Interim Decision. #1746 

MATTER or &WALING 

IN DEPORTATION PROCEEDINGS 

A-10607337 

Decided by Board June 5, 1967 

(1) Respondent, an applicant for discretionary relief, has the burden of establishing that he has been a person or good moral character andwhere his testimony is contradicted by evidence of record and the cumulative effect of his 

testimony—which is full of distortion, half-truths, self-contradictions, evasion, 

concealment; and equivocation—is such as to cast serious doubt on its credibility, a finding that he gave "false testimony" and, thuS, is mot a person or 

good moral character is established. 

(2) The burden of proof rests with respondent under section 241(a) (5) of the 

Immigration and Nationality Act to establish that his failure to comply with 

section 205 of the Act was reasonably excusable and was not willful, and on the 

basis of the same evidence of record and of respondent's testimony of doubtful 

credibility, a finding be has not borne his burden of proof and is deportable 

under section 241 (a) (5) of the Aet is fully established within the clear, convincing and unequivocal evidence rule enunciated in Woodby v. I. cg N.B., 

385 U.S. 270. 

(3) Despite the requisite familial ties, respondent, who was deportable under 

section 241(a) (5) of the Aet at entry in 1950, is statutorily ineligible for relief 

from deportation under section 241(f) of the Act, as amended, because he was 

not "otherwise admissible" at entry [I. & N.B. v. ErrEco, 885 U.S. 214. 

Inapplicable]. 

Cisenous : 

Order : Act of 1952—Section 241 ( a) (2) [8 U.S.C. 1251 ( a) (2)3—Entered without inspection. 

Act of 1952—Section 241(a) (5) [8 U.S.C. 1251(a) (5)3—Failed to 

furnish address and other information required by 

section 265 and has not established failure was reasonably excusable or was not willful. 

Lodged: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)3—Excludable 

at entry—Not in possession of valid visa or other 

entry document. 

Ox BEHALF OF RESPONDENT: 

Jack Wasserman, Esquire 

Wasserman & Carliner 

Warner Building 

Washington, D.C. 20004 

(Oral argument) 

On BEHALF or SERVICE: 

Irving A. Appleman 

Appellate Trial Attorney 

(Oral argument) 

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Interim Decision #1746 

The case comes forward on motion of counsel to reopen and reconsider the case in the light of the recent Supreme Court decisions including those of Fleuti v. Rosenberg, 374 U.S. 449; Woodby v. Immigration and Naturalization Service, 385 U.S. 276, and Err-ieo v. United 

States, 358 U.S. 214. 

The respondent through counsel submits that upon such reopening 

and reconsideration the proceedings herein should be terminated. 

The case was last before us on September 30, 1965 on appeal from 

the order entered by the special inquiry officer dated March 17, 1965 

denying the respondent's various applications for discretionary relief, 

ordering respondent deported on the charges contained in the order 

to show cause and on the lodged charge to Brazil, in the alternative, to 

Italy, and further ordering that the respondent's application for 

withholding of deportation to Italy under section 243 (h) of the Immigration and Nationality Act be denied (Lit. Dec. No. 1517). 

In our order of September 30, 1965 we traced the history of the pro. 

ceedings which led to a finding of deportability on all three grounds 

stated in the charges. A petition for review of the order of deportation 

and denial of the applications for discretionary relief was dismissed 

by the United States District Court for the Eastern District of Pennsylvania on. April 8, 1959. This grant of summary judgment by the 

District Court was affirmed on April 1, 1960 by the United States 

Circuit Court of Appeals for the Third Circuit, Bufalino v. Holland, 

277 F.241• 270, and certiorari was denied 364 U.S. 863. Judicial review 

was subsequently sought in the United States District Court for the 

District of Columbia and summary judgment was entered against the 

respondent on June 7, 1962. On appeal, the appellate court on June 6, 

1963 reversed and directed that the case be returned to the District 

Court for trial upon. the limited issue of the respondent's contention 

that there had been adverse prejudgment of his applications for die 

cretionary relief by the Immigration and Naturalization Service. Bu falino v. Kentnedy, 322 F.24 1016 (D.C. Cir. 1963). Thereafter the case 

was remanded upon stipulation with the Service for further proceedings. We concluded that the statement of the special inquiry officer 

of lack of prejudice or prejudgment effectively met respondent's claim 

of prejudgment. The District Court for the District of Columbia ruled 

in favor of a. hearing for respondent on the prejudgment issue. On 

appeal, it was held the case should be heard in the Third Circuit; the 

matter then rested until the present motion could be considered. 

