Matter of Isber

In Visa Petition Proceedings

在签证申请程序中

A-28485883

A-28485883

Decided by Board August 10, 1993

由委员会于1993年8月10日裁定

Section 204(c) of the Immigration and Nationality Act, 8 § 1154(c) (1988), does not preclude approval of a second marital visa petition filed by a petitioner on behalf of the same beneficiary.

《移民与国籍法》第204(c)条，8 U.S.C. § 1154(c)（1988年），并不禁止批准申请人代表同一受益人提交的第二份婚姻签证申请。

The instant case was last before us on December 18, 1991, when we returned the record of proceedings to the Immigration and Naturaliza- tion Service because the beneficiary had filed the appeal. On January 6, 1992, the petitioner, through counsel, filed a motion to reconsider in which she indicates that she wishes to pursue the appeal from the denial of her visa petition.' See 8 C.F.R. § 103.5(a)(3)(i) (1993). In view of the petitioner's stated desire to pursue her appeal, we hereby vacate our prior decision and reinstate the proceedings on appeal. The appeal will be dismissed. The petitioner is a 24-year-old United States citizen. The benefi- ciary is a 38-year-old native and citizen of Syria. In a decision dated April 14, 1989, the district director denied the visa petition filed by the petitioner in accordance with section 204(c) of the Immigration and Nationality Act, 8 U.S.C. § 1154(c) (1988). The petitioner had sought to accord the beneficiary immediate relative status as her spouse pursuant to section 201(b) of the Act, 8 U.S.C. § 1151(b) (1988). The petitioner filed her most recent visa petition on the beneficiary's behalf

本案上一次提交至本委员会是在1991年12月18日，当时我们将诉讼记录退回移民与归化局，因为上诉是由受益人提起的。1992年1月6日，申请人通过律师提交了重新审议动议，其中她表示希望继续就她的签证申请被拒一事进行上诉。' 见 8 C.F.R. § 103.5(a)(3)(i)（1993年）。鉴于申请人明确表示希望继续其上诉，我们特此撤销先前的决定，并恢复上诉程序。上诉将被驳回。 申请人是1名24岁的美国公民。受益人是1名38岁的叙利亚本地人和公民。在1989年4月14日的一项决定中，地区主任根据《移民与国籍法》第204(c)条，8 U.S.C. § 1154(c)（1988年），拒绝了申请人提交的签证申请。申请人曾寻求根据该法第201(b)条，8 U.S.C. § 1151(b)（1988年），赋予受益人作为其配偶的直接亲属身份。申请人最近一次代表受益人提交签证申请

on March 31, 1989. The petitioner and beneficiary married on November 23, 1988. The record reflects that the petitioner initially filed an immediate relative visa petition on behalf of the beneficiary on December 1, 1988. She withdrew the petition on January 31, 1989, and indicated in an affidavit that she married the beneficiary as "a favor, so he could get his residency." The petitioner stated further in her sworn statement that she and the beneficiary were living together "so that it would look good," but that they had not consummated the marriage. In support of her present visa petition, the petitioner submitted a new affidavit in which she attests that she and the beneficiary have "a true marriage based on mutual love and affection." She also states that she was coerced by Service officers to withdraw the petition which she had filed earlier on the beneficiary's behalf. The petitioner further advises in her more recent affidavit that "[nixing [the beneficiary's] papers is merely incidental to our desire to live with each other as husband and wife in harmony and in the United States." The petitioner also submitted an affidavit from her mother who indicates that the petitioner and beneficiary's marriage is bona fide, affidavits from friends who attended her wedding reception, as well as evidence of a joint bank account and a joint income tax return. On appeal, the petitioner contends that the visa petition should be approved because her marriage to the beneficiary is bona fide. The petitioner asserts that her marriage to the beneficiary was not entered into in order to evade the immigration laws, that her sworn statement to that effect was coerced by Service officials when she was not represented by counsel, and that her prior withdrawal of the visa petition does not constitute evidence of a fraudulent marriage. Section 204(c) was added to the Act on October 3, 1965, by section 4 of Pub. L. No. 89-236, 79 Stat. 911, 915 (1965). It provided as follows:

