Matter of Kahy

Interim Decision #3086

临时决定第3086号

The United States citizen petitioner has applied for immediate relative status for the beneficiary as her spouse under section 201(b) of the Immigration and Nationality Act, 8 U.S.C. § 1151(b) (1982). In a decision dated November 17, 1987, the district director denied the visa petition. The petitioner has appealed from that de- cision and requested oral argument. The appeal will be dismissed. The request for oral argument is denied. 8 C.F.E. § 3.1(e) (1988). The petitioner is a 21-year-old United States citizen. The benefici- ary is a 24-year-old native and citizen of Lebanon. The beneficiary entered the United States as a nonimmigrant student on August 9, 1985. He married Colleen M. O'Neill, a United States citizen, on August 8, 1986_ On October 27, 1986, an immediate relative visa pe-

美国公民申请人已依据《移民与国籍法》第201(b)条，8 U.S.C. § 1151(b)（1982），为其配偶受益人申请直系亲属身份。在1987年11月17日的决定中，地区主任拒绝了该签证申请。申请人已对该决定提出上诉并请求口头辩论。上诉将被驳回。口头辩论请求被拒绝。8 C.F.E. § 3.1(e)（1988）。 申请人是21岁的美国公民。受益人是24岁的黎巴嫩本土公民。受益人于1985年8月9日以非移民学生身份进入美国。他于1986年8月8日与美国公民Colleen M. O'Neill结婚。1986年10月27日，一份直系亲属签证申

tition, Form 1-130 (Petition to Classify Status of Alien Relative for Issuance of Immigrant Visa), was filed on the beneficiary's behalf; that visa petition included the name "Colleen M. Kahi" on the sig- nature line. In a sworn statement made to an investigator of the Immigration and Naturalization Service on November 28, 1986, Ms. O'Neill stated that she had agreed to marry the beneficiary in exchange for $1,000 so that the beneficiary could remain in this country-. Ms. O'Neill also stated in her affidavit that she had not filed a visa pe- tition on the beneficiary's behalf, and that the signature on the visa petition filed on October 27, 1986, was not hers. Ms. O'Neill and the beneficiary were subsequently divorced on May 1, 1987. The petitioner and the beneficiary were married on May 9, 1987. On. May 26, 1987, the petitioner filed the instant petition on the beneficiary's behalf. On October 9, 1987, the district director issued a notice to the petitioner that he intended to deny the petition. The petitioner responded to this notice by letter dated October 27, 1987. On November 17, 1987, the district director issued his decision de- nying the visa petition pursuant to section 204(c) of the Act, 8 U.S.C. § 1154(c) (Supp. IV 1986). This appeal followed. Section 204(c) of the Act pravides:

请，即Form 1-130（《为签发移民签证而对外国人亲属身份进行分类的申请》），代表受益人提交；该签证申请在签名行上包含姓名“Colleen M. Kahi”。 在1986年11月28日向移民和归化局调查员作出的宣誓陈述中，O'Neill女士表示她同意与受益人结婚以换取1,000美元，以便受益人能够留在美国。O'Neill女士还在其宣誓书中表示，她未曾代表受益人提交签证申请，并且1986年10月27日提交的签证申请上的签名不是她的。O'Neill女士与受益人随后于1987年5月1日离婚。申请人与受益人于1987年5月9日结婚。1987年5月26日，申请人代表受益人提交了本申请。1987年10月9日，地区主任向申请人发出通知，称其打算拒绝该申请。申请人通过1987年10月27日的信函对该通知作出回应。1987年11月17日，地区主任发布决定，依据《法》第204(c)条，8 U.S.C. § 1154(c)（Supp. IV 1986）拒绝该签证申请。随后提出本上诉。 《法》第204(c)条规定：