We agreed with the special inquiry officer that the deportability of 

the respondent was established as a matter of law. The special inquiry officer refused to permit an attack upon the validity of the deportation order based upon the ruling the Supreme Court in ROM.' 

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Interim Decision #1746 

burg v. Fleuti, 374 U.S. 229. We observed that the Fkuti doctrine is 

inapplicable in the case of a lawful permanent resident, who, after a 

brief, casual visit abroad, reentered the United States upon a false 

claim of citizenship thereby avoiding inspection as an alien; in such 

a case "an entry" has been made within the meaning of section 101(a) 

(18) of the Immigration and Nationality Act upon which a ground 

of deportation might be predicated, citing Matter of Polk, Int. Dec. 

No. 1443, which distinguished the case of Zimmerman v. Lehmana, 

339 F.241 947 (7th Cir., 1965), in which there existed a bona fide, although erroneous, assumption on the part of the alien that he was a 

derivative citizen through adoption at the time of his reentry from 

Canada. We also upheld the denial of the application for creation of 

a record of lawful entry pursuant to section 249 of the Immigration 

and Nationality Act, the denial of suspension of deportation, the application for status as a permanent resident under the provisions of 

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

the question of good moral character, we set out the special inquiry 

officer's holding in the prior proceedings and were convinced that the 

respondent's testimony with respect to his business connections and 

income, knowingly and deliberately told less than the truth, and that 

his testimony was contradicted time and time again by the respondent's own testimony and other evidence of record. This finding was 

expressly approved by the Court of Appeals for the Third Circuit in 

Bufalino v. Holland, 277 P.N. 270 (3rd Cir., 1960), which held that 

the respondent's testimony regarding his employment for the past 

five years was inaccurate and lacking in the required honesty and 

frankness; instead of a direct answer to this simple inquiry, the sum 

total of the respondent's contradictory and confusing testimony elicited after lengthy cross-examination demonstrated that he had many 

other employment associations and income-producing connections 

concerning which his testimony was intentionally and purposely vague 

and uninformative. Having determined that the respondent testified 

falsely in the 1968 proceedings in order to avoid deportation, the court 

found that the respondent was not a person of good moral character 

as required by 8 U.S.C. 1101.(f) (6), which provides that an alien who 

testifies falsely to procure benefits under the Immigration and Nationality Act, is estopped from demonstrating himself to be a person 

of good moral character. The special inquiry officer, in his order of 

March 17, 1965, found from the respondent's demeanor, as well as his 

confusing, contradictory testimony that the respondent was deliberately untruthful, and that the so-called "mistakes" were not innocent 

and that he had given false testimony in this cause. We found on appeal that the cumulative effect of the testimony, which was full of dis279 
Interim Decision *1746 

tortion, half truths, incomplete answers, misleading responses, evasion, 

concealment, suppression, equivocation and quibbling was such as to 

cast a serious doubt upon its credibility. We held that in a situation 

where the respondent is an applicant for discretionary relief, the Government is entitled to the truth and the burden is on the respondent to 

establish that he has been a person of good moral character for the required period; that it was not incumbent upon the Attorney General 

to establish that respondent was not a person of good moral character. 

Upon the record, and based upon the opinion of the special inquiry officer, the trier of the facts, regarding demeanor, lack of candor and 

probity, we were not disposed to find his evaluation of the testimony 

incorrect. We found the respondent ineligible for discretionary relief 

became he failed to establish good moral character for the past ten 

years and in addition, the respondent failed to establish the requisite 

ten years of continuous physical presence in the United States since 

his last deportable act. We also dismissed the appeal from the denial 

of the application for withholding of deportation to Italy pursuant to 

the provisions of section 243 (h) of the Immigration and Nationality 

Act (8 U.S.C. 1253 (h) ). 

