Matter of Aldecoaotalora

MATTER OF ALDECOAOTALORA

ALDECOAOTALORA案

Decided by Board July 22, 1983

委员会于1983年7月22日决定

A visa petition filed by a petitioner seeking to accord immigration benefits to her unmarried daughter under section 203(a)(2) of the Immigration and Nationality Act, 8 U.S.C. 1153(a)(2), is properly denied where the beneficiary admitted that she was divorced for the sole purpose of obtaining immigration benefits and continued to reside with and own property jointly with her former husband in what by all appearances is a marital relationship; such a divorce is considered a sham and is not recognized for immigration purposes.

申请人依据《移民与国籍法》第203(a)(2)条、8 U.S.C. 1153(a)(2)，为其未婚女儿寻求移民福利而提交的签证申请，在受益人承认其离婚的唯一目的是获得移民福利，并继续与其前夫共同居住、共同拥有财产，从各方面看均处于婚姻关系之中的情况下，该申请被适当拒绝；此种离婚被视为虚假离婚，在移民目的上不予承认。

By: Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members

由：Milhollan主席；Maniatis、Dunne、Morris和Vacca委员会成员

the beneficiary's own statements made at an interview on May 18, 1982. In her sworn statement, the beneficiary claimed that she was divorced because of irreconcilable differences with her husband, but when ques- tioned regarding those differenees she stated that she needed a green card in order that her children could remain in the United States. She further admitted that she had never stopped residing with her former husband, that they still filet' joint tax returns, and that they -continued to own their home and all other property jointly as community property. The District Director further noted that the employment records of the beneficiary's former husband indicate that he claims to be married with three dependents. In addition, the telephone at the beneficiary's residence is listed in the directory under the name of her divorced spouse. From this evidence and the beneficiary's statements, the Dis- trict Director determined that her divorce was a sham. He further concluded that she could not obtain immigration benefits as an unmar- ried person by virtue of such a divorce. We agree. The legislative history of the Act reflects that the intent of Congress in providing for preference status for unmarried sons and daughters of lawful permanent residents was to reunite with their parents unmarried children who, although not minors, were still part of a family unit. See Matter of Coletti, 11 I&N Dec. 551 (BIA 1965); see also Matter of Lew, 11 I&N Dec. 148 (BIA 1900). By her own admissions, the beneficiary has established that, although divorced from her husband, she has nei- ther severed her relationship with him nor returned to the family unit of her parents. In Gregory v. Helvering , 293 U.S. 465 (1935), the Supreme Court created the sham transaction doctrine in the context of tax law, holding that where such a transaction on its face is outside the plain intent of the statute involved, it should be disregarded because to do otherwise "would be to exalt artifice above reality and to deprive the statutory provision in question of all serious purpose." Id. at 470. See also Commissioner v. Tower, 327 U.S. 280 (1946); Commissioner v. Court Holding Company, 324 U.S. 331 (1945); Boynton v. Commissioner, 649 F.2d 1168 (5 Cir. 1981), cert. denied, 102 S.Ct. 1009 (1982); Davis v. Commissioner, 585 F.2d 807 (6 Cir. 1978), cert. denied, 99 S.Ct. 1789 (1979). Following that decision, the Fourth Circuit Court of Appeals recently determined that tlae sham transaction doctrine may apply to a divorce obtained in order to avoid the "marriage penalty" imposed on married taxpayers if "the parties intended merely to procure divorce papers rather than actually' to effect a real dissolution of their marriage contract." Boyter v. Commissioner, 668 F.2d 1382, 1387 (4 Cir. 1981). There can be no doubt that the beneficiary's sole intention in seeking a divorce was to obtain immigration benefits because she has admitted as much. She has nevertheless continued to live with her former hus-

受益人在1982年5月18日面谈时所作的本人陈述。在其宣誓陈述中，受益人声称她因与丈夫存在不可调和的分歧而离婚，但当被问及这些分歧时，她表示她需要绿卡以便其子女能够留在美国。她进一步承认她从未停止与其前夫共同居住，他们仍然提交联合纳税申报表，并且他们继续作为夫妻共同财产共同拥有其住宅和所有其他财产。地区主任还指出，受益人前夫的就业记录表明他声称已婚并有三名受抚养人。此外，受益人住所的电话在电话簿中以她离婚配偶的姓名登记。根据这一证据和受益人的陈述，地区主任认定她的离婚是虚假离婚。他进一步认定她不能凭借此种离婚以未婚身份获得移民福利。我们同意。 该法的立法历史表明，国会为合法永久居民的未婚子女规定优先地位的意图，是使其与父母团聚，这些未婚子女虽非未成年人，但仍属于家庭单位的一部分。见Coletti案，11 I&N Dec. 551 (BIA 1965)；另见Lew案，11 I&N Dec. 148 (BIA 1900)。根据其本人的承认，受益人已证明，尽管与其丈夫离婚，她既未切断与他的关系，也未回到其父母的家庭单位。 在Gregory v. Helvering，293 U.S. 465 (1935)中，最高法院在税法背景下创立了虚假交易原则，裁定如果此种交易从表面上看超出了所涉法规的明确意图，则应不予考虑，因为否则“将是把人为伎俩凌驾于现实之上，并使所涉法定条款失去一切严肃目的。”Id. at 470。另见Commissioner v. Tower，327 U.S. 280 (1946)；Commissioner v. Court Holding Company，324 U.S. 331 (1945)；Boynton v. Commissioner，649 F.2d 1168 (5 Cir. 1981)，cert. denied，102 S.Ct. 1009 (1982)；Davis v. Commissioner，585 F.2d 807 (6 Cir. 1978)，cert. denied，99 S.Ct. 1789 (1979)。遵循该判决，第四巡回上诉法院最近认定，虚假交易原则可以适用于为避免对已婚纳税人征收的“婚姻惩罚”而获得的离婚，如果“双方仅意图取得离婚文件而非实际实现其婚姻合同的真正解除。”Boyter v. Commissioner，668 F.2d 1382，1387 (4 Cir. 1981)。毫无疑问，受益人寻求离婚的唯一意图是获得移民福利，因为她已如此承认。然而她继续与其前夫共同生活

Interim Decision #2948

临时决定第2948号

banctin what by all appearances is a marital relationship. In so doing she is clearly attempting to thwart the statutory purpose of the Act to unite unmarried children with their lawful permanent resident parents. We therefore agree with the District Director's conclusion that the benefi- ciary's divorce is a sham and that it should not be recognized for immi- gration purposes as qualifying her for preference status under section 203(a)(2) of the Act. Cf. Lutwak v. United States, 344 U.S 604 (1953); McLat v. Longo, 412 F.Supp. 1021 (D.V.I. 1976); Matter of McKee, 17 I&N Dec. 332 (BIA 1980). Accordingly, we shall affirm the decision of the District Director denying the visa petition. ORDER: The decision of the District Director is affirmed.

从各方面看均处于婚姻关系之中。这样做，她显然是在试图阻挠该法将未婚子女与其合法永久居民父母团聚的法定目的。因此，我们同意地区主任的结论，即受益人的离婚是虚假离婚，在移民目的上不应被承认使其符合该法第203(a)(2)条规定的优先地位资格。参见Lutwak v. United States，344 U.S 604 (1953)；McLat v. Longo，412 F.Supp. 1021 (D.V.I. 1976)；McKee案，17 I&N Dec. 332 (BIA 1980)。据此，我们将维持地区主任拒绝签证申请的决定。 命令：地区主任的决定被维持。