The instant annulment was procured in Maryland. However, we were unable to find any specific Maryland cases as to whether such marriages are declared void as to the date of decree or relate back so as to render the marriage void ab initio.15 However, it is interesting to note that in the neighboring District of Columbia a decree of annulment of a marriage, the consent to which of either party has been procured by force or fraud, is void from the time its nullity is declared by decree, as distinguished from those cases in which the marriage is void ab initio.16

On the basis of the discussion set forth above, and in view of the fact that a prior proceeding, predicated on section 241 (c) of the Immigration and Nationality Act on a charge of visa procured by fraud on the basis of a marriage entered into less than 2 years prior to such entry which marriage was judicially annulled within 2 years subsequent to entry, was terminated, we are not prepared to sustain the present charge unless it is predicated upon a showing of fraud necessary to sustain the section 241 (c) ground. We note that the present proceeding contains the full complaint and findings in the annulment matter which were not present in the previous proceedings. We also note that the former wife was not called as a witness in either proceeding. We do not speculate whether such evidence would be sufficient to sustain a charge under section 241 (c) of the Immigration and Nationality Act. In the absence of evidence of fraud sufficient to sustain a charge under section 241 (c), we will not sustain a section 241 (a) charge which is bottomed on the same fraud and deception.

Order: It is ordered that the proceedings be terminated.

15 Osborne v. Osborne, 134 A. 2d 436, decided in the Municipal Court of Appeals, D.C., merely holds an annulment may be granted for fraud going to the essence of the marriage relationship.

16 Matter of R

4 I. & N. Dec. 345, referring to section 30-103 (14:3) of the Code of the District of Columbia.

MATTER OF PAA PLANE "FLIGHT 896/10"

In FINE Proceedings

HHW-280.28

Decided by Board December 2, 1959

Fine-Section 273 of 1952 act-Liability is incurred when alien seeking TRWOV privilege lacks valid passport.

Carrier presenting passenger for admission in transit without visa (TRWOV) who is not in possession of passport or other document authorizing her entry into country beyond United States as required by section 238 (d) agreement, is held liable to fine under section 273 of the 1952 act. IN RE: PAA Plane "Flight 896/10," which arrived at Honolulu, Hawaii, from foreign on May 10, 1959. Alien passenger involved: B-F—H—

BEFORE THE BOARD

Discussion: This appeal is directed to an administrative penalty of $1,000 which the District Director at Honolulu has ordered imposed on Pan American World Airways, Inc., owners of the abovedescribed aircraft. The specific violation charged is bringing to the United States from a place outside thereof the above-named alien passenger who was not in possession of an unexpired visa and was not exempt from the presentation of same. The appeal will be dismissed. There is no dispute as to the basic facts of this case. This female alien passenger, a native of England and a British subject, arrived aboard the above-described aircraft on a flight from Nadi, Fiji. She was not in possession of any type of visa valid for admission into the United States, and was presented by the carrier for admission in transit without a visa (TRWOV). She presented an unrenewed New Zealand passport with an expiration date of January 9, 1959. It contained the following endorsement: "This passport should not be renewed unless evidence of the holder's birth in England is produced." Her passport listed the passenger's birthplace as England and Form I-94 listed her home address as England. She stated that she was destined to England, and her ticket showed that she was booked to depart from Seattle, Washington, for England on May 11, 1959, the day following her arrival in Honolulu. Under these circumstances, and due to the fact that the passenger appeared to be somewhat senile and completely puzzled concerning

her situation, she was paroled to continue her trip and she apparently departed from the United States, as per schedule.

The carrier admits that it brought the passenger to the United States, as above, and that she did not possess an unexpired visa or valid passport. However, it contends that she was not required to have a valid visa inasmuch as she was presented as a TRWOV, pursuant to section 238 (d) of the Immigration and Nationality Act (8 U.S.C. 1228). It argues that since she was in possession of a New Zealand passport which certified to her identity, this document would suffice to guarantee her entry into England as a British subject. It pointed out that she had confirmed transportation from New Zealand to England, and was in transit through the United States, as required by the agreement (Form I-426) entered into between the carrier and the United States Government. Finally, the carrier claims that the fact that the passenger was admitted to the United States is sufficient proof that she held adequate documentation.

Upon careful consideration of the entire evidence of record, together with the representations throughout, we are of the opinion that the district director has properly ordered a penalty imposed in this case.

In the first place, the passenger was not admitted into the United States but only paroled as a privilege and solely for humanitarian reasons. This action can in no way be construed as indicating that she was in possession of proper documents.

