Matter of Awwal

Decided by Board April 4, 1988

委员会于1988年4月4日决定

This is an appeal from a decision of the immigration judge, dated October 4, 1983, rescinding the respondent's prior grant of adjust- ment of status. Oral argument was heard before the Board on August 21, 1985. The appeal will be dismissed. The respondent is a 25-year-old native and citizen of Bangladesh. He apparently was paroled into the United States on September 9,

本上诉针对移民法官1983年10月4日的决定，该决定撤销了被申请人先前获准的调整身份。1985年8月21日，委员会听取了口头辩论。上诉将被驳回。 被申请人为25岁孟加拉国国民及公民。他显然于9月9日被假释进入美国，

1972.1 On July 15, 1974, his status was adjusted to that of a lawful permanent resident of the United States. His adjustment was based on his status as the stepchild of his mother's United States citizen husband. See section 101(b)(1)(B) of the Immigration and National- ity Act, 8 U.S.C. § 1101(b)(1)(B) (1982). On August 18, 1975, a notice of intent to rescind was sent to the respondent. The notice alleged that the respondent's mother was separated from her husband at the time his adjustment was granted, and that the respondent therefore did not qualify as the stepchild of a United States citizen at that time. A similar notice was sent to the respondent's mother. Prior counsel of both the respondent and his mother apparently re- sponded to the notices and requested a hearing. A rescission hear ing relating only to the respondent's mother was held, and her ad- justment was ordered rescinded on the ground that her marriage was a sham entered into in order to procure immigration benefits. This Board ultimately upheld the mother's rescission on August 15, 1979. On March 5, 1981, the respondent's parole was terminated, and he was placed in exclusion proceedings, charged with excludability under section 212(a)(20) of the Act, 8 U.S.C. § 1182(a)(20) (1982), as an immigrant not in possession of a valid immigrant visa. Counsel for the respondent filed a trial brief in which it was argued, inter alia, that there was no jurisdiction to hold an exclusion hearing be- cause the respondent's lawful permanent resident status had never been rescinded. The respondent noted that in rescission proceed- ings the Government bears the burden of proving ineligibility for adjustment by clear, unequivocal, and convincing evidence. See, e.g., Waziri v. INS, 392 F.2d 55 (9th Cir. 1968); Matter of Suleiman, 15 I&N Dec. 784 (BIA 1974). At a hearing held on May 18, 1982, counsel reiterated his contention that exclusion proceedings were improper because there had been no rescission proceedings. Be- cause of the complex issues involved, the case was continued by the immigration judge. A further hearing was held on October 4, 1983. On that date, the immigration judge stated that he was conducting a rescission hear- ing. Counsel made a motion to terminate the exclusion proceedings because the respondent had not had his lawful permanent resident status rescinded. The immigration judge again noted that he was conducting rescission, not exclusion, proceedings, so the motion was

1972.1 1974年7月15日，其身份被调整为美国合法永久居民。其调整身份是基于其作为母亲之美国公民丈夫的继子女的身份。见《移民与国籍法》第101(b)(1)(B)条，8 U.S.C. § 1101(b)(1)(B) (1982)。1975年8月18日，一份撤销意向通知被送达至答辩人。该通知指称，在答辩人获准调整身份时，其母亲与其丈夫已分居，因此答辩人当时不符合美国公民继子女的资格。一份类似的通知被送达至答辩人的母亲。答辩人及其母亲的前任律师显然对通知作出了回应并请求听证。仅针对答辩人母亲举行了一次撤销听证，其调整身份被裁定撤销，理由是她的婚姻是为获取移民利益而缔结的虚假婚姻。本委员会最终于1979年8月15日维持了对母亲撤销身份的裁定。 1981年3月5日，答辩人的假释被终止，其被置于驱逐程序之中，依据该法第212(a)(20)条，8 U.S.C. § 1182(a)(20) (1982)，被指控作为未持有有效移民签证的移民而应被驱逐。答辩人的律师提交了一份审理摘要，其中除其他事项外主张，没有管辖权举行驱逐听证，因为答辩人的合法永久居民身份从未被撤销。答辩人指出，在撤销程序中，政府负有以明确、毫不含糊且令人信服的证据证明不符合调整身份资格的责任。见，例如，Waziri v. INS, 392 F.2d 55 (9th Cir. 1968)；Matter of Suleiman, 15 I&N Dec. 784 (BIA 1974)。在1982年5月18日举行的听证中，律师重申其主张，即驱逐程序不当，因为未曾有撤销程序。由于涉及复杂问题，案件由移民法官延期审理。 1983年10月4日举行了进一步听证。在该日，移民法官表示他正在进行撤销听证。律师提出动议要求终止驱逐程序，因为答辩人的合法永久居民身份未被撤销。移民法官再次指出他正在进行的是撤销程序，而非驱逐程序，因此该动议被

