Matter of T-----

to that period.

(1) Adjustment of status acquired pursuant to section 245 of the 1952 act based on marriage to United States citizen and claim to nonquota status under section 101(a) (27) (A) of the act will not be rescinded where evidence fails to establish subject's lack of bona fide intent to enter into valid marital relationship, notwithstanding divorce obtained by citizen spouse on ground of desertion about 2 years later. (2) Action taken by district director on June 3, 1958, rescinding adjustment

of status acquired on June 11, 1953, was timely, although appellate rights pieser,u for alien prevented final disposition of case within the 5-year period of limitation provided by the statute.

AcTioN: Proceedings under section 246(a) of the Immigration and Nationality

Act and 8 CFIZ 246 to revoke adjustment of status granted under section 245 of the act.

BEFORE THE ASSISTANT COMMISSIONER

Discussion: On December 31, 1952, the subject filed applica- tion for adjustment of status to that of an alien lawfully admitted for permanent residence pursuant to section 245 of the Immigration and Nationality Act which was granted on June 11, 1953. On June 3, 1958, the District Director at Chicago, Illinois, pursuant to sec- tion 246 of the act, ordered that the adjustment of the alien's status be rescinded on the ground that the marriage which formed the basis of the alien's claim to nonquota status under section 101(a) (27) (A) of the act upon which his application was predicated was not a stable, enduring, and bona fide relationship. From that order the alien appealed to the Regional Conunissioner, St. Paul, Minne- sota, who has certified the case to the Assistant Commissioner, Ex- aminations Division. Section 246(a) of the act provides that if at any time within 5 years after the status of a person has been otherwise adjusted under

the provisions of section 245 or 249 of the act or any other provision

of law to that of an alien lawfully admitted for permanent resi-

dence, it shall appear to the satisfaction of the Attorney General

that the person was not in fact eligible for such adjustment of

status, the Attorney General Audi receind the action taken granting

adjustment of status to such person and cancelling deportation in

the case of such person, if that occurred, and the person shall there-

upon be subject to all provisions of the act to the same extent as if

the adjustment of status had not been made.

As set out above, the subject's application was granted on June

11, 1953, and ordered rescinded on June 3. 1958. The district direc-

tor is the official to whom the Attorney General's authority under

section 246 has been delegated. The entry of his order on June 3,

1958, tolled the 5-year period of limitation provided by that section notwithstanding that the appellate rights to which the alien is en-

titled have prevented final disposition of this case within the 5 years_

To be eligible for adjustment of status under section 245 of the

act an applicant must be admissible to the United States for perma-

nent residence under the act and a quota or nonquota immigrant

visa must be immediately available to him both at the time of appli-

mtion and at the time the application is approved.

The evidence of record establishes that the alien was married by

civil ceremony at Chicago, Illinois, on December 10, 1952, to a

native-born citizen of the United States. The marriage was termi- nated on February 8, 1955, by an uncontested divorce obtained by

the wife on the ground of desertion. The sole question to be re-

solved is whether the subject entered into a valid marital relation-

ship in good faith or whether the marriage was fraudulent in that

it was contracted solely for the purpose of establishing a basis for

adjustment of his immigration status as a nonquota immigrant. If

the marriage - Wee a fraudulent one he would not have been eligible

for such adjustment (Lutwak v. United States, 344 U.S. 604; United

States v. Rubenstein, 151 F.2d 915). However, in view of his pro-

fessional standing of surgeon, he could presumably have qualified

for adjustment as a quota immigrant inasmuch as numbers under

the first preference portion of the quota for Greece to which he

would have been chargeable were available (Report #1, January

13, 1953, and Report #5, May 29, 1953, Visa Office, Department of

State).

The evidence establishes that the parties first met each other some-

time in September of 1952 and that thereafter the parties met at

various times, resulting in a marriage by civil ceremony at Chicago,

Illinois, on December 10, 1952. According to the wife's statement,

subject proposed to her after a few dates, but she kept putting him

off until the parties were officially engaged on December 6, 1952.

