Interim Decision #1929 

MATTER OF CONLIFFE 

In Deportation Proceedings 

A-13419457 

Decided by Board December 3, 1968 

(1) Evidence obtained during the preliminary investigation in the form of 

affidavits and question-and-answer statements are admissible in evidence 

in deportittion proceedings to establish respondent was not the legal 

spouse of a U.S. citizen at entry and, hence, is deportable under section 

241(a) (1) of the Immigration and Nationality Act, as one not nonquota 

as specified in his visa and whose visa was procured by fraud or misrepresentation. 

(2) There was no denial of due process where the Service refused to grant 

assurances for respondent's reentry to the United States to go abroad to 

personally confront Government witnesses and counsel for respondent refused to cross-examine Government witnesses through inquiries and interrogatories by mail. 

CHARGES : 

Order: Act of 1952—Section 241 (a) (1) [8 U.S.C. 1251 (a) (1)3—Excludable at entry, to wit: not nonquota immigrant as 

specified in visa. 

Act of 1952—Section 241 (a) (1) U.S.C. 1251 (a) (1)3—Excludable at entry, to wits visa procured by fraud or 

willful misrepresentation. 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

James J. Orlow, Esquire R. A. Vielhaber 

824 Bankers Securities Bldg. Appellate Trial Attorney 

Philadelphia, Pa. 19107 

The respondent, a native and citizen of St. Vincent Isle in the 

West Indies and a subject of Great Britain, appeals from an 

order entered by the special inquiry officer on April 18, 1968 directing his deportation to St. Vincent Isle on the charges stated 

in the order to show cause. Counsel on appeal excepts to the finding of deportability on the ground that the respondent has been 

denied due process in the conduct of the proceedings by the spe95 
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cial inquiry officer. He requests a remand of the case for further 

hearing. 

The respondent, a married male alien, 42 years of age, concedes 

that he is a citizen of St. Vincent Isle and a subject of Great 

Britain, that he last entered the United States on or about November 1, 1964, and that he was admitted at that time as a nonquota immigrant upon presentation of a nonquota immigration 

visa issued to him as the husband of Ophelia Conliffe, formerly 

Ophelia Glass, a citizen of the United States. The respondent does 

not admit that at the time he obtained his immigration visa and 

his entry into the United States he was then and still is the husband of Doris Conliffe, nee Noel, an alien, to whom he was married on June 1, 1952, and that in obtaining his immigration visa 

he willfully and falsely claimed to be the husband of Ophelia Conliffe and willfully and falsely claimed that he had never been 

married before his marriage to Ophelia Conliffe on January 6, 

1964. During the proceeding the respondent stood mute and put 

the Government on proof as to the charges contained in the order 

to show cause 

The evidence introduced by the Government is entirely documentary. The documentary evidence relied upon by the special inquiry officer has been fully discussed in his opinion. Briefly, it 

consists of an immigration form (I-94B) which shows that the 

respondent, born in Trinidad, West Indies on July 17, 1927, was 

admitted to the United States as a temporary agricultural worker 

on November 21, 1958. This document was stipulated in evidence, 

and there is a photograph attached to the reverse side. 

The Service also introduced the following documents in evidence: Exhibit 3 is an identity card issued by the government of 

Trinidad and Tobago to Eli Conliffe born in Trinidad, West Indies, on July 17, 1927 and signed by the bearer, Eli Conliffe. The 

identity card has attached thereto the same photograph found on 

the reverse side of Exhibit 2 and bears the same number 

"T-589531" found on Exhibit 2 and on both photographs. Counsel refused to identify this document as relating to the respondent 

notwithstanding the fact that it has an identical photograph and 

the same identity number as found on Exhibit 2 (p. 4). 

