Matter of Boromand

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In Section 246 Proceedings

在第246条程序中

This is an appeal from a March 5, 1979, order of an immigration judge, rescinding the adjustment of status which had been granted the respondent under section 245 of the Immigration and Nationality Act, 8 U.S.C. 1255. The appeal will be sustained. The respondent is a 29-year-old native and citizen of Iran who last entered the United States on January 10, 1973, as a nonimmigrant student. On August 8, 1973, the respondent married Patricia Seymour, a United States citizen, in. Chicago, Illinois. The respondent's wife filed an immediate relative visa petition on his behalf on January 24, 1974, which was approved on February 23, 1974. On August 7, 1974, the

这是对移民法官1979年3月5日命令的上诉，该命令撤销了依据《移民与国籍法》第245条、8 U.S.C. 1255授予答辩人的调整身份。上诉将获支持。 答辩人是一名29岁的伊朗本土出生公民，最后一次于1973年1月10日以非移民学生身份进入美国。1973年8月8日，答辩人在伊利诺伊州芝加哥与Patricia Seymour结婚，后者是美国公民。答辩人的妻子于1974年1月24日代表其提交了直系亲属签证申请，该申请于1974年2月23日获批。1974年8月7日，

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respondent's status was adjusted to that of a lawful permanent resi- dent based on his marriage to Patricia Seymour. On March 11, 1975, the respondent was notified by the Service of its intention to rescind the adjustment of status granted him on August 7, 1974. The notice of rescission charges that the respondent's adjust- ment of status is subject to rescission under section 246 of the Act, 8 U.S.C. 1256, since at the time of adjustment, the respondent and his wife were not living together in a marital relationship. It further charges that the respondent made false statements concerning his relationship with his wife in order to secure permanent residence in the United States. In his decision rescinding the respondent's grant of adjustment of status, the immigration judge found that although the respondent and his wife had entered into p. lawful marriage, the parties had ceased living together in March 1974, and that no bona fide husband and wife relationship existed at the time, the respondent was granted his adjust- ment of status in August 1974. He found further that the respondent had falsely stated at his August 7, 1974, Service interview conducted in connection with his adjustment application, that he was residing with his wife. Based on the materiality of this misrepresentation, the im- migration judge concluded that the respondent was ineligible for the adjustment of status granted him. See section 212(a)(19) of the Act, 8 U.S.C. 1182(a)(19). On appeal, counsel for the respondent argues that since the respond- ent's marriage was not a fraudulent one, the grant of his adjustment of status cannot now be rescinded based on the marital difficulties of the parties. It is contended that the statements of the respondent and his wife indicating that they were not living together were made in states of anger and rage. Furthermore, it is maintained that a statement made by the respondent on December 18, 1974, in which he averred that he married Patricia Seymour for the sole purpose of obtaining lawful permanent status, was made without the benefit of counsel and that the respondent did not knowingly and intelligently sign the statement. It is argued that the immigration judge erred by admitting this statement into evidence. At the rescission hearing, the respondent testified that he and his wife were living together at the time of his adjustment application in August 1974, and that they continued cohabiting until November 1974. He maintained that his statement to the immigration officer on December 18, 1974, that he and his wife stopped living together in March 1974 was untrue and that he was upset at the time the state- ment was made. In a sworn statement dated December 10, 1974, and at the hearing, the respondent's wife stated that she and the respondent 'eased living together in March 1974. She also testified that she was

