Appellant in a declaratory judgment action asked the District Court to declare void deportation proceedings as conducted before the Board of Immigration Appeals. Cross motions for summary judgment having been filed, the Government’s motion was granted, and appellant’s motion was denied and his complaint was dismissed. This appeal followed. Pending hearing on the merits, we stayed deportation. Karayannis v. Brownell, 1957, 101 U.S.App.D.C. 220, 248 F.2d 80.
Appellant, a citizen and native of Greece, first entered the United States as a seaman in May, 1946. He married an American citizen in November, 1946. Some two years after the marriage, on his wife’s petition to adjust his status as a permanent resident, appellant was granted the privilege of voluntary departure and pre-examination. He went to Canada on December 3, 1948, obtained a nonquota visa as the husband of an American citizen, and the following day returned to the United States.
In May, 1950, appellant’s wife filed a complaint in the Supreme Court of New *883York asking annulment of her marriage, and judgment granting the requested relief was entered January 8, 1951.
Deportation proceedings were instituted against the appellant in April, 1951, charging him with having entered the United States in violation of the Immigration Act in that when he entered the United States in December, 1948, he was not a nonquota immigrant1 and that his visa had been obtained through fraud.2 Hearings were conducted December 11, 1951. The Government called no witnesses except the former wife’s lawyer through whom was introduced a transcript of the uncontested annulment hearing3 before the New York court. The judgment recited “that the plaintiff [wife] is entitled to a judgment annulling the marriage * * * because of the fraud of the defendant,” and further “that this judgment is interlocutory, but shall become the final judgment as of course three months after entry * * *. Upon this judgment becoming the final judgment, the said marriage shall be annulled * *
Before the Immigration Hearing Officer, appellant testified as to ill treatment by the wife and recited various threats; he lived with his wife from the time of their marriage in November, 1946, until September, 1949, some ten months after obtaining his visa, separating then only because of her conduct toward him. He sought to testify in refutation of the wife’s charges, as revealed by the record of the annulment proceedings, that he had refused to assume the status of a father or to perform the duties of a husband. The Hearing Examiner ruled that what might have been his defense to charges in the annulment proceeding had he appeared therein, “would be immaterial and in no way would affect this judgment so I will not permit them on the record.”
Our decision must turn upon the interpretation and application of § 3 of the-Act of May 14, 1937 (50 Stat. 164-165), set forth in the margin.4 The Attorney General’s brief tells us:
“ * * * It is the Government’s position that once it is shown that an alien who obtained a non-quota or preference quota visa by reason of his marriage to an American citizen, and it is further shown that this marriage was subsequently annulled because of the alien’s fraud, then the alien is deportable.”
As will be seen from our recital, the Government has inverted the purpose and the effect of the statute. The New York decree must be accepted as determining that the marriage was voidable *884because the court found a fraud had been worked upon the wife. Thus, the Government argues, the fraud upon the wife likewise constitutes a fraud upon the United States. It is claimed that the New York decree and the transcript of proceedings predicate a deportation order.
But the statute speaks against an alien who shall have been found to have secured the nonquota visa through fraud, fraud of a particular type to be sure, but fraud upon the United States nonetheless. Based upon the alien’s November, 1946, marriage and following the 1948 amendment5 his nonquota status was acquired. The statute 6 provides that deportation is to rest “on the ground that at the time of entry he was not entitled to admission on the visa presented upon arrival.” The 1937 Act speaks of an alien “who at any time after entering the United States is found to have secured either non-quota or preference-quota visa through fraud. * * * ” “The phrase ‘at any time’ qualifies the verb ‘found,’ ”7 and what is to be “found” is specifically, in so many words, directly related to his having secured the non-quota visa through fraud. The statute says nothing whatever to the effect that the marriage must have been “judicially annulled” because of fraud; indeed, any one of many grounds recognized in the various states might predicate annulment of a marriage. Moreover, an American wife’s fraud due to incapacity to contract a valid marriage might well ground annulment proceedings and so eradicate the basis for the alien’s nonquota status without constituting the slightest evidence that the visa had been procured by the alien “through fraud.” Of course, fraud may be practiced upon the Government in many ways.8 Here the statute means that the nonquota visa must have been secured, not innocently, not unknowingly, but through fraud because of a marriage entered into for the purpose of achieving the preferential status of a spouse of an American, which marriage after the status has been gained and the alien has entered, must have been judicially declared void from its inception.
