Interim Decision # 2113 

MATTER OF ATHANASOPOULOS 

In Section 246 Proceedings \ 

A-13864002 

Decided by Board December 30, 1971 

(1) Communications between respondent and his attorney for the purpose of 

perpetrating a fraud against the immigration laws are not privileged communications. 

(2) A delay of approximately 31/2 years between the time of the Government's first knowledge of respondent's fraudulent marriage and the 

initiation of rescission proceedings does not constitute a denial of due 

process of law since rescission proceedings are civil in nature and pursuant to section 246(a) of the Immigration and Nationality Act may be 

instituted at any time within 5 years after adjustment of status of a person under section 245 of the Act. 

(3) Refusal of the special inquiry officer to subpoena certain witnesses and 

to provide for the taking of depositions in Greece was not a denial of due 

process where the record clearly reveals that the whereabouts of the witnesses in Greece was unknown and the testimony of the other witnesses to 

be subpoenaed would be cumulative of competent testimony in the record 

on the issue in question. 

(4) Where the Government has produced evidence of a clear case of fraud 

and of ineligibility for adjustment of status, and the respondent has refused to testify on matters within his personal knowledge and has failed 

to rebut the evidence of the Government, rescission of adjustment of status is proper. 

ON BEHALF OF RESPONDENT : 

Elmer Fried, Esquire 

515 Madison Avenue 

New York, New York 10022 

(Brief filed) 

ON BEHALF OF SERVICE: 

Irving A. Appleman 

Appellate Trial Attorney 

The respondent, a native and citizen of Greece, appeals from 

an order entered by the special inquiry officer on August 26, 1969 

pursuant to the provisions of section 246 of the Immigration and 

Nationality Act, 8 U.S.C. 1256. The order rescinds an adjustment 

of his status to that of a permanent resident alien under section 

245 of the Act, 8 U.S.C. 1255. Exceptions have been taken to the 

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finding that the respondent was not in fact eligible for the adjustment of status accorded him. 

The respondent originally entered the United States as a nonimmigrant professional soccer player (H-2) through the port of 

New York on August 9, 1963. He married Marta Pinela, a citizen 

of the United States, in Jamaica, Queens County, New York on 

May 12, 1964. A petition to accord the respondent immediate relative status was executed by his citizen wife on May 13, 1964 and 

approved by the Service on July 2, 1964. The respondent's nonimmigrant status was adjusted to that of a permanent resident 

alien on August 27, 1964, based upon the approved visa petition. 

The respondent's marriage to Marta Pinela was terminated by a 

divorce granted in Mexico on June 22, 1968. 

The Notice of Intention to Rescind, served upon the respondent 

on June 10, 1969, charges that he was not entitled to immediate 

relative status as the spouse of a United States citizen and was 

chargeable to the nonpreference portion of the Greek quota which 

was not then available because his marriage to Marta Pinela 

"was a sham marriage entered into solely for the purpose of permitting [him] to adjust [his] status to that of a lawful permanent resident of the United States" (Ex. 1). 

The respondent, on advice of counsel, declined to testify during 

the hearing beyond stating his name. Counsel acknowledged that 

the respondent is an alien and that his status was adjusted to 

that of a permanent resident as alleged in the Notice of Intention 

to Rescind. 

The Government's case is built primarily upon the testimony of 

the respondent's former wife, Marta Pinela, and one Angel Luis 

Collazo, who admitted that he arranged the wedding between the 

respondent and Marta Pinela (p. 71). Supporting documentary 

evidence entered in the record consists of a record of the respondent's marriage to Marta Pinela on May 12, 1964, the visa petition 

(Form 1-130) executed by the respondent's former wife and received by the Service on May 21, 1964, the memorandum of the 

creation of a record of lawful permanent residence (Form 1-181) 

dated August 27, 1964,,and the application for adjustment of status (Form 1-485) executed by the respondent on June 5, 1964 

(Exs. 2, 3, 4 and 5). 