Notwithstsmding the provisions of subsection (b) no petition shall be approved if (1) the alien has previously been accorded, or has sought to be accorded, a non- quota or preference status as the spouse of a citizen of the United States or the spouse of an alien lawfully admitted for permanent residence, by reason of a mar- riage determined by the Attorney General to have been entered into for the pur- pose of evading the immigration laws, or (2) 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. Section 204(c) of the Act was amended by the Immigration Mar- riage Fraud Amendments of 1986, Pub. L. No. 99-639, 100 Stat. 3537, which specified that the amended section 204(c) would be ap- plicable "to petitions filed on or after" November 10, 1986. 1 Id. § 4(b),100 Stet. 3543. The district director based his conclusion that the beneficiary had previously entered into a marriage for the purpose of evading

尽管有(b)款的规定，任何申请均不得批准，如果(1)该外国人此前曾因司法部长认定其为逃避移民法目的而缔结的婚姻，作为美国公民的配偶或合法获准永久居留的外国人的配偶，被给予或曾寻求被给予非配额或优先身份，或(2)司法部长已认定该外国人曾试图或共谋为逃避移民法目的缔结婚姻。 《法》第204(c)条经1986年《移民婚姻欺诈修正案》，Pub. L. No. 99-639，100 Stat. 3537修订，该修正案规定经修订的第204(c)条将适用于“在”1986年11月10日“或之后提交的申请”。1 Id. § 4(b)，100 Stet. 3543。 地区主任基于受益人此前曾为逃避目的缔结婚姻的结论

the immigration laws on the statements made by Ms. O'Neill in her affidavit. Ms. O'Neill explained that a "Jake Khoury" had in- troduced her to the beneficiary. in June 1986. She stated that in early August 1986, "Jake" invited her to his house, and she went there and spoke with him and the beneficiary. According to Ms. O'Neill, "Jake" and the beneficiary both told her that they wanted her to marry the beneficiary so that he would not have to return to Lebanon. Ms. O'Neill was then offered $1,000 to marry the benefici- ary, and she agreed to do so. "Jake" and the beneficiary told her never to tell anyone that she had received money for marrying the beneficiary. Ms. O'Neill stated further in her affidavit that on August 8, 1986, "Jake" and the beneficiary gave the $1,000 to her at her mother's house. She was paid before the wedding ceremony, which occurred that same day. Ms. O'Neill stated that, right after the ceremony, she, the beneficiary, and "Jake" went to have photo- graphs taken for the immigration forms that they needed to file. She said that the beneficiary paid for the photographs, which were developed while they waited. Finally, Ms. O'Neill stated that she never resided with the beneficiary at the address which was listed as their shared residence nn the Form I-130. The results of a handwriting analysis which was performed on the first visa petition filed on behalf of the beneficiary are included in the record. The forensic document analyst concludes that Ms. O'Neill did not sign the Form I-130 which was filed with the Serv- ice on October 27, 1986. The analyst also concludes that "it is highly unlikely" that the person who actually signed the form could be identified because the signature is a simulated one. In a statement attached to her Notice of Appeal (Form I-290A), the petitioner makes the following reference to the beneficiary's marriage to Ms. O'Neill:

移民法，依据是O'Neill女士在其宣誓书中作出的陈述。O'Neill女士解释说，一位“Jake Khoury”于1986年6月将她介绍给受益人。她表示，1986年8月初，“Jake”邀请她去他家，她去了那里并与他和受益人交谈。据O'Neill女士称，“Jake”和受益人都告诉她，他们希望她与受益人结婚，以便他不必返回黎巴嫩。O'Neill女士随后被提供1,000美元与受益人结婚，她同意这样做。“Jake”和受益人告诉她永远不要告诉任何人她因与受益人结婚而收到了钱。 O'Neill女士在其宣誓书中进一步表示，1986年8月8日，“Jake”和受益人在她母亲家将1,000美元给了她。她是在婚礼仪式前收到付款的，婚礼于同一天举行。O'Neill女士表示，仪式结束后，她、受益人和“Jake”立即去为他们需要提交的移民表格拍照。她说受益人支付了照片费用，照片在他们等待时冲洗完成。最后，O'Neill女士表示，她从未与受益人居住在Form I-130上所列作为其共同住所的地址。 记录中包含了就代表受益人提交的第一份签证申请所进行的手写分析结果。法证文件分析师得出结论，O'Neill女士没有签署1986年10月27日向服务局提交的Form I-130。分析师还得出结论，“极不可能”识别出实际签署该表格的人，因为该签名是模仿的。 在其上诉通知（Form I-290A）所附的陈述中，申请人对受益人与O'Neill女士的婚姻作出如下提及：

