Interim Decision #2008
MATTER OF VILANOVA-GONZALEZ
In Section 246 Proceedings
A-12046344
Decided by Board October 17, 1969
(1) When there is a conflict of testimony in rescission proceedings under
section 246 of the Immigration and Nationality Act, there must be an
evaluation of all the evidence and a finding made with regard to its credibility before the clear, unequivocable and convincing burden of proof test
of Woodby v. Immigration and Naturalization Service, 385 U.S. 276,
comes into play.
(2) A claim of prejudicial and unfair hearing accorded by the substituted
special inquiry officer is rejected where a de novo review of the entire record fails to reveal any error on the part of the special inquiry officer with
regard to his rulings as to the admissibility of the proffered evidence.
(3) Section 241(f) of the Act, by its very terms, and the Supreme Court decision in Immigration and Naturalization Service v. Errico-Scott,
385 U.S.
214 (1966), are -limited solely to a deportation proceeding and are not applicable to rescission proceedings under section 246 of the Act.
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Deyan Ranko Brashich, Esquire R. A. Vielhaber
20 East 46th Street Appellate Trial Attorney
New York, New York 10017 Nathan Levine
Harry Wallach, Esquire Trial Attorney
110 East 42d Street (Brief filed)
New York, New York 10017
The respondent appeals from a decision and order entered by
the special inquiry officer on October 11, 1968 rescinding the adjustment of his nonimmigrant status to that of a permanent resident alien which was granted on June 23, 1960. Counsel on appeal
maintains that the special inquiry officer's decision and order is
not supported by evidence which is clear, unequivocal and convincing. Counsel also urges error in that there was prejudice and
bias on the part of the special inquiry officer.
The record relates to a native and citizen of Spain who last entered the United States at the port of New York on February 9,
1960. He was admitted as a nonimmigrant visitor for business
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Interim Decision #2008
and authorized to remain in the United States until July 1, 1960.
He married a citizen of the United States on February 24, 1960.
A visa petition for nonquota status filed by the citizen wife was
approved on May 20, 1960 and his application for status as a permanent resident alien was approved on June 23, 1960.
The respondent's citizen wife obtained a divorce from him in
the State of Alabama during August of 1961. A notice of intention to rescind the respondent's adjustment of status was served
upon him on October 27, 1964. The special inquiry officer on May
3, 1965 after hearing entered an order rescinding the respondent's adjustment of status pursuant to the provisions of section
246 of the Immigration and Nationality Act. The Board of Immigration Appeals affirmed in an order entered on August 20, 1965
and on November 1, 1965 denied a motion for rehearing, reargument and reconsideration of the Board's order of August 20,
1965. Deportation proceedings were instituted by the service of
an order to show cause on September 7, 1965. The Board on May
16, 1966 dismissed an appeal from the special inquiry officer's
order of January 3, 1966 finding the respondent deportable as
Charged in the order to show cause but granting the privilege of
voluntary departure in lieu of deportation, with a further order
that if he failed to depart when and as required, he be deported
;o Spain.
A petition for judicial review pursuant to 8 U.S.C. 1105a(a)
vas thereafter filed with the United States Court of Appeals for
he Second Circuit and on March 29, 1968, the respective parties
,ntered into a stipulation that the matter of the rescission of the
espondent's adjustment of status be remanded for further conideration in light of the Supreme Court's decision in Woodby v.
NS, 385 U.S. 276 (1966). The Woodby case (supra) holds
hat no deportation order may be entered unless it is found by
lear, unequivocal and convincing evidence that the facts alleged
s grounds for deportation are true. We noted in our opinion of
uly 18, 1968, remanding the case to the special inquiry officer
)r further proceedings, that the Courts of Appeals for the Third
nd Ninth Circuits have held that the Woodby rule of clear, uneuivocal and convincing evidence is equally applicable to rescison proceedings under section 246 of the Act, Waziri v. INS, 392
'.2d 55 (9 Cir., 1968) ; Rodriques v. INS,
389 F.2d 129 (3 Cir.,
968). Prior to the special inquiry officer's decision now before us
appeal, counsel for the respondent and the trial attorney enred into a stipulation dated September 9, 1968 that the matter
submitted to the special inquiry officer on the original record
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Interim Decision #2008
without a reopening of the hearing and without further testimony.
