Interim Decision #2002
MATTER OF YALDO
In Deportation Proceedings
A-13777983
Derided by Board July 8, 1969
Where the "good faith" of an alien's supporting marriage for adjustment of
status under section 245 of the Immigration and Nationality Act, as
amended, is a relevant issue, testimony of the alien's wife concerning confidential communications between the spouses during the period of coverture is admissible in evidence in rescission proceedings under section 296
of the Act.
CHARGE:
Order : Act of 1952—Section 241 (a) ( 2) [8 U.S.C. 1251 (a) (2)]—Nonimgrant student—remained longer.
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
John Palumbo, Esquire R. A. Vielhaber
21261 Kelly Road Appellate Trial Attorney
East Detroit, Michigan 48021
The respondent, a native and citizen of Iraq, appeals from an
)rder entered by the special inquiry officer on December 26, 1968
;ranting him voluntary departure in lieu of deportation as an
tlien who, after entry as a nonimmigrant student, has remained
n the United States longer than permitted (8 U.S.C.
1251 (a) (2) ). Exceptions have been taken to the finding of de-
)ortability and to an order entered on August 12, 1968 rescinding
the adjustment of the respondent's immigration status to that of
permanent resident alien pursuant to section 246 of the Immi-
;ration and Nationality Act (8 U.S.C. 1255).
The respondent, a divorced male alien, 22 years of age, last entered the United States through the port of Boston, Massachu-
;etts on or about July 14, 1965. He was then admitted as n.
Nonimmigrant student for a period to expire on July 13, 1966.
His status was adjusted to that of a permanent resident alien on
April 21, 1967. He acquired immediate relative status on the basis
)f a marriage to a United States citizen on December 12, 1966.
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Interim Decision #2002
His marriage to a United States citizen was terminated by a decree of annulment entered on October 20, 1967.
The Board of Immigration Appeals on August 12, 1968 dismissed an appeal from the special inquiry officer's decision of
April 8, 1968 rescinding the adjustment of the respondent's status to that of a permanent resident alien. The rescission of the
respondent's permanent resident status returned him to the status of a non-immigrant visitor. He was notified on August 28,
1968 that he would be required to depart from the United States
on or before September 28, 1968. He has remained in the United
States subsequent to September 28, 1968 and is deportable on the
charge stated in the order to show cause. See Ferrante v. INS,
399 F.2d 98 (6 Cir., 1968).
The respondent contests his deportability on the ground that
error was committed by the special inquiry officer during the rescission proceeding. He moves this Board for a reconsideration of
our decision and order entered on August 12, 1968 dismissing his
appeal from the order of rescission entered by the special inquiry
officer on April 8, 1968. Counsel maintains that it was error to
admit the testimony of the respondent's former wife during the
rescission hearing, because conversations which took place between them during the period of coverture are privileged. Counsel relies on the law of Michigan relative to such privilege.' He
also refers to the Supreme Court's decision in Pereira v. United
States, 347 U.S. 1 (1954) where the Court stated at page, 6
. 'while divorce removes the bar of incompetency, it does not ter-
minate the privilege for confidential martial communications." 2
There may be some question whether, on this appeal from a deportation order, we should consider such a challenge to the underlying rescission order. The better practice would seem to be a
direct challenge in the rescission proceeding itself. Since the record in that proceeding was received in evidence in the deportation hearing, however, and is thus physically a part of the deportation record now before us, we can conveniently consider the
issue at this point.
We reject counsel's contention that the law of Michigan relative to privileged communications controls in this proceeding. The
question of whether testimony is privileged in a federal proceedMichigan Statutes Annotated, 27A.2162.
The Pereira case also supports a holding that the scope of the privilege
extends only to utterance during the existence of the marital relationship
and not to acts or to utterances made prior or subsequent to the marriage,
Voliantis v. INS, 352 F.2d 766, 768 (9 Cir., 1965).
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Interim Decision #2002
ing concerned with confidential communications between husband
and wife is controlled by federal judicial interpretation in the absence of congressional legislation on the subject and not by local
statute. Cf. Wolfe v. United States, 291 U.S. 7 (1934); Blau v.
United States,
340 U.S. 332 (1951); Fraser v. United States,
145
F.2d 139, 144 (6 Cir., 1944), cert. denied
324 U.S. 849. Furthermore, even if the Michigan statute did control, we note that it
contains exceptions which would permit the testimony of the respondent's wife where marital fraud is involved. 3
We noted in our decision of August 12, 1968 that the Supreme
Court's decision in Pereira sustained the privilege accorded confidential communications between spouses during the existence of
the marital relationship. Our conclusion that the testimony of the
respondent's wife was admissible in the rescission proceeding is
based upon the following statement of the Supreme Court found
in Lutwak v. United States,
344 U.S. 604 (1953), at page 614:
When the good faith of the marital relation is pertinent and it is made to
appear . . . that the relationship was entered into with no intention of the
parties to live together as husband and wife but only for the purpose of
using the marriage ceremony in a scheme to defraud, the ostensible spouses
are competent to testify against each other.
