Interim Decision # 2729
MATTER OF MAGANA
In Deportation Proceedings
A-34262770
Decided by Board September 27, 1979
(1) With regard to annulments, the relation-back doctrine, which treats marriages as
if they had never existed, is a legal fiction designed to insure substantial justice, audit
need not be applied in every case where a court has declared a marriage to be void or
invalid ab initio.
(2) In immigration cases dealing with the retroactivity of annulments, or of decrees of
invalidity, the relation -back doctrine will he applied only where to do so would bring
about a more just result.
(3) Where fraud and manipulation of the immigration laws are present in a case, justice
is better served by not relating back an annulment or decree of invalidity to cure the
illegality of an alien's entry.
(4) Where the respondent entered the United States as the spouse of a citizen, concealing the fact of his prior marriage in Mexico, a decree from a Washington state court
declaring the Mexican marriage invalid from its inception will not begiven retroactive
effect for immigration purposes. Matter of Astorga, Interim Decision 2711 (BIA 1979)
distinguished.
(5) The Federal Rules of Civil Procedure are not applicable in deportation proceedings,
and there is no requirement that interrogatories propounded by an alien be answered
by the Immigration and Naturalization Service.
CHARGE:
Order: Act of 1952—Sec. 241(a)(1) [8 U.S.C. 1251(a)(I)j-
Excludable at time of entry under section 212(0(19) T&N Act
(8 U.S.C. 1182(a)(19))—visa procured by fraud or willful
misrepresentation of a material fact
ON BEHALF OF RESPONDENT: Charles H. Barr, Esquire
1207 George Washington Way
Richland, Washington 99352
BY: Milhollan, Chairman; Maniatis, Appleman, Maguire and Farb, Board Members
In a decision dated July 8, 1977, an immigration judge found the
respondent deportable as charged, denied his application for voluntary
departure in the exercise of discretion, and ordered him deported. The
respondent appealed. The appeal will be dismissed. We will, however,
grant the respondent voluntary departure under section 244(e) of the
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Immigration and Nationality Act, 8 U.S.C. 1254(e).
The respondent is a 37-year-old native and citizen of Mexico who
entered the United States as an immigrant on October 2, 1972. He
obtained his visa based on his marriage to a United States citizen,
Renee Bosch. In an Order to Show Cause dated February 11, 1975, it
was alleged that at the time of his entry as a permanent resident, the
respondent was not lawfully married to Renee Bosch, in that he had
previously been married, and that marriage had not been terminated.
It was further alleged that because of this prior marriage, the respondent had procured his visa by willfully misrepresenting a material fact.
The respondent was therefore charged with deportability under section 241(a)(1) of the Act, 8 U.S.C. 1251(a)(1), as an alien excludable at
entry under section 212(a)(19) of the Act, 8 U.S.C. 1182(a)(19).
The facts as set forth at a deportation hearing held on March 18,
1977, indicate that the respondent went through a civil marriage
ceremony with Maria Elena Martinez-Valenzuela on June 20, 1971, in
Guaymas, Mexico. The respondent alleges that he was intoxicated at
the time . of this marriage, and that the marriage was never consummated. He states that he left Mexico for the United States immediately
after the ceremony. Approximately 1-year later, on May 15, 1972, the
respondent married Renee Bosch in the State of Washington.
According to testimony taken at the hearing from Lhe respondent's
counsel, the respondent early in 1974 sought a Mexican annulment of
his marriage to Maria Elena. Rather than an annulment, a divorce was
decreed by a Mexican court on June 15, 1974. The respondent's counsel,
"recognizing the possible consequences" of a Mexican divorce (see
transcript at 8), began a proceeding in the State of Washington to have
the respondent's marriage to Maria Elena declared invalid. A
"Declaration of Invalidity" was issued by the Superior Court of the
State of Washington, Franklin County, on October 3, 1975. This decree
stated that the parties to the marriage had never consummated their union, nor lived together as man and wife, that the
marriage was voidable under Mexican law for lack of consummation,
that the respondent was inebriated at the time of the marriage, and
hence incapable of consent to the marriage, that the parties never
intended to marry, unless through a Roman Catholic religious ceremony, and, finally, that the marriage "should be declared invalid for
lack of capacity to consent as of the date it was purportedly contracted
and for being voidable under the laws of Mexico for lack of consummation." It was argued both at the hearing and on appeal that this
Washington decree voided the respondent's marriage to Maria Elena
ab iniLiu, and that, due to the Full Faith and Credit clause of the
Constitution (U.S. CONST. Art. IV, Section 1), the Washington decree
of invalidity overrode the earlier Mexican divorce decree.