Attached to Exhibit 6 are two documents relating to one "Eli 

Conliffe" and bearing his signature. The first attachment is an agricultural worker information sheet relating to Eli Conliffe in 

which he names "Doris Conliffe" as his nearest relative, identifying her as his wife. The second attachment is directed to the 

Labor Commissioner at Kingstown, St. Vincent Island, West In96 
Interim Decision * 1929 

dies, dated April 20, 1959, signed by Eli Conliffe and directs the 

Labor Commissioner to pay $10 a month to his wife, Mrs. Doris 

Conliffe. Counsel objected to the introduction of the attachments 

on the ground that they have not been validated or identified except by the trial attorney, and he also expressed a desire to 

cross-examine the signatories of the attached documents (p. 9). 

Exhibit 9 is the immigrant visa presented by the respondent 

when he was admitted to the United States on November 1, 1964. 

The application for the visa bears the signature of "Eli Conliffe" 

which appears to be similar to the signatures found in the prior 

exhibits. The special inquiry officer observed that the photograph 

on the visa is a good likeness of the respondent and closely resembles the picture attached to Exhibit 2 which counsel stipulated in 

evidence without objection. 

Attached to the visa is an application executed by one Eli Conlife on October 27, 1964. It states among other things that the 

applicant was born on July 17, 1926, in Belair, St. Vincent; that 

his present occupation is a carpenter; that he is "going to the 

United States" to join his wife who is named as "Ophelia Conliffe," residing at 5813 Larchwood Street in Philadelphia, Pennsylvania and that her maiden name was "Glass." The application 

names as the applicant's next of kin Clementina Conliffe, his 

mother, and states that his father, James Conliffe, died on June 1, 

1958. The application further states that the applicant's claim for 

nonquota classification is based on the fact that he is •"the husband of a 'United States citizen and the beneficiary of a petition 

filed July 6, 1964 and approved July 22, 1964 at Philadelphia." 

The application for a visa is supported by a birth certificate issued by the Registrar of General Births and Deaths of the Colony 

of St. Vincent showing the birth of Eli Sylvena Conliffe at Belair, 

St. Vincent Island, on July 17, 1926, the son of James and Olementiana Conliffe whose maiden name was Soso. 

Exhibit 12 is a sworn statement executed by Clethentina Conliffe before a Justice of the Peace. of the Island of St. Vincent, 

West Indies, on August 16, 1966. The affiant states in substance 

that she is the mother of Eli Conliffe born on July 17, 1926, and 

that she is "certain that my son Eli got married to Doris Noel" 

and that she "heard that (her) daughter-in-law, Doris Conliffe 

nee Noel, is in Trinidad but I do not know her address." 

Exhibit 18 is a question-and-answer statement taken from one 

Priscilla Conliffe by the American Consul at Bridgetown, Barbados on August 9, 1966. The affiant, Priscilla Conliffe, stated that 

she is the sister-in-law of Eli Conliffe whose photograph she iden97 
Interim Decision #1929 

tified. She further stated that she witnessed the marriage of Eli 

Conliffe to Doris Noel in 1952; that Eli Conliffe is the son of Clementina Conliffe, and he is the father of five children, three girls 

and two boys, and to the best of her knowledge her brother-inlaw has never been divorced. 

Exhibit 14 is a certified true copy of a marriage certificate issued to Eli Conliffe and Doris Noel showing their marriage on 

June 1, 1952; that the groom is a carpenter and the bride a seamstress; that the groom was 26 years of age and the bride 24 years 

of age; that both the bride and groom were born in St. John Parish at Belair, and that the father of the groom was James Conliffe and the father of the bride Robert Noel. The certificate is 

duly signed by Eli Conliffe and Doris Noel in the presence of William Wyllie and Priscilla Conliffe. According to the certificate, the 

marriage was celebrated at the Cathedral Church in St. George. 

It is noted that the age of the respondent on the marriage certificate is consistent with the age indicated on the birth certificate 

attached to the visa. Furthermore, he gave as his occupation that 

of a carpenter when he applied for his visa, and the occupation of 

carpenter is also shown on the marriage certificate_ 

Exhibit 15 is a question-and-answer statement executed by 

Doris Conliffe and forwarded 'to the Embassy of the United 

States of America at Bridgetown, Barbados, West Indies, on May 

18, 1967, by the Chief of Police of the Royal St. Vincent Police 

Force at Kingstown. The maker of the statement identifies a copy 

of the photograph of the respondent which was attached to his 

visa as a photograph of the person that she married on the first 

of June 1952 in the Kingstown Anglican Church. The maker of 

the statement also stated that she was the mother of five children 

born between March 7, 1950, and March 14, 1958; that she resided with her husband from 1950 until January 10, 1958, at 

Fountain, St. Vincent Island; nd that her husband has "four artificial teeth to the front of the top row." The statement is not 

under oath. 

