Matter of Wong, Interim Decision #2549
| Decision Date | 12 January 1977 |
| Docket Number | A-31222365,Interim Decision #2549 |
| Citation | 16 I&N Dec. 87 |
| Parties | MATTER OF WONG In Deportation Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
(1) Respondent was admitted to the United States as a lawful permanent resident without a labor certification under section 203(a)(2) of the Immigration and Nationality Act as the unmarried child of a lawful permanent resident. However, two weeks before she entered the United States, she married. The immigration judge found her deportable under section 241(a)(1) of the Act as an alien who was excludable at the time of entry. Subsequent to this decision, respondent obtained an annulment of this marriage and moved to reopen deportation proceedings.
(2) Notwithstanding the grant of a judgment of nullity by the Superior Court of California rendering this marriage void ab initio, the doctrine of relation back which would ordinarily apply in a situation such as this will be deemed not to apply here because it does not promote the intended purpose. Although the annulment might be given retroactive effect by the California court annulling the marriage ab initio, it will not be given retroactive effect for immigration purposes.
(3) Since the respondent married before leaving Burma, she was in violation of the immigration laws at the time of her entry into the United States. The Board is not obliged to give retroactive effect to the California decree of annulment to cure a violation of the immigration laws and the respondent was deportable as charged.
In a decision dated August 28, 1974, the immigration judge found the respondent deportable as an alien who was excludable at the time of entry under section 241(a)(1) of the Immigration and Nationality Act and granted her voluntary departure in lieu of deportation. The respondent had obtained an immigrant visa by representing herself to be the unmarried daughter of a lawful permanent resident. However, she had married two weeks before actually entering the United States. Subsequent to the immigration judge's decision, the respondent obtained an annulment of her disqualifying marriage and thereupon moved to reopen her deportation proceedings. The motion to reopen was granted by the immigration judge and a hearing held. In a decision dated June 10, 1976, the immigration judge denied a motion to terminate the deportation proceedings, finding that the annulment should not be given a retroactive effect for immigration purposes. Although the voluntary departure was reinstated, the respondent has appealed the decision. The appeal will be dismissed.
The respondent was born on December 25, 1942, and she is a native of Burma and a citizen of China. She entered the United States on May 20, 1973, without a labor certification as the unmarried child of a lawful permanent resident. Section 203(a)(2).
During reopened proceedings, counsel moved to terminate, contending that the respondent is not deportable because her marriage was judicially annulled by the Superior Court of California on October 30, 1975; and that the annulment rendered her marriage void ab initio, as of the date of the marriage, May 11, 1973. The record contains a Judgment of Nullity in support of her contention.
The record also contains a notice from the Department of State (FS-548) which informed the respondent that she would lose her preference status if she married prior to...
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