The special inquiry officer in his original decision of May 3,
1965 (p. 15) found that:
. the Service has borne its burden of establishing by a preponderance
of credible evidence that is reasonable, substantial and probative, that the
respondent entered into a marriage with Edith Ivette Garces on February
24, 1960, solely for the purpose of obtaining nonquota status under the immigration laws without intent to enter into a bona fide marital relationship
with Edith Ivette Garces and it is found that the respondent was not eligible for the adjustment of status granted to him on June 23, 1960.
The special inquiry officer after an overall reevaluation and reconsideration of all of the evidence adduced during the rescission
proceeding now finds that the testimony of the respondent's former spouse and her mother is far more credible than that of the
respondent and his witnesses. He concludes that there is clear,
unequivocal and convincing evidence of record that the respondent was ineligible for adjustment of status on June 23, 1060 because his marriage on February 24, 1960 to Edith Ivette Garces,
a United States citizen, was a sham entered into with no intent to
be a valid and subsisting one and that it was solely for the purpose of enabling the respondent to adjust his immigration status
in the United States and circumvent the immigration laws (p. 4,
special inquiry officer's opinion, October 11, 1968).
On this appeal, counsel maintains that the hearings accorded
the respondent by the special inquiry officer were prejudicial and
grossly unfair. The substance of counsel's argument on the issue
of a fair hearing is the charge that the respondent was prejudiced by the fact that the original special inquiry officer assigned
to the case had testified in a criminal proceeding in which the respondent was a defendant and that this factor created bias and
prejudice which carried over to the special inquiry officer who
completed the hearing. Counsel also maintains that the special inquiry officer did not adhere to the remand order of the Court of
Appeals for the Second Circuit in that he did not truly reconsider
the matter before him in light of Woodby (supra) but merely
gave and rendered a pro forma perfunctory revision of his previous biased and prejudiced decision.
The basis for counsel's claim that the special inquiry officer did
not truly reconsider the matter before him is the fact that there
is only a span of 22 working days between the signing of the
stipulation and the special inquiry officer's decision of October 11,
1968. Counsel states:
It is strange that the Special Inquiry Officer, among all of his other duties
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Interim Decision #2008
and pressing hearings, could either recall totally the matter heard more
than three [3] years before, or thoroughly and conscientiously go through a
record, which by his own admission, is more than two hundred and seventy
four [274] 1 pages, plus various exhibits and briefs. This is completely inconsistent with the posititon of the former Special Inquiry Officer, who on
March 18, 1965, stated on the record that he could not remember anything
whatsoever concerning his testimony and extraordinary appearance before
the District Court in this matter.
Counsel argues that this "proves conclusively" that the special inluiry officer did not comply with the remand order of the Court
)f Appeals as set forth in the stipulation (pp. 6 and 7, counsel's
)rief of February 24, 1969).
We are unable to determine on the record before us the extent
o which the special inquiry officer reconsidered the original recrd of testimony pursuant to the stipulation entered into between
ounsel and the trial attorney on September 9, 1968. To render
he special inquiry officer's decision unfair and biased, however,
le defect complained of must have been such as might lead to a
enial of justice, De Souza v. Barber, 263 F.2d 470 (9 Cir., 1959),
!rt. denied
359 U.S. 989 (1959). This Board has plenary power
make a de novo review of the record and based on such a reew make its own independent findings on questions of fact and
w irrespective of those made by the special inquiry officer, Matr of B—, 7 1. & N. Dec. 1 (A.G., 1956) ; De Lucia v. INS, 370
2d 305, 308 (7 Cir., 1966), cert. denied
386 U.S. 912 (1967);
ivar v. INS,
368 F.2d 1006 (9 Cir., 1966), cert. denied
388 U.S.
5 (1967).
We have carefully reviewed the entire record. We find no basis
• counsel's claim that the hearings accorded the respondent by
substituted special inquiry officer were prejudicial and unfair
:ause he succeeded a special inquiry officer who had disqualified
aself because of prior testimony in a criminal proceeding in
ich the respondent was a defendant. This practice is commonce in both administrative and judicial proceedings. If counsel's
ument were to prevail it would be impossible for any special
uiry officer or judge in a judicial proceeding who happens to
In associate in the same tribunal to qualify for completion of a
ceeding. A review of the 243 pages of testimony during which
substituted special inquiry officer presided fails to reveal any
)r on his part with regard to his rulings as to the admissibilof the proffered evidence. We have carefully noted the objec-
'he special inquiry officer in his opinion of October 11, 1968 stated, "The
TI of hearing constitutes some 253 pages of testimony." We find this
)er to be correct.
