A-10316169
Decided by Board April 5, 1957
Burden of proof — Deportation proceedings under section 241 (c), Immigration and Nationality Act.
In deportation proceedings under section 241 (c) of the act, the Government has the burden of establishing alienage and that the relationship in point of time of marriage, entry, and annulment exists. After the Government has done this, the burden is upon the alien to show that he is within the exemption by establishing that the marriage was not contracted for the purpose of evading the immigration laws.
CHARGE:
Order: Act of 1952 — Sections 241 (a) (2) and 241 (c) — Visa fraud-marriage annulled.
BEFORE THE BOARD
Discussion: The case is before us by certification. The special inquiry officer terminated the proceedings.
The facts have been fully stated by the special inquiry officer. Briefly, the record relates to a 28-year-old male, a native and citizen of Italy, who married a citizen of the United States on September 25, 1954. Respondent was admitted to the United States for permanent residence on October 2, 1955, as a nonquota immigrant. His status as a nonquota immigrant was based on the marriage. On September 12, 1956, the marriage was judicially annulled. Under the circumstances surrounding the marriage, entry, and annulment set forth above, an alien is deportable as one who entered by fraud unless he establishes to the satisfaction of the Attorney General that the marriage had not been contracted for the purpose of evading the immigration laws.
The issue primarily is whether the Service, seeking to deport an alien under section 241 (c) of the Immigration and Nationality Act ( 8 U.S.C.A. 1251 (c)), has the burden of establishing that the alien entered into his marriage solely to evade the immigration laws, or whether it is the alien who must establish that he did not enter into such a marriage.
Section 241 (c) sets up a class of aliens who are deportable and a class of aliens who are given an exemption from deportation although they fall within the general terms of the section. For reasons which will be more fully stated, we conclude that the burden of establishing that he is within the exempt class is upon the alien. Briefly, our conclusion rests upon a consideration of policy set in analogous situations, and the past history of the law, and because of the fact that one claiming an exemption ordinarily should establish his eligibility for such an exemption.
Sections 241 (c) and 242 (b) (4) of the Immigration and Nationality Act ( 8 U.S.C.A. 1251 (c) and 1252 (b) (4)) are involved. Section 241 (c) provides:
An alien shall be deported as having procured a visa or other documentation by fraud within the meaning of paragraph (19) of section 212 (a), and to be in the United States in violation of this Act within the meaning of subsection (a) (2) of this section, if (1) hereafter he or she obtains any entry into the United States with an immigrant visa or other documentation procured on the basis of a marriage entered into less than two years prior to such entry of the alien and which, within two years subsequent to any entry of the alien into the United States, shall be judicially annulled or terminated, 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 * * *.
Section 242 (b) (4) provides:
No decision of deportability shall be valid unless it is based upon reasonable, substantial, and probative evidence.
The special inquiry officer ruled that the ordinary burden of proof in deportation proceedings applied. He read the 2 sections of law together as requiring the Service to establish that the alien was deportable, and as requiring the Service to produce in support of its burden evidence that is reasonable, substantial and probative. That portion of section 241 (c) which provides that the alien must establish to the satisfaction of the Attorney General that the marriage had not been entered into for the purpose of evading the immigration laws, was interpreted by the special inquiry officer as merely placing upon the respondent the duty of coming forward with evidence to rebut the Government's case.
The Service on the other hand argues that a shifting from the Service to the alien of the burden of proof was intended and that insofar as proceedings under section 241 (c) are concerned, the Service fulfills the burden upon it by establishing there was a marriage, an entry, and an annulment, each of these events bearing a certain relationship in point of time to each other. Thereafter, it is argued, the alien involved has the burden of showing to the satisfaction of the Attorney General that the marriage was not contracted to evade the immigration laws. At oral argument, the Service representative argued that if any doubt remained as to any issue after all the evidence was in, it must be found that the alien had failed to carry his burden of proof, and a finding of deportability must be entered.
A review of analogous situations will be helpful. There are 18 main sections relating to the deportation of aliens besides section 241 (c). Three of the 18 sections contain exemptions from deportation in the deportable classes they set up. These are sections 241 (a) (3), (5) and (8) of the Immigration and Nationality Act ( 8 U.S.C.A. 1251 (a) (3), (5) and (8)).
