Interim Decision #1605
MATria or MIZTIIS
In Deportation Proceedings
A-14019286
'Decided by Board June 16, 1966
Respondent's deportability under clause (2) of section 241(e), - Immigratlon
and Nationality-Act, is established since he has failed- and refused to fublU
his marital agreement which is deemed to have been made for the purpose
of procuring entry as al:Immigrant where be married his United States
citizen spouse by civil ceremony in Poland in 1983, a religious ceremony, be"-
ing then precluded by the recent death of her father, to be performed after
entry"; for some time before his proposal and marriage' he bad been •registered with the U.S. consul for an immigrant 'Ma, during which period, as
well as at the time of his arrival in this country in April 1984, the quota to
which he was chargeable was oversubscribed; on the same day of the marriage, his wife traveled to Warsaw for the purpose of petitioning to accord
him nonquota status; be has never lived with his wife; and he stated in
1985 he was not willing to main his wife in a religions ceremony and that
he was not willing to live-with her without a church wedding.
Osamu:
Order: Act of 1952—Section 241(e) [8 U.S.C. 1251(c)3—Pailed or refused
• _ to MIR marital agreement made.to procure entry
as immigrant. •
This case is before us on. the appeal of the Service from a decision'
of a special inquiry officer terminating the proceeding.
Theliespondent is a 25-year-old married male, native and citizen.
of Poland, who entered the United States on April 10, 1964 at which .
time he was admitted as a nonquota immigrant. He had secured
nonquota status on the basis of his marriage to a United States citizen on November 6, 1963 in Poland. The Service takes the position
that the respondent's marital agreement with his -wife, Helen Ilietus,
was made for the purpose of procuring his entry as an immigrant
and that the respondent failed and refused to fulfill the marital
agreement The 'special inquiry of ficer concluded that the charge
stated in 'the order to show cause was not sustained and terininated
the proceeding. The sole issue is whether this action was correct.
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Interim Decision #1605
Before discussing the evidence, we consider a comment necessary
concerning the burden of proof in cases under section 241(c) of the
Immigration Ind Nationality Act, particularly since .certain statements relating to the matter in the speCial inquiry officer% decision
and in the trial attorney% brief appear to be ambiguous and inn-
• curate. We discussed this burden of proof in Matter of 7L
N. Dec. 601, 606 (1:957), and held that, under clause (1) of Section
•241(c), the Government must prove alienage and that there exists the
contemplated relation, in point of time, concerning marriage, entry
and ammlment, and thereafter the - burden is on. the alien to es- •
tablish that the marriage was' not contracted for the purpose of
evading any . proviiions of the immigration laws; that this is because the alien is required to show that he comes within the statutory
exemption.; and that under clause (2)- the Government has the usual
burden of establishing deportability. Since this deportittion proceeding is based on the second clause of section 241(c), we hold that the
.-Government has the-burden of establishing deportability by reason-
-
• able, substantial and probative evidence in accordance with the requirements of section 242(b) (4). .•
We have carefully reviewed the entire record. • The only evidence
is the respondent's statement of May 4, 1965 (Ex. 2) and his testis molly- and that of his wife at the hearing. certain facts are not
in dispute. • The respondents wife was born in.Poland on March 31,
1989 and acquired United States citizenship through her .parents.
She first came to the United States in February 1961 and returned
to Poland in August 1963 because of the illness of her mother. Her
father had died in May 1963. She had known the respondent since
childhood and part of the time they were in the same classes in school.
On her return to Poland in August 1963, she saw the respondent fre- ,
quently since she' was friendly with his-sister. Near the end of October, he proposed ,marriage. They were unable to .have a religious
Marriage ceremony because of the recent death of her father but it
was agreed that such a ceremony would be performed after he arrived in the United States, and they were married in Poland in a
civil ceremony on Noyember 6, 1963. On the evening of the same day,
the respondent's wife took the train for Warsaw to mike out an application for him [presumably a 'visa petition] at the American Embassy (Tr. pp. 52-53). During a short trip thereafter, they had
sexual intercourse on one' occasion. The respondent's wife left Poland on November 12, 1963 for the United States, and the respond-
- ent arrived in this country on April 10, 1964. The respondent's wife
and other relatives met the respondent at the airport upon his arrival and he spent that night at her apirtment. On the following.
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Inter.itn Decision 4E1605
day, he Went to his sister's home. They-have not had sexual inter- .-
course since he-. came to the United States and have not lived together. . .• • •
.•
The •respondent was questioned-on May.4,. 1965 (Ex. 2)... as. to why
no religious ceremony was performed after he .arriyed in. the United
States. lie. stated that, at the time of his arriyal, in this country in
April 1964, his'- Wife had a vacation of two weeks and wanted very
much to get married during that period but that he could not go
through with the ceremony because he felt that he did.not know her
well enough; that lie only liad $4.00 . when he cams to the United
States and wanted to defer the marriage until he had earned _some
money; that subsequently she threatened to have him deported if he
did not marry her in a 'religious ceremony; and that he heard from
his brother in Poland that his (the respondent's) wife was pregnant.
