Interim Decision #2544 

MATTER OF V1VA.S 

In Deportation Proceedings 

A-34580254 

Decided by Board December 17, 1.977 

(1) While the Service has the burden of proof to establish deportability by clear, convincing and unequivocal evidence, a respondent in deportation proceedings may be required 

to go forward with the evidence when the Service has made a prima facie case and 

respondent has better control or knowledge of the evidence (in this instance, the proper 

identity of his alleged United States citizen wife). 

(2) Respondent's deportability as an alien excludable at entry under section 212(a)(14) of 

the Immigration and Nationality Act for lack of a valid labor certification is established 

by clear, convincing end unequivocal evidence where the record shows that he was 

permanently employed in the United States at the time he applied for a visa, and where 

the Service established that respondent was not married to the person whose birth 

certificate was used to establish exemption from the labor certification requirement and 

respondent did not go forward with evidence to establish the true identity of the person 

to whom he claimed to have been married at the time he entered the United States. 

(3) Where consul's knowledge of the true facts would have required a finding that the 

applicant was ineligible to receive a visa, concealment of those facts from the consul 

results in procurement of a visa which is not valid, and the alien is excludable under 

section 212(a)(20) of the Act. Neither fraud nor wilfulness is an element in this determination, and neither is necessary to establish a charge under section 212(a)(20) of the Act. 

CHARGE: 

Order: Act of 1952—Section 241(a)(1) [8 U.S.C. 1251(a)(1))—Excludable at entry—no 

valid labor certification 

Act of 1952—Section 241(a)(1) [8 U.S.C. 1251(a)(1)}—Excludable at entry—no 

valid immigration visa 

ON BEHALF OF RESPONDENT: Michael B. Cohen, Esquire 

221 N. LaSalle Street 

Chicago, Illinois 60601 

BY: Milhollan, Chairman; Wilson, Torrington, Maniatis, and Appleman, Board Members 

The respondent appeals from an immigration judge's decision dated 

-August 9, 1976. In this decision the respondent was found deportable 

under section 241(a)(1) of the Immigration and Nationality Act as 

excludable at entry under section 212(a)(14) and section 212(a)(20) of the 

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Interim Decision #2544 

Act and was granted the privilege of voluntary departure. The appeal 

will be dismissed. 

The respondent is a 24-year-old native and citizen of Mexico. He 

entered the United States as an immigrant on Augast 31, 1974. At issue 

is whether the respondent's deportability has been established by clear, 

convincing and unequivocal evidence. 

The record reveals that the respondent obtained his immigrant visa 

and his exemption from the labor certification on account of his marriage 

to a United States citizen. The Service must prove by the required 

degree of evidence that the respondent was not exempt at the time of 

entry from the labor certification and that the visa he presented to gain 

admission as a lawful permanent resident was invalid. 

To prove its case, the Service presented as a witness a person claiming to be the individual referred to in the birth certificate used to 

establish the United States citizenship of the respondent's wife. The 

immigration judge concluded, on the basis of her testimony at the 

hearing and the other evidence in the record, that the birth certificate 

used to establish the citizenship of the respondent's wife belonged to the 

witness. The immigration judge's finding of fact carries great weight 

and will not ordinarily be set aside. Matter of T— , 7 I. & N. Dec. 417 

(BI A 1957). 

The witness testified that she has never gone through a marriage 

ceremony with the respondent, that she had never met him previously 

and that she is married to someone else presently. The respondent 

testified that he had not married the witness and that he had never seen 

her before. However, the respondent claimed that he married someone 

who was using the same name as the witness. The respondent presented 

no evidence to clarify his wife's indentity or to prove that she is a United 

States citizen. 

Since we have decided that the witness is the United States citizen 

referred to in the birth certificate, the question is, more concretely, 

whether the respondent's deportability as one who was excludable at 

entry under section 212(a)(14) of the Act is established by clear, convincing and unequivocal evidence when the Service establishes that the 

respondent is not married to the person whose birth. certificate was used 

to establish the exemption from the labor certification and the respondent has not gone forward with evidence to establish the real identity of 

the person to whom he claims to have been married at the time he 

entered the United States. We hold in the affirmative for this proposition. 

It is not a novel principle in immigration law that, notwithstanding 

the requirement of clear, convincing and unequivocal evidence to establish deportability, a respondent may properly be required to go forward 

with evidence to rebut prima facie showings by the Service. See Matter 

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of Tijerina-Villarreal, 13 I. & N. Dec. 327 (BIA 1969); Matter of 

Conliffe, 13 I. & N. Dec. 95 (BIA 1968); Meter of Vosganian, 12 I. & N. 