是在1989年3月31日。申请人和受益人于1988年11月23日结婚。 记录显示，申请人最初于1988年12月1日代表受益人提交了直接亲属签证申请。她于1989年1月31日撤回了该申请，并在一份宣誓书中表示，她与受益人结婚是“帮忙，以便他能获得居留权”。申请人在其宣誓陈述中进一步表示，她和受益人住在一起“是为了好看”，但他们并未圆房。 为支持其当前的签证申请，申请人提交了一份新的宣誓书，其中证明她和受益人拥有“基于相互爱慕和感情的真实婚姻”。她还表示，她是被移民局官员胁迫撤回其早先代表受益人提交的申请的。申请人在其较近期的宣誓书中进一步表示，“[处理[受益人]的文件仅仅是我们希望作为夫妻和谐地在美国共同生活的附带事项。”申请人还提交了她母亲的宣誓书，其中表示申请人和受益人的婚姻是真实的，出席了其婚宴的朋友的宣誓书，以及联合银行账户和联合所得税申报表的证据。 在上诉中，申请人主张签证申请应获批准，因为她与受益人的婚姻是真实的。申请人声称，她与受益人结婚并非为了规避移民法，她为此目的所作的宣誓陈述是在她没有律师代理时被移民局官员胁迫作出的，而且她先前撤回签证申请并不构成欺诈婚姻的证据。 第204(c)条于1965年10月3日由Pub. L. No. 89-236第4条，79 Stat. 911, 915（1965年）增补入该法。其规定如下：

This language was intended to prohibit "approval of a petition for an alien whose prior marriage was determined by the Attorney General to have been entered into for the purpose of evading the immigration law." S. Rep. No. 748, 89th Cone., 1st Sess. (1965), reprinted in 1965 U.S.C.C.A.N. 3328, 3341-42 (emphasis added). Section 204(c) was amended by section 4(a) of the Immigration Marriage Fraud Amendments of 1986 ("IMFA"), Pub. L. No. 99-639,

该措辞旨在禁止“批准某外国人的申请，而该外国人的先前婚姻已被司法部长认定是为规避移民法目的而缔结的。”S. Rep. No. 748, 89th Cone., 1st Sess.（1965年），重印于1965 U.S.C.C.A.N. 3328, 3341-42（着重号为后加）。 第204(c)条由1986年《移民婚姻欺诈修正案》（“IMFA”）第4(a)条，Pub. L. No. 99-639，

100 Stat. 3537, 3543 (1986)„2 in two ways. First, the words "or has sought to be accorded," were added after the words "has previously been accorded." Prior to this amendment, section 204(c) did not apply where the alien had not actually been granted an immigration benefit on the basis of his or her marriage, even though it was indubitably fraudulent and even though the alien had sought to obtain such a benefit. If, for instance, the petitioner withdrew the visa petition on being confronted with evidence that the marriage was a sham, the beneficiary was not thereafter barred from deriving an immigration benefit from another marriage or otherwise. The addition of the words "or has sought to be accorded" closed this loophole. There is nothing in the legislative history, however, which suggests that Congress was not still referring to a "prior marriage." See H.R. Rep. No. 906, 99th Cong., 2d Sess. (1986), reprinted in 1986 U.S.C.C.A.N. 5978. IMFA also amended section 204(c) to add a new clause prohibiting the approval of a visa petition if "the Attorney General has deter- mined that the alien has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws." 100 Stat. at 3543. Congress thereby extended the perpetual bar of section 204(c) to cases where an alien had entered, or attempted or conspired to enter, ink, a sham marriage for the purpose of obtaining an immigra- tion benefit, but no benefit was actually sought. Situations such as these could result, for instance, in connection with undercover Service investigations of marriage fraud rings. Again, there was no suggestion that Congress was not still referring to prior marriages. In the case before us, the district director is seeking to interpret section 204(c) as applying where the marriage on the basis of which an immigration benefit is sought is not a prior marriage, but the same marriage which the petitioner has previously sought (unsuccessfully) to establish as bona fide. While the language of section 204(c) is broad enough to carry this interpretation, it ignores the original legislative history, is not necessary to carry out the purposes of section 204(c), and conflicts with other policies contained in the Act. The clear policy of the Act is to allow United States citizens and lawful permanent residents to be united with their alien spouses where the marriage is bona fide. There are cases in which the petitioner files a visa petition on behalf of a spouse, fails for some reason to establish the bona fides of the marriage, files a second visa petition with additional evidence, and on the second try convinces the Service that the marriage is bona fide. Under the district director's interpretation of section 204(c), the