The testimony of the respondent's former wife is fully set 

forth in the opinion of the special inquiry officer and is incorporated herein by reference. A summary of her testimony is as follows : Her marriage to the respondent was arranged solely for immigration purposes by one Angelo Collazo, who informed her that 

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Interim Decision #2113 

she would receive $500 as a participant and that there would be 

no marital obligation on her part to live with the respondent. She 

further testified that she never lived with the respondent as man 

and wife. She admitted that the respondent asked her to live with 

him "two or three times" but she refused because "that wasn't 

the plan that was offered to me. That isn't what I accepted. Those 

were not the conditions" (p. 44). 

The respondent's wife was questioned as to whether the respondent "ever tried to have sexual relations with [her]." She replied, "He never got fresh with me." She was then questioned as 

to whether she considered "it getting fresh" if her husband 

wanted to have sexual relations with her. She replied, "I didn't 

consider him my husband, otherwise I would have had sexual relations with him" (p. 44). 

The witness, Angel Luis Collazo, identified the respondent's 

former wife as the person for whom he arranged a marriage in 

1964 (p. 71). This witness testified that he arranged for the respondent and his former wife to meet at a restaurant "in downtown Manhattan"; that at this meeting in the presence of the respondent, the conversation included a discussion of a monetary 

consideration for the marriage and an agreement that there 

would be no cohabitation (p. 74). He further testified that he was 

present at the marriage ceremony; that immediately following the 

marriage, they went to the lawyer's office where papers were 

signed ; that thereafter the respondent's wife was paid $500 and 

"she gave me $100 back" (pp. 76-78). 

The respondent, on advice of counsel at the beginning of the 

hearing, refused to testify on the ground that he was not required to establish the Government's case (pp. 16 and 17). At the 

close of the hearing after the Government had rested its case, he 

also claimed the privilege against self-incrimination under the 

Fifth Amendment (pp. 188, 189). The special inquiry officer 

states at page 7 in her opinion "... the logical conclusion to be 

drawn from the respondent's silence based on the contention that 

to testify might incriminate him is that the testimony, if given, 

would be adverse to his interest," citing Matter of 0—, 6 I. & N. 

Dec. 246 (BIA, 1954). 

It is the contention of counsel that the special inquiry officer 

erred in drawing an adverse inference from the respondent's refusal to testify based on the Fifth Amendment. He claims that 

the privilege was fairly asserted because the questions of the trial 

attorney implied that the respondent was suspected of at least a 

violation of 18 U.S.C. 371, which defines a conspiracy to commit 

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Interim Decision #2113 

any offense or to defraud the United States, or any agency 

thereof in any manner or for any reason. Counsel cites several 

cases decided by the Supreme Court 1in support of his position. 

We agree with counsel that the drawing of adverse inferences 

from a claim of Fifth Amendment privilege has been circumscribed by recent decisions of the Supreme Court, supra, footnote 

1. We need not reach the issue of whether, on the peculiar facts 

of this case, the special inquiry officer erred in drawing an adverse inference from the respondent's refusal to testify. Here we 

have direct and uncontroverted evidence that the respondent's 

marriage to a citizen of the United States was a sham. The respondent's former wife testified that she never lived with the respondent in a marital relationship and that her marriage was arranged for immigration purposes. The testimony of the arranger, 

Collazo, is to the same effect. Their testimony is credible and 

remains unrebutted by the respondent. We conclude, without relying on the respondent's failure to testify, that the essential facts 

of a sham marriage are clearly, convincingly and unequivocally 

established quite apart from any inference drawn by the special 

inquiry officer. Cf. Vlisidis v. Holland, 245 F.2d 812, 814 (3 Cir., 

1957). Since we reach this conclusion separate and apart from 

any adverse inference drawn by the special inquiry officer, we 

need not deal with counsel's objections. 

Counsel challenges the special inquiry officer's ruling that the 

information furnished to the Immigration Service by the respondent's former attorney was not a violation of the attorneyclient privilege and that the evidence derived from that information is therefore admissible in evidence. The special inquiry 

officer stated in her opinion that the attorney-client privilege does 

not extend to communications between an attorney and client 

where the client's purpose is the furtherance of a future intended 

crime or fraud. 