The Government offered no evidence of fraud upon its Immigration authorities. It called no witnesses. It chose to stand solely upon the decree which was properly received as evidence of termination of the marital rights of the parties. It is immaterial that the husband chose not to appear in the annulment proceedings of which he had notice. However valid the decree as between the parties, it did not bind the United States nor, as between the husband and the Government, did it conclude the husband’s separable personal rights as distinguished from his marital rights.9
We may look by way of analogy to the Immigration and Nationality Act of 1952.10 It is there provided that an alien shall be deported as having procured a visa by fraud and as one who is in the United States in violation of law “If (1) hereafter he or she obtains any entry into the United States with an immigrant visa * * * procured on the basis of a marriage entered into less than two years prior to such entry * * * and which, within two years subsequent to any entry of the alien * * * shall be judicially annulled or terminated, unless such alien shall establish to the *885satisfaction of the Attorney General that such marriage was not contracted for the purpose of evading any provisions of the immigration laws * * Not only the italicized language, but the House report11 in explanation of this Act is specific that it is a procurement of the visa by fraud which is to be related to the voidable or terminable marriage “unless the Attorney General finds that the marriage was not contracted for the purpose of evading any of the provisions” of the Act. This clear and recent expression of Congressional intent is not without significance in our consideration of the impact of the language under which the present proceedings went forward.
We are satisfied that as a matter of law the Immigration authorities must here have misconstrued the Act and that the court should have declared the appellant entitled to a hearing in which the facts are to be found with the Act interpreted and applied as we have outlined.
Reversed and remanded for further proceedings not inconsistent herewith.
. §§ 13(a) (3) and 14 of the Immigration Act of 1924, 8 U.S.C. §§ 213-214 (1946), now 8 U.S.C.A. §§ 1181(a), 1251, 1252.
. § 3 of the Act of May 14, 1937, 8 U.S.C. § 213a (1946), now 8 U.S.C.A. § 1251 (c).
. The transcript disclosed that, in sum, the plaintiff wife and her mother testified that appellant had told his wife in June, 1946, that he was a seaman illegally in this country; if he married an American citizen he would stay here; appelfmt promised that after a marriage, the parties would have children and that he would provide a home for the wife; they had no children; appellant instead, used contraceptives and had refused to have children; and next day after appellant had entered the United States from Canada, he told her he had never loved her; he had just wanted to stay in this country; and he packed his belonging's and left her, and never again lived with her.
. “Any alien who at any time after entering the United States is found to have secured either non-quota or preference-quota visa through fraud, by contracting a marriage which, subsequent to entry into the United States, has been judieial- ■ ly annulled retroactively to date of marriage, shall be taken into custody and deported pursuant to the provisions of section 214 of this title on the ground that at time of entry he was not entitled to admission on the visa presented upon arrival in the United States. This section shall be effective whether entry was made before or after [May 14, 1937],
“When it appears that the immigrant fails or refuses to fulfill his promises for a . marital agreement made to procure his entry as an immigrant he then becomes immediately subject tij1'deportation.”
. See the Act of May 19, 1948. Pub.Law 538, 80th Cong., 2d Sess., 62 Stat. 241, now 8 U.S.C.A. § 1101(a) (27) (A); “The purpose of the bill is to extend the date from July 1, 1932, to January 1, 1948, prior to which marriages of alien males to United States citizen women must have occurred in order to give them nonquota status.” S.Rep. No. 1206, 2 U.S.Code Cong.Serv. 1555 (1948).
. Supra note 4.
. Kessler v. Strecker, 1939, 307 U.S. 22, 29, 59 S.Ct. 694, 698, 83 L.Ed. 1082.
. See, for example, United States v. Shaughnessy, 2 Cir., 1951, 186 F.2d 580; Heizaburo Hirose v. Berkshire, 9 Cir., 1934, 73 F.2d 86; Darabi v. United States, 6 Cir., 1931, 54 F.2d 70.
. Cf. Sutton v. Leib, 1952, 342 U.S. 402, 410, and note 17 at page 411, 72 S.Ct. 398, at page 404, 96 L.Ed. 448.
. 8 U.S.C.A. § 1251(c).
. No. 1365, 82d Cong., 2d Sess. 61 (1952), to accompany H.R. 5678.