Interim Decision # 2113
MATTER OF ATHANASOPOULOS
In Section 246 Proceedings \
A-13864002
Decided by Board December 30, 1971
(1) Communications between respondent and his attorney for the purpose of
perpetrating a fraud against the immigration laws are not privileged communications.
(2) A delay of approximately 31/2 years between the time of the Government's first knowledge of respondent's fraudulent marriage and the
initiation of rescission proceedings does not constitute a denial of due
process of law since rescission proceedings are civil in nature and pursuant to section 246(a) of the Immigration and Nationality Act may be
instituted at any time within 5 years after adjustment of status of a person under section 245 of the Act.
(3) Refusal of the special inquiry officer to subpoena certain witnesses and
to provide for the taking of depositions in Greece was not a denial of due
process where the record clearly reveals that the whereabouts of the witnesses in Greece was unknown and the testimony of the other witnesses to
be subpoenaed would be cumulative of competent testimony in the record
on the issue in question.
(4) Where the Government has produced evidence of a clear case of fraud
and of ineligibility for adjustment of status, and the respondent has refused to testify on matters within his personal knowledge and has failed
to rebut the evidence of the Government, rescission of adjustment of status is proper.
ON BEHALF OF RESPONDENT : ON BEHALF OF SERVICE:
Elmer Fried, Esquire Irving A. Appleman
515 Madison Avenue Appellate Trial Attorney
New York, New York 10022
(Brief filed)
The respondent, a native and citizen of Greece, appeals from
an order entered by the special inquiry officer on August 26, 1969
pursuant to the provisions of section 246 of the Immigration and
Nationality Act, 8 U.S.C. 1256. The order rescinds an adjustment
of his status to that of a permanent resident alien under section
245 of the Act, 8 U.S.C. 1255. Exceptions have been taken to the
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finding that the respondent was not in fact eligible for the adjustment of status accorded him.
The respondent originally entered the United States as a nonimmigrant professional soccer player (H-2) through the port of
New York on August 9, 1963. He married Marta Pinela, a citizen
of the United States, in Jamaica, Queens County, New York on
May 12, 1964. A petition to accord the respondent immediate relative status was executed by his citizen wife on May 13, 1964 and
approved by the Service on July 2, 1964. The respondent's nonimmigrant status was adjusted to that of a permanent resident
alien on August 27, 1964, based upon the approved visa petition.
The respondent's marriage to Marta Pinela was terminated by a
divorce granted in Mexico on June 22, 1968.
The Notice of Intention to Rescind, served upon the respondent
on June 10, 1969, charges that he was not entitled to immediate
relative status as the spouse of a United States citizen and was
chargeable to the nonpreference portion of the Greek quota which
was not then available because his marriage to Marta Pinela
"was a sham marriage entered into solely for the purpose of permitting [him] to adjust [his] status to that of a lawful permanent resident of the United States" (Ex. 1).
The respondent, on advice of counsel, declined to testify during
the hearing beyond stating his name. Counsel acknowledged that
the respondent is an alien and that his status was adjusted to
that of a permanent resident as alleged in the Notice of Intention
to Rescind.
The Government's case is built primarily upon the testimony of
the respondent's former wife, Marta Pinela, and one Angel Luis
Collazo, who admitted that he arranged the wedding between the
respondent and Marta Pinela (p. 71). Supporting documentary
evidence entered in the record consists of a record of the respondent's marriage to Marta Pinela on May 12, 1964, the visa petition
(Form 1-130) executed by the respondent's former wife and received by the Service on May 21, 1964, the memorandum of the
creation of a record of lawful permanent residence (Form 1-181)
dated August 27, 1964,,and the application for adjustment of status (Form 1-485) executed by the respondent on June 5, 1964
(Exs. 2, 3, 4 and 5).
The testimony of the respondent's former wife is fully set
forth in the opinion of the special inquiry officer and is incorporated herein by reference. A summary of her testimony is as follows : Her marriage to the respondent was arranged solely for immigration purposes by one Angelo Collazo, who informed her that
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she would receive $500 as a participant and that there would be
no marital obligation on her part to live with the respondent. She
further testified that she never lived with the respondent as man
and wife. She admitted that the respondent asked her to live with
him "two or three times" but she refused because "that wasn't
the plan that was offered to me. That isn't what I accepted. Those
were not the conditions" (p. 44).
The respondent's wife was questioned as to whether the respondent "ever tried to have sexual relations with [her]." She replied, "He never got fresh with me." She was then questioned as
to whether she considered "it getting fresh" if her husband
wanted to have sexual relations with her. She replied, "I didn't
consider him my husband, otherwise I would have had sexual relations with him" (p. 44).
