Matter of Kondo (agency decision, February 20, 1980)

Plain-English summary

The Board reconsidered its earlier decision requiring rescission of the respondent's adjustment of status based on a marriage that was not viable at the time of adjustment. The Ninth Circuit had held that a marriage that was legally valid but factually dead could not support rescission. The Board followed that holding because the case arose in the Ninth Circuit and found no evidence that the respondent's marriage was sham or fraudulent from its beginning. It granted the motion and terminated the rescission proceedings.

Decision snapshot

• Cited authority: 8 U.S.C. § 1256
• Outcome: The motion for reconsideration was granted, and the rescission proceedings were terminated.
• Key point: In a Ninth Circuit case, a legally valid but nonviable marriage could not be the basis for rescinding an adjustment of status.

Full text (BIA official public release)

Interim Decision #2781

                             MATTER OF KONDO
                        In Rescission Proceedings

                                  A-19855118

                 Decided by Board February 20, 1980

(1) A marriage legally valid but “factually dead” (nonviable) at the time of the adjust- ment of status cannot be the basis for rescission for cases arising in the Ninth Circuit. Dabaghian v. INS, 607 F.2d 868 (9 Cir. 1979) followed. Matter of Sosa, 15 I&N Dec. 572 (BIA 1976) no longer applied in that circuit. ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: William F. Thompson, III, Esquire Gary Y. Fujiwara, Esquire 925 Bethel Street Trial Attorney Suite 205 Honolulu, Hawaii 96813
BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members

The respondent through his counsel moves the Board to reconsider our decision of August 1, 1978, where we dismissed his appeal ruling that respondent's adjustment of status to that of a lawful permanent resident must be rescinded pursuant to section 246 of the Immigration and Nationality Act, 8 U.S.C. 1256, since it was based upon a marriage that was nonviable at the time of his adjustment. In reaching that result, we relied upon our precedent decision of Matter of Sosa, 15 I&N Dec. 572 (BIA 1976). The pertinent facts in the instant matter were fully stated in our previous opinion and need not be repeated here. For the reasons stated below, the motion will be granted and rescission proceedings terminated. Recently, the United States Court of Appeals for the Ninth Circuit, the circuit in which the instant case arose, has held that a marriage legally valid but “factually dead” (nonviable) at the time of the adjust- ment of status cannot be the basis for rescission. Dabaghian v. INS, 607 F.2d 868 (9 Cir. 1979). We find that case controlling here and must follow its holding in the Ninth Circuit. In that respect, Sosa, is no longer applicable law in the Ninth Circuit on this issue. Furthermore, there is nothing in the record to support a finding that respondent's

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+ Interim Decision #2781

marriage was a sham or fraudulent from its inception. ORDER. The motion is granted and the rescission proceedings are terminated.

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