In the Matter of T

Board of Immigration AppealsFeb 26, 1957
7 I&N Dec. 417 (B.I.A. 1957)

A-8605228

Decided by Board February 26, 1957

Burden of proof — Deportation proceedings under section 241 (c), Immigration and Nationality Act — Evidence — Credibility of witnesses — SIO who hears and observes witnesses in better position to determine credibility.

(1) After the Government has established a prima facie case of deportability under section 241 (c) of the act, the respondent has the burden of showing that his marriage to a citizen was not contracted for the purpose of evading any provision of the immigration laws. (Cf. Matter of V----, A-10316169, Int. Dec. No. 859.)

(2) Where the testimony on this issue is conflicting, the Board will not ordinarily set aside the findings of the special inquiry officer resolving the conflict, since the special inquiry officer is primarily the trier of fact and has had an opportunity to judge the demeanor and credibility of the witnesses.

CHARGE:

Order To Show Cause: Act of 1952 — Visa procured by fraud on basis of marriage entered into less than 2 years prior to entry and termination within 2 years subsequent thereto.

BEFORE THE BOARD


Discussion: The respondent appeals from an order entered by the special inquiry officer on October 24, 1956, granting him voluntary departure in lieu of deportation on the charge set forth above. Counsel for the respondent urges that the deportability of the respondent has not been established as a matter of law by reasonable, substantial, and probative evidence.

The record relates to a native and citizen of Italy, who originally entered the United States as a stowaway through the port of Norfolk, Virginia, on May 12, 1949. The warrant for his arrest in deportation proceedings was issued on June 13, 1952. Prior to the issuance of the warrant of arrest, he married a citizen of the United States on May 29, 1952. This Board on November 18, 1952, granted respondent the privilege of voluntary departure. The order granting voluntary departure was amended on motion, April 14, 1953, to include preexamination (see file T-1892014). Respondent was preexamined and following a departure to Canada he reentered the United States with a nonquota immigrant visa on January 12, 1954. The record shows that respondent obtained a divorce from his citizen wife at Tampa, Florida, on July 9, 1954.

The order to show cause in the proceeding before us was served upon respondent on July 17, 1956. The order charges (1) alienage, (2) that respondent last entered the United States at St. Albans, Vermont, on January 12, 1954, and (3) "that the marriage on which (respondent) was admitted as a nonquota immigrant was entered into less than 2 years prior to (his) entry and judicially terminated within 2 years after (his) entry into the United States." The respondent concedes the allegations set forth above. His concession sets up a prima facie showing of deportability under section 241 (c) of the Immigration and Nationality Act. The respondent maintains, however, that he has met the burden imposed upon him by that portion of section 241 (c) which reads: "unless such alien shall establish to the satisfaction of the Attorney General that such marriage was not contracted for the purpose of evading any provisions of the Immigration laws."

The issue presented on appeal is whether respondent has met the burden of establishing by a preponderance of reasonable, substantial, and probative evidence that he did not marry a citizen of the United States for the express purpose of evading any provisions of the immigration laws. The special inquiry officer concludes that the circumstances of respondent's divorce shortly after his entry for permanent residence "demonstrates an established plan by the respondent and the witnesses * * * to malign a native-born citizen of the United States who had been induced to marry (him) for the apparent sole purpose of affording him this means to adjust his immigration status with apparent knowledge of the fact that respondent had entered into (the) marriage solely and only for this purpose without intention of abiding by the marital agreement."

The respondent testified that he did not go to Canada for the purpose of obtaining an immigrant visa and reenter the United States with any intention of terminating the marriage thereafter. When questioned as to his intentions concerning his wife and their marriage, he replied, "My intentions were to love her and have her love me and to live together and be united together and live happily." Respondent maintains that marital difficulties which arose subsequent to his last entry caused the separation between him and his wife, culminating in a divorce on July 9, 1954, at Tampa, Florida. Several witnesses support respondent's claim that his marital difficulties had their inception with his citizen wife.

Respondent's wife, on the other hand, testified that she was subjected to cruel and inhuman treatment by the respondent. She further testified that respondent "told (her) he only married (her) to stay in this country, for his passport." When questioned as to when respondent told her that he married in order to remain in the United States, she replied, "Six months after I was married."

The record of testimony before us consists of some 219 pages. It represents primarily charges and countercharges by the respondent, his former wife, and the witnesses presented by both sides of the controversy. If we believe respondent's wife, he (respondent) has admitted that he married her for the purpose of evading the immigration laws. Respondent, on the other hand, urges that marital difficulties with his wife subsequent to his last entry caused their separation and divorce.

The special inquiry officer has had an opportunity to judge the demeanor and credibility of the witnesses, an opportunity not afforded this Board. The admitted facts established a prima facie case of deportability under section 241 (c), supra, unless respondent carries the burden of establishing to the satisfaction of the Attorney General that his marriage to a citizen was not contracted for the purpose of evading any provisions of the immigration laws. The special inquiry officer has resolved this issue against the respondent. Since the special inquiry officer is primarily the trier of fact and is in a better position to judge the credibility of the evidence, we find no basis to set aside his conclusion. Under the circumstances, we will affirm his decision. The appeal will be dismissed.

Order: It is ordered that the appeal be and the same is hereby dismissed.