The witness, Angel Luis Collazo, identified the respondent's
former wife as the person for whom he arranged a marriage in
1964 (p. 71). This witness testified that he arranged for the respondent and his former wife to meet at a restaurant "in downtown Manhattan"; that at this meeting in the presence of the respondent, the conversation included a discussion of a monetary
consideration for the marriage and an agreement that there
would be no cohabitation (p. 74). He further testified that he was
present at the marriage ceremony; that immediately following the
marriage, they went to the lawyer's office where papers were
signed ; that thereafter the respondent's wife was paid $500 and
"she gave me $100 back" (pp. 76-78).
The respondent, on advice of counsel at the beginning of the
hearing, refused to testify on the ground that he was not required to establish the Government's case (pp. 16 and 17). At the
close of the hearing after the Government had rested its case, he
also claimed the privilege against self-incrimination under the
Fifth Amendment (pp. 188, 189). The special inquiry officer
states at page 7 in her opinion "... the logical conclusion to be
drawn from the respondent's silence based on the contention that
to testify might incriminate him is that the testimony, if given,
would be adverse to his interest," citing Matter of 0—, 6 I. & N.
Dec. 246 (BIA, 1954).
It is the contention of counsel that the special inquiry officer
erred in drawing an adverse inference from the respondent's refusal to testify based on the Fifth Amendment. He claims that
the privilege was fairly asserted because the questions of the trial
attorney implied that the respondent was suspected of at least a
violation of 18 U.S.C. 371, which defines a conspiracy to commit
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any offense or to defraud the United States, or any agency
thereof in any manner or for any reason. Counsel cites several
cases decided by the Supreme Court 1 in support of his position.
We agree with counsel that the drawing of adverse inferences
from a claim of Fifth Amendment privilege has been circumscribed by recent decisions of the Supreme Court, supra, footnote
1. We need not reach the issue of whether, on the peculiar facts
of this case, the special inquiry officer erred in drawing an adverse inference from the respondent's refusal to testify. Here we
have direct and uncontroverted evidence that the respondent's
marriage to a citizen of the United States was a sham. The respondent's former wife testified that she never lived with the respondent in a marital relationship and that her marriage was arranged for immigration purposes. The testimony of the arranger,
Collazo, is to the same effect. Their testimony is credible and
remains unrebutted by the respondent. We conclude, without relying on the respondent's failure to testify, that the essential facts
of a sham marriage are clearly, convincingly and unequivocally
established quite apart from any inference drawn by the special
inquiry officer. Cf. Vlisidis v. Holland, 245 F.2d 812, 814 (3 Cir.,
1957). Since we reach this conclusion separate and apart from
any adverse inference drawn by the special inquiry officer, we
need not deal with counsel's objections.
Counsel challenges the special inquiry officer's ruling that the
information furnished to the Immigration Service by the respondent's former attorney was not a violation of the attorney-client privilege and that the evidence derived from that information is therefore admissible in evidence. The special inquiry
officer stated in her opinion that the attorney-client privilege does
not extend to communications between an attorney and client
where the client's purpose is the furtherance of a future intended
crime or fraud.
The facts concerning this phase of the case have been fully discussed in the opinion of the special inquiry officer and the brief
submitted by counsel. Briefly, they establish that one Peter K.
Timon, whose signature appears as a notary public on the petition (Form 1-130, Ex. 3) submitted by the respondent's former
wife, appeared voluntarily in the office of the Immigration Service at New York on January 4, 1966 and on this occasion surrendered voluntarily a list of his immigration clients. Mr. Timon
1 Griffin v. California,
380 U.S. 609,
14 L. Ed. 2d 106 (1965) ; Spevack v.
Klein,
385 U.S. 511,
17 L. Ed. 574 (1967) ; Gastelum-Quinones v. Kennedy,
374 U.S. 469,
10 L. Ed. 2d 1013 (1963).
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again appeared voluntarily in the Immigration office on July 13,
1966, and surrendered voluntarily some 16 powers of attorney including a power of attorney executed by the respondent's former
wife (pp. 124, 163, 172 and Exs. 2 and 3 for identification).
There is evidence of record that the powers of attorney were executed by the respective petitioning wives for the purpose of eliminating the necessity of contacting the "immigration wife" when
the time arrived for obtaining an uncontested Mexican divorce (p.
140), There is a statement on Exhibit 4 for identification that
most of the cases were known to the Government prior to the
submission of the list by Attorney Timon.