During the presentation of the Government's case counsel for 

the respondent was assured that he would be afforded an opportunity to cross-examine by interrogatories the makers of the documents introduced by the Government as evidence in support of 

the charges against the respondent. Counsel was advised by the 

special inquiry officer that he would be given one month in which 

to determine whether he wished to cross-examine the witnesses 

by way of written interrogatories or whether he would travel to 

St. Vincent Island for a confrontation (p. 21). Counsel by letter 

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Interim Decision #1929 

dated November 28, 1967, informed the District Director at Philadelphia, Pennsylvania, that it would be necessary for the respondent to accompany him to St. Vincent to prepare a defense 

since he (counsel) is "not only an outsider and alien to the population, but also visibly different"; that he (counsel) does not propose to submit the respondent to an exclusion proceeding in lieu 

of a deportation proceeding; and that he (counsel) requests an 

"assurance" on the part of the District Director that the respondent would not be made the subject of exclusion proceedings "because of the facts underlying the present pending deportation 

proceedings" (Ex. 16). 

The District Director in his reply conceded that "the Government should give him (respondent) all possible access to the evidence which he (respondent) must obtain and present on his own 

behalf in the deportation proceeding now pending" but that he 

(District Director) could "see no way out of what appears to be 

an impasse in view of (counsel's) insistence that inquiries, interrogatories and investigation through the use of mail would be ineffective in the circumstances of this case" (Ex. 17). The District 

Director informed counsel that he could give no assurance that 

respondent would not be subject to exclusion proceedings, "for 

the law is clear and I have no discretion car authority to impugn 

it in any manner" (Ex. 17). 

Counsel in a letter to the special inquiry officer dated January 

26, 1968, stated that under the Government's theory of the case 

the denial of an assurance that the respondent would not be subjected to exclusion proceedings amounted to a denial of a presentation of cross-examination as well as the respondent's defense. 

He stated that if the respondent were "free to prepare his case" 

he could prove that : 

(1) The key witness, Doris Noel, sometimes also known as 

Doris Conliffe, is unworthy of belief. 

(2) This same Doris Noel was not lawfully able to contract a 

valid marriage with respondent as alleged, notwithstanding what 

appears to be the creation of such a status. 

(3) The other witnesses in favor of (the) Government's theory 

are mistaken as to the legal conclusions which they draw from 

certain facts. 

Counsel declined to proceed further until the respondent has been 

given a fair opportunity to investigate and prepare a cross-examination and his defense (Ex. 18). 

The special inquiry officer concludes on the basis of the documentary evidence submitted by the Government that "deportabil99 
Interim Decision *1929 

ity has been established by even a greater degree of evidence 

than that which is clear, convincing and unequivocal" (p. 11, special inquiry officer's opinion). Counsel on the other hand urges 

error in that the respondent has been denied due process of law, 

since the Government has effectively prevented respondent from 

preparing his defense by refusing to assure him that he would 

not be held in exclusion proceedings upon his return to the 

United States. A similar argument was made in the case of Hyun 

v. Landon, 219 F.2d 404 (9th Cir. 1955). The court held that deportation proceedings are civil in nature, and the fact that an 

alien is unable to travel to a place where he could cross-examine 

the witnesses is not a denial of the right of cross-examination 

(ibid, at page 406). 

Counsel argues that the special inquiry officer has accepted certain documents as evidence supporting the charges which on their 

face are affidavits and not depositions, and do not conform to the 

rule on depositions. This fact, it is urged, denies the respondent 

his statutory rights under section 242 (b) of the Act in the sense 

that if the affidavits are to be considered as depositions they are 

proceedings of which the respondent never had notice or opportunity to participate in the cross-examination of the makers of the 

oral depositions. 