When plans for a marriage in a church were discussed, subject told

her that there would be no time for it, that his visa would expire on

December 26, 1952, and that he would be forced to go back to Greece

on such date unless his marriage to her took place. According to

her statement, subject at that time furthermore stated that she

should not get the wrong idea about the haste or the p6Ssibility of

his being deported but that he felt the marriage should take place

immediately if he was to remain in the United States. The mar-

riage was not entered into by her for the purpose of helping him

remain in tlm United States_ In the gESITIP statement of November

12, 1954, the wife alleged that in July 1953 subject stated that he

never loved her; that he was in love with his common-law wife who

resided in Greece; and that the 01117 reason for the marriage was

the desire of subject to evade the immigration laws and remain in

the United States. Subject has stated that he did not marry his

wife so that he could remain in the United States permanently but,

on the other hand, that the marriage took place because he thought

she was the right girl to have as his wife.

Subject claims that the marriage was consummated and that this

occurred when visite were made by him and he wife to the home of

the wife's parents or the home of subject's sister. He admitted,

however, that it was the custom among the older Greek people that

without a church marriage, a civil ceremony was not considered to

be a valid marriage, although the younger set took a different view

and that he considered himself married by the civil ceremony. On

the other hand, the wife insists that the marriage was never con-

summated and that it was agreed beforehand that the marriage was

not to be consummated until after the church wedding Her state-

ment is supported by the finding of the court in the divorce pro- ceedings in its order granting her a divorce wherein it is stated that

the marriage was never consummated. While subject did not testify

in the divorce proceedings, personal service of the summons was

made and he was represented by an attorney. Furthermore, in sup-

port of the wife's statement of non-consummation are certifications

by 2 physicians as to the wife's physical condition. The parties

never actually lived together with each other as husband and wife

in a home of their own and subsequent to their marriage met each

other either at the home of the wile's parents or at the home of sub-

ject's sister. Apparently, shortly after their marriage, a dispute

arose as to the church ceremony with reference to whether or not

the marriage should take place according to the Roman Catholic or

the Greek Orthodox faith. Subject claims that as a result of the

interference of the wife's mother, discord resulted and consequently

the church ceremony never took place and a divorce resulted. The

wife on the other hand claims that the church ceremony did not

take place for various reasons, one of the reasons given was that subject admitted he was in love with a woman in Greece with whom he had lived as common-law husband and wife for 3 years. In any event, the parties could not got together and divoree action resulted. Proceedings under section 216 of the act for rescission of adjust- ment of status on the ground offered in this case arc analagous to deportation proceedings brought under section 241(c) of the act. In such proceedings it has been consistently held that the respondent has the burden of showing that his marriage to a citizen was not contracted for the purpose of evading the immigration laws; the Government has the burden of establishing that its case rests upon reasonable, substantial and probative evidence (Matter of 1- A-10316169, 7 I. & N. Dec. 460; Matter of T—, A-6605'228, 7 I. & N. Dec. 417; Matt,,- of 21! , A 10404027, 7 I. & N. Dee. col). As in other cases of this type, the facts regarding the difficulties between the parties are in dispute. Based on the evidence of record, it appears that no consummation took place. However, this fact by itself does not warrant a conclusion that a valid marriage was not entered into. It is only a factor to be considered in determining the bona fides of the marriage (Matter of M , supra). Subject has denied that he entered into the civil marriage for the purpose of becoming a permanent resident of the -United States. The testimony of the wife is conflicting as to the intent of subject in entering into the marriage. There was disclosure to her of subject's immigration status prior to their marriage and there was no conspiracy by both parties to evade the immigration laws. Her testimony indicates a meeting through mutual acquaintances, a period of courtship, and a desire of the subject to marry her in order to establish a marital relationship. The only evidence in the case that the marriage was entered into to evade the immigration laws is the wife's statement that in July 1953 subject admitted that this was his sole purpose in marrying her. This statement by her, by itself, in light of the other evidence of record, is insufficient to establish a willful attempt by subject to enter into the marital relationship for the purpose of adjusting his immigration status. It is, therefore, concluded that the marriage relationship entered into by subject was made with a bona fide intent to enter into a valid marital relationship and, con- sequently, there was no fraud in connection with subject's applica- tion for adjustment of status under section 245 of the Immigration and Nationality- Act. This conclusion is further buttremed by the fact that the alien could have adjusted status as a quota immigrant as previously indicated. Therefore, the appeal will be sustained. Order: It is ordered that the subject's appeal be sustained.