The previous marriage of [the beneficiary] was not entered into in an attempt to evade the law; rather it was entered into because of a strong desire to remain in a free country at peace. He did not and does not want to return to Lebanon due to the war, which he previously fought in, and constant unrest.2 We find the evidence in this case to be clear and convincing that the beneficiary's marriage to Ms. O'Neill was a sham from its in- ception. No evidence has been submitted to rebut Ms. O'Neill's statements that she married the beneficiary so that he could

[受益人]的先前婚姻并非为试图逃避法律而缔结；而是因为强烈希望留在一个和平的自由国家而缔结。他过去和现在都不想因战争——他此前曾参与其中——以及持续动荡而返回黎巴嫩。2 我们认定本案证据清晰且令人信服地表明，受益人与O'Neill女士的婚姻自始即为虚假婚姻。未提交任何证据反驳O'Neill女士关于她与受益人结婚是为了让他能够

remain in this country, that she was paid $1,000 for doing so, and that she never resided with the beneficiary after their wedding ceremony. Accordingly, we conclude that the beneficiary's mar- riage to Ms. O'Neill was "entered into for the purpose of evading the immigration laws." The petitioner asserts in the brief in support of her appeal, how- ever, that her visa petition does not fall within the scope of section 204(0(1) of the Act because Ms. O'Neill did not file a visa petition on behalf of the beneficiary, and thus the beneficiary has not "sought to be accorded" nonquota status by virtue of a fraudulent marriage to a United States citizen. Indeed, the record reflects that Ms. O'Neill did not file a Form 1-130 on the beneficiary's behalf and that the identity of the person who did file that document is not likely to be discovered. The petitioner's argument is stated suc- cinctly in her brief: "Lacking evidence that an 1-130 application had been submitted to the Immigration Service on behalf of the beneficiary by an immediate relative, there can be no finding of disqualification under section 204(c) of the . . . Act." We reject the petitioner's argument, however, for two reasons. First, the district director concluded that the beneficiary had sought to be accorded nonquota status because the beneficiary had submitted an Application for Status as Permanent Resident (Form 1-485). The record reflects that the Form 1-485 was filed simulta- neously with the Form 1-130 that was submitted on behalf of the beneficiary on October 27, 1986. The petitioner has not denied that the beneficiary filed an Application for Status as Permanent Resi- dent, and the district director's conclusion that the beneficiary "sought to be accorded nonquota status" on the basis of his submis- sion of an. 1-485 application is therefore supported by the record. Second, even if there were no indication in the record that the beneficiary had applied for status as a permanent resident, we would not require the Service to prove that the beneficiary's previ- ous spouse was the person who filed the fraudulent Form 1-130 in order for section 204(c)(1) to become applicable. The statute itself does not mention actions taken by United States citizen or lawful permanent resident spouses but instead focuses on aliens who have previously sought to be accorded nonquota or preference status by reason of a fraudulent marriage. We therefore find that a require- ment that the Service establish that a United States citizen spouse actually filed. the Form I-120 is too demanding a test for section 204(c)(1) purposes. We further conclude that where there is evi- dence in the record to indicate that the beneficiary has been an active participant in a marriage fraud conspiracy, the burden shifts

