Interim Decision #2326
MATT= OF PONCO
In Deportation Proceedings
A-19359463
Decided by Board October 24, 1974
(1) In deportation proceedings the Service bears the burden of proving alienage, however
one who admits birth in a foreign country is presumed an alien and must go forward
with the evidence to establish his claim to United States citizenship. Evidence concerning the validity of the alien's nonimmigrant visa, including a letter from the American
Counsul in Manila which stated that the nonimmigrant visa number on respondent's visa
bad been issued to another person was admissible; even though hearsay, where it was
relevant to the issue of respondent's deportability under section 241(a)(1) of the Immigration and Nationality Act.
(2) Pursuant to B CFII 242.8(b), unless a formal deportation hearing is actually begun, and
evidence presented for the record, there is no bar to the substitution of immigration
judges.
CHARGE:
Order: Act cf 1952—Section 241(a)(1) [8 U.S.C. 1251 (a)(1))—Excludable at entry—
nonimmigrant not in possession of a valid nonimmigrant visa,
nor exempted therefrom.
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Howard L. Kushner, Esquire Paul C. Vincent
730 Main Street Appellate Trial Attorney
Niagara Falls, New York 14301
In a decision dated July 17, 1973, an immigration judge found the
respondent deportable under section 241(a)(1) of the Immigration and
Nationality Act, and granted him the privilege of voluntary departure.
The respondent contests the finding of deportability and has appealed
from that decision. The appeal will be dismissed.
The respondent was born on July 19, 1945 in the Philippines. He was
admitted to the United States in October of 1971 as a nonimmigrant
visitor for pleasure. The Immigration and Naturalization Service has
alleged that the respondent is deportable as a nonimmigrant alien who
at the time of entry was not in possession of a valid visa. The respondent
has challenged both the finding of alienage and the finding that he did
not possess a valid nonimmigrant visa.
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Interim DeciSion #2326
In deportation proceedings the Service bears theburden of proving
alienage. The respondent, however, concedes that he was born in the
Philippines. Since he admits birth in a foreign country, he is presumed
to be an alien and must 'go forward with the evidence to establish his
claim to United States citizenship. Matter of Tijerina-Villarreal, 13 L &
N. Dec. 327 (BIA. 1969); Mattei of A—M—, 7 I. & N. Dec. 332 (BIA 1956).
The respondent has . set forth several theories under which he claims
to be either a citizen or a noncitiien national of the United States. He
initially argues that his birth in the Philippines made him a national of
the United States, and that absent an election on his part Congress
could not constitutionally divest him of that nationality. This basic
contention, however, has been rejected by the courts on several occasions. See Rabang v. Boyd;
353 U.S. 427 (1957); Manlangit v. United
States Department. of Justice,
488 F.2d 1073 (C.A. 4, 1973).
The respondent's other contentions as to United States citizenship or
nationality are equally groundless. He has failed to set forth even the
rudiments of a claim to derivative citizenship. Moreover, the argument
that his father's service in the United States Navy caused the respondent to be born constructively within the United States in not even
colorable. We find that the respondent is an alien and properly subject
to deportation proceedings. .
At the commencement of the hearing below, counsel for the respondent sought to have the case heard before an immigration judge other
than the one who actually presided. The record is not clear; however, it
appears that a preliminary conference on the case was held and that the
immigration judge who attended that conference ordered the hearing
postponed for several months to permit the respondent time to assemble
evidence regarding his claim to United States citizenship. Counsel for
the respondent alleges that an understanding regarding possible termination of the proceedings was reached at that conference, and he contends that the respondent was prejudiced by the "substitution" at the
actual hearing of a new immigration judge.• Counsel asserts that he even
offered to have his client pay for any expenses involved in transferring
the hearing to a location where the immigration judge who attended the
conference could preside.
The substitution of immigration judges is governed by 8 CFR
242.8(B), which in pertinent part provides:
. If a heating has begun but no evidence has been adduced other than by the
respondent's pleading pursuant to § 242.16(b), or if [an immigration judge] becomes
unavailab[e to complete his duties within a reasonable time, or if at any time the
respondent consents to a substitution, another [immigration judge] may be assigned to
Complete the case. . . .
It does not appear that a formal hearing was commenced before the
immigration judge who authorized a postponement in this case. Cer-
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tainly, no evidence was presented for the record before anyone other
than the immigration judge who rendered the decision. The regulation
plainly authorizes the substitution of immigration judges under these
circumstances. Furthermore, there are indications in the record that it
was geographically inconvenient for the immigration judge who was
initially associated with the case to preside at the hearing. The respondent's offer to present himself for a hearing at a location convenient to
that immigration judge appears to be little more than an attempt to seek
out a favorable forum. We find that the substitution of immigration
judges in this case did not deprive the respondent of a fair hearing. See
Matter of Moleilio, 14 I. & N. Dec. 283 (BIA 1973); Matter of Bark, 14
L & N. Dec. 237 (BIA 1972); Matter of C—,
5 I. & N. Dec. 743 (BIA 1954).
The respondent's final challenge to the finding of deportability relates
to the admissibility and sufficiency of the evidence against him. The
respondent contests the Service's factual allegation that he was "not in
possession of a nonimmigrant visa" at the time of his admission into the
United States. The respondent's passport, issued to him by the Republic of the Philippines, was introduced into evidence at the hearing, and a
photocopy of the passport now appears in the record. The passport
contains what appears to be a nonimmigrant visa issued or authorized
by a United States consular official in Manila. The Service alleges that
this visa was not properly issued to the respondent, and that it is likely
counterfeit.