100 Stat. 3537, 3543（1986年）2 以两种方式修订。第一，在“此前已被赋予”之后增加了“或已寻求被赋予”等字。在此修正之前，第204(c)条不适用于该外国人实际上并未基于其婚姻获得移民利益的情形，即使该婚姻毫无疑问是欺诈性的，即使该外国人曾寻求获得此类利益。例如，如果申请人在面对婚姻为虚假的证据时撤回了签证申请，受益人此后并不被禁止从另一婚姻或其他途径获得移民利益。增加“或已寻求被赋予”等字堵住了这一漏洞。然而，立法历史中没有任何内容表明国会不再是指“先前婚姻”。见 H.R. Rep. No. 906, 99th Cong., 2d Sess.（1986年），重印于1986 U.S.C.C.A.N. 5978。 IMFA还修订了第204(c)条，增加了一项新条款，禁止批准签证申请，如果“司法部长已认定该外国人曾试图或共谋为规避移民法目的而缔结婚姻”。100 Stat. at 3543。国会由此将第204(c)条的永久禁止扩展至以下情形：外国人已缔结、或试图或共谋缔结虚假婚姻以获取移民利益，但实际并未寻求任何利益。例如，此类情形可能出现在移民局对婚姻欺诈团伙的卧底调查中。同样，没有任何迹象表明国会不再是指先前婚姻。 在我们面前的案件中，地区主任试图将第204(c)条解释为适用于以下情形：据以寻求移民利益的婚姻并非先前婚姻，而是申请人此前曾（未成功地）试图证明其为真实的同一婚姻。虽然第204(c)条的措辞足够宽泛，可以承载这一解释，但它忽视了最初的立法历史，并非执行第204(c)条目的所必需，且与该法所载的其他政策相冲突。该法的明确政策是允许美国公民和合法永久居民在婚姻真实的情况下与其外国配偶团聚。有些案件中，申请人代表配偶提交签证申请，因某种原因未能证明婚姻的真实性，随后提交带有额外证据的第二份签证申请，并在第二次尝试中使移民局相信婚姻是真实的。根据地区主任对第204(c)条的解释，

petitioner could never have a second chance to establish the bona fides of the marriage. In those cases where the marriage was in fact bona fide, the spouses would be perpetually barred from being united, contrary to well-established immigration policy of the United States. We accordingly conclude that the district director here erred by denying the visa petition pursuant to section 204(c) of the Act. Based upon our further review of the record, though, we find that the ultimate decision to deny the visa petition was correct. In Mauer of Laureano, 19 I&N Dec. 1, 4 (BIA 1983), the Board held that a petitioner who has previously withdrawn a visa petition and admitted that the marriage was not bona fide bears a "heavy burden" of explaining the circumstances surrounding the prior withdrawal. We held further that where a visa petition has once been withdrawn under these circumstances, any subsequently filed visa petition must include: (a) an explanation of the prior withdrawal and (b) evidence supporting the bona fides of the parties' relationship. The petitioner's admissions when she withdrew her first petition that she married the beneficiary as "a favor" and to help him obtain permanent residence, indicate that the petitioner and beneficiary did not intend to establish a life together as husband and wife when they married. See Bark v 51 1 F.2d 1200 (9th Cir. 1975); Matter of McKee, 17 I&N Dec. 332 (MA 1980). We are not persuaded by the petitioner's claim on appeal that she executed her sworn statement to Service officers under duress. The petitioner's general claim of duress is insufficient to retract her detailed admissions as to the fraudulent nature of her marriage to the beneficiary. Moreover, the petitioner has not submitted sufficient objective evidence to substantiate her claim that her marriage to the beneficiary is now bona fide; the letters from acquaintances who allegedly attended the marriage ceremony, as well as the statement from the petitioner's mother and the meager historical evidence submitted, are inadequate to meet the petitioner's "heavy burden" of proving that she and the beneficiary are now residing together as husband and wife. Matter of Laureano, supra; Matter of McKee, supra. We therefore conclude that the district director's decision denying this visa petition was ultimately correct, and the petitioner's appeal will therefore be dismissed. ORDER: The appeal is dismissed.

