Mamma or C- T—H---- 

In DEPORTATION Proceedings 

A-4355955 

Decided 14,i Board August 11, 1958 

Evidence—Admissibility of report of neighborhood investigation where maker 

of derogatory statement is unavailable to appear at hearing. 

Unavailability at hearing of person who made derogatory statement contained 

in Service report of neighborhood investigation may affect probative value 

but does not bar admissibility of report in evidence on issue of discretionary 

relief. 

CHARGE: 

Order: Act of 1952—Section 241(a) (2)—Remained in the United States 

longer than permitted. 

BEFORE THE BOARD 

Discussion: On April 1908, following hearing under order 

to show cause served August 30, 1957, a special inquiry officer 

entered an order granting suspension of deportation to the respondent pursuant to section 244 (a) (1) of the Immigration and Nationality Act, and certified the case to the Regional Commissioner, 

Northeast Region, for review. On May 23, 1958, the Acting Regional Commissioner eertifiefl the case to this Board pursuant to 

8 CFR 6.1(c), with the following memorandum: 

I do not agree with the finding that suspension of deportation should be 

granted. The alien has no one dependent upon him for support in the United 

States with the possible exception of an illegitimate child. His age and length 

of residence do not in my opinion justify a finding that deportation would result in exceptional and extremely unusual hardship. The conduct of his personal life falls far short of the standards expected in our society. The application should be denied as a matter of administrative discretion. 

Oral argument has been presented by counsel for respondent in 

which it is urged that under all of the facts and circumstances in 

the case the testimony of the respondent, which it is alleged is 

truthful, should be believed and that maximum relief should be 

granted. Service counsel sets forth that insufficient evidence has 

been placed in the record for the purpose of determining the respondent's eligibility for the relief he seeks. It is emphasized that 

562713-s61--9 105 
the burden is upon the respondent to establish that he meets the 

requirements. 

First, the exceptions of the Regional Commissioner state that the 

statutory requirements have not all been met. That issue must be 

resolved first. A brief summary of the pertinent facts will be set 

forth. 

Respondent is a 56-year-old native and citizen of China, who has 

lived in the United States continuously since his arrival at the port 

of Houston, Texas, in the month of April 1938 as a crewman, intending to reship. Deportebility is not contested 

Respondent was married in China and his spouse died in that 

country in 1941. He has testified that he has a son, C—C—, 

who is living in Shanghai. China. He admits that he is the father 

of a daughter, now age 13 years, born out of wedlock as a result of 

a relationship with one E de R with whom he had intimate 

relations between 1943 and 1946. The child was born in the United 

States on May 7, 1944, and her name is E—C—. The record 

fails to show that the child has been legitimated. However, the 

respondent acknowledges that she is his child. He testified that he 

has been voluntarily contributing about $500.00 per year to her support from 1944 to the first part of 1958. There is no corroboration 

of this testimony. He alleges that at the present time the child lives 

with her grandmother and that he does not know the whereabouts 

of her mother. E de R--. Respondent is employed as a butler 

earning $150.00 per month and has listed the value of his assets at 

$1,750.00. It is conceded that he has been physically present in the 

United States for a period of 7 years and that he has no criminal 

record. He has no connection with subversive groups. The respondent has lived in the United States for a period of 20 years. 

He has been absent from his native country over a long period of 

time during which the economic situation in China has changed, 

and, in view of his present age, he would experience an exceptional 

and extremely unusual hardship should he be deported. 

The special inquiry officer, who has heard the testimony, has 

found, after weighing and evaluating the evidence, that the respondent has established good Moral character for a period of 7 years. 

Service counsel, although not urging that the respondent has failed 

to meet all of the statutory requirements for suspension of deportation, complains that the special inquiry officer did not consider all 

of the available evidence. He contends that the record in this case 

should not only contain a complete report of character investigation 

but that all information adverse to the respondent should be clarified by testimony or other evidence and should be considered in 

reaching a decision in the case. A report of character investigation 

relating to this alien has been identified for the record as exhibit 7. 

106 
That report, required for the consideration of an application for 

maximum relief, was not received in evidence by the special inquiry 

officer because such report contained some information derogatory 

to the respondent and the person who had given the adverse information was not available for cross-examination. The report also 

contained information favorable to the alien (exhibit 7). 

The question to be resolved here is one of discretion. We hold 

that exhibit 7 is relevant to the issue of discretion and is admissible 

for consideration in resolving that issue. Some of the evidentiary 

data therein, namely, a sworn statement made by a person who has 

not co-operated with the Service and who is unavailable to testify, 

must, of course, be considered and weighed and its probative value 

under the circumstances must be determined. Concisely, the respondent has been interrogated at length and he has denied the 

allegations adverse to his moral character. The special inquiry 

officer should determine whether his testimony is credible. 

In conclusion, we find that the special inquiry officer should have 

received exhibit 7 into evidence, and he should have weighed and 

evaluated the probative value of such evidence (in the light of the 

circumstances under which it was given) in reaching his decision 

on the issue of administrative discretion. We will remand the ooze 

for further hearing in accordance with the foregoing. 

Order: It is ordered that the order entered by the special inquiry officer in this case be withdrawn and that the proceedings be 

reopened for further hearing and consideration in accordance with 

the foregoing. 

107