of the annulment to prove its charge that the respondent was not in fact eligible for the section 245 adjustment. Counsel for the respondent sought a continuance in order to determine what evidence to present. The immigration judge denied the continuance, concluding that under Matter of V----, 6 I. & N. Dec. 153 (BIA 1954), the California annulment decree made out a case which could not be challenged by evidence. In his order before us on appeal, the immigration judge held that under California law the annulment decree rendered the marriage void ab initio, thereby retroactively undermining the visa petition approval based on that marriage and rendering the respondent ineligible for a visa and hence ineligible for section 245 adjustment. Rescission was ordered. The Board today endorses that action, relying on the rationale of Matter of V----, supra. In my view, that decision is distinguishable and does not compel the result reached by the Board.
A rescission order under section 246 divests the alien of his previously granted status as a lawful permanent resident and paves the way for his deportation if he does not depart from this country. To support rescission, the administrative fact findings must be based on evidence which is clear, convincing and unequivocal, Waziri v. INS, 392 F.2d 55 (C.A. 9, 1968); Rodriques v. INS, 389 F.2d 129 (C.A. 3, 1968); Yaldo v. INS, 424 F.2d 501 (C.A. 6, 1970). By analogy to the rule of construction laid down for deportation statutes, section 246 should be narrowly construed. "[S]ince the stakes are considerable for the individual, we will not assume that Congress meant to trench on his freedom beyond that which is required by the narrowest of several possible meanings of the words used." Fong Haw Tan v. Phelan, 333 U.S. 6 at p. 10 (1948).
Matter of V----, supra, was not a rescission case. It arose under section 3 of the Gigolo Act of May 14, 1937, which provided for the deportation of "any alien who at any time after entering the United States is found to have secured either a nonquota or preference-quota visa through fraud, by contracting a marriage which, subsequent to entry into the United States, has been judicially annulled retroactively to date of marriage." The question there presented was whether the California annulment had such retroactive effect. We held that it had.1 The statute there involved was geared, in terms, to a marriage "judicially annulled retroactively to date of marriage." The rescission statute now confronting us contains no such provision. Matter of V----, supra, is inapposite to the present case, in my view.
It is interesting to note that the 1937 Gigolo Act's counterpart in the present Act contains no similar provision. Under section 241(c)(1) of the present Act, a judicial annulment or divorce within two years after entry on documents based on marriage within the prior two years creates merely a rebuttable presumption of fraud, which leaves the way open for the alien to show that the marriage was not in fact "contracted for the purpose of evading any provisions of the immigration laws." Had the respondent obtained a visa, rather than section 245 adjustment, on the basis of his marriage to Patty Gale Terry, her annulment decree would not have had conclusive effect. Section 241(c) is designed to deal specifically with immigration status obtained by fraudulent marriages contracted for the purpose of evading the provisions of our immigration...
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