ARTHUR

Interim Decision #3173

MATTER OF ARTHUR
In Deportation Proceedings

A-29575767

Decided by Board May 5, 1992

(1) Under the rule of Matter of Garcia, 16 I&N Dec. 653 (BIA 1978), a motion to reopen
should generally be granted in cases involving an application for adjustment of status
filed simultaneously with a visa petition, notwithstanding the fact that the visa
petition has not yet been adjudicated, unless the applicant for adjustment appears
clearly ineligible for the preference, classification claimed in the underlying petition.
(2) Subsequent to our decision in Matter of Garcia, .supra, Congress amended sections
204(g) and 245(e) of the Immigration and Nationality Act, 8 U.S.C. §§ 1154(g) and
1255(e) (Supp. II 1990), to plecludo an alien from adjusting his status based on a
marriage that was entered into after the commencement of proceedings to determine
his right to enter or remain in the United States and to bar the approval of a visa
petition to accord immediate relative or preference status based upon such marriage
until after the beneficiary of the petition has resided outside the United States for a 2-
year period following the marriage, unless the alien establishes "by clear and
convincing evidence to the satisfaction of the Attorney General that the marriage was
entered into in good faith and ... was not entered into for the purpose of procuring
the alien's entry as an immigrant."
(3) The presumption established in Matter of Garcia, supra, that for purposes of
reopening, the relationship claimed on an unadjudicated visa petition filed simulta-
neously with an application for adjustment of status is bona fide unless clear
ineligibility is apparent in the record is inconsistent and incompatible with the
congressionally mandated presumption that marriages entered into after the institu-
tion of proceedings are fraudulent.
(4) Given the petitioner's burden of establishing the bona fides of a marriage described
in section 245(e) of the Act by clear and convincing evidence, an inquiry by an
immigration judge or this Board into whether the evidence submitted in support of a
visa petition based upon such marriage is sufficient to demonstrate prima facie
eligibility for the preference classification sought would necessarily involve an in-
depth examination into the merits of the petition, constituting a substantial and
unwarranted intrusion into the district director's authority over the adjudication of
visa petitions.
(5) Motions to reopen for consideration of applications for adjustment of status based
upon unadjudicated visa petitions which fall within the ambit of sections 204(g) and
245(e) of the Act will not be granted. Matter of Garcia, supra, modified.

CHARGE;
Order: Act of 1952—Sec 241(a)(2) [8 U.S.C. § 1251(a)(2))—Nonimmigrant—remained
longer than permitted

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ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Eugene I. Flynn, Esquire Ronald Mullins
3141 Hood Street, Suite 615 General Attorney
Dallas, Texas 75219-5021

BY: MiMohan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members

In a decision dated October 23, 1990, an immigration judge found
the respondent deportable on the basis of his concessions at the
hearing under section 241(a)(2) of the Immigration and Nationality
Act, 8 U.S.C. § 1251(a)(2) (1988),' as a nonimmigrant who remained
in this country longer than permitted, but granted him the privilege of
voluntary departure in lieu of deportation until February 24, 1991,
with an alternative order of deportation to Nigeria in the event he
failed to depart voluntarily within the period specified. The respon-
dent did not appeal from that decision.
On February 20, 1991, the respondent filed a motion to reopen with
the immigration judge based upon a claim of eligibility for adjustment
of status under section 245 of the Act, 8 U.S.C. § 1255 (1988), as the
spouse of a United States citizen. The respondent married his wife on
January 18, 1991, subsequent to the immigration judge's decision in
the case. An Application for Permanent Residence (Form 1-485) and a
Petition for Alien Relative (Form 1-130) were filed simultaneously
with the motion to reopen.
In order to qualify for adjustment of status under section 245 of the
Act, an alien must apply for adjustment, establish that he is eligible to
receive an immigrant visa and is admissible to the United States for
permanent residence, and show that an immigrant visa is immediately
available to him at the time his application is filed. Section 245(a) of
the Act. Generally speaking, a motion to reopen for consideration of a
newly-acquired claim to relief from deportation will not be granted in
the absence of a prima facie showing of eligibility for the relief sought
upon reopening. INS v. Doherty, 502 U.S. 314, (1992); INS v. Abudu,
485 U.S. 94 (1988); Matter of Sipus, 14 I&N Dec. 229 (BIA 1972);
Matter of Lam, 14 I&N Dec. 98 (BIA 1972).
In a decision dated July 9, 1991, the immigration judge denied the
respondent's motion to reopen on the ground that the visa petition
filed to accord the respondent immediate relative status as the spouse