In disposing of this motion, we do not propose to restate the previous 

findings by this Board, but we shall proceed to a consideration of the 

matters raised by the motion. The case of Rosenberg. v. Fleu ti, 374 U.S. 

440, 10 Law Ed. 2d 1000, held that in view of the definition of "entry" 

in section 101 (a) (13) of the Immigration and Nationality Act, an 

innocent, casual and brief excursion by a resident alien outside the 

borders of the United States may not have been "intended" as a departure disruptive of his resident alien status, and therefore may not have 

subjected him to the consequences of an "entry" to the United States. 

It is noted that the respondent, who was represented by counsel, conceded depot-Lability on the first charge stated in the order to show cause, 

that he entered without inspection, and also conceded deportability 

upon the lodged charge of excludable at entry as one not in possession 

of a valid visa or other valid entry document. We considered the applicability of the Fleuti decision in our order dated September 30, 1965 

and we noted that the special inquiry officer concluded that deportability of the respondent was established as a matter of law and that 

he refused to permit an attack upon the validity of the deportation 

order based upon the Fleuti holding. We observed that the Fleuti 

doctrine is inapplicable to the case of a lawful permanent resident, who, 

following a brief, casual visit abroad, reentered the United States upon 

a false claim of citizenship thereby avoiding inspection as an alien, 

citing Matter of Kolk, Int. Dec. No. 1443. 1We do not propose to 

See also Matter of Kari, 101. & N. Dee. en 

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Interim Decision #1746 

dwell at length upon this aspect of the case, inasmuch as the motion 

must be denied for more cogent reasons as set forth below. 

Counsel relies upon the case of W oodby v. Immigration and Naturalization Service, 885 U.S. 276, 17 Law Ed. 2d. 362. The Court in that 

case held that section 242(b) (4) providing that no deportation order 

shall be valid unless it is based upon reasonable, substantial and probative evidence is addressed to the reviewing court, and, insofar as it 

represents a yardstick for the administrative fact finder in. deportation proceedings, went not to the burden of proof, but rather. went to 

the quality and nature of the evidence upon which the deportation 

order must be based. The Court held that in deportation proceedings 

the Government must prove the facts supporting deportability by 

clear, unequivocal and convincing evidence. 

The terms used by the Supreme Court in deportation cases do not 

set forth a magic formula but any other words which are used which 

comply with the burden of proof established by the Supreme Court 

are sufficient. After the Service had submitted evidence regarding 

birth in Italy which contradicted the initial claim of birth in the 

United States as well as a delayed birth record showing birth in the 

United States, alienage was conceded. The special inquiry officer in 

the 1958 proceedings was convinced that the respondent in respect 

to his business connections and income knowingly and deliberately 

told less than the truth and that his testimony was contradicted time 

and again by the respondent's own testimony and by evidence of 

record. This finding was expressly approved by the Court of Appeals 

for the Third Circuit in Bufaltino v. Rolland, 277 F. 2d 270. The 

special inquiry officer in the last reopened proceedings found from 

respondent's demeanor, as well as his confusing, contradictory testimony, that the respondent was deliberately untruthful, that the socalled "mistakes" were not innocent, and that he had given false testimony in this cause, Ai the trier of facts, the observations of the special 

inquiry officer regarding the respondent's demeanor, attitude and 

actions while testifying were material and relevant to the issue of 

credibility. The cumulative effect of the testimony, which is full of 

distortion, half truths, incomplete answers, misleading responses, 

evasion, concealment, suppression, equivocation and quibbling was 

such as to cast a, serious doubt upon its credibility. In a situation where 

the respondent is an applicant for discretionary relief, the Government is entitled to the truth and the burden is on the respondent to 

establish that he has been a person of good moral character for the 

required period. It is not incumbent upon the Attorney General to 

establish that respondent was not a person of good. moral character. 

We believe that this finding, which was affirmed by this Board in its 

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Interim Decision #1746 

order dated September 30, 1965, meets the burden of proof of clear, 

convincing and unequivocal evidence upon which to base a ground of 

deportability as required by the Supreme Court in W oodby v. Immigration and Naturalization Service, 386 U.S. 276. 