申请人永远不可能有第二次机会来证明婚姻的真实性。在那些婚姻事实上是真实的案件中，配偶将被永久禁止团聚，这违背了美国既定的移民政策。因此，我们认定，此处的地区主任依据该法第204(c)条拒绝签证申请是错误的。然而，基于我们对记录的进一步审查，我们认定拒绝签证申请的最终决定是正确的。在Mauer of Laureano, 19 I&N Dec. 1, 4 (BIA 1983)中，委员会认定，先前已撤回签证申请并承认婚姻不真实的申请人，负有解释先前撤回相关情况的"沉重负担"。我们进一步认定，在签证申请曾在此类情况下被撤回一次后，任何随后提交的签证申请必须包括：(a) 对先前撤回的解释，以及 (b) 支持双方关系真实性的证据。申请人在撤回其第一份申请时承认，她与受益人结婚是"帮忙"并帮助他获得永久居留权，这表明申请人和受益人在结婚时并不打算作为丈夫和妻子共同建立生活。参见Bark v 51 1 F.2d 1200 (9th Cir. 1975)；Matter of McKee, 17 I&N Dec. 332 (MA 1980)。我们不被申请人在上诉中声称她是在胁迫下向移民局官员签署宣誓陈述所说服。申请人关于胁迫的一般性主张不足以撤回她关于与受益人婚姻欺诈性质的详细承认。此外，申请人未提交足够的客观证据来证实她关于与受益人的婚姻现在是真实的的主张；据称参加了婚礼的熟人的信件，以及申请人母亲的陈述和提交的少量历史证据，都不足以满足申请人证明她和受益人现在作为丈夫和妻子共同居住的"沉重负担"。Matter of Laureano, supra；Matter of McKee, supra。因此，我们认定地区主任拒绝此签证申请的决定最终是正确的，因此申请人的上诉将被驳回。命令：上诉被驳回。

on behalf of the beneficiary. I also agree that she has not established that her marriage to the beneficiary is now bona fide. However, I am persuaded that approval of the petition would be barred by section 204(c) of the Immigration and Nationality Act, 8 U.S.C. § 1154(c) (1988), even if the petitioner could show that her marriage to the beneficiary is now a bona fide relationship. I would first point out that, contrary to the argument made by the majority, my interpretation of the statute would not preclude parties to a marriage from having a second chance to establish the bona fides of the marriage. They should have every opportunity to prove that the marriage was bona fide at its inception. It is only in circumstances in which the parties engaged in a sham marriage with intent to commit fraud under the immigration laws that the beneficiary would be forever barred by section 204(c) from certain immigration benefits. Again, contrary to the position taken by the majority, such a result would not be inconsistent with the policy of our immigration laws of uniting spouses. While that policy is well established, the statute itself bars the application of that policy in the case of an alien who has engaged in a sham marriage under the immigration laws. Such an alien is specifically precluded from benefitting even though he may have subsequently entered into a bona fide marital relationship with a United States citizen or lawful permanent resident. The majority opinion suggests that as a matter of policy an alien who has engaged in a sham marriage should be placed in a more favorable position if he subsequently enters into a bona fide relation- ship with the same spouse, rather than a different spouse. This strikes me as being a rather odd policy. In each case the beneficiary has engaged in a fraudulent scheme. The offense is complete at the time it is committed. The object of the statute appears to be to punish that offense. It is not altered by the subsequent conduct of entering a bona tide relationship. As a matter of policy, I find less reason to extend benefits to parties to a sham marriage who subsequently enter a bona fide relationship with each other than to those who enter bona fide marriages with other persons. In the latter case only the beneficiary has engaged in the fraudulent scheme. In the former situation both the beneficiary and the petitioner have been involved in the fraud. Logically, there is even less reason to look favorably on such marriages than those in which at least the petitioner is innocent of fraud. I conclude from the foregoing discussion that policy considerations provide no sound basis to hold that the beneficiary here should not be subject to the provisions of section 204(c)_ I turn now to consideration of the language of the statute and the effect, if any, of the legislative history. The majority holds that the language of section 204(c) was intended