'This section of the Act has been revised and redesignated as section 241(a)(1)(B) of
the Act, 8 § 1251(a)(1)(B) (Supp. II 1990), by section 602(a) of the Immigration
Act of 1990, Pub. L. No. 101-049, 104 Stat. 4978, 5078, but that amendment does not
apply to deportation proceedings for which notice has been provided to the alien before
March 1, 1991. See section 602(d) of the Immigration Act of 1990, 104 Stat. at 5082.

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of a United States citizen had not yet been adjudicated and, unless and
until the petition is approved, the respondent may not establish
immediate visa availability, a statutory prerequisite to a grant of
adjustment of status. The respondent appealed from the denial of his
motion. The appeal will be dismissed?
In Matter of Garcia, 16 I&N Dec. 653 (BIA 1978), this Board
reexamined the general rule that reopening of the proceedings will be
denied in the absence of a showing that the statutory requirements for
the requested relief have been met, and we carved out an exception to
that rule in the case of motions to reopen for consideration of
applications for adjustment of status based upon as yet unadjudicated
visa petitions. The Board noted that the Immigration and Naturaliza-
tion Service had recently amended its regulations to permit an
adjustment application filed simultaneously with a visa petition to be
accepted for processing, even though the underlying visa petition had
not yet been approved, provided the approval of the petition would
make an immigrant visa immediately available as of the date the
adjustment application was filed. 8 C.F.R. § 2452(a)(2) (1991). Under
the amended regulations, if the visa petition is subsequently approved,
the adjustment application is deemed to have been filed on the date
the accompanying petition was filed. Id. Inasmuch as the date an
adjustment application is filed determines whether a visa is immedi-
ately available, the regulation allows an applicant who is subsequently
found to have been fully qualified for adjustment of status at the time
of simultaneous filing to preserve immediate visa availability and,
hence, eligibility for adjustment of status, until such time as the visa
petition supporting the adjustment application has been reached for
adjudication. Id.
In order to give appropriate effect to the simultaneous filing
provisions of the amended regulations, we determined that a motion
to reopen should generally be granted in cases involving an adjustment
application supported by an unadjudicated visa petition unless the
applicant for adjustment appears clearly ineligible for the preference
classification claimed in the underlying petition. Matter of Garcia,
supra. Stated another way, a pending prima facie approvable visa
petition would be treated as though it were already approved for
purposes of reopening. Id.; see also Matter of Guiragossian, 17 I&N
Dec. 161, 164 n. 5 (BIA 1979).
Inasmuch as the immigration judge denied the respondent's motion
to reopen solely on the ground that the visa petition underlying the

2 The Immigration and Naturalization Service opposed the motion to reopen on
grounds other than that cited by the immigration judge. Since we fmd the motion was
properly denied, we need not and do not consider possible alternative bases for denial