答辩人的身份基于其与Patricia Seymour的婚姻被调整为合法永久居民。 1975年3月11日，移民局通知答辩人，其打算撤销1974年8月7日授予他的调整身份。撤销通知指控，依据该法第246条、8 U.S.C. 1256，答辩人的调整身份应予撤销，因为在调整身份时，答辩人与其妻子并未以婚姻关系共同生活。通知还进一步指控，答辩人就其与妻子的关系作出虚假陈述，以获取美国永久居留权。 在撤销答辩人调整身份授予的决定中，移民法官认定，尽管答辩人与其妻子缔结了合法婚姻，但双方已于1974年3月停止共同生活，且在答辩人于1974年8月获得调整身份时不存在真实的夫妻关系。他还进一步认定，答辩人在1974年8月7日就其调整身份申请进行的移民局面谈中虚假陈述其与妻子共同居住。基于该虚假陈述的重大性，移民法官得出结论，答辩人不具备获得授予其调整身份的资格。见该法第212(a)(19)条、8 U.S.C. 1182(a)(19)。 在上诉中，答辩人的律师主张，由于答辩人的婚姻并非欺诈性婚姻，现在不能基于双方的婚姻困难撤销其调整身份的授予。据称，答辩人及其妻子关于他们未共同生活的陈述是在愤怒和暴怒状态下作出的。此外，还主张，答辩人于1974年12月18日作出的陈述——其中他声称与Patricia Seymour结婚的唯一目的是获得合法永久身份——是在没有律师协助的情况下作出的，且答辩人并非知情且明智地签署该陈述。据称，移民法官将该陈述采纳为证据存在错误。 在撤销听证会上，答辩人作证称，在其1974年8月提出调整身份申请时，他与妻子共同居住，且他们继续同居至1974年11月。他坚持称，他于1974年12月18日向移民官员作出的关于他与妻子于1974年3月停止共同生活的陈述不真实，且他在作出该陈述时情绪烦躁。在1974年12月10日的宣誓陈述中以及听证会上，答辩人的妻子称她与答辩人于1974年3月停止共同生活。她还作证称，她

forced to tell the immigration officer that she and the respondent were living together at the time the respondent applied for adjustment because the respondent had threatened her. A friend of the respond- ent's wife verified this information in a sworn statement dated August 13, 1975. Contained in the record are a divorce complaint and counter- complaint filed by the parties in 1974 and 1975, which indicate that they cohabited until on or about February 27,1974. Based upon the demeanor of the witnesses and the inconsistencies of the respondent's statements, the immigration judge found that the respondent's testimony lacked credibility and that the testimony of his wife was worthy of belief. An immigration judge's findings regarding the credibility of witnesses appearing before him are entitled to con- siderable-weight. Matter of Tertg,15 I&N Dec. 516 (BIA 1975); Matter of S—, 8 I&N Dec. 574 (BIA 1964 Furthermore, counsel's contention that the immigration judge erred in admitting the respondent's December 18,1974, statement into evidence is without merit. The officer who took the statement testified that he informed the respondent of his right to counsel (Tr. p. 8). Moreover, we note that there is no right to counsel during the taking of a preliminary statement in the investigation stage. See Matter of Steele, 12 I&N Dec. 302 (BIA 1967); Metter of Argyroe, 11 1&N Dec. 585 (BIA. 1966). There is no indication that the respondent made the statement involuntarily or that he did not under- stand what he was signing. Therefore, we find that the immigration judge properly admitted the statement into evidence. Based on the foregoing evidence, we conclude that the respondent misrepresented the status of his marriage at the time he applied for adjustment of status. The inquiry in this case does not end here however since it must also be determined whether the respondent's misrepresentations regarding his marriage were material in order to render him ineligible for adjustment of status under section 212(a)(19) of the Act. In Matter of S— and B—C—, 9 I&N Dec. 436 (BIA 1960; A.G. 1961), it was held that a misrepresentation under section 212(a)(19) of the Act is material if (1) the alien is excludable on the true facts, or (2) the misrepresentation tends to shut off a line of inquiry which is relevant to the alien's eligibility and which might well have resulted in a proper determination that he, be excluded. The same test of material- ity can be applied to the misrepresentation in this case since an applicant for adjustment of status is placed in the same position as an alien applying for admission to the United States as an immigrant. In Matter of Sosa,15 I&11 Dee. 572 (BIA 1976), we addressed the issue of separation and marriage viability and its relationship to an adjust- ment of status application in the context of the spousal visa petition underlying the adjustment application. That case involved an alie n who had originally been admitted to the United States as a lawf!