代表受益人。我也同意她未能证明其与受益人的婚姻现为真实婚姻。然而，我认为即使申请人能够证明其与受益人的婚姻现为真实关系，批准该申请仍将被《移民与国籍法》第204(c)条，8 U.S.C. § 1154(c)（1988年），所禁止。 我首先要指出，与多数意见所提出的论点相反，我对该法规的解释不会排除婚姻双方获得第二次机会来证明婚姻的真实性。他们应当有充分机会证明该婚姻在缔结时是真实的。只有在双方从事假结婚并意图实施移民法下欺诈的情形下，受益人才会因第204(c)条而被永久禁止获得某些移民利益。再者，与多数意见所持立场相反，这样的结果并不违背我们移民法团聚配偶的政策。虽然该政策已牢固确立，但法规本身在外国人从事移民法下假结婚的情况下排除了该政策的适用。该外国人被明确排除在受益之外，即使他此后可能与美国公民或合法永久居民建立了真实婚姻关系。 多数意见认为，作为政策问题，从事假结婚的外国人如果此后与同一配偶而非不同配偶建立真实关系，应处于更有利的地位。这在我看来是相当奇怪的政策。在每种情况下，受益人都从事了欺诈计划。罪行在实施时即已完成。该法规的目的似乎是惩罚该罪行。它不因随后建立真实关系的行为而改变。作为政策问题，我认为向此后彼此建立真实关系的假结婚双方延伸利益，比向与他人建立真实婚姻者延伸利益更没有理由。在后一种情况下，只有受益人从事了欺诈计划。在前一种情况下，受益人和申请人都参与了欺诈。从逻辑上讲，对这类婚姻给予有利看待的理由甚至比至少申请人无欺诈的婚姻更少。 我从上述讨论得出结论，政策考量没有提供可靠依据来认定此处的受益人不应受第204(c)条规定的约束。我现在转而考虑法规的语言以及立法历史的效力（如有）。 多数意见认为，第204(c)条的语言意在