found to be premature. Counsel appeared to accede to this. Howev- er, counsel then moved for termination of the rescission proceed- ings because 8 years had passed. since the notice of intent to re- scind was served. It was argued that it would be "inappropriate and unjust" to proceed with rescission after such a long delay. The immigration judge denied this motion, finding no affirmative mis- conduct on the part of the Government. See generally INS v. Hibi, 414 U.S. 5 (1973). The rescission hearing went forward. Following the hearing, the immigration judge issued an oral deci- sion rescinding the respondent's adjustment of status. He found the respondent to be a truthful witness and to be innocent of any wrongdoing. He further found that the respondent and his ex-step- father had a familial relationship during and for some time after the marriage. However, he concluded that because the underlying marriage had been found to be a sham, there had never been a valid marriage under the immigration laws and thus the respond- ent could not obtain immigration benefits through that marriage. He relied fur this holding on our decision in Matter of Tang, 15 I&N Dec. 516 (BIA. 1975). On appeal, the respondent first makes two arguments regarding the propriety of the proceedings. He argues that these are exclu- sion proceedings and the immigration judge was without authority to conduct a rescission hearing in exclusion proceedings. It is alter- natively argued that, because the Immigration and Naturalization Service "abandoned" the rescission proceedings for 8 years, it would be fundamentally unfair and excessively harsh to rescind the respondent's adjustment of status now. The primary focus of the respondent's appeal, however, is on the proper interpretation of Matter of Teng, supra. He contends that under that decision immi- gration benefits are available through a stepparent-stepchild rela- tionship even where the underlying marriage was a sham, so long as there has been active parental interest shown by the stepparent in the stepchild. On appeal, the Service argues first of all that the proceedings are proper. The Service notes that the respondent requested a rescis- sion hearing, and that request was granted. It is further contended on this procedural issue that no prejudice to the respondent has been shown as a result of the delay in holding the hearing. As to the legal issue regarding steprelationships, the Service argues that there can be no steprelationship under section 101(b)(1)(B) of the Act without a valid underlying marriage. Preliminarily, we find that these rescission proceedings are proper. As pointed out by Appellate Counsel for the Service, the re- spondent argued that he should be in rescission, not exclusion pro-

认定为为时过早。律师似乎接受了这一点。然而，律师随后动议要求终止撤销程序，因为自撤销意向通知送达以来已过去8年。其主张，在如此长时间拖延后继续进行撤销将“不适当且不公正”。移民法官驳回了该动议，认定政府方面不存在积极不当行为。一般见INS v. Hibi, 414 U.S. 5 (1973)。撤销听证继续进行。 听证后，移民法官作出口头决定，撤销被申请人的调整身份。他认定被申请人系诚实证人且无任何不当行为。他进一步认定，被申请人与其前继父在婚姻期间及婚姻后一段时间内存在家庭关系。然而，他得出结论，由于基础婚姻已被认定为虚假婚姻，根据移民法从未存在有效婚姻，因此被申请人不能通过该婚姻获得移民利益。他依据本委员会在Matter of Tang, 15 I&N Dec. 516 (BIA. 1975)中的决定作出此裁定。 在上诉中，被申请人首先就程序的适当性提出两项主张。他主张，此系驱逐程序，移民法官无权在驱逐程序中举行撤销听证。其另主张，由于移民与归化局“放弃”撤销程序达8年之久，现在撤销被申请人的调整身份将根本不公平且过于严苛。然而，被申请人上诉的主要焦点在于对Matter of Teng, supra的正确解释。他主张，根据该决定，即使基础婚姻为虚假婚姻，只要继父母对继子女表现出积极的父母关怀，仍可通过继父母-继子女关系获得移民利益。 在上诉中，移民局首先主张程序适当。移民局指出，被申请人请求举行撤销听证，且该请求获准。关于此程序问题，其进一步主张，未证明因延迟举行听证而对被申请人造成损害。关于继亲属关系的法律问题，移民局主张，若无有效的基础婚姻，则不能依《移民与国籍法》第101(b)(1)(B)条存在继亲属关系。 初步而言，我们认定这些撤销程序适当。正如移民局上诉法律顾问所指出的，被申请人主张其应处于撤销程序而非驱逐程