The "good faith" of the marital relationship is the very essence
of the rescission proceeding. The respondent's former wife obtained an annulment on the ground that the respondent had no
intention of keeping his marriage vows but entered into the marriage for the sole purpose of adjusting his immigration status.
,
This is prima facie evidence that the marriage was a sham and
mtered into solely for the purpose of affording a vehicle for se-
:..uring an adjustment of his immigration status. Furthermore,
;he record of the annulment proceeding (Ex. 4) was introduced
is evidence in the rescission proceeding, and counsel for the re-
;pondent was afforded an opportunity to cross-examine the re-
;pondent's former wife. Counsel stated for the record that he had
lo objection to the introduction of the record of the annulment
)roceedings "since it is a part of the public record," although he
lid qualify his nonobjection with a request for the right of
ross-examination, which was granted, and a statement that he
lid not necessarily "agree to the contents of what these records
nay show" (p. 21). Under the circumstances, we conclude that
3 The Michigan statute (27A.2162) states the common law rule and pro-
iides for numerous exceptions, one of which reads "where the cause of ac-
,ion grows out of a personal wrong or injury done by one to the other."
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Interim Decision #2002
the test with regard to privilege as stated in Lutwak (supra) was
clearly met in the rescission proceeding.
Counsel argues that the fact that the respondent did not file an
answer to the counter complaint for annulment was given "much
significance" in the Board's opinion of August 12, 1968. Counsel
alleges that it is "common practice" in Wayne County, Michigan,
to resort to "the taking of default judgments in domestic relation
cases" in order to expedite a final judgment (p. 3 of counsel's
brief). Counsel has submitted a letter, dated October 8, 1968,
from the Assistant Circuit Court Administrator for Wayne
County, Michigan which states "that the average time required ...
to bring a contested divorce case to trial is approximately 37
months." While this may be common practice in the courts of
Wayne County, Michigan, nevertheless, the failure to answer the
counterclaim is evidence of the fact that the respondent made no
attempt to establish his allegations of a "good faith" marriage as
set forth in his complaint for a divorce (Ex. 4). Under the circumstances, this factor is significant in light of the test for competency set forth in Lutwalk (supra).
Counsel argues that the special inquiry officer and this Board
gave improper weight to the testimony of the respondent's former wife in light of her testimony that she would have been content to remain married to the respondent if he had not instituted
divorce proceedings and that it was after he started the divorce
proceedings that she decided to annul the marriage (p. 47). Counsel maintains that this testimony of the respondent's former wife
clearly shows that it was designed as a method of revenge upon
the respondent, and such biased testimony cannot be the basis of
a deportation order within the guidelines set by the Lutwak case
(supra) (p. 5, counsel's brief). Counsel urges a reconsideration of
the order of rescission.
We find no merit to counsel's argument that the testimony of
the respondent's former wife was biased and contrived as a matter of revenge. Her testimony that she would have been content
to remain married to the respondent had he not instituted divorce proceedings is merely cumulative of her testimony that she
married the respondent in good faith (p. 28) and that it was to
protect her own interest that she counterclaimed for an annulment (p. 43). Under the circumstances, we find no basis for a reconsideration of the rescission proceeding as the points raised by
counsel have no foundation in either fact or law on this record.
Since the respondent has reverted to the status of a nonimmigrant alien and has remained in the United States subsequent to
377
Interim Decision #2002
September 28, 1968 as charged in the order to show cause, we
find that there is clear, unequivocal, and convincing evidence that
the facts alleged as grounds for deportation are true. Cf. Woodby
v. INS, 385 U.S. 276 (1966) .
We affirm the order entered by the special inquiry officer and
will dismiss the appeal. Since the execution of the order entered
by the special inquiry officer has been stayed during the pendency
of this appeal, we will provide for the voluntary departure of the
respondent within 30 days from the date-of this decision.
ORDER: It is ordered that the appeal be and the same is
hereby dismissed.
It is further ordered that, pursuant to the special inquiry
officer's order, the respondent be permitted to depart from the
United States voluntarily within 30 days from the date of this decision or any extension beyond that time as may be granted by
the District Director; and that, in the event of failure so to depart,
the respondent shall be deported as provided in the special inquiry officer's order.
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