MATTER OF BUFALINO
In Deportation Proceedings
A-10607387
Decided by Board
September 30, 1965
Interim Decision #1517
(2) Respondent, who, subsequent to his lawful admission to the United States for permanent residence in 1914, became deportable upon reentry without inspection by falsely claiming U.S. citizenship, is statutorily ineligible for the creation of a record of lawful admission under
(3) Since respondent, who is deportable on grounds within the terms of both subsections (a)(1) and (a)(2) of
(4) The 10-year period of continuous physical presence rеquired to establish statutory eligibility for suspension of deportation under
(5) Respondent, by his evasive, equivocal, discrepant, and contradictory statements coupled with his demeanor while testifying before the special inquiry officer, is found to have given false testimony and, therefore, is precluded by
(6) Respondent, a native and citizen of Italy, who claims that his United States-acquired criminal reputation would result in certain intensive restrictions on his liberty, social, and economic life so as to impose severe, if not total, economic sanctions, if deported to Italy, has not established that such deportation would result in “physical persecution” within the meaning of
CHARGES:
Order: Act of 1952 —
Order: Act of 1952 —
Lodged: Act of 1952 —
The case comes forward on appeal from the order of 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
The order of the special inquiry officer sets forth the prior action in the case. The respondent is a native and сitizen of Italy, 61 years old, male, married. The proceedings were instituted on December 16, 1957 by the issuance and service of an order to show cause which charged the respondent with being deportable on the two grounds set forth in the caption. The second charge was amended by being restricted to allege the respondent‘s failure to furnish notification of his address to the Attorney General only during the years 1956 and 1957. A third charge was lodged that the respondent was deportable under the provisions of
The respondent through counsel admitted the charge of entry without inspection and the lodged charge of entry without proper documentation. The second charge under
A petition for review of the order of deportation and denial of the applications for discretionary relief, filed in the United States District Court for the Eastern District of Pennsylvania, was dismissed on April 8, 1959. This grant of summary judgment by the District Court was affirmed on April 1, 1960 by the United States Court of Appeals for the Third Circuit (Bufalino v. Holland, 277 F.2d 270) and certiorari was denied (364 U.S. 863 (1960)).
Administratively, and not as part of the deportation proceedings, the respondent then sought the creation of a record of lawful admission for permanent residence, pursuant to the provisions of
Subject to the approval of the United States Court of Appeals for the District of Columbia Circuit, respondent‘s counsel and the United States Attorney on September 26, 1963 stipulated that the cause be remanded through the District Court to the Immigration and Naturalization Service with directions to reopen the administrative deportation proceedings. The stipulation specifically limited the scope of the further proceedings to a redetermination of the previous administratively denied applications of the respondent for withholding of deportation and for creation of a record of lawful admission for permanent residence and to a determination of the country of deportation in accordance with
At the outset of the reopened proceedings on March 2, 1964, respondent‘s counsel moved for disqualification of the special inquiry officer and for the appointment of an attorney outside the Department of Justice to conduct this hearing. The motion was denied. A similar motion had been denied by the Acting Attorney General on January 27, 1964. The applications were bottomed upon respondent‘s contention that the ultimate determination in this cause had been prejudged, as indicated by public statements made by the Attorney General with respect to the respondent and his activities. The special inquiry officer stated unequivocally and without hesitation, that he has received no advice, instructions, or directions whatsoever in this cause from anyone (other than the mere assignment to preside); that the interim determinations and rulings and this decision were premised solely upon his undеrstanding and knowledge of the applicable laws and regulations and his honest and sincere evaluation of the evidence adduced, including his appraisal of the credibility of the respondent and witnesses; that he has not been influenced to any degree by allegations (made essentially by respondent‘s counsel) that information outside the record exists; and this cause was not in any way prejudged by him.
