Interim Decision #1893
MASTER OF YALDO
In Section 246 Proceedings
A-13777983
Decided by Board August 19, 1968
(1) Where an alien's supporting marriage for adjustment of status under section
245, Immigration and Nationality Act, as amended, was a sham marriage entered into to circumvent the immigration laws, testimony of the alien's wife
concerning confidential communications between the spouses during the existence of the marriage is admissible in evidence in rescission proceedings under
section 240 of the Act.
(2) In section 246 rescission proceedings, there must be an evaluation of all the
evidence and a finding made with regard to its credibility before the clear,
convincing and unequivocable burden of proof test of Woodby V. immigration
and Nataraitaation Service, 386 17.5. 270, comes into play.
ON RFRATV or RESPONDENT : Oz BEIIALF OF SERVICE:
John Palumbo, Esquire Irving A. Appleman
21261 Kelly Road Appellate Trial Attorney
East Detroit, Michigan 48021
The respondent, a native and citizen of Iraq, appeals from an order
entered by the special inquiry officer on April 8, 1968 rescinding his
adjustment of status which was granted on April 21, 1967 pursuant
to the provisions of section 245 of the Immigration and Nationality
Act. Counsel on appeal seeks a termination of the proceeding.
The respondent, an unmarried male alien, 21 years of age, last entered the United States through the port of New York on July 14,
1965. He was admitted as a student destined to the Electronics Institute of Technology at Detroit, Michigan until July 13, 1966. He was
thereafter granted an extension of temporary stay until July 12, 1967.
The respondent married Sharon Florence, a native and citizen of the
United States at Detroit, Michigan on December 12, 1966. She filed a
petition to accord the respondent immediate relative status on December 28, 1966. The petition was approved on January 30, 196T. The respondent applied for status as a permanent resident alien pursuant to
the provisions of section 245 of the Immigration and Nationality Act
on February 17, 1967. The application was approved on April 21, 1967.
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The respondent's wife advised the Immigration Service on May 25,
1967 that the respondent left her on or about May 15, 1967. The respondent filed a complaint for divorce against his wife on June 29,
1967 and on July 18, 1967 his wife filed an answer to the complaint
and a counterclaim for annulment. A default judgment of annulment
was entered by the Circuit Court for the County of Wayne, State of
Michigan, on October 20, 1967. The judgement of annulment states that
the marriage ceremony entered into by the respondent and his wife was
and is a nullity and that the respondent and his wife were never legally
married.
The District Director at Detroit, Michigan charges in his notice of
January 3, 1968 that the respondent was ineligible to receive the adjustment of status accorded him on April 21, 1967 in that his adjustment -was obtained on the basis of a. marriage entered into solely for
the purpose of evading the immigration laws. The respondent was accorded a hearing in rescission proceedings on April 3, 1968. Counsel, in
behalf of the respondent, acknowledges the truth of the first 11 factual
statements contained in the District Director's' notice of January 3,
1968 and admitted in evidence as Exhibit 1. Counsel denies that the
respondent's marriage to his former wife, Sharon Florence, was for
the purpose of evading the immigration laws as charged in Allegations 12 and 13 of the District Director's notice of January 3, 1968.
The respondent testified that he separated from his wife about 10
days prior to receiving his alien registration card (p. 61) which was
mailed to the respondent on April 27, 1967. When questioned as to
what prompted him to leave the apartment he shared with his wife,
the respondent replied that his departure was "related to the circumstances of my seeing the people in the house" (p. 61), referring to his
prior testimony that on one occasion he came home and found his wife
with two men and another girl; that his wife instructed him not to
enter the apartment; and that he was:threatened by one of the men
(1)- 58).
The respondent's wife testified that she married the respondent in
good faith; that after the respondent received his alien reoistration
card, his attitude toward her changed (p. 28) ; that he "packed his
clothes and left" soon after receiving the card (p. 28) ; that after receiving his "green card" (I-151), the respondent told her that he
married only to stay in the United States; and that "God told him to
find a girl and marry her so that he could get his 'green card' but to
pick a bad one" (pp. 48 51) _
-
The respondent maintains that the failure of his marriage is chargeable to his wife's infidelity. He testified that he has witnesses who
"have seen it"; that "I have seen her with a man in the apartment ..
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also with men in the car . . . these same men also threatened me" (p.
67). None of the witnesses to the alleged infidelity of the respondent's
wife testified during the hearing. When questioned as to why he permitted his wife to proceed with the annulment counterclaim uncontested inasmuch as he filed the original divorce proceeding, the respondent testified "it was because of my fear of her . . . I didn't care
at that point" since he was contemplating returning to Iraq (pp. 64-
65) .