Dec. 1 (BIA 1966). In the case at hand, the rule is justified. 

In this situation, manifestly, the Service is under a serious practical 

handicap if it must prove the negative proposition: that the respondent 

did not marry a United States citizen when he married on June 9, 1973. 

The possibilities are of such magnitude as to defy inclusive rebuttal. On 

the other hand, the burden of affirmatively identifying the person whom 

he married is not an oppressive one fur the respondent to undertake; the 

relevant facts to do that are peculiarly within his knowledge. He is only 

being called to identify properly the person; the Service still retains the 

obligation to prove by clear, convincing and unequivocal evidence that 

the respondent is deportable on the charges brought against him. 

The rule that we are enunciating for this. situation is not new to either 

criminal or civil proceedings. The burden of going forward with evidence can be placed on a party not bearing the burden of proof when the 

facts are within his particular knowledge or control. See United States 

v. Fleischman, 339 U.S. 349 (1950); Commercial Molasses Corp. v. 

New Yurk Tank Barge Corp., 314 U.S. 104 (1941); Williams v. Administrator of Nat. Aero. & Space Adm&n., 463 F.2d 1391 (C.C.P.A. 

1972); United States v. Hayes , 369 F.2d 671 (9 Cir. 1966). The burden of 

going forward with evidence also arises under certain circumstances 

when a prima facie case is made by the opponent. See Government of 

Virgin Islands v. Lake, 362 F.2d 770 (3 Cir. 1966); Rhay v. Browder, 

342 F.2d 345 (9 Cir. 1965). And, more in line with the factual situation at 

hand, the burden of going forward with the evidence is placed on a party 

not having the burden of proof when he has better control or knowledge 

of the evidence and his adversary makes a prima facie showing of his 

ease. See Campbell v. Unitod States, 365 U.S. 85 (1961); Rossi v. 

United States, 289 U.S. 89 (1933). 

The Service has shown that the respondent has not married the 

person whose birth certificate was used to establish his exemption from 

the labor certification as the spouse of a United States citizen. The 

respondent has not gone forward with evidence to establish the identity 

of the person he married. 

Counsel for the respondent argues on appeal that the respondent is 

not deportable as excludable at entry under section 212(a)(14) because 

the record is silent as to the purpose e the respondent's entry. We 

reject counsel's contention. 

The record shows that the respondent was employed in Chicago prior 

to his trek to Mexico to obtain his visa. The respondent when asked his 

occupation on the visa application said "labores." The respondent was 

employed at the time of the hearing. There is an affidavit in the record 

from the purported wife of the respondent, dated June 24, 1974, stating 

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that he was permanently employed by the Crane Company in Chicago. 

That evidence is sufficient to establish that his purpose to enter the 

United States was to perform skilled or unskilled labor. See Matter of 

Lee, Interim Decision 2424 (BIA 1975); Matter of Becerra, 13 I. & N. 

Dec. 19 (BIA 1968). The respondent's deportability as one who was 

excludable at entry under section 212(a)(14) has been established 

clearly, convincingly, and unequivocally. 

It is established that the birth certificate accompanying the documentation presented to the consul to prove the eligibility of the respondent 

for his immigrant visa did not refer to the respondent's wife. If that fact 

had been known to the consul at the time he issued the visa, he would 

not have issued it since there was no evidence before him that would 

establish the respondent's eligibility to receive the visa. 

Where the true facts would have required a consul to rule that an 

applicant for a visa had not borne the burden of establishing eligibility, 

we must hold that concealment of those facts resulted in the procurement of a visa which was not valid. Matter of F—M—, 7 I. & N. Dec. 

420 (BIA 1957). The fact that the applicant might have obtained a visa at 

a later date, establishing his full eligibility With evidence other than the 

one submitted at the time, does not mean that the visa obtained on 

August 14, 1974 is a valid visa. See Ablett v. Brownell, 240 F.2d 625 

(T) eir_ 1957). Cf. United States ex rel. Fink v. Reimer, 96 F.2d 217 

(2 Cir. 1938). The respondent's inadmissibility under section 212(a)(20) 

of the Act at the time of entry has been established. 

Counsel for the respondent seems to argue on appeal that the respondent cannot be found deportable as excludable at entry under section 

212(a)(20) because there is no evidence of fraud on the part of the 

respondent concerning the obtainment of his visa. We agree with counsel for the respondent that there is no evidence of fraud on the part of 

the respondent. However, that does not affect deportability since fraud 

or willfulness is unnecessary for a charge under section 212(a)(20) of the 

Act. Matter of F—M— , supra. 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 31 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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