被迫告诉移民官员，在答辩人申请调整身份时她与答辩人共同居住，因为答辩人威胁了她。答辩人妻子的一位朋友在1975年8月13日的宣誓陈述中证实了这一信息。记录中包含双方于1974年和1975年提交的离婚起诉书和反诉书，其中表明他们同居至1974年2月27日或前后。 基于证人的举止和答辩人陈述的不一致，移民法官认定答辩人的证言缺乏可信度，而其妻子的证言值得相信。移民法官关于在其面前出庭作证的证人可信度的认定应被赋予相当权重。Matter of Tertg，15 I&N Dec. 516（BIA 1975）；Matter of S—，8 I&N Dec. 574（BIA 1964）。此外，律师关于移民法官将答辩人1974年12月18日的陈述采纳为证据存在错误的主张没有依据。录取该陈述的官员作证称，他告知了答辩人其获得律师的权利（Tr. p. 8）。此外，我们注意到，在调查阶段录取初步陈述期间不存在获得律师的权利。见Matter of Steele，12 I&N Dec. 302（BIA 1967）；Metter of Argyroe，11 1&N Dec. 585（BIA 1966）。没有迹象表明答辩人非自愿地作出该陈述，或他不理解自己签署的内容。因此，我们认定移民法官将该陈述采纳为证据并无不当。 基于上述证据，我们得出结论，答辩人在申请调整身份时虚假陈述了其婚姻状况。然而，本案的审查并未到此结束，因为还必须确定答辩人关于其婚姻的虚假陈述是否具有重大性，从而依据该法第212(a)(19)条使其不具备调整身份的资格。在Matter of S— and B—C—，9 I&N Dec. 436（BIA 1960；A.G. 1961）中，裁定依据该法第212(a)(19)条的虚假陈述具有重大性，如果(1)该外国人在真实事实下应被排除，或(2)该虚假陈述倾向于阻断一条与外国人资格相关且很可能导致正确认定其应被排除的审查线索。同样的重大性检验可适用于本案中的虚假陈述，因为调整身份申请人处于与作为移民申请入境美国的外国人相同的地位。 在Matter of Sosa，15 I&11 Dee. 572（BIA 1976）中，我们在作为调整身份申请依据的配偶签证申请的背景下，讨论了分居和婚姻存续可能性问题及其与调整身份申请的关系。该案涉及一名最初以合法

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permanent resident based on his marriage to a United States citizen and who subsequently sought admission to this country as a returning resident. We found there that since the applicant's marriage to his United States citizen wife was not viable at the time he applied for his immigrant visa and sought admission to the United States, his im- migrant visa was invalid and he was therefore inadmissible to the United States under section 212(a)(20) of the Act, 8 U.S.C. 1182(0(20). This conclusion was based on our finding that the applicant and his wife had ceased living together very shortly after their marriage and that their marriage was "dead" prior to the issuance of the applicant's immigrant visa and his admission to this country as a lawful permanent resident. We stated there that since it was the intent of Congress to exempt alien spouses of United States citizens from the numerical limitations of the Act in order to prevent the separation of families and to preserve the family unit, immigration benefits could not be conferred on the basis of a nonviable or terminated marriage. Our decision in Soso., id., was consistent with our previous decisions which held that a visa petition could only be approved where the petitioner established that he and the beneficiary had entered into a bona fide marriage which is presently viable and ongoing. See Matter of Mintah, 16 I&N Dec. 540 (BIA 1975), modified, Matter of McKee, Interim Decision 2782 (BIA 1980). However, in Matter of McKee, id., we adopted the position expressed in Chan v. Bell, 464 F.Supp. 125 (D.D.C. 1978), wherein it was held that a visa petition filed on behalf of an alien spouse could not be denied solely because the parties to the marriage were no longer living together. Under Chan and McKee, the issue is not whether there is a presently subsisting or "viable" marriage (assuming there is no legal separation or dissolution of the marriage), but rather whether the marriage was entered into for the primary purpose of circumventing the immigration laws. See also Dabaghian v. Civiletti, 607 F.2d 868 (9 Cir. 1979). Therefore, to the extent that Matter of Sosa, supra, holds that an alien seeking admission to the United States as the spouse of a United States citizen or lawful permanent resident may be excluded solely because the marriage upon which such status is based is "nonviable", it is hereby overruled' However, Sosa remains valid precedent to the extent that it stands for the proposition that an alien seeking admission as an immigrant may be found inad- missible if the marriage upon which his visa petition was based has