ceedings. The immigration judge agreed with the respondent and a rescission hearing was held. The respondent cannot now complain that a rescission hearing should not have been held. We note that counsel pled to the allegations set forth in the notice of intent to rescind and did not protest that he was not prepared for rescission proceedings. Nor has there been a showing that the respondent was prejudiced by the holding of these rescission proceedings, or by the delay in holding them. Moreover, even if we were to hold that, be- cause of the delay, the proceedings were in some way unfair and should be terminated, that would not result in the end of all pro- ceedings against the respondent. Exclusion proceedings could still be brought. See generally Matter of Belenzo, 17 I&N Dec. 374 (BIA 1980, 1981; A.G. 1981). While the delay in this case is unfortunate, we conclude that the rescission proceedings were properly held. 2 We turn next to the issue which both parties have stated is the paramount one in this case. Simply stated, the question is, can there be a stepchild-stepparent relationship within the meaning of section 101(3)(1)(B) of the Act where the marriage creating the ate- prelationship was a sham from its inception. We agree with the im- migration judge and the Service that the answer is no. In Matter of Tong, supra, a stepfather had filed visa petitions on behalf of his wife's children. His marriage to their mother was sub- sequently determined to be a sham. We held that, "where there is a sham marriage and no actual familial relationship between the stepchildren and the United States citizen stepparent has ever ex- isted, the stepchildren are not entitled to be considered children of a United States citizen for purposes of the Immigration and Na- tionality Act." Id. at 519. The immigration judge relied on this case in finding that, because there was no valid marriage between the

序中。移民法官同意被申请人的意见并举行了撤销听证。被申请人现在不能抱怨不应举行撤销听证。我们注意到，律师对撤销意向通知中提出的事实主张作出了答辩，且未抗议其未为撤销程序做好准备。亦未证明被申请人因举行这些撤销程序或因其延迟而受到损害。此外，即使我们认定，由于延迟，程序在某种程度上不公平并应予终止，亦不会导致针对被申请人的所有程序终结。驱逐程序仍可提起。一般见Matter of Belenzo, 17 I&N Dec. 374 (BIA 1980, 1981; A.G. 1981)。尽管本案中的延迟令人遗憾，我们认定撤销程序系适当举行。2 接下来我们转向双方均称为本案首要问题的问题。简言之，问题是，在创设继亲属关系的婚姻自始即为虚假婚姻的情况下，能否存在《移民与国籍法》第101(3)(1)(B)条意义上的继子女-继父母关系。我们同意移民法官和移民局的意见，答案是否定的。 在Matter of Tong, supra中，继父代表其妻子的子女提交了签证申请。其与子女母亲的婚姻随后被认定为虚假婚姻。我们认定，“在存在虚假婚姻且继子女与美国公民继父母之间从未存在实际家庭关系的情况下，继子女无权被视为《移民与国籍法》意义上的美国公民子女。”Id. at 519。移民法官依据该案认定，由于双方之间不存在有效婚姻，

Interim Decision #3056

临时决定第3056号

respondent's mother and stepmother, the respondent was ineligible for immigration benefits through the stepfather. The Service agrees with this interpretation. The respondent, however, finds that Matter of Teng, .supra, supports his position. He argues that because he did have an actual family relationship with his stepfa- ther, he could obtain immigration benefits through him despite the sham nature of the marriage. We can understand the respondent's view that Matter of Teng, supra, favors his position because it talks of a "sham marriage and no actual familial relationship." Id. at 519 (emphasis added). We are unwilling, however, to adopt that approach now that we are squarely faced with a situation involving not only a sham marriage but also an actual family relationship between the stepparent and child. A steprelationship under section 101(b)(1)(B) of the Act is, of course, based on a marriage, and it seems clear to us that the mar- riage forming the basis for the steprelationship must at some point have been a valid one. Where there is not and never has been a valid marriage, there cannot be a ateprelationship under the immi- gration laws. Thus, a marriage which is a sham from the outset cannot form the basis for a steprelationship under section 101(3)(1)(3). We withdraw from the holding in Matter of Teng, supra, insofar as it may indicate that a sham marriage may form the basis for a steprelationship if there is an actual family relation- ship between the stepparent and stepchild. The respondent cites Matter of Pagnerre, 13 I&N Dec. 688 (BIA. 1971), as support for his position. See also Matter of Mowrer, 17 I&N Dec. 613 (BIA 1981). These cases are clearly distinguishable from the present one, however, since in Pagnerre and Mowrer there had been valid marriages at some point, whereas here there never was a valid marriage. Counsel for the respondent recognizes the potential for fraud if steprelationships based on sham marriages are recognized under the immigration laws. However, he urges us to deal with the prob- lem of fraud, not by adopting a "per se" rule that sham marriages can never form the basis for steprelationships, but rather by plac- ing the burden. of proof on the party seeking to establish the ste- prelationship to show that there is no "sham steprelationship." The respondent's approach would not answer the real problem here: the fact that steprelationships, regardless of any family relationship, must be based on a marriage which has at one time been a valid marriage. A sham marriage is invalid from its inception. See, e.g, Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Romero, 15 I&N Dec. 294 BIA 1975); Matter of M-, 8 I&N Dec. 217 (BIA 958). See generally Lutwak v. United States, 344 U.S. 604 (1953). It