留在该国、她因此获得1,000美元报酬，以及婚礼仪式后她从未与受益人共同居住。因此，我们认定受益人与O'Neill女士的婚姻是“为规避移民法而缔结的”。 然而，申请人在其支持上诉的简报中主张，她的签证申请不属于该法第204(0(1)条的范围，因为O'Neill女士并未代表受益人提交签证申请，因此受益人并未因与美国公民的欺诈婚姻而“寻求获得”非配额身份。事实上，记录显示O'Neill女士并未代表受益人提交Form 1-130，而实际提交该文件的人的身份不太可能被发现。申请人的论点在其简报中表述简洁：“缺乏证据表明直系亲属已代表受益人向移民局提交了1-130申请，就不能根据该法第204(c)条作出不合格的认定。” 然而，我们基于两个理由驳回申请人的论点。第一，地区主任认定受益人曾寻求获得非配额身份，因为受益人提交了永久居民身份申请（Form 1-485）。记录显示，Form 1-485与1986年10月27日代表受益人提交的Form 1-130同时提交。申请人并未否认受益人提交了永久居民身份申请，因此地区主任关于受益人基于其提交1-485申请而“寻求获得非配额身份”的结论得到记录支持。第二，即使记录中没有迹象表明受益人曾申请永久居民身份，我们也不会要求移民局证明受益人的前配偶就是提交欺诈性Form 1-130的人，才能使第204(c)(1)条适用。该法规本身并未提及美国公民或合法永久居民配偶采取的行动，而是着眼于此前因欺诈婚姻而寻求获得非配额或优先身份的的外国人。因此，我们认定，要求移民局证明美国公民配偶实际提交了Form I-120，对于第204(c)(1)条的目的而言是过于苛刻的检验标准。我们进一步认定，当记录中有证据表明受益人曾是婚姻欺诈共谋的积极参与者时，举证责任转移

to the petitioner to establish that the beneficiary did not seek non- quota or preference status based on a prior fraudulent marriage. The record in this case reflects that a visa petition was filed on behalf of the beneficiary seeking nonquota status for him as the spouse of a United States citizen. Although the visa petition was not filed by Ms. O'Neill, the beneficiary's prior spouse, the petition- er has submitted no evidence to establish that the visa petition was filed without the knowledge or approval of the beneficiary. Absent such evidence, we find that the petitioner has failed to rebut the charge that the beneficiary previously sought to be accorded non- quota status based on a marriage entered into for the purpose of evading the immigration laws, and we find that the instant visa pe- tition was properly denied pursuant to section 204(c)(1) of the Act. 3 Because we find no error in the district director's decision deny- ing the visa petition in accordance with section 204(c) of the Act, as amended, the petitioner's appeal will be dismissed. ORDER: The appeal is dismissed.

至申请人，以证明受益人并未基于先前的欺诈婚姻寻求非配额或优先身份。 本案记录显示，有人代表受益人提交了签证申请，为其寻求作为美国公民配偶的非配额身份。尽管该签证申请并非由受益人的前配偶O'Neill女士提交，但申请人未提交任何证据证明该签证申请是在受益人不知情或未经其批准的情况下提交的。缺乏此类证据，我们认定申请人未能反驳关于受益人此前基于为规避移民法之目的而缔结的婚姻寻求获得非配额身份的指控，并认定本签证申请根据该法第204(c)(1)条被适当拒绝。3 由于我们认定地区主任依据经修正的该法第204(c)条拒绝签证申请的决定并无错误，申请人的上诉将被驳回。 命令：上诉驳回。

In Adjustment of Status Proceedings Designated by Commissioner November 15, 1988

调整身份程序 由专员于1988年11月15日指定

This case is before the Legalization Appeals Unit ("LAU") for the second time. The first time the case was certified to the LAU by the director, Western Regional Processing Facility ("WRPF"). The LAU remanded the case to the WRPF to determine whether the applicant's absence from the United States for more than 45 days was due to "emergent reasons." The WRPF concluded that the ab- sence was not due to an emergent reason and denied the applica- tion. The applicant timely filed this appeal. The appeal will be sus- tained. The applicant is a 23-year-old native and citizen of Mexico. She is married to a 29-year-old native and citizen of Mexico. The couple has three children, all of them United States citizens. The appli- cant's husband has been granted temporary resident status under section 245A of the Immigration and Nationality Act, 8 U.S.C. § 1255a (Supp. IV 1986). On May 19, 1987, the applicant filed an Application for Status as a Temporary Resident (Form I-887) under section 245A of the Act. In her application, she stated that she entered the United States without inspection on April 16, 1984). Between January 1, 1982, and May 19, 1987, the applicant stated that she only had one trip out- side the United States. The trip was from "4-84" to. "6-84." It ap- pears, however, that upon examination at the legalization office, an Immigration and Naturalization Service examiner entered the exact dates of the trip. The examiner found that the applicant left the United States on April 16, 1984, and returned on June 13, 1984. Thus, the length of her absence from the United States was for 58 days_

