Interim Decision #2105 

MATTER OF GODFREY 

In Deportation Proceedings 

A-12793739 

Decided by Board November 29, 1971 

(1) Where no foundation was laid for such questioning, cross-examination 

concerning alleged improper Service methods of investigation was properly 

restricted by the special inquiry officer during the alien's deportation hearing. 

(2) Unsubstantiated allegations of official misconduct should not be urged 

on appeal to the Board-of Immigration Appeals in deportation proceedings 

but should be substantiated by specification under oath in support of a 

motion to reopen the proceedings. 

CHARGE: 

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

The special inquiry officer found the respondent deportable as 

charged in his order of February 12, 1971. He denied voluntary 

departure as a matter of administrative discretion. From his 

order the respondent appeals. Her appeal will be dismissed. 

The record relates to a 40-year-old female, native and citizen of 

Jamaica, B.W.I., who entered the United States on or about June 

21, 1966 as a special immigrant granted exemption from the 

labor certification requirement of section 212(a) (14) by virtue of 

her marriage to a United States citizen. The special inquiry 

)fficer found that the marriage was entered into solely for the 

purpose of evading the labor certification requirement and that 

;he respondent, therefore, was not exempt from the provisions of 

;ection 212 (a) (14) . The special inquiry officer, therefore, found 

ler deportable as charged. We agree and uphold the special 

nquiry officer's decision that deportability has been shown with 

.vidence that is clear, convincing and unequivocal. 

The Government's case against the respondent was based 

ntirely upon her prehearing sworn statement in which she 

1 

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admitted that there had been a sham marriage. She attempted to 

repudiate this statement during the hearing before the special 

inquiry officer, claiming that it had been involuntary and was 

obtained in violation of her right to counsel. The investigator 

who took the statement testified at great length and related how 

the statement had been voluntarily given, and that the respondent 

had been fully advised as to her right to counsel. The record indicates that the respondent has a knowledge of the English language. Her statement (Ex. 2) contains a warning as to her 

rights, and a waiver, which she signed. The special inquiry 

officer, who considered the many inconsistencies in her story, conchided that her claim that the statement was taken by force and 

by means of threats to her personal liberty was totally unworthy 

of belief. We note that the special inquiry officer heard the evidence and was in the best position to observe the demeanor of the 

witnesses and assess their credibility. After a careful review of 

the record, we conclude that there was no error and that the 

determination of the special inquiry officer to receive the statement in evidence was correct. 

Counsel for respondent at oral argument had initially participated in the hearing before the special inquiry officer but was 

replaced by another lawyer from the same firm during a portion 

of the proceedings. The part he missed included the testimony of 

the Service investigator. Present counsel contends that the sole 

issue on appeal is whether the Service investigator advised the 

respondent of her right to counsel before he took her prehearing 

statement. Counsel sought to have the respondent testify anew at 

oral argument as to the circumstances under which the statement 

in question was taken. 

We did not permit her to testify at oral argument for two reasons. First, this Board is not equipped to receive oral testimony. 

Second, we ordinarily confine our review to a consideration of the 

record alone, although in exceptional cases we do receive and consider additional affidavits or other documents not previously 

available.' 

During the proceedings before the special inquiry officer 

respondent's previous counsel attempted to impeach the testimony 

1In Matter of SS. Captain Demosthenes, Interim Decision No. 1995 (BIA, 

1969), we considered new material which came into being subsequent to the 

date of the special inquiry officer's decision, since the authenticity of the information was not in question and because we desired to avoid unnecessary 

delay by disposing, in a timely fashion, of all aspects of a multi-faceted 

case. See also Bovinas v. Savoretti, 146 F. Supp. 274 (S.D. Fla., 1956). 

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Interim Decision #2105 

of the Service investigator by cross-examining him with respect 

to promotions he had earned while in Government service from 

1957 to 1971. When asked by the special inquiry officer whether 

he was insinuating that the investigator had received a promotion 

by reason of his actions in the respondent's case, counsel 

answered in the negative (Tr. p. 50). Counsel was evidently 

trying to impeach the investigator's testimony by showing the 

existence of certain factual propositions, the truth of which he 

wished to establish solely on the basis of the answers he sought to 

elicit from the witness on cross-examination. These propositions 

apparently were the following: (1) unacceptable methods of 

investigation are prevalent in the Service, (2) the investigator 

had received rapid advancement, (3) therefore, he must have 

completed a large number of investigations, and (4) he could only 

have done so by using such unacceptable methods of investigation. 

The special inquiry officer sustained the trial attorney's objection to the relevancy of such questioning. As he said, "I think 

your insinuation is without foundation . . . an insult to the Immigration and Naturalization Service and an insult to honesty in 

government." We agree and approve the determination of the 

special inquiry officer to restrict cross-examination in this way. 

As the special inquiry officer stated, there was no foundation laid 

for such questioning. In addition, we accept the rule that the trier 

of fact may limit cross-examination by questions which assume 

facts not in evidence, Skogen v. Dow Chemical Company, 375 

F.2d 692 (8 Cir., 1967). Also, cross-examination generally should 

be limited to matters embraced in the examination in chief, 

Young Ah Chor v. Dulles, 270 F.2d 338 (9 Cir., 1959). Finally, an 

irrelevant question with an opprobrious innuendo should not be 

asked a witness on cross-examination, Martin v. Texas Employers' Ins. Ass'n. 193 F.2d 645 (5 Cir., 1952). 

At oral argument the respondent's present counsel renewed the 

objection to the admission of her prehearing sworn statement. 

Even though the respondent was not permitted to testify at oral 

argument, as we mentioned above, her counsel made the following 

argument: "I know it from my own knowledge, they intimidate 

witnesses, they do illegal searches and seizures . . . they do not 

advise the alien of their rights to have an attorney." Counsel was, 

in effect, trying to pursue the line of inquiry which the previous 

counsel had been prevented from going into by the special inquiry 

officer's restriction of cross-examination. In addition, counsel 

referred to what he characterized as "a clique of Negro investigaPI A 0 
Interim Decision #2105 

tors at the New York Office whom I have now called the Black 

Gestapo." 

With these remarks counsel went beyond a mere attempt to 

impeach the testimony of one Service investigator in connection 

with one case, but he impugned the integrity of a. large number 

of public servants. The charges leveled by counsel against the 

Service remind us of Matter of Geronimo, Interim Decision No. 

2077 (BIA, 1971), wherein we said the following in connection 

with unsubstantiated allegations of misconduct appearing in the 

notice of appeal : "Grave charges such as these . . . based on matters outside the administrative record, should not be casually 

asserted in an unsworn allegation if they are seriously urged. The 

facts should be specified under oath, subject to the penalties of 

perjury. If not seriously urged, such charges should not be 

asserted at all." Just as we strongly disapproved of similar reckless charges in Matter of Geronimo, supra, we feel we must criticize counsel in the present case for making his blanket allegation 

of official misconduct at oral argument. If counsel believes the 

order before us on appeal is the product of official misconduct, he 

should be prepared to substantiate his claim by specifications 

under oath in support of a motion to reopen the proceedings. 

The special inquiry officer denied the respondent voluntary 

departure as a matter of administrative discretion. We believe 

this determination also was sound. Hence, the appeal will be dismissed and the following order will be entered. 

ORDER: The appeal is dismissed. 

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