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It is true that the judgments of a state court are entitled to full faith
and credit, while those of a foreign tribunal are only given effect under
principles of comity. However, even assuming that the Washington
court judgment takes precedence over the prior Mexican judgment, the
respondent is still deportable. This is so because we find that, for
immigration purposes, the Washington decree does not relate back to
cure the illegality of the respondent's entry.
In a recent precedent decision, Matter of Astorga, Interim Decision
2711 (BIA 1979), this Board analyzed a declaration of invalidity issued
by a Washington state court under the applicable provisions of the
Marriage Dissolution Act (Washington Revised Code Section
26.09.040). We held there that the declaration of invalidity related back
for immigration purposes, but we emphasized that no fraud, misrepresentation, or manipulation of the immigration laws had been
alleged in that case. Astorga involved a visa petition filed on behalf of a
beneficiary spouse who allegedly had been previously married in Mexico. The Immigration and Naturalization Service argued that the
previous marriage had not been terminated, and that the beneficiary's
marriage to his citizen wife was therefore invalid. We held the declaration of invalidity to apply retroactively because "there is no purpose of
the immigration laws that could be furthered by finding his [the
beneficiary's] possible previous marriage still valid and a bar to his
present marriage." We distinguished those cases where an alien's
entry into the United States was dependent upon his being unmarried,
where the alien was in fact married when he entered, but later had the
marriage annulled ab initio and then argued that he hadn't been
married at the time of his entry (see, e.g., Hendrix v. INS, 583 F.2d 1102
(9 Cir. 1978); Matter of Wang,
16 I&N Dec. 87 (BIA 1977); Matter of
R—J—,
7 I&N Dec. 182 (BIA 1956)).
In a converse situation, as noted in Astorga, supra, in some cases we
refused to relate back annulments where no immigration law fraud
was noted, and where injustice would result by applying the relation
back concept. Matter of Castillo-Sedano,
15 I&N Dec. 445 (BIA 1975);
Matter of B—,
3 I&N Dec. 102 (BIA 1947). Our analysis of prior cases
dealing with annulments that had been declared void ab initia led us to
the conclusion that "annulment decrees may have different effects
depending on the nature of the case and the purposes to be served by
giving an annulment decree retroactive effect." Astorga, supra, at 5.
Having carefully studied the record in the present case, as well as
the prior precedent decisions, we have concluded that the decree of
invalidity in this case should not he given retroactive effect. The
respondent testified that he stated on his visa application that he had
not been previously married because his attorney and the judge who
performed the ceremony for him and Maria Elena had both told him
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that that marriage was invalid (transcript at p. 15: "the judge told me I
didn't have to do anything [about his marriage to Maria Elena] because
the marriage was invalid when the parents wanted the marriage to be
celebrated, performed by the church"). The immigration judge found
this testimony to be totally unbelievable. An immigration judge's
findings with regard to the credibility of witnesses appearing before
him are entitled to considerable weight (Matter of Teng,15 I&N Dec.
516 (BIA 1975); Matter of T--,
7 I&N Dec. 417 (BIA 1957)), and in this
case especially we are inclined to agree with the immigration judge's
analysis of the respondent's testimony. In Mexico, civil ceremonies
only, not religious ceremonies, result in valid marriages. See generally
Matter of A—E—,
4 I&N Dec. 405 (BIA 1951). It is incredible that a
judge and a lawyer in Mexico would have informed the respondent that
a civil ceremony was ineffective if a religious ceremony was desired.
We find that the respondent did materially misrepresent his marital
history when he applied for an immigrant visa.