We have carefully considered counsel's contention that the evidence upon which this proceeding is based is tainted and may not
be used because it is a violation of the attorney-client privilege
and the Fourth Amendment prohibition against illegal search and
seizure. There is evidence of record that Attorney Timon was in
possession of a power of attorney which was signed by the respondent's former wife in his office at the time she signed the
visa petition submitted by him in the respondent's case. When
this evidence is considered with the testimony of the two immigration officers who were concerned with the investigation that
preceded the institution of rescission proceedings against the respondent, we are convinced that Attorney Timon knew or should
have known that his services in behalf of the respondent were for
the purpose of perpetrating a fraud against the immigration
laws. The Supreme Court has said that, "A client who consults an
attorney for advice that will serve him in the commission of a
fraud will have no help from the law," Clark v. United States,
289 U.S. 1, 15,
77 L. Ed. 993, 1000 (1933).
The test for the loss of the attorney-client privilege was stated
by the Court in
Clark, supra,289 U.S. 15,
77 L. Ed. 1000, as follows:
To drive the privilege away there must be "something to give color to the
charge," there must be "prima facie evidence that has some foundation in
fact". ... When that evidence is supplied, the seal of secrecy is broken.
We are satisfied that the evidence on this issue meets the aforestated test. We find no error in the special inquiry officer's ruling
that the communications between the respondent and his attorney
are not protected by the attorney-client privilege under the circumstances presented by this case.
Counsel asserts that the respondent was prejudiced and denied
due process of law because of the unreasonable delay between the
Government's first knowledge of the alleged fraudulent marriage
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and its action in starting these proceedings. Counsel asserts that
the Government learned from Attorney Timon on January 4,
1966 that the respondent might have obtained his permanent residence by a sham marriage but took no action until the Notice to
Rescind was mailed to the respondent on June 10, 1969. It is the
position of counsel that during this delay of nearly three and
one-half years the memories of witnesses had faded, circumstances had changed and some witnesses were unavailable.
The Sixth Amendment provides in part, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public
trial." This is a civil proceeding brought under section 246 (a) of
the Immigration and Nationality Act. Under this statute the Attorney General may institute rescission proceedings "at any time
within five years after the status of a person has been otherwise
adjusted under the provisions of section 245 ... of this Act ...."
(Emphasis supplied.)
We find no support in the cases cited by counsel in his brief 2
for his argument that the respondent has been denied his constitutional rights by reason of the delay in the initiation of rescission proceedings. Three of the cited cases are concerned with appeals from convictions for violations of the federal narcotic laws
and are criminal proceedings as distinguished from civil proceedings.
The case of Pierno v. INS, supra, footnote 2, is not relevant to
the case before us. The Pierno case concerns a finding of statutory ineligibility for section 245 relief based solely upon an automatic revocation of visa approval pursuant to 8 CFR 205.1 (a) (2)
because of the intervening death of the petitioning citizen spouse.
The Service argued that the automatic revocation of visa approval pursuant to the regulations precluded the grant of relief
under section 245.
The court held that since the authority for the automatic revocation regulation was derived from section 205 of the Act, a permissive statute granting the Attorney General discretion in determining what shall constitute good and sufficient cause for
revocation, there could be no "wooden application of rules for automatic revocation." The court in its review of the evidence noted
that the petitioning spouse had died during the eight months'
stay of the section 245 proceeding by the Service while awaiting
final disposition of an annulment proceeding brought by the peti-
2 Nickens v. United States, 323 F.2d 808 (D.C. Cir., 1963) ; Ross v. United
States,
349 F.2d 210 (D.C. Cir., 1965) ; United States v. Sanchez,
361 F.2d
824 (2 Cir., 1967) ; Pierno v. INS,
397 F.2d 949 (2 Cir., 1968).
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tioner's son. The court by way of dictum said at page 951 that
the beneficiary ". . . need not be penalized as a result of events occurring during an unusually long investigation which are totally
unrelated to that investigation." (Emphasis supplied.) The record
establishes to our satisfaction that the events which occurred during the three and one-half year period referred to by counsel
were directly related to the investigation of the respondent's eligibility for adjustment of status under section 245 of the Act. Cf.
U.S. ex rel. Circella v. Sahli, 216 F.2d 33, 39 (7 Cir., 1954), cert.
denied
348 U.S. 964.
Counsel contends that the respondent was deined due process
of law by reason of the special inquiry officer's refusal to subpoena certain witnesses requested by the respondent and to provide for the taking of depositions in Greece. Counsel argues that
the refusals were in all cases not based on considerations as to
whether the testimony was likely to be relevant, material or necessary, but on whether the witnesses were immediately available
in order to meet the deadline for the running of the\ five-year
statute of limitation provided by section 246 (a) of the Act.