respondent的母亲和继母，respondent无法通过继父获得移民福利。移民局同意这一解释。然而，respondent认为Matter of Teng, .supra支持其立场。他主张，由于他确实与继父存在实际的家庭关系，尽管婚姻具有虚假性质，他仍可通过继父获得移民福利。 我们能够理解respondent的观点，即Matter of Teng, supra有利于其立场，因为该案提到“虚假婚姻且无实际家庭关系”。Id. at 519（着重号为后加）。然而，我们现在不愿采纳该方法，因为我们正直接面对不仅涉及虚假婚姻、还涉及继父母与子女之间实际家庭关系的情形。根据该法第101(b)(1)(B)条，继关系当然以婚姻为基础，而且我们认为，构成继关系基础的婚姻必须在某一时点曾是有效婚姻，这一点似乎很清楚。在不存在且从未存在有效婚姻的情况下，根据移民法不可能存在继关系。因此，自始即为虚假的婚姻不能构成该法第101(3)(1)(3)条下继关系的基础。我们撤回Matter of Teng, supra中的裁判要旨，只要其可能表明：如果继父母与继子女之间存在实际家庭关系，虚假婚姻即可构成继关系的基础。 respondent援引Matter of Pagnerre, 13 I&N Dec. 688 (BIA. 1971)支持其立场。另见Matter of Mowrer, 17 I&N Dec. 613 (BIA 1981)。然而，这些案件与本案明显可区分，因为在Pagnerre和Mowrer中，曾在某一时点存在有效婚姻，而本案中从未存在有效婚姻。 respondent的律师认识到，如果根据移民法承认基于虚假婚姻的继关系，存在欺诈的可能性。然而，他敦促我们处理欺诈问题的方式，不是采纳虚假婚姻永远不能构成继关系基础的“本身”规则，而是将举证责任置于寻求确立继关系的一方，以证明不存在“虚假继关系”。respondent的方法无法回答这里的真正问题：继关系，无论是否存在任何家庭关系，都必须基于曾在某一时点属于有效婚姻的婚姻。虚假婚姻自始无效。参见，例如，Matter of Laureano, 19 I&N Dec. 1 (BIA 1983)；Matter of Romero, 15 I&N Dec. 294 BIA 1975)；Matter of M-, 8 I&N Dec. 217 (BIA 958)。一般参见Lutwak v. United States, 344 U.S. 604 (1953)。它

cannot under any circumstances be the basis of a steprelationship under section 101(b)(1)(B) of the Act. The respondent's eligibility for immigration benefits depended entirely on his mother's marriage to a United States citizen. That marriage has been found to have been a sham, and the mother's own adjustment of status was rescinded because of the fraudulent marriage. Based on our discussion above, that marriage cannot form the basis for the respondent's adjustment of status. His ad- justment was therefore properly ordered rescinded, and his appeal must be accordingly be dismissed.° ORDER: The appeal is dismissed.

在任何情况下都不能成为该法第101(b)(1)(B)条下继关系的基础。 respondent获得移民福利的资格完全取决于其母亲与美国公民的婚姻。该婚姻已被认定是虚假的，且母亲本人的调整身份因欺诈婚姻而被撤销。基于我们上述讨论，该婚姻不能构成respondent调整身份的基础。因此，其调整身份被适当命令撤销，其上诉必须相应驳回。° 命令：上诉驳回。