Matter of Samsen, Interim Decision Number 2305

• Decision Date: 19 July 1974
• Docket Number: Interim Decision Number 2305,A-14047005
• Parties: MATTER OF SAMSEN In Visa Petition Proceedings
• Court: U.S. DOJ Board of Immigration Appeals

15 I&N Dec. 28

MATTER OF SAMSEN

In Visa Petition Proceedings

Interim Decision Number 2305

A-14047005

Board of Immigration Appeals.

Decided by Board July 19, 1974

An immigration judge's order rescinding beneficiary's section 245 adjustment of status as a second preference immigrant based on the existence of a legal impediment to his marriage to a lawful permanent resident, is not a conclusive determination in subsequent visa petition proceedings that beneficiary's prior marriage comes within the purview of section 204(c) of the immigration and Nationality Act, as amended, as a marriage entered into for the purpose of evading the immigration laws. Such section 204(c) determination should be made independently by the district director, on the basis of the evidence actually before him, in the course of his adjudication of the subsequent visa petition.

ON BEHALF OF PETITIONER: Triantafyllos Thanasoulis, Esquire 19 West 44th Street New York, New York 10036.

ON BEHALF OF SERVICE: Irving A. Appleman Appellate Trial Attorney.

The lawful permanent resident petitioner applied for preference status for the beneficiary as her spouse under section 203(a)(2) of the Immigration and Nationality Act. In a decision dated March 22, 1974, the district director denied the petition. The petitioner has appealed from that denial. The appeal will be sustained and the record will be remanded to the district director.

The beneficiary is a 37-year-old native and citizen of Thailand. He married the petitioner in 1971. The record shows that the beneficiary had been married twice previously — first to another native and citizen of Thailand, and then, in 1967, to a lawful permanent resident of the United States.

On the basis of his 1967 marriage, the beneficiary was granted preference status under section 203(a)(2) of the Act as the spouse of a lawful permanent resident, and his status was subsequently adjusted to that of a lawful permanent resident under section 245 of the Act. On January 13, 1979, after proceedings under section 246 of the Act, an immigration judge ordered the beneficiary's grant of status as a lawful permanent resident rescinded. The basis for rescission was the existence of a legal impediment invalidating the petitioner's marriage to his lawful permanent resident wife. On appeal, we affirmed the immigration judge's decision rescinding status.

The district director has based his present decision on section 204(c) of the Act, which states that "no petition shall be approved if the alien has previously been accorded a nonquota or preference status as the spouse of a citizen of the United States...