The facts concerning this phase of the case have been fully discussed in the opinion of the special inquiry officer and the brief 

submitted by counsel. Briefly, they establish that one Peter K. 

Timon, whose signature appears as a notary public on the petition (Form 1-130, Ex. 3) submitted by the respondent's former 

wife, appeared voluntarily in the office of the Immigration Service at New York on January 4, 1966 and on this occasion surrendered voluntarily a list of his immigration clients. Mr. Timon 

1Griffin v. California, 380 U.S. 609, 14 L. Ed. 2d 106 (1965) ; Spevack v. 

Klein, 385 U.S. 511, 17 L. Ed. 574 (1967) ; Gastelum-Quinones v. Kennedy, 

374 U.S. 469, 10 L. Ed. 2d 1013 (1963). 

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Interim Decision #2113 

again appeared voluntarily in the Immigration office on July 13, 

1966, and surrendered voluntarily some 16 powers of attorney including a power of attorney executed by the respondent's former 

wife (pp. 124, 163, 172 and Exs. 2 and 3 for identification). 

There is evidence of record that the powers of attorney were executed by the respective petitioning wives for the purpose of eliminating the necessity of contacting the "immigration wife" when 

the time arrived for obtaining an uncontested Mexican divorce (p. 

140), There is a statement on Exhibit 4 for identification that 

most of the cases were known to the Government prior to the 

submission of the list by Attorney Timon. 

We have carefully considered counsel's contention that the evidence upon which this proceeding is based is tainted and may not 

be used because it is a violation of the attorney-client privilege 

and the Fourth Amendment prohibition against illegal search and 

seizure. There is evidence of record that Attorney Timon was in 

possession of a power of attorney which was signed by the respondent's former wife in his office at the time she signed the 

visa petition submitted by him in the respondent's case. When 

this evidence is considered with the testimony of the two immigration officers who were concerned with the investigation that 

preceded the institution of rescission proceedings against the respondent, we are convinced that Attorney Timon knew or should 

have known that his services in behalf of the respondent were for 

the purpose of perpetrating a fraud against the immigration 

laws. The Supreme Court has said that, "A client who consults an 

attorney for advice that will serve him in the commission of a 

fraud will have no help from the law," Clark v. United States, 

289 U.S. 1, 15, 77 L. Ed. 993, 1000 (1933). 

The test for the loss of the attorney-client privilege was stated 

by the Court in Clark, supra, 289 U.S. 15, 77 L. Ed. 1000, as follows: 

To drive the privilege away there must be "something to give color to the 

charge," there must be "prima facie evidence that has some foundation in 

fact". ... When that evidence is supplied, the seal of secrecy is broken. 

We are satisfied that the evidence on this issue meets the aforestated test. We find no error in the special inquiry officer's ruling 

that the communications between the respondent and his attorney 

are not protected by the attorney-client privilege under the circumstances presented by this case. 

Counsel asserts that the respondent was prejudiced and denied 

due process of law because of the unreasonable delay between the 

Government's first knowledge of the alleged fraudulent marriage 

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Interim Decision #2113 

and its action in starting these proceedings. Counsel asserts that 

the Government learned from Attorney Timon on January 4, 

1966 that the respondent might have obtained his permanent residence by a sham marriage but took no action until the Notice to 

Rescind was mailed to the respondent on June 10, 1969. It is the 

position of counsel that during this delay of nearly three and 

one-half years the memories of witnesses had faded, circumstances had changed and some witnesses were unavailable. 

The Sixth Amendment provides in part, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public 

trial." This is a civil proceeding brought under section 246 (a) of 

the Immigration and Nationality Act. Under this statute the Attorney General may institute rescission proceedings "at any time 

within five years after the status of a person has been otherwise 

adjusted under the provisions of section 245 ... of this Act ...." 

(Emphasis supplied.) 

