Interim Decision #2597 

MATTER OF DEVERA 

In Section 246 Proceedings 

A-20324729 

Decided by Board June 29, 1977 

(1) In rescission proceedings under section 246 of the Immigration and Nationality Act, 

the immigration judge is not bound by judicial rules of evidence. He may receive into 

evidence any oral or written statement previously made by the respondent or any other 

person during any investigation or examination which is material and relevant to any 

issue in the case. See 8 C.F.R. 246.3 and 242.14(c). 

(2) The affidavit of the respondent's spouse was admissible under S C.F.R. 246.5(b) despite 

her unavailability for cross-examination where the Service established that it was 

nimble to secure liar presence at the hearing by subpoena. 

(3) Under section 804(b)(3) of the Federal Rules of Evidence, a statement by an unavailable declarant which would otherwise be inadmissible as hearsay, is admissible if, at the 

time of its snaking it so far tended to subject the declarant to criminal liability that a 

reasonable man would not have made the statement unless he believed it to be true. 

This statement tended to subject the affiant to criminal liability under 18 U.S.C. 371 on 

the basis of statements made on the Form 1-130 visa petition. Thus this statement 

would be admissible in judicial proceedings. Affiant meets the unavailability requirement of section 804(2)(5) of the Federal Rules of Evidence based on the Service's 

unsuccessful efforts to locate her. 

(4) An affidavit made by an unavailable declarant which is of sufficient reliability that it 

-would be admissible in a Federal judicial proceeding as a declaration against penal 

interest is entitled to full weight in an administrative deportation proceeding. 

(6) The Government has established its case by clear, convincing and unequivocal evidence, where respondent's attempts to rebut statements in the affidavit are not credible, and where the statements in the affidavit are corroborated by testimony of other 

witnesses. 

ON BEHALF OF RESPONDENT: John L. Weir, Esquire 

483 Castro Street 

San Francisco, California 94114 

BY: Milhollan, Chairman; Wilson, Appleman, and Maguire, Board Members 

The respondent, a native and citizen of the Philippines, was served 

will a Notice of Intent to Rescind Adjustment of Status under section 

of the Immigration and Nationality Act on April 10, 1974. Pursuant 

to 3 C.F.R. 246.1, the respondent requested a hearing before an immigr-a-tion judge in lieu of filing a written answer to the allegations con - . 

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tamed in the notice. At the hearing, the respondent denied all of the 

allegations contained in the Notice of Intent. The immigration judge 

found that the respondent had been ineligible for adjustment of status, 

and rescinded the respondent's permanent resident status. The respondent appeals. The appeal will be dismissed. 

The respondent entered the United States from the Philippines as a 

temporary visitor on June 27, 1972. He married a native born United 

States citizen on September 3, 1972, in Reno, Nevada. Upon approval of 

a petition to classify the respondent as an immediate relative, the status 

of the respondent was adjusted to that of a lawful permanent resident on 

December 19, 1972. In the Notice of Intent to Rescind, the Service 

charged that the respondent's marriage had never been consummated, 

that he and his spouse had never cohabited as husband and wife, and 

that the sole purpose of the marriage had been to circumvent the 

immigration laws of the United States. The Service thus charged that 

the respondent had been ineligible for an immediate relative visa, and 

was therefore not exempt from the labor certification requirement of 

section 212(a)(14). Accordingly, it was charged that the respondent's 

permanent resident status was subject to rescission. 

The hearing was held on November 12, 1974, and, after two continuances, was completed on December 4, 1974, and April 4, 1975. The 

respondent testified that he had first met his wife in the summer of 1972, 

when he was living with his cousin in San Francisco, California. After a 

short courtship, she agreed to marry him. On September 3, 1972, they 

were married in Reno, Nevada, in the presence of his cousin. After the 

wedding, the respondent and his wife had returned to San Francisco, 

where they had lived with his cousin for a period of approximately two 

or three weeks. In October, 1972, the respondent left San Francisco for 

job-training in Los Angeles. He maintained no contact with his wife or 

his cousin during his absence. In November of 1972, he returned to San 

Francisco when he was notified by his cousin of a forthcoming Service 

interview concerning his application for adjustment of status. In San 

Francisco, he found that his wife was now living with a female friend, 

and that she evidenced no desire to return to him. Nonetheless, the 

respondent and his wife spent the night preceding the interview together at his cousin's home. At the Service interview on the following 

morning, the respondent and his wife reasserted that they were cohabiting at the cousin's address. The respondent also testified that he had 

tried to persuade his wife to resume cohabitation with him, but that she 

had refused. 

