DeVERA
(2) The affidavit of the respondent‘s spouse was admissible under
(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 making 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
(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.
(5) 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.
The respondent, a native and citizen of the Philippines, was served with a Notice of Intent to Rescind Adjustment of Status under section 246 of the Immigration and Nationality Act on April 10, 1974. Pursuant to
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),
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 first two hearing dates. The immigration judge held that the affidavit, although admissible into evidence under
The respondent, on appeal, first contends that the affidavit, an ex parte 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, 499 F.2d 918 (9 Cir. 1974);
Under
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 parte hearsay statements would comport with the due process requirements of a fair hearing. MartinMendoza v. INS, supra; de Hernandez v. INS, supra; Navarrette-Navarrette 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 Navarrette-Navarrette, 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 Government witness made at the hearing itself.
However, we do not address the issue in this case of whether a finding based primarily upon judicially inadmissible evidence would comport with the requirements of fundamental fairness. The affidavit in this case 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
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
ORDER: The appeal is dismissed.