With reference to the alleged pregnancy of his wife, it has developed that she was not pregnant and has never been pregnant. She testified that she had not had sexual intercourse with anyone except on
the one occasion previously mentioned when slick had intercourse with
the respondent. The respondent's testimony (Tr. pp. 81-85) is to the
effect that about two months after his arrival iii the. United States
he received a letter from his brother in Poland to the effect that his
wife was pregnant. In his previous testimony on Miy E4, 1965, the
respondent stated that his_ brother in Poland had received this information from someone who had written to him but the respondent did
not know who it was. The respondent's wife returned to the United'
States in November 1963, a few dayi after her marriage to the respondent.- Since they had had sexual intercourse on one occasion, he
was asked why he believed he was not the :father of the child.
said that the letter stated that his wife was then four months pregnant. It seems a little pliculiar to us that on same unspeeifid date
from an unknown place (presumably in the - United States) an' unknown person wrote to the respondent's brother in Poland that the
respondent's wife was pregnant and that the.unknown individuatwee
even able to specify that she was four Months pregnant, partictilafly .
whenitasdvlop hewntrga.
There is some conflict in the testimony as to the events occurring
subsequent to the respondent's arrival in the United States: The testimony of the respondent's wife is to the effect that' she saw him
about four times during the period of abOut two months after his
arrival; that she saw him during the summer of 1964 at picnics but
he, avoided her; that she visited him when he was'44 the hospital
in the autumn of 1964; and that in April 1965 she saW ythe i.espondoat at a conference which had been arranged at the office of lkir.
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Interim Decision *1805
Kowal'of the Immigrants Service League. The testimony of the respondent is to the effect that the meeting with Mr. Kowal took place
about June 1964; that, up to that point, he had seen his wife each
-week on Saturdays and Sundays; that, at the meeting with Mr.
Kowal, his wife threatened to have him. deported; and that he then
decided he would not go through a religious ceremony nor Bye with
her.
The special inquiry officer stated that there did not appear to be
any discrepancy between the testimony of the respondent and his
wife, and lie did not make any finding regarding their credibility.
The Service urges that there are conflicts between their statements and
that the respondent is not credible_ Tn connection . with the contention that the respondent is not credible, the Service asserts that he
lied about the date of the meeting with Mr. Kowal and also falsely
stated on May 4, 1965 that the marriage had not been ,consummated
whereas he admitted at the hearino that he and his wife had had
-
sexual intercourse on one occasion iii Poland after the marriage. With
''
respect to the meeting at Mr. Kowal's 'office, we do not.believe that
the record is clear wiZethar the respondent saw him on only one occasion or whether he may have seen him more than once. In any
event, the respondent's wife stated that just before the :respondent
entered.the hospital [autumn of 1964j she had him go to Mr. Kowal
(Tr. p. 30). Insofar as concerns the respondent's testimony on
May 4, 1965 that the marriage was not consummated in Poland nor
in the United States, the respondent _subsequently testified that he
understood "consummated" to mean living together in one home (Tr.
p. 95). From an immigration standpoint, it would seem that .it
would hate been contrary to the respondent's interest to claim thal
lie and his wife did not have sexual intercourse after the marriage.
While consummation of a marriage is 'Usually understood to mean
-
that a marriage has been followed by sexual intercourse of the parties,
the term "consummate" also means "to complete". Under the ciremnstances, - we do not believe that either of the matters mentioned
by the Service would warrant a finding that the respondent is not
credible.
There is one other matter which does raise a doubt as to the respondent's credibility. His testimony on May 4, 1965 (Ex. 2, pp. 405)
is to the, effect that he first saw his wife after she returned to Poland
in the fall of 1963; that he did not know her before she left Poland
for the United States in 1961; that he knew she was living in the village where he lived but did not know her personally; and that he did
not know her during the period when they attended the same school.
- At the hearing, the respondent testified that he had known his wife
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Interim Decision #1605
since childhood; that .they attended the same school; and that they
were in the same class from the fouith grade to the sixth grade (Tr.
p. 75). We do not find it necessary to make a determination concerning the respondent's credibility because the conflicts in testimony between the respondent and his wife relateto minor matters, and we will
base our decision on the•facts which are not in dispute. •
In his. statement of May 4, 1965 (Ex. 2)„tlie respondent stated
that he was then not willing to marry his wife in a religious ceremony; that he was not willing to live with her without a church wedding; that he had registered for an immigrant visa et the American
Embassy in Poland about 1962 or 1963; and that he was• permitted
to immigrate 'to the United States on the strength of his marriage to
his wife. When the respondent. applied for his immigrant visa in
1962 or '1965. prior to his marriage as well as at the time of his arrival in the United States, the Polish quota was oversubscribed. By
virtue of his marriage to a United States citizen, he was able to secure nonquota status and thus avoid the delay which he would have
encountered-if he had been forced to await his turn under the quota.