As mentioned previously, in those cases dealing with the retroactivity of annulments (and, in Astorga, supra, with Washington decrees of
invalidity), we have applied the relation back doctrine only where to do
so would bring about a more just result.' In the present case, given the
respondent's misrepresentations, we find that justice would be better
served by not relating the Washington decree back for immigration
purposes? We thus consider the respondent to have been married to
Maria Elena at the time he entered the United States as the husband of
Renee Bosch, and we therefore agree with the immigration judge that
the respondent is deportable as one who procured his immigrant visa
through fraud or misrepresentation.
The respondent, through counsel, makes several procedural arguments on appeal. He contends that a witness should have been called at
the hearing to authenticate the Mexican divorce decree. 8 C.F.R. 287.6
governs the admissibility of official records in immigration proceedings, and that regulation does not require that such records be authenticated by witnesses appearing in person. Rather, for foreign records,
The respondent argues in his brief that the full faith and credit clause requires us
absolutely (regardless of the justness of the result) to apply the 'Washington decree
retroactively, since that decree declared the marriage invalid as of the date it was
contracted. However, the cases have recognized that the "relation back" doctrine, which
treats marriages as if they had never been, is a legal fiction designed to insure substantial justice, and that it need not be applied in every case where a court has declared a
marriage void ab initio. See Matter of Wong, supra; Matter of Castillo-Setlano, supra;
Matter of 2'—, 8 I&N Dec. 493 (BIA 1959). See also Sefton v. Sefton,
45 Cal. 2d 872 (1955).
Because we find that the declaration of invalidity will not relate back for immigration purposes, we need not decide whether this decree should override the Mexican
divorce which, by its very existence, acknowledges the validity of the marriage which the
Washington court declared invalid from its inception.
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it requires an attestation of genuineness by a person having custody
over the records, and a certification by a United States Foreign Service
officer as to the genuineness of the signature, and as to the official
position of the person having custody over the records. In the present
case, the genuineness of the copy was attested to by an officer of the
Civil Registry in Guaymas, Sonora, Mexico, and there was a certification by an Immigration officer. While the certification should have
been made by a Foreign Service officer, we do not believe that this
deviation from the exact procedures set forth in the regulation requires a remand, especially as our decision in this case does not in any
way depend on the Mexican divorce.
The respondent further alleges that he was denied procedural due
process because the Service did not honor his requests for admissions
or answer interrogatories, and that the failure to respond to the
interrogatories "constituted admissions of those matters." Brief at 6.
Suffice it to say that the Federal Rules of Civil Procedure are not
applicable in deportation proceedings, and there is no requirement
that requests for discovery be honored. Son FED. R. CIV. P. 1, describing the score of the rules.
The respondent's counsel protested at the hearing that he had had
no notice that a deportation hearing would be held that day, and that
when he appeared at Service offices on March 18, 1977, he believed it
was only for an 1 120 interview regarding the respondent's wife. The
-
Acting Trial Attorney stated that counsel had been advised of the
deportation hearing by telephone on March 11, 1979. The immigration
judge refused to continue the hearing, pointing out that counsel had
been representing this respondent for two years, and was therefore
familiar with the case, and noting that the hearing had been scheduled
in advance, and that there was evidence that counsel had notice of the
hearing. We find no error in the immigration judge's denial of the
request for a continuance.
Finally, the respondent contends that the immigration judge was
strongly biased against him, and that the immigration judge had
prejudged the case. He argues that he was thereby denied a fair
hearing. We have examined the record carefully, and, while we find
that the immigration judge may have made some ill-advised comments
at the hearing, he was by no means so biased as to be incapable of
rendering a fair decision.
Although we are dismissing this appeal with regard to the findings
of deportability, we find that the respondent should have been granted
the privilege of voluntary departure. We will therefore sustain the
appeal as to the denial of voluntary departure.
ORDERS The appeal is dismissed, except as regards the denial of
voluntary departure.
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FURTHER ORDER' The outstanding order of deportation is
withdrawn, and in lieu of an order of deportation the respondent is
allowed to depart voluntarily, without expense to the Government,
within 30 days from the date of this order or any extension beyond that
time as may be granted by the District Director and under such
conditions as he may direct. In the event of the respondent's failure so
to depart, the order of deportation will be reinstated.
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