F

MATTER OF F—

In VISA PETITION Proceedings

A-15717621

Decided by Board June 1, 1962
Visa petition—Section 295(c), 1952 act, as amended—Purpose of evading immi-
gration laws must be established.
Approval of a visa petition based upon a civil marriage later annulled for
fraud does not preclude beneficiary from subseauently obtaining nonquota
status where record fails to establish that purpose of marriage was to
evade Immigration laws.

BEFORE THE BOARD

DISCUSSION: The case is before us pursuant to certification by
the District Director, New York District, of his order dated January
18, 1962, denying the visa petition for the reasons eet forth more
fully in an attached order bearing the same date.
Form 1-130, petition to classify the status of alien for issuance of
immigrant visa, filed by the native-born citizen wife, 30 years old, on
behalf of the beneficiary, a native and citizen of Greece, 33 years old,
sets forth that the parties were married at Bergenfield, New Jersey,
on October 13, 1960. The petition shows that the petitioner was not
previously married and the beneficiary was previously married once.
The file contains a prior visa petition, No. VP 3-1-126005, which
was filed on February 14, 1958, by the beneficiary's first wife, K—
F—, naturalized on December 3, 1957, whom the beneficiary married
on December 14, 1957, at Ozone Park, Long Island, New York.
Sworn statements were taken from the beneficiary and his first wife
by a Service officer on January 17 and January 24, 1958, respec-
tively. The beneficiary stated that , he had anticipated being married
about Christmas 1957 but when he was apprehended by the Immi-
gration Service on December 10, 1957, they decided to have the mar-
riage as soon as possible, and such marriage took place four days
after his apprehension. Both the beneficiary and his first wife tes-
tified that they did not marry solely to enable the beneficiary to re-
main in the United States or to gain any benefits under the immi-
gration laws or to avoid deportation from the United States or upon