Second, Item 1(b) of the I-426 agreement, supra, contains the requirement that the alien have "a valid visa, passport or other travel document authorizing his (her) entry into a country beyond the United States as required by such country." This requirement of the agreement was clearly not met in this instance. The passport which the passenger presented had expired and was, therefore, no guarantee that the passenger would be admitted into England. Also, because of the notation in the passport there was reason to doubt that she would be admitted to New Zealand if she applied there.

Third, in view of the foregoing, the passenger was not clearly and beyond doubt admissible to some country other than the United States. Therefore, she could not properly be presented as a TRWOV. Finally, under the circumstances herein before outlined, the carrier certainly did not exercise due diligence in bringing her to the United States as a TRWOV. Even cursory examination of the passport would have revealed that it had expired and that its value as a document of identity was questionable. The fact that the passenger had confirmed continuous transportation through the United States is not the sole requirement under the agreement (supra).

Order: It is ordered that the appeal be and the same is hereby dismissed.

MATTER OF T—

In DEPORTATION Proceedings

A-7420193

Decided by Board December 10, 1959

Deportability-Section 241(a)(1)-Fraud not essential to support charge that alien was not nonquota as specified in visa.

(1) Showing of fraud is not required to sustain charge under section 241 (a) (1) of the 1952 act that at time of entry alien was not a nonquota immigrant as specified in his visa.

(2) An alien who abandoned his residence in the United States and departed to his native country with the intention of remaining there was not entitled to receive a nonquota immigrant visa as a returning resident and was further excludable upon his reentry in June 1952 as ineligible to citizenship by reason of having previously applied for and obtained an exemption from military service.

CHARGES:

Order: Act of 1952-Section 241(a)(1) [8 U.S.C. 1251(a)(1)]—Not nonquota immigrant as specified.

Act of 1952-Section 241(a)(1) [8 U.S.C. 1251(a)(1)]—Alien ineligible to citizenship.

BEFORE THE BOARD

Discussion: This is an appeal from the order of the special inquiry officer requiring respondent's deportation upon the grounds stated above. The appeal will be dismissed.

The respondent, a 33-year-old married male, a native and citizen of Germany, was admitted to the United States for permanent residence on February 12, 1950. His wife and child remained in Germany with the expectation of joining him when suitable arrangements could be made. In October 1950 he registered under the Selective Service law. He filed a classification questionnaire in November; from December 1950 to February 1951 his classification was studied by the Board; on January 17, 1951, he was placed in Class I-A. He apparently requested a reopening of the classification. The application was denied. He was ordered to report for a physical examination on March 13, 1951. On March 7, 1951, the respondent appeared before the Board and stated he intended to leave the United States "to go back to Germany" to stay and desired

a permit to leave the United States. He testified that he was told he could not be given a permit to depart unless he signed SSS Form 130 applying for relief from service with the Armed Forces.

On March 14, 1951, respondent appeared before the Board and stated he wanted to sign SSS Form 130 and "knew what it stated." The application for relief which is dated March 9, 1951, but purports to be subscribed and sworn to on March 7, 1951, contains the information that the applicant for relief understood that he would forever lose his right to become a citizen and that he may be prohibited from entry into the United States as result of filing the application. On March 21, 1951, respondent was placed in Class IV-C. On April 3, 1951, he departed for Germany. The report executed by the Service in connection with the departure reveals that the reason given for going abroad was that the respondent was returning home and that he would remain there permanently.

The respondent explained that he returned to Germany because of his desire to rejoin his family, for he saw no opportunity of bringing them to the United States because he had been unable to secure employment which permitted him to accumulate enough money to bring his family, or to support them here, after their arrival. He denied that his return to Germany was caused by any fear of military service. Respondent joined his family in Germany and secured employment there. However, on April 15, 1952, he obtained a nonquota visa on the basis of the allegation that he was returning from a temporary visit abroad. His wife and child secured second preference visas under the German quota, as the wife and child of an alien lawfully admitted for permanent residence. The family came to the United States on June 2, 1952. Respondent admitted that he left the United States with the intention of residing permanently in Germany, but that after he had lived in Germany for a while, he changed his mind because economic conditions had deteriorated and he furthermore had decided that he did not try hard enough in the United States.

In his appeal and at oral argument the respondent stated that he furnished the United States Consul in Germany with true information and that the issuance of the visa was not induced by any fraud on his part. He stated he was not informed that his ineligibility to become a citizen would bar him from returning to the United States. It is not necessary to consider whether or not fraud existed in this case. The charge that the respondent was not in possession of a proper visa is not based upon the existence of fraud. The respondent obtained a visa as a "returning resident." He was not a "returning resident." To be a "returning resident," respondent had to establish that he was "returning from a temporary visit abroad" (section 101 (a) (27) (B), 8 U.S.C. 1101 (a) (27) (B)). Respondent