Interim Decision #1577'
Mamma OF ARGTROS
In Section 246 Proceedings
A-12042020
Decided by Beccrd April 15, 1986
Where an alien answered affirmatively when asked by an officer of the Serv-.
Ice whether she was willing to make a sworn statement and whether she•
understood that any statement was to be made freely and voluntarily aQ1
might be used by the Government as evidence in any proceeding, such preliminary sworn statement by the alien was made voluntarily and not under
duress; is admissible in evidence In rescission proceedings under section 246,
Immigration and Nationality Act (8 CFR 246.3) ; and is not bound by thd
rules of evidence applicable to judicial proceedings, since rescission proceeding under section 246 are not within Escobedo v. Illinois, 378 11.8. 478.
(1964).
This case is before us on appeal from a decision of a special inquiry officer dated May 10, 1965, rescinding the adjustment of status.
previously granted to the respondent under section 245 of the immigration and Nationality Act [8 U.S.C. 1255]. .
The respondent is a 36-year-old female, native and citizen of
Greece, Who entered the United States as a visitor on March 19,,
1959. She married Michael Argyros, a :United States citizen, on
January 25, 1980, and he subsequently filed a visa petition on her
behalf. This was approved by the Service, and she was accorded_
nonquota status. On May 17, 1960, the Service granted the respond- •
ent's application under 8 U.S.C. 1255, and her immigration status
was adjusted to that of an alien lawfully admitted for permanent
residence. On February 2, 1965, there was served on the respondent
a letter dated December 21, 1964 which notified her concerning the
intention of the Service to rescind, under 8 U.S.C. 1256, the adjustment of her immigration status. At the conclusion of the hearingwhich was thereafter granted, the special inquiry officer found that
the respondent entered into a sham marriage with Michael Argyros:
_ solely for the purpose of evading the immigration laws. He coneluded that she had not been eligible for the adjustment of *statu.s
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- Interim Decision .41571
granted toiler under 8 U.S.C.. 1255 and entered the above-mentioned
order of May 10, 1965 rescinding that- action. The issue on this
appeal -is 'whether the special inquiry officer's action Was correct:
We have carefully reviewed the entire record. The facts in this
case are fully set forth in the special inquiry officer's decision. At
the hearing (Tr. p. 2), the respondent admitted the first seven factual allegations in the letter of the Service dated December 21, 1964
which related to her alienage, arrival as a visitor, marriage, and the
adjustment of her immigration status. The one -matter that was not
admitted was the allegation of the Service that she entered into a
sham marriage with, Michael Awros solely for the purpose of
evading the immigration laws..
-
The respondent was questioned under oath by Investigator Opolion of the Service on November 13, 1963. The stenotypist, Patrick
J. Killela, was. a witness at the hearing and read the respondent's
statement-of November 13, 1963 into the record from his original
stenotype notes (Tr: pp. -139-201). The notes and transcript are
Exhibits 11 and 16, respectively. Counsel attached to 'his brief a
list of "31 instances in which were was a. variation between that
which appears in the transcript ,,and
and that which appears in the stenotype notes. The special inquiry officer discussed this matter in-his
decisioh (pp. 41-43). It appears that Mr. Killela, in transcribing
the notes on the day after the hearing before Mr. Opolion, inserted
certain matters from memory -which were not actually in his notes.
The 'special inquiry officer stated that he would rely on the version
"
of the questions and answers as they were read' into the fecOrd of
the,hearing by Mr. Killela from his original notes rather than on the'
version contained in the _transcript (Ex. 16). 'We have also used
the version contained in the record of hearing rather than Exhibit
16. The differences between the two versions are relatively minor.
Since the special inquiry officer and this Board have not relied on
the disputed version contained in Exhibit 16, we wilt disMiss . coupsel's contention concerning this matter.
Part 246 of 8 CFR contains the regulations relating to rescission
of adjustment of status under 8 U.S.C. 1256, 8 CFR ..246.3 makes
applicable certain other regulations including the procedure specified .
in 8 CFR 242.14(c) which is as follows: "The special inquiry officer
may receive in evidence any oral or written statement which is
material and relevant to any issue in the case previously made by the
respondent or any other person during any investigation, examination, hearing, or trial." Hence, there is specific authority in the
regulations for the special inquiry officer' to consider, in this resole-.
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Interim Decision #1577
sion proceeding, the respondent's testimony on November 18, 1968.
Counsel has argued vigorously that the testimony of the respondent on November 13, 1963 is a "confession". We are unable to
perceive why counsel deems this so important, and we gonsider it
entirely immaterial whether this testimony of the respondent is
characterized as a "confession" or "testimony" or in some other
manner. The matter which is of consequence is whether the respondent's testimony on November 13, 1963 was properly' admitted
in evidence at the hearing. In urging that the respondent's "confession" of November 13, 1963 was inadmissible, counsel contends
that it was involuntary; that she was not advised of the right to
counsel; and that she was not advised of her right to remain silent
(brief, pp. 24-36).
