CASTILLO-PINEDA
EXCLUDABLE: Act of 1952—Section 212(a)(20) [
Act of 1952—Section 212(a)(14) [
This is an appeal from a decision of an immigration judge dated November 19, 1969, finding the applicant excludable under the provisions of
The record relates to an unmarried male alien, 27 years of age, who was admitted to the United States for permanent residence at Chicago, Illinois on January 10, 1969. He testified that he departed from the United States on August 7, 1969 for a short vacation in Mexico and returned to the United States on August 17, 1969. He applied for admission as a returning resident alien. His inspection was deferred and on September 3, 1969 he was served with a notice to appear for a hearing before an immigration judge to determine his admissibility to the United States.
The applicant married a citizen of the United States in Cook County, Illinois on July 8, 1968. Based upon this marriage, he obtained an immigrant visa for permanent residence from the American Embassy at Mexico City on January 9, 1969. As the spouse of a United States citizen, he was exempt from the labor certification requirement of
“IT IS ORDERED, ADJUDGED AND DECREED that the marriage between the plaintiff and defendant be and the same is hereby annulled and dissolved, the same as if said marriage ceremony had never been entered into and the same is annulled and dissolved accordingly and the parties are and each of them is freed from the obligation thereof.”
The immigration judge found that since the marriage had been annulled ab initio, the applicant was not an immediate relative within the provisions of
While there is no statute with respect to annulment of marriage, the proceeding for annulment of marriage is recognized by the courts of Illinois, Cardenas v. Cardenas, 12 Ill. App. 2d 497 (1957), 118 N.E.2d 262 (1957). Under the court decisions in Illinois, it is clear that after a decree of nullity a marriage is void ab initio, and not merely from the date of the decree. See People ex rel. Byrnes v. Retirement Board, etc., 272 Ill. App. 59 (1933). To further support the position that an annulment in Illinois renders a marriage void ab initio, the court in Long, v.Long, 15 Ill. App. 2d 276 (1957), 145 N.E.2d 509 (1957), states in part as follows:
“The purpose of an annulment proceeding is to have a marriage which is void or voidable judicially declared void. In such a proceeding the marriage is not recognized, the theory being that no valid marriage ever came into existence (55 C.J.S. Title Marriage. sec. 48, p. 922).”
The doctrine enumerated in Rosenberg v. Fleuti, 374 U.S. 449 (1963), is that an innocent, casual and brief excursion by a resident alien outside the country‘s borders may not have been “intended” as a departure disruptive of his resident alien status and that he, therefore, may not have subjected himself to the consequences of an “entry” into the United States on his return. The pertinent portion of
The applicant‘s immigrant visa (Exh. 4), provided by the Service at the exclusion hearing, shows that the applicant was admitted to the United States as an immigrant on January 10, 1969 at Chicago, Illinois in the nonquota classification IR-1, the spouse of a United States citizen. In order to qualify for admission as a returning resident alien as specifically specified in the statute, it was necessary that (1) the applicant have the status of a lawfully admitted immigrant for permanent residence and (2) that if he had that status, he was returning from a temporary visit abroad. Accordingly, when the immigration inspector had some doubt about this applicant‘s immigrant status, he properly detained him for exclusion proceedings, Matter of Maldonado—Sandoval, supra.
Annulment of the applicant‘s marriage ab initio meant that it was decreed that no valid marriage ever existed. At the time of his original entry into the United States on January 10, 1969, the applicant was not the spouse of a citizen of the United States; and as an alien born in an independent country of the Western Hemisphere, he was not exempt from the labor certification requirement. Hence, the applicant did not acquire lawful permanent residence on January 10, 1969.
Since the applicant was not an alien having lawful permanent residence in the United States, his attempted entry into the United States after a brief absence in Mexico is not within the ambit of Rosenberg v. Fleuti, supra. Under the explicit terms of
Our evaluation of the evidence convinces us that it has been established that the respondent is not a lawful permanent resident alien. We are satisfied that the record supports the immigration judge‘s finding
ORDER: The order of the Board of Immigration Appeals dated June 14, 1972 is vacated.
Further order: The motion for reconsideration and remand to the immigration judge is denied.
Further order: The appeal is dismissed.
Irving A. Appleman, Board Member, abstained from consideration of this case.