Interim Decision #2029
MATTER OF OLIVEIRA
In Deportation Proceedings
A-14678566
Decided by Board March 6, 1970
In a finding of deportability under section 241(c) of the Immigration and
Nationality Act, the Woodby burden of proof is met by clear, unequivocal
and convincing evidence that the alien's marriage took place less than 2
years prior to his entry, and that the marriage was judicially terminated
within 2 years after entry.
CHARGE:
Order: Act of 1952—Sections 291 (a) (2) and 241 (c) [8 U.S.C. 1251 (a) (2)
and 1251 (c) ]—Entered with visa procured through
marriage fraud.
ON BEHALF OF RESPONDENT' ON BEHALF OF SERVICE:
Arlin W. Hargreaves, Esquire R. A. Vielhaber
30 Hotaling Place Appellate Trial Attorney
San Francisco, California 94111
Stephen M. Suffin
Robert S. Bixby, Esquire Trial Attorney
(Brief filed) (Brief filed)
The case comes forward on appeal from the decision of the special inquiry officer who found respondent deportable as charged
and ordered that he be deported to Portugal. There was no request for voluntary departure.
The respondent is a 32-year-old divorced male alien, a native
and citizen of Portugal, who entered the United States at New
York on February 27, 1965, being then admitted as a nonquota
immigrant upon presentation of an immigrant visa issued to him
as the spouse of a United States citizen. His marriage, which took
place at Lisbon, Portugal on December 18, 1964, was to one Rose
Marie Vasquez, a native born citizen of the United States. Both
testified that the marriage was consummated and that the day
following the wedding she returned to the United States. Respondent followed ten weeks later. They never lived together in
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Interim Decision #2029
the United States. The marriage was terminated by divorce on
October 7,1966.
The special inquiry officer found respondent deportable under
sections 241 (a) (2) and 241 (c) of the Act as one who entered the
United States with a visa procured through a marriage fraud.
The applicable portion of section 241 (c) is as follows:
An alien shall be deported as having procured a visa or other documentation by fraud within the meaning of paragraph (19) of section 212(a), and
to he in the United States in violation of this Act within the meaning of
subsection (a) (2) of this section, if (1) hereafter he or she obtains any
entry into the United States with an immigrant visa or other documentation
procured on the basis of a marriage entered into less than two years prior
to such entry of the alien and which, within two years subsequent to any
entry of the alien into the United States, shall be judicially annulled or terminated, unless such alien shall establish to the satisfaction of the .4 ttorney
General that such marriage was not contracted for the purpose of evading
any provisions of the immigration laws. (Emphasis supplied.)
An initial question was raised by counsel as to what standard
of proof must be met by the Service in finding respondent deportable under section 241 (c) of the Act. Counsel argues that the
standard enunciated by the Supreme Court in the case of Woodby
v. INS,
(1966) (where deportation was predicated
on section 241 (a) (2) of the Act), that no deportation order may
be entered unless it is found by clear, unequivocal and convincing
evidence that the facts supporting deportation are true, is equally
applicable to the deportation proceedings in the instant case
under section 241 (c) . 1 With this we agree.
The Government in the case before us has met its burden of
proof by showing by clear, unequivocal and convincing evidence
that: (1) respondent's marriage took place less than two years
prior to his entry, and, (2) the marriage was judicially terminated within two years after entry. This being the case, the respondent then has the burden under section 241 (c) of coming forward with evidence sufficient to rebut the statutory presumption
of said section that the visa was procured by fraud, by proving to
the satisfaction of the Attorney General by a preponderance of
evidence that the marriage was not entered into for the purpose
of evading the immigration laws.
The special inquiry officer has set forth in his opinion an exhaustive, chronological statement of the facts relative to respondFollowing the Woodby case, 8 CFR 242.14 (a) was promulgated, which is
as follows:
"A determination of deportability shall not he valid unless it is found
by clear, unequivocal and convincing evidence that the facts alleged as
grounds for deportation are true."
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ent's marriage, and he concluded that respondent had failed to
show by a preponderance of the evidence that the marriage was
not entered into in order to evade the immigration laws. We
reach the same conclusion. We do not deem it necessary to again
detail all of the facts and circumstances surrounding this marriage, but state that we are in full agreement with the excellent
analysis by the special inquiry officer that clearly shows that the
respondent has failed to establish that the marriage was not for
the purpose of evading the immigration laws.
Accordingly, we will dismiss the appeal.
ORDER: It is ordered that the appeal be and the same is
hereby dismissed.
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