We find much of the respondent's testimony incredible. He has
offered no proof that his wife was unfaithful to him. His testimony
with regard to threats against his life by men interested in his wife
because he filed for a divorce is unrealistic in light of the fact that his
wife counterclaimed for an annulment proceeding. Furthermore, the
annulment of the marriage was granted on the basis of the respondent
having entered into the marriage solely to obtain a benefit under the
immigration laws (Er. 4).
Counsel challenges the admissibility of the testimony of the respon-
-dent's wife. He maintains that her testimony is privileged and cannot
be used against the respondent; and that absent this testimony, the
Government has not met the burden of establishing by clear, unequivocal, and convincing evidence that the respondent was not in fact eligible to receive an adjustment of his status.
It is a generally acceptable rule that a termination of the marriage
removes any bar of incompetency on the part of the former wife except
for confidential communications between the spouses during the existence of the marital relationsliip..Pereira v. (baited States, 347 U.S.
1,
98 L. Ed. 435. The Supreme 'Court has also held that where there is
a prima facie showing that the marriage relationship was a sham and
without substance, confidential communications between the spouses
during the existence of the marital relationship are admissible. Luttvale
v. United States,
344 U.S. 604,
97 L. Ed. 593 (1953). •
The fact that the respondent's former wife obtained an annulment
of her marriage to the respondent on the ground that "he had no
intention of keeping his marriage vows but did enter into the marriage
for the sole reason of obtaining a permanent residence visa which
would permit him to live in the United States and for -which purpose
he needed the assistance of this defendant (respondent's former wife)
so that he could claim marriage to an American citizen" while not
conclusive,' nevertheless, is prima facie . evidence that the marriage
was a sham for immigration purposes. Furthermore, the prima facie
1 This Board has held that the relation back theory of an annulment decree
is not to be followed blindly where to do so would result in an injustice to an
innocent respondent. Matter of B—, 3I. & N. Dec. 102, BD1, 1947.
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Interim Decision #1893
showing of a sham marriage has support in the fact that the respondent permitted a default judgment in the annulment counterclaim
althoigh he had originally filed a divorce proceeding. Accordingly,
we rule that the testimony of the respondent's wife concerning con-
-
fidential communications during the existence of the marriage is not
privileged under the circumstances of this particular case.
We must next determine whether the Service has established by
clear, unequivocal and convincing evidence that the respondent was
ineligible for adjustment of status under Section 245 because his supporting marriage was a sham and entered into to circumvent the
immigration laws. Cf., Traziri v. Immigration and Naturalization
Service, 392 F. 2d 129 (CA. 9, January 1968). A determination of
whether there is clear, unequivocal and convincing evidence that the
respondent's marriage was entered into as a sham solely for the purpose
of circumventing the immigration laws resolves itself into a determination of whether the testimony of the respondent's former wife is
worthy of belief. Credibility involves more than demeanor. It apprehends the overall evaluation of testimony in light of its rationality or
internal consistency and the manner in which it hangs together ,rrith
other evidence. Carbo v. United States, 314 F. 2c1 718, 749 (CA. 9,
1963) .
We have held that in a deportation proceeding there must be an
evaluation and a weighing of all the evidence and a finding made with
regard to its credibility before the test for burden of proof as set
forth in Woodby v. Immigration and N ura2iaation Service 2 (
385
U.S. 276) comes into play. Cf., Matter of Lugo-Guadiana, Int. Dec.
No. 1861, BIA, May 16, 1968. The Waziri case (supra) imposes the
same test for a rescission proceeding.
An overall evaluation of the testimony of the respondent's wife when
compared with some of the irrational testimony of the respondent
concerning threats to his life, his failure to prosecute the divorce
proceeding filed by him, his testimony that his failure was due to fear
of his wife, and his failure to introduce evidence of his wife's alleged
immorality although he claimed that there were witnesses which could
establish her immoral character leads us to conclude that her testimony
is more credible than that of the respondent. Based upon this finding,
a The Supreme Court held that the test for burden of proof in a deportation
proceeding is as follows :
No deportation order way be entered unless it Is found by clear, unequivocal
and convincing evidence that the facts alleged as grounds for deportation are
true.
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Interim Decision #1893
we conclude that there is clear, unequivocal and convincing evidence
that the respondent was ineligible for adjustment of status on April 21,
1967 because his marriage to a United States citizen was a sham entered into by him for the purpose of circumventing the immigration
laws. The appeal will be dismissed.
ORDER: It is directed that the appeal be and the same is hereby
dismissed.
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