永久居民，基于其与美国公民的婚姻，随后寻求作为回美居民入境美国。我们在该案中认定，由于申请人与美国公民妻子的婚姻在其申请移民签证并寻求入境美国时并非真实存续，其移民签证无效，因此根据该法第212(a)(20)条、8 U.S.C. 1182(0(20)，其不得入境美国。这一结论基于我们的认定，即申请人与妻子在结婚后不久即停止共同生活，且其婚姻在申请人获得移民签证及作为合法永久居民入境美国之前已经“死亡”。我们在该案中指出，由于国会的意图是使美国公民的外籍配偶免受该法数量限制，以防止家庭分离并维护家庭单元，因此不能基于非真实存续或已终止的婚姻授予移民利益。我们在Soso案（同上）中的裁决与我们此前的裁决一致，即只有在申请人证明其与受益人缔结了真实善意且目前真实存续并持续的婚姻时，签证申请才能获批。见Matter of Mintah, 16 I&N Dec. 540 (BIA 1975)，经修改，Matter of McKee, Interim Decision 2782 (BIA 1980)。然而，在Matter of McKee案（同上）中，我们采纳了Chan v. Bell, 464 F.Supp. 125 (D.D.C. 1978)中表达的观点，该案认定，仅为外籍配偶提交的签证申请不能仅因婚姻双方不再共同生活而被拒绝。根据Chan案和McKee案，问题不在于是否存在目前存续或“真实”的婚姻（假设不存在合法分居或婚姻解除），而在于婚姻是否以规避移民法为主要目的而缔结。另见Dabaghian v. Civiletti, 607 F.2d 868 (9 Cir. 1979)。因此，在Matter of Sosa案（同上）认定寻求作为美国公民或合法永久居民配偶入境美国的外国人可以仅因作为其身份依据的婚姻“非真实存续”而被排除的范围内，该案特此被推翻。然而，Sosa案在以下命题范围内仍为有效先例，即寻求作为移民入境的外国人，如果其签证申请所依据的婚姻已经

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been legally terminated. In keeping with this line of cases, we conclude that in the absence of evidence to support a finding of a fraudulent or sham marriage or evidence showing the legal dissolution of the marriage at the time of the adjustment, the denial of an adjustment of status application or the subsequent rescission of such grant cannot be based solely on the nonviability of the marriage at the time of the adjustment application. In the present case, it does not appear that the respondent married Patricia Seymour for the sole purpose of evading the immigration laws. See Lutwak v. U.S., 344 U.S. 604(1953); Barkv. INS, 511 F.2d 1200 (9 Cir. 1975); Matter of Phillis, Interim Decision 2407 (MA 1975). The parties were married two months after they met. At the hearing, the respondent's wife testified that the parties had a good relationship for the first month of their marriage until the respondent left to attend school in Louisiana. It appears from her testimony that it was only after the respondent returned from Louisiana three months later that the parties' differences surfaced (Tr. p. 34). Subsequent to his return, the respondent and his wife cohabited for a three month period. In a sworn statement dated December 10, 1974, the respondent's wife claimed that the respondent informed her prior to their marriage that his school tuition would be less expensive if he married a United States citizen and became a lawful permanent resident. She further main- tained in that statement that the respondent offered her a Persian rug if she would marry him. At the hearing however, she stated that the respondent gave her the rug after their marriage and that he did not pay her any money for the marriage (Tr. pp. 25, 39). In addition, she maintained that she married the respondent because she loved him (Tr. p. 38). Although the respondent's wife at one time stated that she believed that the respondent had married her in order to obtain immigration benefits, she later testified that she did not think the respondent's immigration problems were his only reasons for mar- rying her (Tr. pp. 34, 35). Based on the facts and circumstances in the present case, we find that the parties entered into a bona fide marriage with the intent of joining together as husband and wife and that the respondent did not marry Patricia Seymour for the primary purpose of obtaining immigration benefits. Based on the foregoing, we conclude that in this particular case the respondent's adjustment of status grant cannot be rescinded based on the charge that he materially misrepresented his living arrangements with his wife at the time of his adjustment application. Since we have concluded that an adjustment application cannot be denied based solely on the nonviability of the marriage at the time of adjustment, the respondent's misrepresentation cannot be considered material in this regard. Furthermore, since we find that the respondent's marriage