At the commencement of the forinal examination on November
13, 1963, the respondent answered affirmatively when she was asked
by the investigator whether she was willing to make a sworn statement and whether she understood that any statement was to be made
freely and voluntarily and that it might be. used by the Government
as evidence against her in. any proceeding. After careful consideration of the respondent's testimony at the hearing concerning the
taking of the statement and the testimony of the investigators and
the stenotypist, we are satisfied that the respondent's testimony on
November 13, 1963 was given voluntarily and not under duress.
Counsel has placed considerable reliance on Eseobedo v. Illinois,
378 U.S. 478 (1964). We discussed the same contentions in Matter
of Pang, Lit. Dec. No. 1479 (1965), and Atulicated why Eseobeclo
was not controlling in a deportation proceeding. Similarly, we hold
that Escobedo is not applicable in a rescission proceeding under 8
U.S.C. 1256. In his brief (p. 26), counsel indicated that any distinction between criminal proceedings and deportation proceedings
had been "laid to rest with respect to coerced confessions", citing
Bong Youn Choy v. Barber,
279 F.2d 612, 647 (9th Cir., 1960).
Actually, that case did not represent any change in the law since
it has never been considered that a deportation could be predicated
on a confession or statement which had not been made freely and
voluntarily. On the facts in the Bong Youn Choy case, the court
found that he had been coerced into making the 'admissions; in this
respondent's case, we have found that her testimony was !riven
der duress. Since the facts in the two cases
voluntarily and not under
differ, the Bong Youn Choy case is not controlling as to this respondent.
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Interim Decision #1577
We have indicated above that counsel contended that., prior to the
interrogation qii ovember 13, 1963, the respondent should have
.
been advised that she had a right to'counsel and the right to remain
. silent. 8 CFR 246.1 contains . a specific provision that the notice of
intention to rescind shall inform the respondent that he [she], maybe represented by counsel. The District Director's letter of..December 21, 1964 (Ex. 1) did inform her concerning such representation.
However., there was no requirement that she be specifically advised
to, that effect prior to the preliminary investigation on November 13,
1963 nor that she be informed that she could refuse to answer any
questions. Nevertheless, she was advisid that the statement was to be
made freely and voluntarily which was at least some indication to
her that she 3.-as not required to make any statement. We dismiss
these contentions of counsel in accordance. with our decisions in
Matter of F—, 4 I;& N. Dec. 475 (1951) ; Matter of P—, 5 L & N.
Dec. 306 (1953); and Matter of Pang, supra. In addition, rules of
evidence applicable in judicial proceedings need not ,be strictly
followed in an immigration hearing. United States ex rel. Bilokirmsky v. rod, 263 U.S. 149,157 (1923) ; United States en rel. Ili:pasta&
v. O'Rourke,
211 F.2d 609 (8th Cir., 1954), cert. den.
348 U.S. 827.
In view of the foregoing, we conclude that the special inquiry officer
was correct in admitting the respondent's testimony of November
13, 1963 in evidence.
Counsel has also contended that the "confession", if admissible,
Was not corroborated and was insufficient evidence, theiefore, upon
which to base the decision. In- this connection, he has stated that in
criminal cases the Govanment must' introduce substantial evidence
to establish the trustwofthiness of the confession. However, this is
not a criminal proceeding and it is well settled that an alien's own
admissions are sufficient to support a deportation order. Unitid States
etc rel. Bilokuntay V.
Tod, supra; &keeps v. Carmichael,
177 F.2d
391 (9th Cir., 1949), cert. den.
339 U.S. 914. Similarly, we hold
that the respondent's testimony of November 13, 1968 is a sufficient
basis for rescinding the adjustment of status.
We have carefully considered the remaining contentions of counsel. These are without merit and do not require specific discussion.