In the order remanding the case on the issue of prejudgment (Bufalino v. Kennedy, 322 F.2d 1016 (D.C. Cir.)) the court relied on the case of Accardi v. Shaughnessy, 347 U.S. 260, to hold that the
The special inquiry officer found that respondent was deportable on all three charges urged against him in the administrative deportation proceedings relying upon Bufalino v. Holland, 277 F.2d 270 (3rd Cir., 1960), certiorari denied 364 U.S. 863, 5 L. ed 2d 85 (1960). He also quoted the Court of Appeals for the District of Columbia Circuit which ruled that the validity of that deportation order can no longer be challenged. Bufalino v. Kennedy, 322 F.2d 1016 (1963), although that court did remand the case for a hearing on the issue of prejudgment. The special inquiry officer concluded that deportability of the respondent was established as a matter of law and refused to permit an attack upon thе validity of the deportation order based upon the ruling of the Supreme Court in Rosenberg v. Fleuti, 374 U.S. 449. Parenthetically, the Fleuti doctrine is inapplicable in 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. In such a case an entry has been made within the meaning of
The respondent has submitted formal applications for the creation of a record of admission for permanent residence under
The respondent originally entered the United States in December 1903 and apparently left in 1904, reentering in January of 1906 and leaving again in 1910. He was admitted for permanent residence at the port of New York on February 15, 1914. The evidence establishes that the respondent has had residence in the United States since at least 1927. There appear to have been brief departurеs from the United States to Canada during the early or mid-1920‘s, the exact time and number is not definitely established. However, all departures were for a day or less and they were in connection with the respondent‘s then employment in the Buffalo, New York area. The respondent also concedes that he made two trips to Cuba — in 1951 and in 1956 — for a short period of two or three days and additionally, preceding the 1956 trip to Cuba, he made a four or five-day vacation trip to Bimini in the West Indies. It is clear, as the respondent concedes, that in 1951 and in 1956, when he returned from the two trips to Cuba and the trip to Bimini, he represented himself to be a United States citizen and was admitted as such.
There exists in the respondent‘s case a record of lawful permanent admission in 1914. Subsequently, he became deportable by virtue of his entry as a United States citizen, thereby entering without inspection. The special inquiry officer has relied upon Matter of R —, 8 I. & N. Dec. 598, to hold that the record of his admission is not presently available, since by reason of his deportability, his status must be deemed to have been changed within the contemplation of
The respondent has applied for suspension of deportation pursuant to
The respondent must meet the requirement in subsection (2) of
The final application for relief from deportation is the request for status as a permanent resident under the provisions of
Section 245. (a) The status of an alien, other than an alien crewman, who was inspected and admitted or paroled into the United States may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment (2) the alien is eligible to receive an immigrant visa and is admissable to the United States for permanent residence, and (3) an immigrant visa is immediately аvailable to him at the time his application is approved * * *.
The respondent has made an application for such adjustment and has been found to be mentally and physically sound, his financial responsibility is established and the evidence does not bring him within any of the excludable provisions of
The question of good mоral character on the part of the respondent is common to all of his applications for relief from deportation as a matter of eligibility or as a matter of discretion. The special inquiry officer in the 1958 proceeding was convinced that the respondent‘s testimony 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 other evidence of record. This finding was expressly approved by the Court of Appeals for the Third Circuit in Bufalino v. Holland, 277 F.2d 270 (1960), which held that the respondent‘s testimony regarding his employment for the past five years was inaccurate and lacked required honesty and frankness;
The special inquiry officer in the present proceedings, finds from his demeanor as well as his confusing, contradictory testimony, that the respondent was deliberаtely untruthful, that the so-called “mistakes” were not innocent, and that he has given false testimony in this cause. As the trier of facts, the observations of the special inquiry officer regarding the respondent‘s demeanor, attitude and actions while testifying are material and relevant to the issue of credibility. The special inquiry officer has set out (pp. 28-47) various aspects of contradictions and discrepancies in the record regarding his meetings with certain persons who attended a meeting at Apalachin and explanations regarding his association with a Mrs. Jane Collins. We believe that the cumulative effect of the testimony, which is full of distortion, half truths, incomplete answers, misleading responses, evasion, concealment, suppression, equivocation and quibbling is 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 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.9 The special inquiry officer has concluded that the respondent, who made false statements in a 1958 proceeding, as found by the prior special inquiry officer and the Court of Appeals for the Third Circuit, has continued to do so in the 1964 proceedings before him. Upon this record and based upon the opinion of the
The respondent designated Brazil as the country of deportation in the event that he is ordered deported, and Italy has been named as the alternative country of deportation in the event deportation cannot, pursuant to the statute,
The phrase “physical persecution” as used in
We have also considered other objections raised by counsel. There is no requirement in the statute or in the regulations regarding an independent character investigation. In view of the numerous witnesses in this case, such an investigation would appear to be superfluous. However, where discretionary relief is denied, it is neither usual practice nor requirement that such an investigation be conducted аnd the Government has not relied on an investigation. We regard the denial by the special inquiry officer of the request for subpoenas to assure the presence of various Government officials of other agencies as vague, irrelevant and immaterial because there is not in issue matters which may or may not have been the subject of investigation by the Federal Bureau of Investigation, the Internal Revenue Service, or the Bureau of Narcotics. A request for a deposition has been granted. Viewing the record as a whole, we do not find there was any рrejudicial error committed and conclude that the respondent has been given a fair hearing. The appeal will be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby dismissed.