We find no support in the cases cited by counsel in his brief 2 

for his argument that the respondent has been denied his constitutional rights by reason of the delay in the initiation of rescission proceedings. Three of the cited cases are concerned with appeals from convictions for violations of the federal narcotic laws 

and are criminal proceedings as distinguished from civil proceedings. 

The case of Pierno v. INS, supra, footnote 2, is not relevant to 

the case before us. The Pierno case concerns a finding of statutory ineligibility for section 245 relief based solely upon an automatic revocation of visa approval pursuant to 8 CFR 205.1 (a) (2) 

because of the intervening death of the petitioning citizen spouse. 

The Service argued that the automatic revocation of visa approval pursuant to the regulations precluded the grant of relief 

under section 245. 

The court held that since the authority for the automatic revocation regulation was derived from section 205 of the Act, a permissive statute granting the Attorney General discretion in determining what shall constitute good and sufficient cause for 

revocation, there could be no "wooden application of rules for automatic revocation." The court in its review of the evidence noted 

that the petitioning spouse had died during the eight months' 

stay of the section 245 proceeding by the Service while awaiting 

final disposition of an annulment proceeding brought by the peti2 Nickens v. United States, 323 F.2d 808 (D.C. Cir., 1963) ; Ross v. United 

States, 349 F.2d 210 (D.C. Cir., 1965) ; United States v. Sanchez, 361 F.2d 

824 (2 Cir., 1967) ; Pierno v. INS, 397 F.2d 949 (2 Cir., 1968). 

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Interim Decision #2113 

tioner's son. The court by way of dictum said at page 951 that 

the beneficiary ". . . need not be penalized as a result of events occurring during an unusually long investigation which are totally 

unrelated to that investigation." (Emphasis supplied.) The record 

establishes to our satisfaction that the events which occurred during the three and one-half year period referred to by counsel 

were directly related to the investigation of the respondent's eligibility for adjustment of status under section 245 of the Act. Cf. 

U.S. ex rel. Circella v. Sahli, 216 F.2d 33, 39 (7 Cir., 1954), cert. 

denied 348 U.S. 964. 

Counsel contends that the respondent was deined due process 

of law by reason of the special inquiry officer's refusal to subpoena certain witnesses requested by the respondent and to provide for the taking of depositions in Greece. Counsel argues that 

the refusals were in all cases not based on considerations as to 

whether the testimony was likely to be relevant, material or necessary, but on whether the witnesses were immediately available 

in order to meet the deadline for the running of the\ five-year 

statute of limitation provided by section 246 (a) of the Act. 

8 CFR 287.4 (a) (2) provides the special inquiry officer with 

discretion "... upon application of ... the alien ... [to] ... issue 

subpoenas requiring the attendance of witnesses or for the production of ... other documentary evidence, or both." The regulation also provides that the party applying for a subpoena shall be 

required, "as a condition precedent to its issuance, to state in 

writing or at the proceeding what he expects to prove by such 

witnesses or documentary evidence, and to show affirmatively 

that he has made diligent, effort without success to produce the 

same. Upon being satisfied that a witness will not appear and testify or produce documentary evidence and that his evidence is essential, the ... special inquiry officer shall issue a subpoena." 

(Emphasis supplied.) 

We have carefully reviewed the record of counsel's requests for 

the production of witnesses and the taking of depositions in 

Greece. Following a statement by the trial attorney that "The 

government rests" (p. 90), counsel for the respondent stated for 

the record that he would "like the production of certain witnesses, some under the control of the government, some not" (p. 

94). Among the witnesses named by counsel are Attorney Peter 

Timon, the respondent's former counsel, an Assistant United 

States Attorney alleged to have been in charge of prosecution of 

this case, each investigator who investigated the case, and a Mr. 

Kaparonis who allegedly participated in the "conversations, acts 

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Interim Decision #2113 

and agreements" when the marriage was arranged (p. 94). During the discussion which followed counsel's request, we find no 

statement on the part of counsel as to what he expects to prove 

by the production of the witnesses, nor is there any affirmative 

showing on the part of counsel that prior to this request he had 

made a diligent effort without success to produce the witnesses 

(pp. 95-101). 