已被合法终止。 依照这一系列案件，我们认定，在缺乏证据支持认定存在欺诈或虚假婚姻，或缺乏证据显示在调整身份时婚姻已合法解除的情况下，不能仅以调整身份申请时婚姻非真实存续为由，拒绝调整身份申请或随后撤销该授予。在本案中，看不出 respondent 与Patricia Seymour结婚的唯一目的是规避移民法。见Lutwak v. U.S., 344 U.S. 604(1953)；Barkv. INS, 511 F.2d 1200 (9 Cir. 1975)；Matter of Phillis, Interim Decision 2407 (MA 1975)。双方在相识两个月后结婚。在听证中，respondent 的妻子作证称，双方在婚后第一个月关系良好，直到 respondent 前往路易斯安那州上学。从她的证词看，只是在 respondent 三个月后从路易斯安那州返回之后，双方的差异才显现（Tr. p. 34）。在其返回后，respondent 与妻子共同生活了三个月。在1974年12月10日的宣誓声明中，respondent 的妻子声称，respondent 在婚前告知她，如果他与美国公民结婚并成为合法永久居民，其学费会更便宜。她还在该声明中主张，respondent 提出如果她与他结婚，就给她一块波斯地毯。然而在听证中，她陈述称 respondent 是在婚后给她地毯的，且他没有为婚姻支付她任何钱（Tr. pp. 25, 39）。此外，她主张她与 respondent 结婚是因为她爱他（Tr. p. 38）。尽管 respondent 的妻子一度陈述称她认为 respondent 与她结婚是为了获得移民利益，但她后来作证称她并不认为 respondent 的移民问题是其与她结婚的唯一原因（Tr. pp. 34, 35）。基于本案的事实和情况，我们认定双方缔结了真实善意的婚姻，意图作为夫妻共同生活，且 respondent 与Patricia Seymour结婚并非以获取移民利益为主要目的。 基于上述，我们认定，在本特定案件中，不能基于 respondent 在调整身份申请时对其与妻子居住安排作出重大虚假陈述的指控而撤销其调整身份授予。由于我们已认定不能仅以调整身份时婚姻非真实存续为由拒绝调整身份申请，respondent 的虚假陈述在这方面不能被视为重大。此外，由于我们认定 respondent 的婚姻

454

454

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was not a sham, the respondent's misrepresentations did not cut off a line of inquiry which would have lead to a denial of his adjustment application.' See generally, Matter of S— and B—C—, supra. Accord- ingly, the appeal will be sustained and the proceedings shall be terminated. ORDER: The appeal is sustained. The proceedings commenced pursuant to section 246 of the Act are hereby terminated.

并非虚假婚姻，respondent 的虚假陈述并未切断本会导致其调整身份申请被拒的调查线索。一般见Matter of S— and B—C—案（同上）。因此，上诉将获支持，程序应终止。 命令：上诉获支持。根据该法第246条启动的程序特此终止。