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Interim Decision #2008
tions raised by counsel for the respondent and find that his position was sustained on at least 48 occasions. We conclude upon a
de novo review that the respondent was accorded a fair hearing
without bias or prejudice on the part of the substituted special
inquiry officer.
The facts germane to the issues before us on appeal have been
heretofore clearly set forth in the special inquiry officer's opinion
of May 3, 1965 and in the opinions of this Board rendered on August 20, 1965 and November 1, 1965. Counsel maintains that the
evidence relied upon by the special inquiry officer is so far removed from the ambit of reasonable doubt that the standard of
clear, unequivocal and convincing evidence cannot be met. He
argues that the Government's two primary witnesses are "proven
and admitted perjurers" who have made statements under oath to
various courts and to several agencies of the Government which
are diametrically opposed to each other and, therefore, "have
proven themselves, beyond a reasonable doubt, to be unworthy of
belief" (p. 4, counsel's brief of February 24, 1969; emphasis supplied). Counsel argues on the other hand that the respondent has
testified consistently and offered unimpeachable witnesses to sustain his position and allegations.
A determination of whether there is clear, unequivocal and convincing evidence that the respondent was ineligible for an adjustment of his status because his marriage to a United States citizen
was not a valid and subsisting marriage for immigration
purposes resolves itself into a determination of whose testimony
is worthy of belief. Credibility involves more than demeanor. It
apprehends the overall evaluation of testimony in light of its rationality or internal consistency and the manner in which it
hangs together with other evidence, Carbo v. United States, 314
F.2d 718, 749 (9 Cir. 1963).
Where the testimony of the respondent and his witnesses is in
direct conflict with the testimony of witnesses presented by the
Government, there must be an evaluation and a weighing of all
the evidence and a finding made with regard to its credibility before the test for burden of proof as set forth in Woodby (supra)
comes into play. Originally, 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 substantially to support the rationality of the order of rescission. 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).
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We agree with counsel that the testimony of the respondent's
former wife in this proceeding is not consistent with her affidavit
in the divorce proceeding instituted in the State of Alabama (Ex.
4). Contradictory evidence of this nature is typical in a rescission
proceeding. Nevertheless, her testimony that her marriage to the
respondent was arranged for immigration purposes is corroborated by the testimony of h'er mother. On the other hand, the testimony of the respondent is not consistent with that of his witnesses with regard to when he met his former wife, his
subsequent romance with her, when he became employed and who
was present at the marriage. Upon evaluating and weighing the
evidence submitted by both the Government and the respondent,
we find that the testimony of the Government's witnesses is more
credible than that of the respondent and his witnesses. Based on
this finding, we conclude that there is clear, unequivocal and convincing evidence that the facts alleged as grounds for rescinding
the adjustment of the respondent's nonimmigrant status are true.
Counsel urges that the respondent's case is within the purview
of section 241 (f) of the Immigration and Nationality Act which
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 of an alien lawfully admitted for permanent residence. There is a showing of record that the respondent married
another citizen of the United States on June 12, 1965 and it is aleged that he is the father of two minor citizen children born to
this union (see Board's decision of May 16, 1966). Counsel's orpiment that the respondent is exempt from deportation under
section 241 (f) is based on the premise that the Supreme Court in
;he case of INS v. Errico, 385 U.S. 214, 17 L. Ed. 2d (1966)
:.uled that the statute is humanitarian in nature and has for its
Purpose the maintenance of the family unit and if there exists
my reasonable doubt, such doubt should be resolved in favor of
the alien.
We considered a similar argument in Matter of Alemis, 12 I. &
g. Dec. 456 (BIA 1967). We held that section 241(f) by its very
terms and the Supreme Court's decision in
Errico (supra) are
imited solely to a deportation proceeding and are not applicable
;o a rescission proceeding under section 246 of the Act. The proTeding before us is not a deportation proceeding. See, also, Ferrante v. INS,
399 F.2d 98, at pp. 104-105 (6 Cir., 1968).
Upon careful reconsideration of the entire record, we adopt the
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allegations set forth in the notice to rescind dated October 27,
1964 and served upon the respondent by certified mail as our findings of fact. Based upon these findings of fact, we conclude that
there is clear, unequivocal and convincing evidence that the respondent was ineligible for adjustment of status on June 23, 1960
because his marriage to a United States citizen on February 24,
1960 was a sham entered into solely for the purpose of enabling
the respondent to adjust his immigration status in the United
States and circumvent the immigration laws. The appeal will be
dismissed.
ORDER: It is directed that the appeal be and the same is
hereby dismissed.
405