During the hearing of August 19, 1969, counsel requested the 

issuance of a subpoena to compel the appearance of Attorney 

Timon, since he assumed that "Mr. Timon has no intention of voluntarily appearing" pursuant to counsel's request forwarded by 

mail on August 4, 1969 (pp. 105-106). Counsel at this time also 

requested the taking of depositions from two witnesses who were 

overseas and whose testimony he considered crucial for the respondent's defense (p. 106) . Concerning the subpoena for Attorney Timon, the special inquiry officer referred to an "off the record discussion" at counsel's request during the hearing of August 

1, 1969. The special inquiry officer stated for the record that 

pursuant to this discussion, it was her understanding that counsel 

was interested in the testimony of Attorney Timon in order to determine whether it was from Mr. Tirnon or from his records 

"that the Service investigation in this matter resulted" (p. 108). 

We are satisfied after thoroughly considering the exchange between counsel and the trial attorney (pp. 109-113), and the testimony of the supervisory inspector of the Frauds Section in the 

New York office of the Immigration Service (pp. 139-185) that 

the respondent's case had been identified from Service records 

prior to the receipt by the Service of a record of Mr. Timon's 

clients (pp. 141, 150). We find no error on the part of the special 

inquiry officer in refusing counsel's request to adjourn the hearing for the purpose of having Attorney Timon and the two investigators appear as witnesses {pp. 133, 134, 135) since there 

was competent evidence on this issue in the record. 

Counsel during the hearing of August 19, 1969 requested an 

adjournment in order that he might fly to Greece for the purpose 

of taking depositions from the respondent's uncle and another 

man named "Jimmy [Kaparonis]." Counsel stated that the two 

witnesses "could contradict the Government testimony" since they 

"were present at the time of the alleged conversations of these 

Government witnesses" (p. 135). Counsel did not specify what 

"Government testimony" these witnesses would contradict. He 

made no attempt to show affirmatively that he had made diligent 

effort without success to produce the witnesses. Counsel takes the 

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position that the Government should assist in locating the witnesses (p. 107). 

An alien in a rescission proceeding must be afforded due process, including a fair hearing. We find no substance to counsel's 

claim that the special inquiry officer erred in denying his request 

to subpoena certain witnesses and to take depositions in Greece. 

The record clearly reveals that the whereabouts of the two witnesses in Greece was unknown and that the testimony of Attorney Timon and the two investigators who were not available 

would be cumulative of testimony proffered by the witnesses 

Whalen and Spivack, both employees of the Immigration Service. 

Failure to produce for crossexamination witnesses who cannot be 

found or whose presence cannot be procured does not make this 

proceeding unfair, Navarrette-Navarrette v. Landon, 223 F.2d 

234, 237 (9 Cir., 1955), cert. denied 351 U.S. 911 (1956) ; U.S. ex 

rel. Impastato v. O'Rourke, 211 F.2d 609, 611 (8 Cir., 1954), cert. 

denied 348 U.S. 827 (1954). There is no showing that the hearing 

was unfair, and we find no error. 

Counsel contends that the respondent is immune from rescission proceedings by reason of section 241 (f) of the Immigration 

and Nationality Act since he is now married to and living with a 

citizen of the United States. Section 241 (f) provides a waiver of 

deportability in the case of an alien who was excludable at the 

time of entry as one who had procured a visa or entry into the 

United States by fraud or misrepresentation if such alien is the 

spouse, parent or child of a United States citizen or an alien lawfully admitted for permanent residence. Counsel's argument is 

based on the premise that Congress did not intend to have its 

grant of immunity under section 241 (f) depend on which administrative procedure, i.e., a section 245 adjustment as opposed to 

an entry with an immigration visa, was used to acquire the residence status that Congress intended to protect. Counsel cites no 

authority for his position. 