The respondent's cousin also testified at the hearing. Her testimony 

contradicted that of the respondent in several ways: (1) She stated that 

she had seen the respondent's wife only three times; at the wedding in 

Reno (Tr. p. 60), the day after the wedding in San Francisco (Tr. p. 63), 

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and on the night before the November Service interview, when the 

respondent and his wife had eaten a meal at. the cousin's house (Tr. pp. 

77-78); (2) the respondent had left for his j ob-training in Los Angeles 

two days after the wedding (Tr. p. 75). 

Although the immigration judge found the respondent's testimony to 

be less credible, he found that on the basis of this evidence alone, the 

respondent's ineligibility for adjustment of status had not been established by clear, convincing, and unequivocal evidence. See Yaldo v. 

INS, 424 F.2d 501 (6 Cir. 1970) (immigration judge's op., p. 2). 

On November 12, 1974, the first day of the hearing, the Service also 

sought to introduce the affidavit of the respondent's wife. In this 

affidavit, obtained by a Service investigator at the wife's place of employment on August 31, 1973, the wife stated that the marriage had 

never been consummated, that she and the respondent had never cohabited, and that she had married the respondent as a favor to an unnamed 

friend. She further stated that after the marriage, she and the respondent had gone their "separate ways." The Service officer to whom the 

statement had been made testified at the hearing. He stated that the 

affidavit was typed by the respondent's wife after she had been advised 

of her rights to remain silent and to consult an attorney. 

The respondent's objection to the introduction of this affidavit was 

sustained by the immigration judge on the fist two hearing dates. The 

itmuigration judge held that the affidavit, although admissible into evidence under 8 C.F.R. 246.3 and 8 C.F.R. 242.14(c), should not be so 

admitted until the Service had produced the affiant for crossexamination by the respondent, or established that a reasonable attempt had been made to do so, as provided by 8 C.F.R. 246.5(h). On 

April 4, 1975, after testimony by the Service investigator concerning his 

successful attempts to locate and serve a subpoena upon the affiant, the 

immigration judge admitted the affidavit into evidence. Primarily on the 

basis of this affidavit, the immigration judge found that the Service had 

established that the respondent's marriage had been entered into for 

the purpose of evading the immigration laws, and thus that it would not 

support the grant of immediate relative benefits under section 201(b) of 

the Act. Since the respondent had conceded that he had not been issued 

a labor certification under section 212(a)(14) (see Matter of Suleiman, 

Interim Decision 2522 (BIA 1974)), the immigration judge found that he 

had been ineligible for adjustment of status, and therefore found rescission to be in order. 

The respondent, on appeal, first contends that the affidavit, an ex 

2oarte statement of a witness not presented for cross-examination, was 

improperly admitted into evidence. This argument is without merit. The 

immigration judge in rescission proceedings is not bound by judicial 

rules of evidence. Martin-Mendoza v. INS, 199 F.2d 918 (9 Cir. 1974); 

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Navarrette-Navarrette v. Landon, 223 F.2d 234 (9 Cir. 1955); Matter of 

J—, 6 1. & N. Dec. 496 (BIA 1955). Under 8 C.F.R. 242.14(c), made 

applicable to rescission proceedings under 8 C.F.R. 246.3, the immigration judge may receive into evidence any oral or written statement 

which is material and relevant to any issue in the ease previously made 

by the respondent or any other person during any investigation or 

examination. Clearly, the affidavit satisfied these two criteria. 

Under 8 C.F.R. 246.5(b), the respondent in rescission proceedings 

has the right to a "reasonable opportunity" to cross-examine the maker 

of a declaration adverse to his interests. However, the use of the word 

"reasonable" necessarily implies practical limitations on this right. 

When, as here, the Government has established that it has been unable 

to secure the presence of the affiant by subpoena, the admission of an 

affidavit without cross-examination of the affiant by the respondent does 

not run afoul of 8 C.F.R. 246.5(b) or violate the respondent's due 

process right to a fair hearing. Martin-Mendozcr. v. INS, supra; de 

Hernandez v. INS, 498 F.2d 919 (9 Cir. 1974); Navarrette-Navarrette v. 

Landon, supra; U.S. ex rel. Impastato v. O'Rourke, 211 F.2d 609 (8 Cir. 

1954); Matter of Ccmliffe, 13 I. & N. Dec. 95 (BIA 1968). We hold that 

the affidavit of the respondent's spouse was admissible into evidence at 

the rescission hearing, despite the unavailability of the affiant for 

cross-examination, when the Service established that it had been unable 

to procure the presence of the affiant by subpoena. 

