## Facts

- Robert Dabaghian, a citizen of Iran, entered the United States as a visitor in 1967 and obtained student status in 1968.
- He married a United States citizen in September 1971 and applied the next month to adjust status to lawful permanent resident under INA § 245.
- INS granted adjustment on January 13, 1972; there was disputed evidence that Dabaghian and his wife were separated on that date.
- Dabaghian filed for divorce on January 28, 1972; the divorce was finalized about seven months later.
- In September 1973, Dabaghian married an Iranian citizen.
- In August 1974, INS initiated rescission proceedings under INA § 246, asserting he was ineligible at the time of adjustment because the marriage was allegedly “dead in fact,” even if still legally valid.
- INS did not claim or prove that the first marriage was a sham or fraudulent when entered.
- An Immigration Judge rescinded the adjustment; a divided BIA affirmed; the district court upheld the rescission on summary judgment.

## Issues

1. Whether, for INA § 245 adjustment eligibility as the “spouse” of a U.S. citizen, a legally valid marriage that has deteriorated or involves separation can be treated as ineffective absent proof the marriage was fraudulent or a sham at inception.
2. Whether INS may rescind an approved adjustment under INA § 246 based solely on a “dead in fact” marriage theory.

## Decision

- The Ninth Circuit reversed the district court and remanded with instructions to enter judgment for Dabaghian.
- The court held INS’s “dead in fact” theory lacked statutory support and was inconsistent with federal immigration decisions.
- Because INS did not prove the marriage was fraudulent when entered, Dabaghian remained a “spouse” for adjustment purposes until the marriage was legally dissolved.
- Rescission under INA § 246 was improper on the facts and legal theory presented.

## Legal Principles

- A marriage that is not a sham or fraudulent from its inception remains valid for determining eligibility for adjustment of status under INA § 245 until it is legally dissolved.
- Immigration authorities may disregard a marriage for benefits purposes upon proof of sham or fraud at inception, but not merely because the relationship later deteriorates, the parties separate, or divorce is imminent.
- Absent a statutory basis, the government may not impose a relational “viability” test that turns spousal status on subjective assessments of marital harmony rather than on objective criteria such as fraud or legal dissolution.

## Conclusion

The Ninth Circuit rejected rescission of a marriage-based adjustment where the marriage was legally valid and not shown to be fraudulent when entered, holding that separation or a marriage “dead in fact” does not negate “spouse” status for INA § 245 eligibility before legal dissolution.


Dabaghian v. Civiletti, 607 F.2d 868 (9th Cir. 1979)