MATTER OF NETO/DOMINGOS In Deportation Proceedings A-31192232 Decided by Board May 22, 1975 When deportation is sought under the charge of violation of section 241(a)(2) and 241(c) of the Immigration and Nationality Act, based on the existence of fraud at the time the marriage was contracted, the Service is entitled to the presumption of fraud when the marriage entered into less than two years prior to entry was terminated by divorce less than two years after entry. However, that presumption is overcome when the respondent establishes that there was in fact a valid marriage not entered into for immigration purposes, even though at the time of obtaining his visa there was no subsisting marriage. The respondent's appeal is sustained and the proceedings terminated. CHARGE: Order: Act of 1952-Section 241(a)(2) and 241(c)(1251(a)(2) and 1251(c))—In the United States in violation of law-obtained visa by fraud based on marriage entered into less than two years. ON BEHALF OF RESPONDENT: John E. Bassett, Esquire 12402 A West Dixie Highway N. Miami, Florida 33161 In a decision dated April 18, 1974, the immigration judge found the respondent deportable under section 241(c)(1) of the Immigration and Nationality Act and ordered him deported to Brazil. The respondent has appealed from that decision. The appeal will be sustained, and the proceedings will be terminated. The alien respondent is a native and a citizen of Brazil. He was admitted to the United States for permanent residence on April 4, 1973, with a visa issued on the basis of his classification as the immediate relative spouse of a United States citizen. In order to establish deportability under section 241(c)(1) of the Act, the Service must show by clear, convincing, and unequivocal evidence that (1) the respondent's marriage took place less than two years prior to his entry into the United States, and (2) the marriage was judicially terminated within two years after entry. If the Service establishes the foregoing, it is entitled to the statutory presumption that the visa was procured by fraud. The burden under section 241(c)(1) then shifts to the respondent to establish by a preponderance of the evidence that the marriage was not entered into for the purpose of evading the immigration laws. Matter of Oliveira, 13 I. & N. Dec. 503 (BIA 1970). The evidence shows that the respondent married a United States citizen, a fellow hotel employee whom he had known for about six months, in February 1972. They lived together as husband and wife and worked together at various hotels; the respondent worked as a waiter, and his wife as a waitress and in the office. Various marital disagreements arose, evidently stemming from the respondent's domineering nature and his belief that his wife was going out with other men. In October 1972, the respondent's wife abandoned him after informing him that she did not wish to live with him any longer. Thereafter, the respondent became friendly with Elsa Patricia Garaycochea. In October 1973, the respondent obtained a divorce from his United States citizen wife in New York on the ground of abandonment. He married Elsa Patricia Garaycochea in November 1973. The Service has established that it is entitled to the presumption of fraud contained in section 241(c)(1). However, we find that the respondent has sustained his burden of establishing by a preponderance of the evidence that his marriage to a United States citizen was not entered into for the purpose of evading any provision of the immigration laws. Consequently, the respondent's deportability under section 241(c)(1) has not been established, and the proceedings will be terminated. The Service devoted a large portion of its case to attempting to show that there was no subsisting marriage between the respondent and his citizen wife at the time he obtained his immigrant visa. Nevertheless, we do not believe that this fact is determinative when a charge related to a marriage contracted (entered into) for the purpose of evading the immigration laws is brought under section 241(c)(1) of the Act. See Matter of Oliveira, supra; Matter of T—, 7 I. & N. Dec. 417 (BIA 1957); Matter of V-, 7 I. & N. Dec. 460 (BIA 1957). The immigration judge's decision was incorrect. The appeal will be sustained, and the proceedings will be terminated. ORDER: The appeal is sustained, and the proceedings are terminated. Warren R. Torrington, Board Member, dissenting without opinion, would remand the matter to the immigration judge to enable the Service to lodge a proper charge. MATTER OF KWONG In Visa Petition Proceedings A-19406534 Decided by Board May 27, 1975 The United States citizen petitioner was the legitimate child of the father of the beneficiary for whom she sought preference classification as her brother