本案第二次提交合法化上诉股（"LAU"）。第一次时，案件由西部地区处理设施（"WRPF"）主任认证至LAU。LAU将案件发回WRPF，以确定申请人离开美国超过45天是否由于"紧急理由"。WRPF认定该离开并非由于紧急理由并拒绝了申请。申请人及时提交了本上诉。上诉将获支持。 申请人是23岁的墨西哥本土出生公民。她与29岁的墨西哥本土出生公民结婚。这对夫妇有三个孩子，均为美国公民。申请人的丈夫已根据《移民与国籍法》第245A条，8 U.S.C. § 1255a (Supp. IV 1986)，获得临时居民身份。 1987年5月19日，申请人根据该法第245A条提交了临时居民身份申请（I-887表格）。在其申请中，她声明她于1984年4月16日未经检查进入美国。申请人声明，在1982年1月1日至1987年5月19日期间，她仅有一次离开美国的旅行。该旅行是从"4-84"至"6-84"。然而，看来在合法化办公室审查时，一名移民与归化局审查员填写了该旅行的确切日期。审查员认定申请人于1984年4月16日离开美国，并于1984年6月13日返回。因此，她离开美国的时间长度为58天。

The immigration examiner at the legalization office, after inter- viewing the applicant, recommended to the director of the WRPF that the application for temporary residence be granted. On August 4, 1987, the director of the WRPF denied the application on the ground that the applicant's absence from the United States had "exceeded the maximum allowable time for a single absence." The director further noted that there was "no evidence in the record to establish that [the applicant's] departure from the United States . . . was of an emergent reason." The director, however, certified his decision to the LAU. On October 15, 1987, the LAU remanded the case to the director, WRPF, to determine whether the applicant's absence from the United States of more than 45 days was due to "emergent reasons." The LAU noted the fact that the examiner at the legalization office had recommended the application be approved. However, the exam- iner did not explain the basis for the recommendation and whether he elicited information which tended to prove the applicant's ab- sence was due to emergent reasons. The LAU asked the director, WRPF, to reinterview the applicant in more detail to determine "the nature of her visit and whether her inability to return within forty-five days was due to emergent reasons." It was also noted that the applicant left from and returned to the same address in the United States. On November 27, 1987, the director, WRPF, issued a decision de- nying the application. The director stated inter alias

合法化办公室的移民审查员在面谈申请人后，向WRPF主任建议批准临时居留申请。1987年8月4日，WRPF主任以申请人离开美国"超过了单次离开的最长允许时间"为由拒绝了申请。主任进一步指出，"记录中没有证据表明[申请人]离开美国……是由于紧急理由。"然而，主任将其决定认证至LAU。 1987年10月15日，LAU将案件发回WRPF主任，以确定申请人离开美国超过45天是否由于"紧急理由"。LAU注意到合法化办公室的审查员曾建议批准该申请。然而，审查员未解释该建议的依据，也未说明其是否获取了倾向于证明申请人离开是由于紧急理由的信息。LAU要求WRPF主任更详细地重新面谈申请人，以确定"其访问的性质以及她未能在45天内返回是否由于紧急理由。"还注意到申请人从美国同一地址离开并返回。 1987年11月27日，WRPF主任发布决定拒绝该申请。主任除其他外声明：

The applicant timely filed a notice of appeal. Section 245A(a) of the Act sets forth the statutory requirements for eligibility for temporary resident status. Among those is the re- quirement that the applicant must prove continuous unlawful resi- dence in the United States before January 1, 1982, and through the date the application is filed. Section 245A(aX2) of the Act. The regu- lations implementing this provision state, inter ails., that the con- tinuous residence requirement is met when