A fourth section which is out of the ordinary is section 241 (a) (7). It does not appear to have been the subject of adjudication.
Section 241 (a) (3) provides for the deportation of an alien institutionalized because of a mental condition "unless the alien can show" that the condition did not exist prior to his entry into the United States. Section 241 (a) (5) provides for the deportation of an alien who failed to register as an alien "unless he establishes to the satisfaction of the Attorney General that such failure was reasonably excusable." Section 241 (a) (8) provides for the deportation of an alien who becomes a public charge if "in the opinion of the Attorney General" the cause of his becoming a public charge arose "from causes not affirmatively shown to have arisen after entry."
In interpreting section 241 (a) (5), we have placed upon the alien the burden of establishing the facts which will relieve him from liability to deportation. We have stated the test to be as follows:
The existence of the exculpatory circumstances must be established by credible evidence sufficiently persuasive to satisfy the Attorney General, in the exercise of his reasonable judgment, considering the proof fairly and impartially ( Matter of B----, E-89342, 5 IN Dec. 692; Matter of M----, 0300-430947, 5 IN Dec. 216; see also United States ex rel. Czapkowski v. Holland, 220 F. (2d) 436).
As to the alien charged under sections 241 (a) (3) and (8), we have followed the same rule. We have placed upon the alien the burden of establishing that he is within the exemption which he alleges frees him from liability to deportation ( Matter of S----, E-082158, 5 IN Dec. 682; Matter of C---- R----, A-6458281, Int. Dec. No. 771).
There appears to be no reason for not applying the same burden to the alien who alleges the existence of exculpatory facts under section 241 (c). To establish its case under section 241 (c), the Service need not allege the existence of a fraudulent marriage. The Service need only to establish 3 facts — the date of marriage; the date of entry; and the date of annulment. The respondent does not contest the 3 facts the Service has established in the instant case. Respondent admits these facts exist. However, he sets up new matter in avoidance. The burden of establishing this new matter is upon him and remains with him throughout the proceeding. He can discharge his burden only by providing sufficient evidence to satisfy the Attorney General that the new matter he has set up in avoidance is true ( Bauer v. Clark, 161 F. (2d) 397, cert. den. 332 U.S. 839, 92 L. Ed. 411; United States ex rel. Rongetti v. Neelly, 207 F. (2d) 281; Federal Trade Commission v. Morton Salt Co., 334 U.S. 37, 92 L. Ed. 1196; Wigmore, Evidence, vol. IX, 3d ed., 1940, sections 2485-6).
Our conclusion that the alien in a proceeding under section 241 (c) has the burden of establishing that he is within the exemption gives effect to the language stating that the alien shall establish the fact — language which did not appear in the predecessor to section 241 (c). (See sec. 3, Act of May 14, 1937 (8 U.S.C.A. 213 (a), 1942 ed.).)
Finally, it is important to bear in mind the distinction between the burden of proof and the quality of the evidence which is required to establish that burden successfully. It is to be noted that subsection (b) (4) of section 242 of the act does not speak of the burden of proof but of the quality of the evidence which the Service must produce before deportability can validly be found. Insofar as deportation of aliens is concerned, the act does not speak in specific terms of the burden of establishing deportability in the general case. That the burden of establishing alienage and establishing that a prima facie case of deportability is upon the Service, is settled by judicial interpretation ( United States ex rel. Bilokumsky v. Tod, 263 U.S. 149, 68 L. Ed. 221; Riley v. Howes, 24 F. (2d) 686).
In summary, in proceeding under section 241 (c), we believe that the Government must come forward with evidence to establish alienage, and that the relation in point of time, of marriage, entry, and annulment contemplated by the section exists. After the Government has done this, the burden is upon the alien to show that he is within the exemption mentioned in the section. In meeting his burden, the alien is not required to establish his defense beyond a doubt. It is not necessary that any doubt be resolved against him. At the most, it is merely necessary that the alien establish in his favor, just more than an even balance of the evidence.
The evidence has been carefully analyzed by the special inquiry officer. We believe it satisfactorily establishes that the respondent entered into the marriage in good faith; that he intended to fulfill his premarital agreement and his marital obligations; and that his failure to carry out his intention was, to a considerable part, the result of forces over which he had no control. The proceedings were, therefore, properly terminated.
Order: It is ordered that no change be made in the order of the special inquiry officer.