under section 203(a)(5) of the Immigration and Nationality Act. Beneficiary was born to the petitioner's father and his concubine in Hong Kong. Beneficiary could not be considered legitimate under Hong Kong law unless the father's concubine occupied the status of a tsip. In order to acquire such status, the concubine must enter the household of the man and his principal wife and become a member of the family with a position subordinate to that of the wife. Where the mother of the beneficiary never accepted a position subordinate to that of the principal wife in the husband's household, the mother of the beneficiary did not acquire the status of a tsip and the beneficiary is not a legitimate child of the petitioner's father. Therefore, beneficiary is not entitled to fifth preference classification. ON BEHALF OF PETITIONER: Haskell R. Barst, Esquire Barst & Mukamal New York, New York 10038 This is an appeal from the District Director's denial of a visa petition filed to accord the beneficiary the status of brother of a United States citizen. The petitioner, a naturalized United States citizen who was born in China in 1926 is the daughter of Kwong-Tong and his wife Lee Souk Fun. The beneficiary, who was born in Hong Kong on November 23, 1933, is the child of Kwong-Tong and another woman, Leung Chiu Yee. Kwong Tong, the father of both parties, was married to the petitioner's mother in China during 1918. According to an affidavit by the petitioner's mother, her husband took Leung Chiu Yee as a concubine in Hong Kong sometime during 1929. Lee Souk Fun was in Hong Kong at the time, but did not learn of the concubine until a few months later. The wife returned to the native village shortly thereafter. The two women never lived in the same household. From 1929, until his death in 1946, the husband resided with the concubine in Hong Kong. During the period, he occasionally visited his wife and daughter (the petitioner) in the native village. The petitioner claims that the beneficiary is the legitimate son of her father and his concubine. We look to the law of Hong Kong, the place of the beneficiary's birth, to determine whether the beneficiary was legitimate. In Matter of Kwan, 13 I. & N. Dec. 302 (BIA 1969), we noted that the law of Hong Kong, recognizing the old Chinese law of 1843, acknowledges the institution of concubinage and the legitimacy of the off-spring of relationships with concubines. However, according to the White Paper on Chinese Marriages in Hong Kong, prepared by the Colonial Secretariat, Hong Kong, May 1967, the term concubine can mean either a secondary wife (tsip), who thought inferior in status to the principal wife, has definite marital and material rights, or it can mean a mistress with no lawful standing. The paper states: "Many if not most of the so-called concubines in Hong Kong belong to the second category." (p. 19). Only the children of concubines with lawful standing and marital rights would be deemed legitimate. We are in receipt of a report dated April 17, 1974 from the Library of Congress concerning the criteria for determining the status of concubines. The report informs us that in order to establish the status of tsip: "... there must be intention on the part of the paterfamilias to acknowledge the woman as his lifelong companion, with a position in the family as second only to that of the wife, and on the part of the concubine, there must be intention to enter the family of the paterfamilias and to become a member of his family with a position subordinate to that of the wife. These conditions, it was stated, must be present before the woman can be a legitimate concubine of the paterfamilias." In view of the Library of Congress Report, we find that in order to have the status of tsip, the concubine must enter the household of the man and his principal wife. Accordingly, we recede from that portion of Matter of Kwan, supra, in which we stated: "Where, as here, there has been the creation of a household and the support of the concubine and her children, and the maintenance of such a relationship over a period of time, we believe the courts of Hong Kong would find that concubinage exists." at page 305. In Kwan we approved a visa petition filed by a father on behalf of daughters by a concubine, whom he maintained in Hong Kong in a separate household from his wife. In the case presently before us, we find that because the mother of the beneficiary never accepted a position subordinate to the principal wife in the household of the man and his principal wife, the mother of the beneficiary did not acquire the status of tsip. Therefore, we find that the beneficiary is not a legitimate child of the petitioner's father. Accordingly, the beneficiary is not entitled to benefits under the immigration |