We have considered the question of whether section 241 (f) is 

available in rescission proceedings. We held in Matter of Alemis, 

12 I. & N. Dec. 456 (BIA, 1967), that section 241 (f) by its very 

terms and the Supreme Court's decision in INS v. Eyrico, 385 

U.S. 214 (1966), is limited solely to a deportation proceeding and 

is not applicable to a rescission proceeding under section 246 of 

the Act. The proceeding before us is not a deportation proceeding. See also, Ferrante v. INS, 399 F.2d 98 at pp. 104, 105; Fojon-Casal v. Attorney General, Civ. No. 2063-68 (unreported 

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D.C., D.C.); and Matter of Vilanova-Gonzalez, Interim Decision 

No. 2008 (BIA, 1969). 

Counsel contends that the record does not establish by clear, 

convincing and unequivocal evidence that the respondent's marriage to Marta Pinela was a sham, entered into solely for the purpose of permitting him to adjust his immigration status to that 

of a lawful permanent resident alien. Counsel asserts that the 

Government never established that the respondent was a knowing 

participant in the marriage fraud. He maintains that without 

such proof the Government has failed to establish a prima facie 

case and for this reason the respondent's silence may not be used 

to bolster the insufficiency of the Government evidence. Counsel 

cites the case of Gastellum-Quinones v. Kennedy, 374 U.S. 469, 

479 (1963), in support of his argument. 

We find no substance to counsel's argument that the Government has failed to establish a prima facie case because there is no 

showing that the respondent was a knowing participant in the 

marriage fraud. The testimony of the respondent's former wife 

and the arranger, Collazo, that the respondent was present at the 

time the sham marriage was arranged is uncontroverted. The arranger, Collazo, testified that the respondent's uncle spoke to the 

respondent in "Greek" during the meeting at which the marriage 

was arranged (p. 88). There is no reason why we should not conclude that the uncle truthfully informed the respondent in Greek 

just what was taking place, i.e., that a sham marriage was being 

arranged for him with the woman who was present, in order that 

his immigration status could be adjusted. We are satisfied from 

the testimony of the arranger concerning events which followed 

the first meeting between the respondent and his former wife 

that he (respondent) knew full well that the marriage was solely 

for immigration purposes (pp. 75, 77, 79-81). For example, the 

respondent permitted the arranger, Collazo, to place around his 

apartment women's clothing furnished by his uncle for the purpose of making it appear that his wife was residing there (pp. 

78, 79). It is inconceivable under the circumstances that the respondent could not have known what was going on. Accordingly, 

the Supreme Court's decision in Gsatelum-Quinones, supra, has 

no application to the respondent's case. 

It is the function of the special inquiry officer and on appeal 

the function of this Board to make an evaluation and to reach a 

determination as to whether the evidence is of sufficient quality 

and substantiality to support the rationality of the order of res836 
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cission. Cf. D'Andrea v. INS, 335 F.2d 377 (6 Cir., 1964), cert. 

denied 379 U.S. 999 (1965) ; Matter of Lugo-Guadiana, 12 I. & N. 

Dec. 726 (BIA, 1968). The respondent in this proceeding was not 

deprived of an opportunity to produce evidence in refutation of 

the testimony of his former wife and the witness, Collazo. Cf. 

Sercerchi v. Ward, 27 F. Supp. 437, 440 (D. Mass., 1939) and 

cases cited. Their unrefuted testimony is candid, unequivocal and 

credible. 

The good faith of the marital relationship is the very essence 

of this rescission proceeding and by its very nature is within the 

personal knowledge of the respondent. His failure to rebut the 

testimony of the Government witnesses does not diminish its 

quality when, as here, the case is clear cut. We conclude that the 

special inquiry officer has made a "fair assessment of the record." 

Cf. Peurifoy v. Commissioner, 358 U.S. 59, 61 (per curiam 1958). 

There is clear, unequivocal and convincing evidence that the respondent was not in fact eligible for adjustment of status under 

section 245 of the Immigration and Nationality Act, as amended. 

We affirm the order entered by the special inquiry officer and will 

dismiss the appeal. 

ORDER : It is ordered that the appeal be and the same is 

hereby dismissed. 

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