to prohibit the approval of a petition only in the case of an alien whose prior marriage was determined by the Attorney General to have been entered into for the purpose of evading the immigration laws. The majority acknowledges that the underlined language is not contained in the statute itself and that the language of the statute is broad enough to carry the interpretation that I support. However, the majority relies on language in the legislative history of the statute which refers to a prior marriage. Language of the statute, itself, is ordinarily conclusive in the absence of clearly expressed legislative intent to the contrary. Burling- ton N. R.R. Co. v. Oklahoma Tax Comm n, 481 U.S. 454, 461 (1987). The majority has treated the language in the legislative history as being equivalent to language of the statute. It is not. The legislative history can be used only to resolve ambiguities in the statutory language. There are no such ambiguities in section 204(c). Even if one were to find some ambiguity in the language of section 204(c)(1), which refers to an alien having been previously accorded an immigration benefit, section 204(c)(2) contains no such ambiguity. That section bars benefits to an alien if "the Attorney General has determined that the alien has attempted or conspired to enter into a marriage for the purpose of evading the Immigration laws." That language does not contain the word "previously" or any other word that would suggest an intention to restrict the bar under the statute to a prior marriage. The purpose of considering legislative history obviously is to find the intent of Congress in enacting the statute. The courts have wisely restricted the use of legislative histories to those cases in which the language of the statute is ambiguous and the legislative intent is clear. I have already indicated that I do not find the statute to be ambiguous. Moreover, I find that the language in the legislative history relied upon by the majority falls far short of establishing the clear intent of Congress. While the words "prior marriage" were used, there was no discussion or explanation of that language. Its use appears to be casual. The words could easily have been incorporated in the statute, but they were not. In all likelihood it never occurred to the framers of the statute that some parties might enter into a marriage for the purpose of defrauding the United States but subsequently develop a bona fide marital relationship. Finally, the language cited by the majority could very well be construed as an example of how the statute might apply, i.e., to a prior marriage that was entered into to evade the immigration laws. An example contained in the legislative history is not a definitive interpretation of the scope of a statute and does not suggest a clear congressional intent. Pension Benefit Guaranty Corp. v. LTV Corp., 496 U.S. 633 (1990). The legislative history relied upon by the

仅在司法部长认定外国人的先前婚姻是为规避移民法而缔结的情况下，才禁止批准申请。多数意见承认，加下划线的语言并未包含在法规本身之中，且法规语言足够宽泛，可以支持我所支持的解释。然而，多数意见依赖该法规立法历史中提及先前婚姻的语言。 法规本身的语言，在不存在明确表达的相反立法意图时，通常具有决定性。Burlington N. R.R. Co. v. Oklahoma Tax Comm'n, 481 U.S. 454, 461 (1987)。多数意见将立法历史中的语言视为等同于法规语言。并非如此。立法历史只能用于解决法规语言中的歧义。第204(c)条中不存在此类歧义。即使有人认为第204(c)(1)条的语言——该条提及外国人先前曾被给予移民利益——存在某些歧义，第204(c)(2)条也不包含此类歧义。该条禁止向外国人给予利益，如果“司法部长已认定该外国人曾试图或共谋为规避移民法而缔结婚姻”。该语言不包含“先前”一词或任何其他暗示意图将法规下的禁止限于先前婚姻的词语。 考虑立法历史的目的显然在于探求国会在制定该法规时的意图。法院明智地将立法历史的使用限于法规语言存在歧义且立法意图明确的案件。我已表示我认为该法规不存在歧义。此外，我认为多数意见所依赖的立法历史语言远不足以确立国会的明确意图。虽然使用了“先前婚姻”一词，但对该语言没有讨论或解释。其使用似乎是随意的。这些词语本可以轻易纳入法规，但并未纳入。很可能法规的起草者从未想到某些当事人可能为欺诈美国而缔结婚姻，但此后发展出真实婚姻关系。最后，多数意见所引用的语言完全可以被解释为法规如何适用的示例，即适用于为规避移民法而缔结的先前婚姻。立法历史中包含的示例并非对法规范围的确定性解释，也不表明明确的国会意图。Pension Benefit Guaranty Corp. v. LTV Corp., 496 U.S. 633 (1990)。多数意见所依赖的立法历史

majority does not establish any congressional intent, much less an intent that is clear enough to restrict the plain language of the statute. I would hold that the record supports a finding that the parties entered into a sham marriage and that they have not established that their marriage has subsequently become a bona fide one. Further, I would hold that even if they could establish that their marriage is now bona fide, the beneficiary would be barred from the benefits of an approved visa petition under the provisions of section 204(c).

并未确立任何国会意图，更不用说足以限制法规明确语言的明确意图。 我认为记录支持认定双方缔结了假结婚，且他们未能证明其婚姻此后已成为真实婚姻。此外，我认为即使他们能够证明其婚姻现为真实婚姻，受益人也将根据第204(c)条的规定被禁止获得经批准签证申请的利益。