8 CFR 287.4 (a) (2) provides the special inquiry officer with
discretion "... upon application of ... the alien ... [to] ... issue
subpoenas requiring the attendance of witnesses or for the production of ... other documentary evidence, or both." The regulation also provides that the party applying for a subpoena shall be
required, "as a condition precedent to its issuance, to state in
writing or at the proceeding what he expects to prove by such
witnesses or documentary evidence, and to show affirmatively
that he has made diligent, effort without success to produce the
same. Upon being satisfied that a witness will not appear and testify or produce documentary evidence and that his evidence is essential, the ... special inquiry officer shall issue a subpoena."
(Emphasis supplied.)
We have carefully reviewed the record of counsel's requests for
the production of witnesses and the taking of depositions in
Greece. Following a statement by the trial attorney that "The
government rests" (p. 90), counsel for the respondent stated for
the record that he would "like the production of certain witnesses, some under the control of the government, some not" (p.
94). Among the witnesses named by counsel are Attorney Peter
Timon, the respondent's former counsel, an Assistant United
States Attorney alleged to have been in charge of prosecution of
this case, each investigator who investigated the case, and a Mr.
Kaparonis who allegedly participated in the "conversations, acts
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and agreements" when the marriage was arranged (p. 94). During the discussion which followed counsel's request, we find no
statement on the part of counsel as to what he expects to prove
by the production of the witnesses, nor is there any affirmative
showing on the part of counsel that prior to this request he had
made a diligent effort without success to produce the witnesses
(pp. 95-101).
During the hearing of August 19, 1969, counsel requested the
issuance of a subpoena to compel the appearance of Attorney
Timon, since he assumed that "Mr. Timon has no intention of voluntarily appearing" pursuant to counsel's request forwarded by
mail on August 4, 1969 (pp. 105-106). Counsel at this time also
requested the taking of depositions from two witnesses who were
overseas and whose testimony he considered crucial for the respondent's defense (p. 106) . Concerning the subpoena for Attorney Timon, the special inquiry officer referred to an "off the record discussion" at counsel's request during the hearing of August
1, 1969. The special inquiry officer stated for the record that
pursuant to this discussion, it was her understanding that counsel
was interested in the testimony of Attorney Timon in order to determine whether it was from Mr. Tirnon or from his records
"that the Service investigation in this matter resulted" (p. 108).
We are satisfied after thoroughly considering the exchange between counsel and the trial attorney (pp. 109-113), and the testimony of the supervisory inspector of the Frauds Section in the
New York office of the Immigration Service (pp. 139-185) that
the respondent's case had been identified from Service records
prior to the receipt by the Service of a record of Mr. Timon's
clients (pp. 141, 150). We find no error on the part of the special
inquiry officer in refusing counsel's request to adjourn the hearing for the purpose of having Attorney Timon and the two investigators appear as witnesses {pp. 133, 134, 135) since there
was competent evidence on this issue in the record.
Counsel during the hearing of August 19, 1969 requested an
adjournment in order that he might fly to Greece for the purpose
of taking depositions from the respondent's uncle and another
man named "Jimmy [Kaparonis]." Counsel stated that the two
witnesses "could contradict the Government testimony" since they
"were present at the time of the alleged conversations of these
Government witnesses" (p. 135). Counsel did not specify what
"Government testimony" these witnesses would contradict. He
made no attempt to show affirmatively that he had made diligent
effort without success to produce the witnesses. Counsel takes the
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position that the Government should assist in locating the witnesses (p. 107).
An alien in a rescission proceeding must be afforded due process, including a fair hearing. We find no substance to counsel's
claim that the special inquiry officer erred in denying his request
to subpoena certain witnesses and to take depositions in Greece.
The record clearly reveals that the whereabouts of the two witnesses in Greece was unknown and that the testimony of Attorney Timon and the two investigators who were not available
would be cumulative of testimony proffered by the witnesses
Whalen and Spivack, both employees of the Immigration Service.
Failure to produce for crossexamination witnesses who cannot be
found or whose presence cannot be procured does not make this
proceeding unfair, Navarrette-Navarrette v. Landon, 223 F.2d
234, 237 (9 Cir., 1955), cert. denied
351 U.S. 911 (1956) ; U.S. ex
rel. Impastato v. O'Rourke,
211 F.2d 609, 611 (8 Cir., 1954), cert.
denied
348 U.S. 827 (1954). There is no showing that the hearing
was unfair, and we find no error.
