Case Information
*2 MATTER OF V1VA.S In Deportation Proceedings A-34580254
Decided by Board December 17, 1.977
(1) Whilе the Service has the burden of proof to establish deportability by clear, convinc- ing and unequivocal evidence, a respondent in deportation proceedings may be required tо go forward with the evidence when the Service has made a prima facie case and respondent has better control or knowledge of the evidence (in this instance, the proper identity оf his alleged United States citizen wife). (2) Respondent's deportability as an alien excludable at entry under section 212(a)(14) of
the Immigration and Nationality Act for lack of a valid labor certification is established by clear, convincing end unequivocal evidence where the record shows that he was permanently employed in the United States at the time he applied for a visa, and where the Servicе established that respondent was not married to the person whose birth certificate was used to establish exemption from the labor certification requirement and respondent did not go fоrward with evidence to establish the true identity of the person to whom he claimed to have been married at the time he entered the United States. (3) Where consul's knowledge of the true facts would have required a finding that the applicant was ineligible to receive a visa, concealment of those facts from the consul results in procurement of a visa which is not valid, and the aliеn is excludable under section 212(a)(20) of the Act. Neither fraud nor wilfulness is an element in this determi- nation, and neither is necessary to establish a charge under section 212(a)(20) of the Act. CHARGE:
Order: Act of 1952—Sectiоn 241(a)(1) [8 U.S.C. 1251(a)(1))—Excludable at entry—no valid labor certification
Act of 1952—Section 241(a)(1) [8 U.S.C. 1251(a)(1)}—Excludable at entry—no valid immigration visa ON BEHALF OF RESPONDENT: Michael B. Cohen, Esquire 221 N. LaSalle Street Chicago, Illinois 60601 BY: Milhollan, Chairman; Wilson, Torrington, Maniatis, and Appleman, Board Members
The respondent appeals from an immigration judge's decision dated -August 9, 1976. In this decision the respondent was found deportable under section 241(а)(1) of the Immigration and Nationality Act as excludable at entry under section 212(a)(14) and section 212(a)(20) of the *3 Act and was granted the privilege of voluntary departure. The appeal will be dismissed. Thе respondent is a 24-year-old native and citizen of Mexico. He entered the United States as an immigrant on Augast 31, 1974. At issue is whether the respondent's deportability has been established by clear, convincing and unequivocal evidence.
The record reveals that the respondent obtained his immigrant visa and his exemption from the labor certification on account of his marriage to a United States citizen. The Service must prove by the required degree of evidence that the respondent was not exempt at the time of entry from the labor certification and that the visa hе presented to gain admission as a lawful permanent resident was invalid.
To prove its case, the Service presented as a witness a person claim- ing to be the individual referred to in the birth certificate used to establish the United States citizenship of the respondent's wife. The immigration judge concluded, on the basis of her testimony at the hearing and the other evidence in the record, that the birth certificate used to establish the citizenship of the respondent's wife belonged to the witness. The immigration judge's finding of fact carries great weight and will not ordinarily be set aside. Matter of T I. & N. Dec. 417 (BI A 1957). The witness testified that she has never gone through a marriage
ceremony with the respondent, that she had never met him previously and that she is married to someone else presently. The respondent testified that he had not married the witness and that he had never seen her before. However, the respondent claimed that he married someone who was using the same name as the witness. The respondent presented no evidence to clarify his wife's indentity or to prove that she is a United States citizen.
Since we have decided that the witness is the United States citizen referred to in the birth cеrtificate, the question is, more concretely, whether the respondent's deportability as one who was excludable at entry under section 212(a)(14) of the Act is established by clear, convinc- ing and unequivocal evidence when the Service establishes that the respondent is not married to the person whose birth. certificate was used to establish the exemption from the labor certification and the respon- dent has not gone forward with evidence to establish the real identity of the person to whom he claims to have been married at the time he entered the United States. We hold in the affirmative for this proposi- tion.