The respondent next contends that, even if admissible, the affidavit 

could not validly form the primary basis for a finding of ineligibility, 

since its probative value should have been substantially discounted by 

the respondent's lack of opportunity to cross-examine the affiant. In 

basing his finding primarily on the affidavit, Judge Kroll, in a comprehensive and scholarly opinion, found no judicial or Board authority 

for the proposition that a finding may be based on "ex parte affidavits, 

the makers of which have not been presented for cross-examination 

because they were unavailable, where the charge was unsustainable 

without reliance on the affidavits." (immigration judge's op., p. 11.) 

However, relying on the fact that the affidavit would have been admissible in Federal judicial proceedings as a declaration against penal interest made by an unavailable witness, the immigration judge found that 

the affidavit was entitled to sufficient weight to sustain the finding of 

ineligibility. 

Administrative proceedings must conform to the Fifth Amendment 

requirements of fundamental fairness. Harisiades v. Shaughnessy, 342 

U.S. 580 (1951). See also Woodby v. INS, 385 U.S. 276 (1966). Courts 

have expressed substantial concern over whether an administrative 

finding based primarily upon ex parts hearsay statements would comport with the due process requirements of a fair hearing. Martin269 
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Mendoza v. INS, supra; de Hernandez v. INS, supra; NavarretteNavarette v. Landon, supra. As the immigration judge notes in his 

opinion, in all cases in which judicially inadmissible evidence has been 

admitted in administrative proceedings, the ultimate findings have been 

entirely sustainable based upon other, unchallenged evidence. In de 

Hernandez and Navarette-Navarette, for example, the Government 

presented the confession of the respondent in addition to the ex parte 

affidavit of an unavailable witness. In Martin-Mendoza, the finding 

could have been based upon the statements of a Goveinment witness 

made at the hearing itself. 

However, we do not address the: issue in this ease of whether a finding 

based primarily upon judicially inadmissible evidence would comport 

with the requirements of fundamental fairness. The affidavit in this ease 

is not the sort of uncorroborated hearsay evidence which, though admissible in administrative proceedings, might well be insufficient basis, 

standing alone, for a decision under the authority above. Under section 

804(b)(3) of the Federal Rules of Evidence, governing proceedings before Federal courts and United States magistrates, a statement by an 

unavailable declarant which would otherwise be inadmissible hearsay is 

admissible if the statement "at the time of the making so far tended to 

subject [the declarant] to . . . criminal liability . . . that a reasonable 

man in his position would not have made the statement unless he 

believed it to be true.". Under section 804(a)(5), an "unavailable witness" 

is a -witness absent from the hearing where "the proponent of the 

statement has been unable to procure his attendance or testimony by 

process or other reasonable means." 

The affiant's statements .contained in the affidavit and admitted into 

evidence against the respondent clearly tended to subject her to criminal liability under 18 U.S.C. 3'71, which makes criminal any conspiracy 

to defraud the United States Government. See Lutunk v. United 

States, 344 U.S. 604 (1953); United States v. Pantelop,oulos, 336 F.2d 

421 (2 Cir. 1964). The visa petition (Form 1-130) executed by the affiant 

contains a notification of the criminal penalties resulting from any willful 

misrepresentations on the Forra 1-130. Similarly, the fact that the 

Service officer who obtained the affiant's statement advised her of her 

rights to silence and to consult an attorney is evidence that she was on 

notice of the criminal penalties resulting from her conduct. The attempts by the Service to locate the affiant satisfy the unavailability 

requirement of section 804(a)(5). We conclude, therefore, that the 

affidavit would have been properly admitted into evidence in a Federal 

judicial proceeding. 

One of the primary purposes of the right to cross-examine in any 

forum is that cross-examination is believed to insure the reliability and 

credibility of a witness' testimony. See 5 Wigmore, Evidence §1367 (3d 

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ed. 1940). However, reliability and credibility are likewise insured 

when, as here, an ex parte statement falls within an express exception 

to the rule against hearsay. See Advisory Committee on Rules of 

Evidence, Note to Rule 804, Commerce Clearing House, 1975. Crossexamination and specific exceptions to the hearsay rule have, in this 

respect, the analogous purpose of insuring the reliability of evidence. 

We find, therefore, that an affidavit made by an unavailable declarant 

which is of sufficient reliability that it would be admissible in a Federal 

judicial proceeding as a declaration against penal interest is entitled to 

full weight in an administrative deportation proceeding. When, as here, 

the respondent's attempts to rebut the adverse implications of the 

affidavit have been found not credible on essential points by the trier of 

fact (see Matter of S—, 8 I. & N. Dec. 574 (BIA 1960)), and when the 

implications contained in the affidavit have been corroborated by other 

testimony given at the hearing, we must find that the Government has 

established its case by clear, convincing and unequivocal evidence. The 

appeal will therefore be dismissed. 

ORDER: The appeal is dismissed. 

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