ruary 8, 1974, the Service submitted a motion requesting that the Board's order of June 14, 1972 be withdrawn, and that the case be remanded to the Service. The motion will be denied. However, the Board's order of June 14, 1972 will be vacated and another order will be entered dismissing the appeal.

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 section 212(a)(14) of the Immigration and Nationality Act. The applicant's marriage to his citizen spouse was annulled for fraud in the Circuit Court of Cook County at Chicago, Illinois on January 15, 1969 (Exh. 7-C). The decree reads in part as follows:

"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 section 201(b) of the Act and, therefore, was not in possession of a valid immigrant visa at the time of his admission for permanent residence on January 10, 1969 and was excludable under section 212(a)(20). Also, the immigration judge found that the applicant had been improperly exempted from the labor certification requirement of section 212(a)(14) and was excludable on that ground as well.

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 secton 101(a)(13) interpreted by the Supreme Court in the Fleuti case, by its terms, related only to "an alien having lawful permanent residence in the United States."

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 section 101(a)(13) of the Act, the applicant's return to the United States even though after a brief visit, is an "entry." Thus, an adjudication of the applicant's admissibility in exclusion proceedings is proper.

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

that the applicant is excludable for admission under the provisions of section 212(a)(20) and section 212(a)(14) of the Act. After reconsideration of our previous decision, the following order will be entered.

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.

MATTER OF BURGOS

In Deportation Proceedings

A-20354694

A-20353298

Decided by Board April 25, 1975

Under section 287 of the Immigration and Nationality Act, a Service officer is empowered, without warrant to interrogate an alien as to his right to be or remain in the United States, and to arrest an alien illegally here who is likely to escape before a warrant can be obtained. On appeal respondents' counsel contends that it was error not to grant his motion to suppress the evidence which he alleged was the result of an illegal arrest, and that it was also error to refuse him freedom to inspect the Service files relating to respondents, to discover the basis of the arrests; respondents' motion is denied. Where respondents admitted at the hearing that they were not United States citizens, under section 291 of the Act, they had the burden of proving the time, place and manner of entry into the United States. Since they failed to sustain that burden they are presumed to be in the United States in violation of law, and were therefore found deportable by clear, convincing and unequivocal evidence.

CHARGE:

Order: Act of 1952-Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Entry without inspection (Both aliens).

ON BEHALF OF RESPONDENTS:

William H. Oltarsh, Esquire
225 Broadway

New York, New York 10007

This is an appeal from an order of an immigration judge, dated October 25, 1974, finding the respondents deportable as charged (entry without inspection) and denying their applications for voluntary departure. The appeal will be dismissed.

The respondents are husband and wife. The male respondent is 26 years old, a native and citizen of El Salvador, who entered the United States on or about March 14, 1972 without inspection by an officer of the Immigration and Naturalization Service. His wife is 25 years old, also a native and citizen of El Salvador, who entered the United States on or about April 9, 1974 without inspection by an officer of the Immigration and Naturalization Service. Both entries are in violation of section 241(a)(2) of the Immigration and Nationality Act. Each respondent

admitted entry into the United States without inspection by an officer of the United States Immigration and Naturalization Service.

The male respondent admitted (1) alienage (Tr. p. 10); (2) paying $225 to unidentified individuals to gain entry into the United States without inspection (Tr. p. 11). The female alien also admitted that she was an alien (native and citizen of El Salvador), who paid $200 to gain entry into the United States without undergoing inspection by an officer of the Immigration and Naturalization Service (Tr. pp. 11, 13). On the basis of the respondents' admissions, the immigration judge found the respondents deportable and denied their applications for voluntary departure in the exercise of discretion.

On appeal counsel has submitted a brief in which he contends (1) that prior to taking any testimony, he filed a motion to suppress the evidence so as to establish that as a result of the illegal arrest, search and seizure by immigration officers, the Immigration and Naturalization Service derived information showing illegal presence of the respondents in the United States; and (2) that the immigration judge erred in denying the respondents' request under the Freedom of Information Act to inspect the records to discover what basis immigration officers had to detain and seize the respondents.

We find no merit in any of counsel's contentions.

The motion to suppress was properly denied by the immigration judge. One who raises the claim questioning the legality of the evidence must come forward with proof establishing a prima facie case before the Service will be called on to assume the burden of justifying the manner in which it obtained the evidence, Matter of Tang, 13 I. & N. Dec. 691 (BIA 1971); Matter of Wong, 13 I. & N. Dec. 820 (BIA 1971).

Under section 287(a)(1) of the Act, an officer of the Immigration Service is empowered, without warrant, to interrogate any alien, or person believed to be an alien, as to his right to be or remain in the United States. Under section 287(a)(2), an officer may arrest any alien in the United States in violation of any law or regulation regulating the admission, exclusion or expulsion of an alien who is likely to escape before a warrant could be obtained for his arrest.

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The courts have recognized that the detention and apprehension of aliens is a special law enforcement problem, Laqui v. INS, 422 F.2d 807 (C.A. 7, 1970); United States v. Montex-Hernandez, 291 F. Supp. 715 (E.D. Cal. 1968). As the court stated in Montez-Hernandez, supra, ". . . If immigration authorities were unable to question aliens as to their right to be in this country without some independent evidence that they were here illegally, their job would be impossible." In the instant case from the evidence of record it is concluded that the immigration officer was justified in interrogating the male respondent as to his status and in taking the male respondent into custody.