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respondent's adjustment application had not been adjudicated, the
immigration judge's decision is inconsistent with our holding in
Matter of Garcia, supra. However, recent amendments to the Act
invite us to revisit Garcia.
In 1986, Congress enacted the Immigration Marriage Fraud
Amendments of 1986, Pub. L. No. 99-639, 100 Stat. 3537 ("1986
Amendments"), legislation designed to deter fraud by aliens seeking to
acquire lawful permanent residence in the United States through
marriage to a United States citizen or a lawful permanent resident
alien. The 1986 Amendments, among other provisions, precluded an
applicant from adjusting his status based on a marriage that was
entered into after the commencement of proceedings to determine his
right to enter or remain in the United States and barred the approval
of a visa petition to accord immediate relative or preference status
based on such marriage until after the beneficiary of the petition had
resided outside the United States for a 2-year period following the
marriage. See sections 5(a) and (b) of the 1986 Amendments, 100 Stat.
at 3543 (codified as amended at sections 204(h) and 245(e) of the Act,
8 U.S.C. §§ 1154(h) and 1255(e) (Supp. IV 1986)). 3
The Act was again amended by the Immigration Act of 1990, Pub.
L. No. 101-649, 104 Stat. 4978 ("1990 Act"), to exempt Qualifying
aliens from the 2-year foreign residence requirement and the bar to
adjustment of status imposed by the 1986 Amendments. The 1990 Act
provides in pertinent part that the foreign residence requirement and
the section 245(e) bar to adjustment shall not apply in the case of an
alien who establishes "by clear and convincing evidence to the
satisfaction of the Attorney General that the marriage was entered into
in good faith and _ .. was not entered into for the purpose of procuring
the alien's entry as an immigrant." Section 702 of the 1990 Act, 104
Stat. at 5086 (codified as amended at section 245(e) of the Act, 8
U.S.C. § 1255(e) (Supp. II 1990)). The "clear and convincing evi-
dence" standard is, of course, more stringent than the "preponderance
of the evidence" standard ordinarily required to establish a claimed
relationship between a petitioner and a beneficiary. See Matter of
Patel, 19 I&N Dec. 774, 782 - 83 (BIA 1988).
By first enacting an absolute bar to adjustment of status based upon
a marriage entered into during the pendency of proceedings and to the
approval of a visa petition based upon such marriage unless the
marriage first survived a 2-year separation, and then by requiring a
substantially heightened showing to establish the bona fides of the
3 Section 204(h) of the Act was redesignated as section 204(g) of the Act, 8 U.S.C.
§ 1154(g) (Supp. II 1990), by section 162(b) of the Immigration Act of 1990, Pub. L. No.
101-649, 104 Stat. 4978, 5010-11.

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marriage, Congress rather clearly created a presumption that marriages
contracted after the institution of exclusion or deportation proceedings
are fraudulent. That presumption may, under present law, be over-
come only by a showing of evidence that is "clear and convincing."
Section 245(e)(3) of the Act. Matter of Garcia, supra, on the other
hand, established a contrary presumption: that is, for purposes of
reopening, the relationship claimed on the visa petition supporting the
application for adjustment of status is presumed to be bona fide unless
clear ineligibility is apparent in the record. See also Matter of
Guiragossian, supra. We find that the rule of Garcia is inconsistent and
incompatible with Congress' intent as expressed in the 1986 Amend-
ments and the 1990 Act.
We are concerned, too, with jurisdictional problems that would
likely result from attempts on the part of an immigration judge or this
Board to square the "clear ineligibility" rule of Garcia with Congress'
requirement that the bona fides of a marriage described in section
245(e) of the Act be proved by clear and convincing evidence. An
inquiry into whether the evidence submitted in support of a visa
petition is sufficient, in light of the heavy burden imposed on the
petitioner, to demonstrate prima facie eligibility for the preference
sought would necessarily involve an in-depth examination into the
merits of the petition. Such examination would, in our view, constitute
a substantial and unwarranted intrusion into the district director's
authority over the adjudication of visa petitions. See generally Matter
of Guiragossian, supra.
In light of the foregoing discussion, we shall hereafter decline to
grant motions to reopen for consideration of applications for adjust-
ment of status based upon unadjudicated visa petitions which fall
within the ambit of sections 204(h) [now section 204(g)] and 245(e) of
the Act. Our holding in Matter of Garcia, supra, is modified
accordingly.
In his motion to reopen, the respondent referred us to an
unpublished Board decision which, on seemingly similar facts, reached
a contrary result. The referenced decision is inapposite inasmuch as
the respondent in that case was the beneficiary of an approved visa
petition. In any event, the decision is without precedential value. The
appeal will be dismissed.
ORDER: The appeal is dismissed.

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