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December 19, 1978

Laurel Allen CHAN et al., Plaintiffs,
Griffin B. BELL, Defendant

The opinion of the court was delivered by: GREENE

This is an action for judicial review of a decision of the Immigration and Naturalization Service denying to plaintiff Ah Kow Chan classification as an "immediate relative" of plaintiff Laurel Allen Chan with the consequence that he will not receive an immigrant visa. The case is presently before the Court on cross motions for summary judgment.


 The facts in the record *fn1" show that Mr. Chan, an alien and a native of Malaysia, and Mrs. Chan, a natural born American citizen, entered into a valid ceremonial marriage on January 10, 1975, in the State of Tennessee. The two plaintiffs had known each other for several years *fn2" as students at Wesleyan College in Athens, Tennessee, and had engaged in a lengthy courtship. Their marriage was consummated, they lived together as husband and wife, and they jointly purchased realty and other property. On February 10, 1975, Mrs. Chan filed with the Service a petition to classify her husband as her "immediate relative" pursuant to section 201(b) of the Immigration and Nationality Act, 8 U.S.C. § 1151(b). Thereafter, on July 4, 1975, plaintiffs effected a voluntary separation. While they have lived apart since that time, they have continued to maintain an amicable relationship and to own jointly certain real estate and other property.

 On June 14, 1976, the district director of the Immigration and Naturalization Service in Baltimore denied Mrs. Chan's petition to classify her husband as an "immediate relative." His sole basis for that action was a letter she had sent to the Service *fn3" that May stating that due to marital difficulties, she and her husband had ceased living together and expected to institutionalize their separation. *fn4" Plaintiffs' immediate appeal to the Board of Immigration Appeals was dismissed some sixteen months later. This action followed. It requests a declaratory judgment and an order requiring defendant to grant to plaintiff Ah Kow Chan "immediate relative" status and to enjoin his deportation or exclusion from the United States.


 8 U.S.C. § 1151(b) provides that "immediate relatives" of United States citizens, defined to include spouses, who are otherwise qualified for admission as immigrants shall be admitted as such, without regard to other, ordinary numerical limitations. Once a petition for immediate relative status is filed, it must be approved as long as the Attorney General determines "that the facts stated in the petition are true and that the alien in behalf of whom the petition is made is an immediate relative specified in section 1151(b) of this title." 8 U.S.C. § 1154(b). Thus, the role of the Attorney General is limited: he is required to approve any true petition of a spouse of an American citizen in order that such spouse may secure immediate relative status. *fn5" It is in the context of this statutory framework that the contentions of the parties must be considered.

 It is undisputed that at the time the instant petition was filed, the male plaintiff was the lawful spouse of the female plaintiff, an American citizen. It is equally undisputed that, although the parties now live apart, no divorce or legal separation has taken place and no proceedings for divorce or legal separation have been instituted. Nevertheless, and in spite of the fact that plaintiffs' marital relationship has never been dissolved and that they clearly meet the literal requirements of the law, the Board of Immigration Appeals, relying on its own earlier decision in Matter of Sosa, Interim Decision 2469 (BIA 1976), *fn6" decided that the Chans' marriage was "nonviable," that sections 1151(b) and 1154(b) therefore do not apply, and that their petition would not be approved. For a number of reasons, the Board's construction of the law is plainly wrong.

 First. There is no support for defendant's interpretation in the language of the Statute. Section 1154(b) explicitly directs *fn7" the Attorney General to grant immediate relative status to the spouse of an American citizen, without any reference whatever to marriage viability or solidity. Indeed, section 1101(a)(35) of title 8, U.S.Code, the definitional section, excludes from the definition of "spouse" only those situations "where the contracting parties (to the marriage ceremony) are not physically present in the presence of each other," and even that condition is waived when "the marriage shall have been consummated." *fn8" Plaintiffs here were united by a marriage ceremony, they were present at that ceremony, and the marriage was consummated.

 Second. The Service's interpretation is unsupported by its own and the Department of Justice's regulations. No rule or regulation issued by the Attorney General or the Immigration and Naturalization Service requires the existence of a "viable" marriage as a precondition to the grant of immediate relative status. To the contrary, 8 C.F.R. § 204.2(2) implies that no such precondition exists for it requires only that "a petition (for classification to immediate relative status) submitted on behalf of a wife or husband . . . must be accompanied by a certificate of marriage to the beneficiary and proof of the legal termination of all previous marriages of both husband and wife" requirements that, too, were met in the instant case. Likewise, 8 C.F.R. § 205.1(a)(4) quite appropriately conditions the revocation of a petition merely upon the "legal termination" of the relationship of husband and wife, not upon any assumed dissolution of the marriage by reference to a standard not known to the law of domestic relations.

 Third. There is no support for defendant's interpretation in the judicial case law. The only court to date to construe a provision similar to the one at issue here squarely determined the Service's construction to be in error. *fn9" In Whetstone v. Immigration and Naturalization Service, 561 F.2d 1303 (9th Cir. 1977), *fn10" the U.S. Court of Appeals for the Ninth Circuit was faced with construing 8 U.S.C. §§ 1101(a)(15)(K) and 1184(d), the statutes governing admission of fiances of United States citizens. If anything, those particular provisions are more hospitable to the Service's position than the section here involved, for section 1184(d) (the "fiance" section) expressly refers to the parties' "bona fide intention to marry" and to their actual willingness "to conclude a valid marriage," while no comparable language can be found in the "immediate relative" provisions of the immigration laws. Nevertheless, the court rejected arguments similar to those advanced by the Service in the instant case, holding (561 F.2d at 1306):

We find no requirement in the statute that . . . a marriage, once lawfully performed according to state law, is to be deemed insufficient proof of "a valid marriage' merely because at some later time the marriage is either terminated, or the parties separate. The only proof in this case establishes that petitioner's marriage is not terminated. So far as the record discloses the facts, she is today married to Whetstone although they are not living together. There is no requirement that a marriage, entered into in good faith, must last any certain number of days, months or years. Much less is there any requirement that a Bona fide and lasting marital relationship (whatever that may mean) exists as of the time the INS questions the validity of the marriage.

 Defendant makes no serious attempt to distinguish the Whetstone decision and urges instead that the U.S. Court of Appeals for the Ninth Circuit simply erred. For the reasons stated herein, this Court is of the view that Whetstone correctly interprets the law.

 Fourth. The construction proposed by the Service is inherently incompatible with due process, as it would vest in that agency an unreasonably wide, and essentially unreviewable, discretion to determine which marriages are or are not viable.

 Webster's New Collegiate Dictionary (5th ed.) defines "viable" as "capable of living; . . . capable of growing or developing." In this case, the Immigration and Naturalization Service stated that a marriage which may be "floundering" would still be considered viable if it has a "reasonable chance of continuing." In Matter of Sosa, supra, the Board of Immigration Appeals concluded that the marriage was not viable and the alien was to be excluded where the alien husband worked a night shift, the citizen wife refused after a brief period to have sexual relations with him although he "begged" her to do so, and where she ultimately left him. In Matter of Gonzalez-Portillo, 13 I&N Dec. 309, 312 (BIA 1969), the Board upheld the viability of marriage because it thought there was "a reasonable chance of effecting a reconciliation." *fn11" ...

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