MATTER OF PEREIRA
Decided by Board August 10, 1984
August 10, 1984
Interim Decision #2978
In Section 246 Proceedings
A-19331764
(2)
ON BEHALF OF RESPONDENT: Milton Kramer, Esquire, 11 Commerce Street, Newark, New Jersey 07102
ON BEHALF OF SERVICE: Farel Bond, General Attorney
BY: Milhollan, Chairman; Dunne, Morris, and Vacca, Board Members
This is an appeal from the decision of an immigration judge, dated April 12, 1983, rescinding the respondent‘s prior grant of adjustment of status to that of a lawful permanent resident. The appeal will be dismissed.
The respondent is a 43-year-old native and citizen of Portugal. He last entered the United States on August 29, 1970, as a nonimmigrant visitor. On May 5, 1971, he filed an application for adjustment of status under
The basis for the rescission was the immigration judge‘s finding that the respondent‘s marriage was entered into solely for immigration purposes. In reaching this conclusion, the immigration judge noted the testimony of Barbara Moore that she met the respondent through a friend of hers who had asked her if she was willing to enter into an illegal marriage with the respondent to enable him to “get into” this country. Ms. Moore indicated that she was promised a sum of money for entering into the marriage, with an additional sum to be paid for signing divorce papers 6 months after the marriage ceremony. She stated that she met the respondent 3 to 4 weeks prior to the ceremony and that she met him one other time prior to the ceremony when they had blood tests taken. Ms. Moore further testified that she was told beforehand that she would not have to live with the respondent. She stated that the marriage was never consummated, that she returned to her own home after the marriage ceremony, and that she had no knowledge of where the respondent lived. She noted that she never saw the respondent after the ceremony until the day she was to testify at the rescission hearing.
The immigration judge found the testimony of Ms. Moore, unrefuted by the respondent, to be credible. Based on her statements and the record before him, he concluded that neither of the parties intended to “engage in the normal activities of a married couple.” The respondent‘s status as a lawful permanent resident was accordingly rescinded. The immigration judge further denied the respondent‘s request for relief under
On appeal, counsel for the respondent reiterates his claim, made throughout his rescission hearing, that this case is barred by the 5-year statute of limitations set forth in
We reject the respondent‘s argument that this case is barred by the lapse of over 5 years between the date of the respondent‘s adjustment and the immigration judge‘s adjudication of the matter. The case relied upon by counsel for this contention, Quintana v. Holland, supra, was decided when the regulations governing rescission differed significantly from the regulations now in effect. The differences in regulations have been discussed at some length in two decisions from two courts of appeals, Zaoutis v. Kiley, 558 F.2d 1096 (2d Cir. 1977), and Singh v. INS, 456 F.2d 1092 (9th Cir.), cert. denied, 409 U.S. 847 (1972). In both those cases the courts specifically distinguished Quintana v. Holland, supra. They found that the decision in Quintana (holding that rescission proceedings must have been completed within 5 years) was undermined by the change in regulations and held that under the new regulations, the 5-year time limit prescribed in
In our view, the Second and Ninth Circuits correctly analyzed both the previous and the current rescission regulations and correctly distinguished Quintana v. Holland, supra. Given the significant changes in the procedures for handling rescission cases since the decision in Quintana, we conclude that we are not bound by that case. We find that these rescission proceedings are proper in that the Notice of Intent to Rescind was issued within 5 years of the respondent‘s adjustment. See Matter of Onal, 18 I&N Dec. 147 (BIA 1981, 1983).
We turn next to the merits of this case. Upon a review of the record before us, particularly the statements of the respondent‘s ex-wife, Barbara Moore, we conclude, as did the immigration judge, that the Service has established by clear, unequivocal, and convincing evidence that the respondent‘s marriage was entered into solely for immigration purposes. We have held in the past that an immigration judge‘s findings regarding the believability of witnesses appearing before him are entitled to considerable weight. See Matter of Teng, 15 I&N Dec. 516 (BIA 1975); Matter of S-, 8 I&N Dec. 574 (BIA 1960); Matter of T-, 7 I&N Dec. 417 (BIA 1957). We note that the immigration judge, upon observing the demeanor of Barbara Moore, found her statements regarding the fraudulent nature of her marriage to be truthful. The respondent did not attempt to deny that his marriage was arranged for immigration purposes. Such a marriage is insufficient to confer immigration benefits. See Matter of M-, 8 I&N Dec. 217 (BIA 1958). We conclude that the re
We further reject the respondent‘s claim, made during his rescission hearing, of his eligibility for relief under
As the present respondent was not eligible for adjustment of status, his adjustment was properly rescinded. The appeal, accordingly, will be dismissed.
ORDER: The appeal is dismissed.