The Service's ease as to the invalidity of the visa was largely
documentary. A verbatim transcript of the respondent's sworn question
and answer interview before a Service investigator was introduced into
evidence. The transcript of the interview reflects that when initially
asked where he obtained the visa, the respondent asserted that he got it
from "the American Embassy in Manila, Philippines." (Exhibit 2). At
first, he also maintained that he had never been denied a nonimmigrant
visa by the 'lilted States Embassy in Manila. However, when the
Service investigator confronted the respondent with information contradicting these assertions, the respondent substantially changed his
testimony.
The respondent then told the investigator that he had gone to a travel
agency in the Philippines to receive assistance with his nonimmigrant
visa application. An employee of the travel agency accompanied the
respondent to the United States Embassy on at least. two occasions, and
the respondent was eventually denied a visa.
The respondent further testified before the investigator that the
travel agent then suggested that the passport be left at the travel
agency and that the agent would attempt to complete the necessary
work and to obtain the visa. The respondent maintains that he entrusted
the passport to the travel agent for over one month and was then
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informed by the agent that the visa had been issued. The respondent did
not obtain the visa at the United States Embassy, but instead paid the
travel agent $500 for this service. The respondent admitted that the
$500 was a lot of money, but asserted that it is difficult to obtain a visa
and that he was saved much time and trouble by this procedure.
The respondent has adhered to the second version of how he obtained
the visa. Furthermore, he asserts that he has no direct knowledge that
the visa was not properly issued, and insists through counsel that the
Service has failed to prove the visa invalid.
The respondent did not object to the introduction into evidence of the
transcript of the question and answer interview. However, he did challenge the admissibility of the evidence which forms the bulk of the
Service's case. The Service successfully introduced into evidence its
written inquiry to the United States Embassy in Manila regarding the
respondent's visa, and the unsworn letter signed by the American
Consul in Manila in response to that inquiry. In this letter the American
Consul states that the respondent had been denied a visa on several
occasions in February and March of 1971, that the nonimmigrant visa
number appearing on the respondent's visa was issued to a female alien,
and that during 1971 there had been a rash of counterfeit visas. The
body of the letter recites specific factual information regarding the alien
to whom the nonimmigrant visa number appearing in the respondent's
passport was actually issued. In support of his statements, the American Consul attached to the letter photocopies of the respondent's and
the other alien's visa applications.
At the hearing, counsel objected to the introduction of these letters,
asserting that the statements should be introduced only in conjunction
with testimony which would afford him the right of cross-examination.
The immigration judge overruled this objection. In his brief on appeal,
counsel also asserts that this evidence should not have been admitted
because it is hearsay.
The respondent's hearsay objection is inappropriate. The hearsay
nature of a given item of evidence may well have a substantial effect on
the probative value of that evidence; however, if relevant, hearsay
evidence is admissible in deportation proceedings. See U.S. ex rel.
Vajtauer v. Commissioner of Immigration, 273 U.5. 103 (1927); U.S. ex
rd. Bilokurnsky v. Tod, 263 U.S. 149 (1923); U.S. ex rel. Impustato v.
O'Rourke,
211 F.2d 609 (C.A. 8, 1954), cert. denied,
348 U.S. 827 (1954);
de Hernandez v. INS,
498 F.2d 919 (C.A. 9,1974); Solis-Davila v. INS,
456 F.2d 424 (C. A. 5, 1972). Furthermore, the visa applications are
official documents, and the notations on the applications appear to have
been made in the course of official business.
Section 242(b) of the Act provides in part that an alien in deportation
proceedings "shall have a reasonable opportunity . . . to cross-examine
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witnesses presented by the Government . . . ." However, this right to
reasonable cross-examine does not necessarily include a right to have
each witness actually produced at the hearing. See Hyun v. Landon,
219 F.2d 404 (C.A. 9, 1955); affirmed by an equally divided court,
350
U.S. 990 (1956).
The regulations specifically authorize both the admission into evidence of relevant oral or.written statements and, in appropriate situations, the taking of depositions at the request of any party. See 8 CFR
242.14. The respondent's counsel could have requested cross-examination trough the use of written Interrogatories; however, he
merely rested on his objection to the admissibility of evidence.
• We are not dealing with the case of an unrepresented.alien. Prior to
the hearing, the respondent and his attorney were aware that the
Service had information challenging the authenticity of the visa. See
Exhibit 2.
Counsel for the respondent could have effectively accomplished
cross-examination of the otherwise unavailable witness. See Matter of
Payan,
14 I. & N. Dec. 58 (BIA 1972); Matter of Conliffe,
13 I. & N.
Dec. 95 (BIA 1968). He did not seek the opportunity to do so. He has not
shown any prejudice to the respondent, who received a fair hearing. See
Richardson v. Perales,
402 U.S. 389 (1971); Marlowe v. INS,
457 F.2d
1314 (C.A. 9, 1972); Wei v. Robinson, 246 F.2d '739, 746 (C.A. 7, 1957),
cert. denied,
355 U.S. 879 (1957); Matter of 9 L & N. Dec. 506,
508-09 (BIA 1961).
The evidence that the respondent gained admission to the United
States on the basis of a forged nonimmigrant visa, in effect no visa at all,
is clear. The photocopies of the visa applications clearly show that the
nonimmigrant -visa number appearing in the respondent's passport was
issued to an alien other than the respondent. The letter from the
American Consul confirms this information. We find that the respondent's deportability has been established by clear, convincing and unequivocal evidence. The appeal will be dismissed.
ORDER: The appeal is dismissed.
Further order: Pursuant to the immigration judge's order, the respondent is permitted to depart from the United States voluntarily
within 92 days from the date of this order or any extension beyond that
time as may be granted by the district director; and in the event of
failure so to depart, the respondent shall be deported as provided in the
immigration judge's order.
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