A comment is necessary concerning the meaning of "marital
agreement." Here, part of the agreement was that the parties would
be married in a religious ceremony after the respondent's arrival in
the United States. However, the civil marriage entered into in Poland on November 6, 1963. also included, as 'an essential element of
the marital agreement, that the parties took each other as hugband
and wife in a lasting relationship. This has been - the view, of the
courts. In G-kounov,lias v. Landon,'226 P.2d. 356, 359 (9th -Cir.,
1955), the court said "The 'marital agreement' as that term is used
in the statute, plainly means More than the mere indulgement in the
marriage ceremony. It means thit the contracting parties "at least
begin in, good faith to live together as husband and wife." In Lutwak
v. United States, 344 us. 604, 611 • (1953), the court had 'under consideration another statutory provision which permitted the expeditious anti7 of the alien spouses of veterans of World War II and
made the following statement: "The common understanding of a
marriagi;'which Congress must.have had in mind when it'made provision for 'alien spouses' in the War Brides Act, is that the two parties have 'undertaken to establish a life together and assume certain
duties and obligations."
The'pertinent language of section-241(c) of -the" Immigration and
Nationality Act [8 U.S.C. 1251(e)) is as follows: "An alien shall be
deported … if …• (2) it appears to the satisfaction ofithe At- •
torney ainteral• that'he or she has failed or refused•to fulfill his -or
her nitwits' agreement which in the opinion of the Attorney General
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Interim 33Soision *1605
was hereafter made for the purpose of procuring his or her entry as ,
animgrt."8CFR31(d)}proviestha,ubjcnypecific limitation prescribed, this Board "shall exercise ouch discretion
slid' authority conferred upbn the Attorney Geieral by law as is
appropriate and necessary for the disposition of *c•ease?' In order
to sustain the deportation ,charge against this respondent, the following is necessary: (1) we must be of the opinion that the marital
agreement was made for the purpose of procuring the respondent's -
entry as an immigrant and (2) it must appear to our satisfaction ,
failed or refused to fulfill his marital agreement- thae'rspond
Some time before the respondent had proposed marriage to the
United States citizen who is now his wife, he had indicated his desire of immigrating to the United States by registering at the
American Embassy in Poland for an Immigrant visa. • On the same
day that the marriage ceremony was performed his wife traveled by
train to Warsaw for the purpose of executing a visa petition so that
he would be accorded 'nonquota status. It is our opinion that themarital agreement was made for the purpose of procuring the respondent's entry as an immigrant. On May 4. 1965, the respondent
stated that he was not willing to marry his wife in a religious ceremony and that he was not willing to live with his -wife without a
.chureh. wedding. 'We are satisfied that the respondent has failed.
,and refused to fulfill his marital agreement.
Insofar as concerns the respondent's attempt to excuse his failure
and refusal to fulfill the marital agreement, we held that this deportation charge was not sustained where the alien desired to fulfill the'
marital agreement and it was the United States citizen spouse who
was at fault for the failure to fulfill the agreement. Matter of M ,. —
supra. 'With that exception, the statute does not indicate that them
may be circumstances which would warrant an alien's failure orrefusal to fulfill his marital agreement. This respondent's case is
clearly distinguishable.from Matter of M— because the respondent
has failed and refused to fulfill the marital agreement and his United'
States citizen spouse desired to fulfill the agreement. In view of
the foregoing, we conclude that the respondent is deportable on the
charge stated in the order to show cause, and the special inquiry officer's order will be withdrawn. I
'The special inquiry officer found that the marriage between the
respondent and his wife was bona, fide. We are inclined to believe.
that the respondent's wife entered into the marriage in. good faith ,
buthaerspondit.Hwevr,suncaytodetermino whether the civil marriage in Poland was bona fide since the.
depOrtation charge is ikot dependent on that factor. , .The respond--
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interim-Decision •*1605
ent applied for voluntary departure and designated Poland as the
country of deportation (Tr. pp. 98-88). We find the respondent statutorily eligible for voluntary departure and will grant that relief in.
the exercise of. our discretion.
ORDER: It is ordered that the special inquiry officer's order of
December 29,. 1965, terminating the proceeding, be withdrawn.
it is further ordered that the alien be permitted to depart, from the
United. States voluntarily without expense to the Government, to
any country of his choice, within such period of time, and under such
conditions as the officer-in-charge of the Distriet deems appropriate.
It is further ordered that, if the respondent fails to depart when
and as required, the.privilege of voluntary departure shall be withdrawn without further notice or proceedings and the following order
shall thereupon become immediately effective: The respondent shall
be deported from the United States to Poland on the charge contain- .
ed in the order to show cause. •
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