Counsel contends that the respondent is immune from rescission proceedings by reason of section 241 (f) of the Immigration
and Nationality Act since he is now married to and living with a
citizen of the United States. Section 241 (f) provides a waiver of
deportability in the case of an alien who was excludable at the
time of entry as one who had procured a visa or entry into the
United States by fraud or misrepresentation if such alien is the
spouse, parent or child of a United States citizen or an alien lawfully admitted for permanent residence. Counsel's argument is
based on the premise that Congress did not intend to have its
grant of immunity under section 241 (f) depend on which administrative procedure, i.e., a section 245 adjustment as opposed to
an entry with an immigration visa, was used to acquire the residence status that Congress intended to protect. Counsel cites no
authority for his position.
We have considered the question of whether section 241 (f) is
available in rescission proceedings. We held in Matter of Alemis,
12 I. & N. Dec. 456 (BIA, 1967), that section 241 (f) by its very
terms and the Supreme Court's decision in INS v. Eyrico,
385
U.S. 214 (1966), is limited solely to a deportation proceeding and
is not applicable to a rescission proceeding under section 246 of
the Act. The proceeding before us is not a deportation proceeding. See also, Ferrante v. INS,
399 F.2d 98 at pp. 104, 105; Fojon-Casal v. Attorney General, Civ. No. 2063-68 (unreported
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Interim Decision #2113
D.C., D.C.); and Matter of Vilanova-Gonzalez, Interim Decision
No. 2008 (BIA, 1969).
Counsel contends that the record does not establish by clear,
convincing and unequivocal evidence that the respondent's marriage to Marta Pinela was a sham, entered into solely for the purpose of permitting him to adjust his immigration status to that
of a lawful permanent resident alien. Counsel asserts that the
Government never established that the respondent was a knowing
participant in the marriage fraud. He maintains that without
such proof the Government has failed to establish a prima facie
case and for this reason the respondent's silence may not be used
to bolster the insufficiency of the Government evidence. Counsel
cites the case of Gastellum-Quinones v. Kennedy, 374 U.S. 469,
479 (1963), in support of his argument.
We find no substance to counsel's argument that the Government has failed to establish a prima facie case because there is no
showing that the respondent was a knowing participant in the
marriage fraud. The testimony of the respondent's former wife
and the arranger, Collazo, that the respondent was present at the
time the sham marriage was arranged is uncontroverted. The arranger, Collazo, testified that the respondent's uncle spoke to the
respondent in "Greek" during the meeting at which the marriage
was arranged (p. 88). There is no reason why we should not conclude that the uncle truthfully informed the respondent in Greek
just what was taking place, i.e., that a sham marriage was being
arranged for him with the woman who was present, in order that
his immigration status could be adjusted. We are satisfied from
the testimony of the arranger concerning events which followed
the first meeting between the respondent and his former wife
that he (respondent) knew full well that the marriage was solely
for immigration purposes (pp. 75, 77, 79-81). For example, the
respondent permitted the arranger, Collazo, to place around his
apartment women's clothing furnished by his uncle for the purpose of making it appear that his wife was residing there (pp.
78, 79). It is inconceivable under the circumstances that the respondent could not have known what was going on. Accordingly,
the Supreme Court's decision in Gsatelum-Quinones, supra, has
no application to the respondent's case.
It is the function of the special inquiry officer and on appeal
the function of this Board to make an evaluation and to reach a
determination as to whether the evidence is of sufficient quality
and substantiality to support the rationality of the order of res-
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cission. Cf. D'Andrea v. INS, 335 F.2d 377 (6 Cir., 1964), cert.
denied
379 U.S. 999 (1965) ; Matter of Lugo-Guadiana,
12 I. & N.
Dec. 726 (BIA, 1968). The respondent in this proceeding was not
deprived of an opportunity to produce evidence in refutation of
the testimony of his former wife and the witness, Collazo. Cf.
Sercerchi v. Ward,
27 F. Supp. 437, 440 (D. Mass., 1939) and
cases cited. Their unrefuted testimony is candid, unequivocal and
credible.
The good faith of the marital relationship is the very essence
of this rescission proceeding and by its very nature is within the
personal knowledge of the respondent. His failure to rebut the
testimony of the Government witnesses does not diminish its
quality when, as here, the case is clear cut. We conclude that the
special inquiry officer has made a "fair assessment of the record."
Cf. Peurifoy v. Commissioner,
358 U.S. 59, 61 (per curiam 1958).
There is clear, unequivocal and convincing evidence that the respondent was not in fact eligible for adjustment of status under
section 245 of the Immigration and Nationality Act, as amended.
We affirm the order entered by the special inquiry officer and will
dismiss the appeal.
ORDER : It is ordered that the appeal be and the same is
hereby dismissed.
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