It is not a novel principle in immigration law that, notwithstanding the requirement of clear, convincing and unequivocal evidence to estab- lish depоrtability, a respondent may properly be required to go forward with evidence to rebut prima facie showings by the Service. See Matter
of Tijerina-Villarreal, 13 I. & N. Dec. 327 (BIA 1969); Conliffe, 13 I. & N. Dec. 95 (BIA 1968); Meter of Vosganian, 12 I. & N. Dec. 1 (BIA 1966). In the case at hand, the rule is justified.
In this situation, manifestly, the Sеrvice is under a serious practical
handicap if it must prove the negative proposition: that the respondent
did not marry a United States citizen when he married on June 9, 1973.
The possibilities arе of such magnitude as to defy inclusive rebuttal. On
the other hand, the burden of affirmatively identifying the person whom
he married is not an oppressive one fur the respondent to undertake; the
relevant fаcts to do that are peculiarly within his knowledge. He is only
being called to identify properly the person; the Service still retains the
obligation to prove by clear, convincing and unequivoсal evidence that
the respondent is deportable on the charges brought against him.
The rule that we are enunciating for this. situation is not new to either
criminal or civil proceedings. The burden оf going forward with evi-
dence can be placed on a party not bearing the burden of proof when the
facts are within his particular knowledge or control. See
United States
v. Fleischman,
The Service has shown that the respondent has not married the person whose birth certificate was used to establish his exemption from the labor certification as the spouse of a United States citizen. The respondent has not gone forward with evidence to establish the identity of the person he married. Counsel for the respondent argues on appeal that the respondent is not deportable as excludable at entry under section 212(a)(14) because the record is silent as to the purpose e the respondent's entry. We reject counsel's contention.
Thе record shows that the respondent was employed in Chicago prior to his trek to Mexico to obtain his visa. The respondent when asked his occupation on the visa applicatiоn said "labores." The respondent was employed at the time of the hearing. There is an affidavit in the record from the purported wife of the respondent, dated June 24, 1974, stating *5 that he was permаnently employed by the Crane Company in Chicago. That evidence is sufficient to establish that his purpose to enter the United States was to perform skilled or unskilled labor. See Lee, Interim Decision 2424 (BIA 1975); Matter of Becerra, I. & N. Dec. 19 (BIA 1968). The respondent's deportability as one who was excludable at entry under section 212(a)(14) has been established clearly, convincingly, and unequivocally.
It is established that the birth certificate accompanying the documen- tation presented to the consul to prove the eligibility of the respondent for his immigrant visa did not refer to the respondent's wife. If that fact had been known to the consul аt the time he issued the visa, he would not have issued it since there was no evidence before him that would establish the respondent's eligibility to receive the visa.
Where the true facts would have requirеd a consul to rule that an
applicant for a visa had not borne the burden of establishing eligibility,
we must hold that concealment of those facts resulted in the procure-
ment of a visa which was nоt valid.
Matter of F — M —
I. & N. Dec.
420 (BIA 1957). The fact that the applicant might have obtained a visa at
a later date, establishing his full eligibility With evidence other than the
one submitted at the time, does not mean that the visa obtаined on
August 14, 1974 is a valid visa. See
Ablett v. Brownell,
Counsel for the respondent seems to argue on appeal that the respon- dent cannot be found deportable as excludable at entry under section 212(a)(20) because there is no evidence of fraud on the part of the respondent concerning the obtainment of his visa. We agree with coun- sel for the respondent that there is no evidence of fraud on the part of the respondent. However, that does not affect deportability sinсe fraud or willfulness is unnecessary for a charge under section 212(a)(20) of the Act. Matter of F — M , supra. The appeal will be dismissed.
ORDER: The appeal is dismissed.
FURTHER ORDER: Pursuant to the immigration judge's order, the respondent is permitted to depart from the United States voluntarily within 31 days from the datе of this order or any extension beyond that time as may be granted by the District Director; and in the event of failure so to depart, the respondent shall be deported as provided in the immigration judge's order.