In addition, section 241(a) (5) states that an alien shall be deported who has failed to comply with the provisions of section 265 

"

unless he establishes to the satisfaction of the Attorney General that 

such failure was reasonably excusable or was not wilful " *." The 

statute, section 241(a) (5), shifts the burden to the alien to show that 

the failure was reasonably excusable or was not wilful. The existence 

of the exculpatory circiunstances must be established by the alien by 

credible evidence sufficiently persuasive to satisfy the Attorney General in the exercise of his reasonable judgment, considering the proof 

fairly and impartially.' The Service, the Board and the Court of Appeals for the Third Circuit in Bufalino v. Holland, 277 F. 2d 270, 

found that the respondent had not borne that burden and that his 

admitted failure to notify the Attorney General of his address or 

other information in compliance with 8 U.S.C. 1305 in 1956 and 1957 

was not reasonably excusable, was wilful, and rendered him deportable under S U.S.CA. 1251(a) (5). We consider deportability under 

section 241(a) (5) to be fully established even under the criteria set 

forth in W oodby v. 1. N .S., supra. 

Counsel relies upon the holding in Invnagration and Naturalization 

Service v Enrico, 385 U.S. 214, 17 Law. Ed.2d 318 (1966). That case 

held that an alien who committed fraud or misrepresentation for the 

purpose of evading quota restrictions should not be denied relief under 

section 241(f) as an alien not "otherwise admissible at the time of 

entry." The court in this decision relied heavily for guidance upon 

section 7 of the 1957 Act which stayed deportation under similar circumstances for the spouse, parent or child of a United States citizen if 

he was "otherwise admissible at the time of entry." This contention 

of counsel was passed upon by the court in Bufalino v. Holland, 277 

F.2d 270, 278-279, which held that the pertinent regulations, 8 CFR 

242.7(a), conditions the exercise of discretion on the alien being "not 

otherwise subject to deportation." The court held, however, that the 

alien was otherwise deportable at the time of both entries in 1956 under 

8 U.S.C. 1251(a) (5) because he had failed to give the required information to the Attorney General in January of 1956 in compliance 

with 8 U.S.C.A. 1805. The Court concluded that the alien was not 

"otherwise admissible" under B U.S.C.A. 1251 when he entered the 

country in 1956. His failure to demonstrate that he was "otherwise 

• 

Matior of B—, 5 L & N. Dee. 692. 

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Interim Decision #1746 

admissible" resulted in his being ineligible as a matter of law for the 

exercise of the Attorney General's discretion because he had failed to 

meet the minimum statutory prerequisites. It is believed that Errico is 

not applicable because the respondent has been found to have been not 

"an alien otherwise admissible at the time of entry" despite the possession of the necessary familial ties. 

In a supplemental motion counsel moved the Board to reopen the 

proceedings to ascertain the extent to which evidence herein and the 

fruits thereof were obtained by illegal wire tapping and by unauthorized interceptions of the telephones of respondent and his attorneys. This motion is predicated upon a suit brought in the United 

States District Court for the Eastern District Court of Michigan, Seventh District, Case No. 27005, by William E. Bufalino, a relative and 

legal adviser of the respondent herein, against the Michigan Bell Company and others, alleging that on divers occasions, the telephone of 

William E. Bufalino has been the subject of illegal interceptions. Counsel charged that the evidence thus secured or the fruits thereof were 

utilized in connection with the charges of deportability herein, the 

evaluation of his credibility and the denial of discretionary relief. 

Counsel alleges that the respondent's rights under the fourth, fifth 

and sixth amendment have been invaded.. 

At oral argument counsel conceded , that he had no knowledge that 

the respondent's wires were tapped. The affidavit of William E. Bufalino merely presumes that the respondent's telephone calls in connection with the respondent's deportation case may well have been tapped. 

During the course of the last reopened hearing, the trial attorney 

denied any knowledge of wire tapping or interception of phone calls 

to the respondent by the Immigration and Naturalization Service (Tr. 

p. RR370-380). The issue of wire tapping raised by counsel appears 

to be too conjectural, remote and speculative to afford a basis upon 

which to hold the deportation proceeding failing or lacking in due 

process. 

It is considered that other matters raised by counsel during the 

course of oral argument are too extraneous to be answered. The motion 

to reopen will be denied. 

ORDER: It is ordered that the motion to reopen be and the same 

is hereby denied. 

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