When the respondent filed her application for adjustment of status
under 8 U.S.C. 1255 on April 5, 1960, she stated that she had resided at 736 West 173rd Street s New York, New 'York, since January'
]960. She filed her petition for naturalization, on June 7, 1963
under 8 t.S.C. 1430(a) which required her to establish that during
the preceding three years she had been living in marital union with
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Interim. Decision #1577
her citizen spouse. On the date the petition for naturalization was
filed, she testified before the naturalisation examiner that she WOO
-nesidirg_at 1 West 72nd Street, her place of employment; that she
.41SO maintained a, sesidence.at l'36 West 273rd -Street with.her hitsband;:_aud -th4 there was no marital rift between them. It seems to
W.conceded .that - Michael Argyros had livid et736 West 173rd
Street irior:to the marriage and continuously until 1964; that the
respondent_never lived at that address; and that, from the time of
her.arrival in 1959 until some time subsequent to June 7, 1968, she
had lived at 1 West 72nd•Street. In view of these false statements,
which were obviously made for the purpose of concealing the fact
that she and Michael Argyros were not living. together, we do, not
consider the respondent a credible witness. It is our opinion that
the respondent's admissions against . interest in her testimony of
November 13, 1963 constitute the true version of the facts and that
her testimony at the hearing, insofar as it was to the contrary, must
be rejected as self-serving statements which were untrue.
8 U.S.C. 1256 provides for the rescission of the adjustment of
immigration status if "it shall appear to the satisfaction of the
Attorney General that the person was not in fact eligible for such
adjustment of status, …• *.'! One of the requirements for adjustment of status under 8 U.S.C. 12551s that an immigrant visa must
be immediately available. The respondent was classified as nonquota and was able to secure adjustment of her immigration status
only by reason of her marriage. Otherwise, she would have been
chargeable to the quota of Greece which was greatly oversubscribed
on May 17, 1960 when her application for adjustment of status was
granted.
On November 18, 1963, the respondent testified (Tr. pp. 156-174)
to:the effect that she met Michael Argyros through a. Mr. Regas•;
that she agreed to pay Michael Argyros $500 if he would marry
her; that she secured the money from her employer out of wages
due her; that she gave the money to Mr. Regas who was to pay
it to Michael Argyros; that she married Michael Argyros solely in
order that she might remain in the United States; that she had no
intention of living with him in a marital relationship; and that
they never had sexual intercourse. Regas was questioned by invesiigaters ,Of_the Service on November 13. 1963 (Er. 21) and denied
his involvement, stating that he knew nothing about the payment of
$500 and did not see the respondent between the time.of his first
meeting with her in December 1959 and November 1960. On the
basis of the respondent's own testimony, we believe the Service has
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Interim Decision #1577
established that the respondent was not eligible for the adjustment
of status granted to her on May 17, 1960.
In addition to the respondent's testimony, the following factors
are pertinent. At the time of the marriage on January 95, 1960, the
respondent was 20 years old and her husband was 60. George Spyropoulos, who was a witness at the marriage, testified (Tr. pp. 18=20)
that $500 was paid to Michael Argyros as the inducement for manying the respondent; that the money was paid in his presence by the
respondent's "boy friend", a Mr. Regas; and that Michael Argyros
informed him after the marriage that he had married the respondeneonly so that she could remain in the United States.
Michael Argyros executed an affidavit (Ex. 8) before an investi- -
gator of the Service on October 3, 1963 in which he stated that
Regas introduced him to the respondent; that the respondent agreed
to pay him (Argyros) $500 for marrying her; that she stated that
they would not live together and that in a few months she would
see a lawyer about obtaining a. divorce; and that he (Argyros) was
paid $500 by Reps which the latter had received from the respondent. The respondent was served with notice of this proceeding on
February 2, 1965, and Argyros could not be presented as a witness
since he had died on December 22, 1964. Although we held admissible in evidence en parte affidavits of persons who died prior to
the deportation hearing in Matter of J , 6 L & N. Dec. 496, 499
—
(1955), we have not relied on the affidavit of Michael Argyros in
this proceeding.
During the oral argument, a contention was advanced by •counsel
for the Services that the respondent's statement of November 13,
1963 (Ex. 16) was taken in connection with the petition for naturalization which she had filed; that the proper procedure for' the respondent's counsel would have been to take action in the naturalization court to quash the statement if he believed that there was a
lack of due process; and that the question could not be raised
collaterally in this rescission" proceeding. Thereafter, both parties
submitted briefs on this point. At the time of the interrogation. on
November 13, 1963, the respondent was advised that the proposed
sworn statement related to her "presence in the United States" and
nothing was said about her petition for naturalization (Tr. p. 139).
In any event, we are not convinced that it would have been proper
to dismiss the objections of the respondent's counsel on the technical
ground suggested by the Service. We need not reach a definite
conclusion concerning the matter since we have held above that the
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Interim Decision *1577
respondent's' testimony of November 13, 1963 was properly received
in evidence.
In view of the foregoing, we conclude that the respondent's marriage to Michael Argyros was merely a sham marriage entered into
for the sole purpose of enabling her to evade the quota restrictions;
that she was not eligible for adjustment of her immigration status
under 8 U.S.C. 1255; and that the special inquiry officer's action in
rescinding the adjustment of status was correct. Accordingly, the
respondent's appeal will be dismissed. .
.ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
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