申请人及时提交了上诉通知。 该法第245A(a)条规定了获得临时居民身份资格的法定要求。 其中包括一项要求，即申请人必须证明在1982年1月1日之前并直至 提交申请之日，其在美国持续非法居留。该法第245A(aX2)条。实施 该条款的法规规定，除其他事项外，当满足以下条件时，即符合 持续居留要求：

status is filed, unless the alien can establish that due to emergent reasons, his or her return to the United States could not be accomplished within the time period allowed. 8 C.F.R. § 245a.1(c)(1)(i) (1988) (emphasis added). Thus, we must determine here whether the applicant's absence of 58 days, 13 days more than permitted by the regulations, was because of an "emergent reason." This term is not defined in the regulations. In seeking to interpret and apply this terra we are mindful of congressional intent "that the legalization program should be implemented in a liberal and generous fashion, as has been the historical pattern with other forms of administrative relief granted by Congress." H.R. Rep. No. 682(I), 99th Cong., 2d Sess. 72, reprinted in 1986 U.S Code Cong. & Admin. News 5649, 5676. Congress also expected "INS to incorporate flexibility into the standards for legalization eligibility." Id. at 73. The Immigration and Naturalization Service has adopted the def- inition. found in Webster's II New Riverside University Dictionary where the word "emergent" is defined as "coming unexpectedly into being." 1 The application of this definition requires us to ex- amine on a case-by-case basis the reasons why an applicant re- mained abroad longer than the prescribed period. The record in this case indicates that when the applicant was reinterviewed to explain her absence, she stated she only intended to stay in Mexico for 30 days. However, because she was staying on a ranch distant from a town, a letter from her husband enclosing money for her return trip to the United States was delayed. The Service examiner who reinterviewed her noted in the record that the applicant "has the letter from her husband showing when he mailed it and how long it took to get to her." The credibility of the applicant has not been questioned. Based on the record before us, we must conclude that she planned to stay in Mexico for 80 days, but the unexpected delay in receiving the money from her husband caused her to be absent from the United States for 58 days. In summary, her inability to return within the time allowed was because of an emergent reason. ORDER: The appeal is sustained. The application is approved.

身份申请提交之日，除非该外国人能够证明由于紧急原因，其 返回美国无法在允许的时间期限内完成。 8 C.F.R. § 245a.1(c)(1)(i) (1988)（着重号为原文所加）。 因此，我们必须在此确定，申请人离开58天（比法规允许的时间多13天） 是否是因为“紧急原因”。该术语在法规中未作定义。在寻求解释和适用该术语时，我们 注意到国会的意图，即“合法化计划 应以宽松和慷慨的方式实施，正如国会授予的其他形式的行政 救济的历史模式一样。”H.R. Rep. No. 682(I), 99th Cong., 2d Sess. 72, reprinted in 1986 U.S Code Cong. & Admin. News 5649, 5676。国会还期望“移民局将灵活性纳入 合法化资格标准中。”同上，第73页。 移民和归化局采用了 《韦氏第二版新河滨大学词典》中的定义，其中“emergent”一词被定义为“意外 产生”。1 适用该定义要求我们 根据个案情况审查申请人为何 在国外停留超过规定期限。本案记录表明，当申请人被再次面谈以 解释其离开时，她表示她只打算在墨西哥停留30天。然而，由于她住在 远离城镇的牧场，她丈夫寄来供她返回美国旅费的信件被延误了。重新面谈她的 移民局审查员在记录中指出，申请人“有她丈夫的信件，显示他何时寄出以及 到她那里花了多长时间。” 申请人的可信度未受到质疑。基于 我们面前的记录，我们必须得出结论，她计划在墨西哥停留80天，但收到 丈夫汇款的意外延误导致她离开美国58天。总之，她无法在允许的 时间内返回是因为紧急原因。 命令：上诉获准。申请获批。