The documents referred to by counsel are statements in both 

affidavit and question-and-answer form which were taken from 

the respondent's mother, his sister-in-law, his first wife and a 

person who witnessed the respondent's first marriage. This evidence was secured during the preliminary investigation of the 

case pursuant to the authority contained in section 287 (b) of the 

Act (8 U.S.C. 1357). It was admitted in evidence over objections 

by counsel pursuant to authority given the special inquiry officer 

in section 242 (b) of the Act. Contrary to the argument of counsel, section 242(b) (1) of the Act does not require the Service to 

reveal the nature of the evidence it proposes to introduce during 

the hearing. It provides that "the alien shall be given notice, reasonable under all circumstances, of the nature of the charges 

against him and the time and place at which the proceedings will 

be held." The order to show cause served upon the respondent on 

November 6, 1967, fully satisfies this requirement of the statute. 

There is no merit to counsel's claim that the introduction of the 

affidavits and question-and-answer statements violates section 

242 (b) (2) in the sense that if this evidence is regarded as depostitions, the respondent was not represented by counsel. Section 

242(b) (2) makes no provision for an alien's representation by 

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Interim Decision *1929 

counsel during the preliminary investigation prior to the issue of 

an order to show cause. Furthermore, there is no validity to counsel's allegation that the evidence obtained by the Service prior to 

the issue of the order to show cause violates section 242 (b) (3) 

which requires that an alien be permitted "a reasonable opportunity to examine the evidence against him, to present evidence in 

his own behalf and to cross-examine witnesses presented by the 

Government." There is ample evidence in the record that the respondent was given an opportunity to examine the evidence 

against him and to prepare his defense in accordance with the 

regulation providing for interrogatories (8 CFR 242.14 (e) ). 

Concerning the issue of discretionary relief counsel maintains 

that to proceed with an application would necessarily waive the 

Government's errors of proof. There is no substance to this claim 

because 8 CFR 242.17 (d) specifically provides that an application 

for discretionary relief "shall not be held to constitute a concession of alienage or deportability in any case in which the respondent does not admit his alienage or deportability." 

We are here concerned with an adminsistrative proceeding 

which is not bound by the strict rules of evidence applicable to 

judicial proceedings. Schoeps v. Carmichael, 177 F.2d 891 (9th 

Cir., 1949). The respondent was afforded ample opportunity to 

prepare his defense and cannot now complain of his failure to 

take advantage of the offer permitting him to proceed with the 

taking of depositions and the cross-examination of the Government witnesses. There is no requirement in the statute or the regulations that an alien be confronted by witnesses when taking a 

deposition or cross-examining a witness. Cf. Singh v. McGrath, 

104 F.2d 122, 123 (9th Cir., 1939) ; matter of McNeil, 11 I. & N. 

Dec. 378 (A.G. 1965). 

The evidence in the instant case is clear, convincing and unequivocal that the respondent married Doris Noel at the Cathedral 

Church of St. George on St. Vincent Isle on June 1, 1952. There 

is no evidence before us that the respondent was free to marry 

Ophelia Glass, a citizen of the United States, at Elkton, Maryland, on January 6, 1964. The Government established a prima 

facie case of deportability and the burden was upon the alien to 

go forward with the evidence to establish that his first marriage 

was a nullity. - Cf. Ah. Chiu Pang v. Immigration. and Naturazalion Service, 368 F.2d 637 (3d Cir., 1966), cert. den. 386 U.S. 

1037, 18 L.ed. 601 (1967). This he refused to do unless concessions were made which were not permissible under the immigration laws. Under the circumstances, he has not been denied due 

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process of law. We affirm the decision of the special inquiry 

officer and conclude that there is clear, convincing and unequivocal evidence that the respondent is deportable as charged in the 

order to show cause. An appropriate order will be entered dismissing the appeal and denying a remand of the proceeding to 

the special inquiry officer. 

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

hereby dismissed and the request for a remand of the proceeding 

to the special inquiry officer is hereby denied, 

102