684
advice from a lawyer or any other person. The beneficiary testified
that he was residing in a two-bedroom apartment with his wife's
parents and that he and his wife shared one bedroom and her par-
ents the other. The wife testified to the same effect. The visa peti-
tion was approved for nonquota status on behalf of the beneficiary
on March 19, 1958. However, the petitioner made a subsequent sworn
statement before an immigration officer at the New York office on
September 10, 1958, in which she repudiated her previous statement
and stated that she had never lived together with the beneficiary in
a man-and-wife relationship; that although they were married in a
civil ceremony she never considered herself as being married to the
beneficiary until such time as they decided to be married in the
Greek Church; that the marriage had never been consummated; that
the beneficiary lived in her father's home in a separate room and
They did.not share a bedroom; that she no W had no intention of mar-
rying the beneficiary in the Greek Church; that she had changed
her mind and had started annulment proceedings to have the civil
marriage RIM/11W. She stated, however, that at the time she mar-
ried the beneficiary in the civil ceremony she did not just marry
him to aid him with immigration difficulties but actually intended
to marry him in June of 1958 in the Greek Church and to actually
consummate their marriage.
The order of the District Director reflects that the approval of the
visa petition filed by the first wife on behalf of the beneficiary was
ordered revoked on September 17, 1958, on the basis of the petition-
er's testimony on September 10, 1958, which indicated the absence of
a bona fide husband-and-wife relationship. The first wife filed an
action for annulment in the Supreme Court of the State of New
York, County of Queens, in which an interlocutory judgment of
annulment was entered on OctOber 17, 1958, on the ground of the
fraud of the defendant. The fraud of the defendant is spelled out
in the findings of fact made by the Court on October 17, 1958, to
the effect that the defendant fraudulently and falsely represented
to the plaintiff that he would marry her according to the Greek
Orthodox religious ceremony; that the defendant at the time of mak-
ing the. said representations and statements knew them to be false,
fraudulent and untrue, made for the intent to defraud and deceive
the .plaintiff and for the purpose of inducing her to enter into the
ma Triage.
The present petition was filed February 27, 1961. On April 18,
1961, a sworn statement was taken from the beneficiary by a Service .
officer. He stated that he has been a seaman from 1954 until April
1960 and was always given shore leave; that he had been under
immigration proceedings previously; that he left his ship in Decem-
ber 1955 and stayed ashore until October 1958, when he left the
685
 United States voluntarily on the SS. "Olympia." He stated that
he last entered the United States at Philadelphia about April 5,
1960, as a seaman on the SS. "Aries," intending to stay ashore in-
definitely and obtain a job. He married the petitioner on October
13, 1960, after four months of keeping company, knowing that his
marriage to petitioner would help him stay in the Uhited States
but claimed that he would have married her even if she was not a
United States citizen; that he was and is in love with her. He
stated that his previous marriage was annulled in New York some
time in October 1958 but that he did not know why his first wife
had their marriage annulled; that he was no longer in the United
States when this happened.
The order of the District Director, New York District, reflects
that the denial of the present petition is predicated upon section
205(c) of the Immigration and Nationality Act, as amended by sec-
tion 10 of the Act of September 26, 1961, 8 U.S.C. 1155(c), note,
C.A.P.P. 1961 (P.L. 87 -301), which amends section 205(c) of the
Immigration and Nationality Act by adding at the end thereof the
following sentence:
Notwithstanding the provisions of this subsection, no petition shall be ap-
proved if the alien previously has bet a accorded, by reason of marriage de-
termined by the Attorney General to have been entered into for the purpose
of evading the immigration laws—
(1) a nonquota status under section 101(a) (27)(A) as the spouse of a
citizen of the United States, or
(2) a preference quota status under section 203(a) (3) as the sponse of
an alien lawfully admitted for permanent residence.
The amendment added by section 10 of the Act of September 26,.
1961, has two essential requirements before a petition may be dis-
approved thereunder :
(I) The alien beneficiary must previously have been accorded a nonquota
status under section 101(a) (27) (A) as the spouse of a United States citi-
zen or a preference quota status under section 203(a) (3) as the spouse of
an alien lawfully admitted for permanent residence;
(H) It must be determined by the Attorney General that such nonquota or
preference quota status was accorded by reason of a marriage entered into
for the purpose of evading the immigration laws.
We shall first consider the second of these requirements, i.e.,
whether the marriage was entered into for the purpose of evading
the immigration laws. The District Director has found that the
testimony of the first wife was not credible, without, however, set-
ting forth the basis of the finding, apparently basing his conclusion
on the circumstances and not upon the demeanor of the witnesses.
The finding in the annulment action, which was not contested nor
defended because the beneficiary had already left the country, is
686
not dispositive of the issue of fraud in the procurement of the visa.'
The first wife, although acknowledging her earlier statement about
cohabiting with the beneficiary was false, nevertheless reiterated
that the marriage was not entered into for the purpose of evading
the immigration laws, that she fully intended at that time to go
through a religious ceremony but that she had changed her mind. .

There is no evidence that the beneficiary entered into the marriage
fur the purpose of evading the immigration laws. It appears that
what was present here was originally a bona fide marriage followed
by a change of mind on the part of the citizen wife. Where the
failure of the marriage is not the fault of the beneficiary, he is not
precluded by the amendment. On the record, we are unable to ar-
rive at a determination that the marriage was entered into by the
beneficiary for the purpose of evading the immigration laws. 2
Since the second requirement of section 205(c) of 'the Act, as.
amended by section 10 of the Act of September 26, 1961, has not
been established, we deem it unnecessary to consider the first essen-
tial requisite of section ?05 (a), as amended, inasmuch as both ele-
ments must be present before the bar of the amendment becomes
effective. The appeal will be sustained.
ORDER: It is ordered that the appeal be sustained and that the
visa petition be approved for nonquota status on behalf of the
beneficiary.
I Cf. Sarayannis v. Brownell, 251 F.26 882, at page 884-885 (C.A. D.C., 1967).,
2 Cf. Matter or M— , 7-601.

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