MARTINEZ-SOLIS

Interim Decision #2135

MAYIBR OF MARTINEZ-SOLIS

In Deportation Proceedings

A44615365

Decided by Board March 22, 1972

(1) The action of the Board in its prior order remanding the case to the special

inquiry officer for further investigation and a reopened hearing, did not

commingle its functions as an impartial adjudicator with those of a prosecutor

and investigator; a contested deportation proceeding is in essence a quest for

the truth, and the Board does not cease to be impartial merely because in its

quest for truth it perceives avenues of unexplored inquiry.

(2) Under California law, a presumption of validity of a second marriage entered

into by a married person attaches only if contracted in good faith, founded on

the honest belief the former spouse is dead, and adequate investigation is

made to verify this belief. Hence, a presumption of validity of the second

marriage is precluded in the instant case where the alleged citizen wife was

paid $215 to marry respondent about a week after she met him, there is no

evidence her first marriage was dissolved by divorce or annulment, and there

is no evidence an effort was made to learn if her first husband was dead.

CHARGE:

Order: Act of 1952—Section 241(aX1) [8 U.S.C. 1251(a)(1)]—Excludable at time of

entry—no labor certification.

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:

Donald L. Ungar. Esquire R. A. Vielhaber

517 Washington Street Appellate Trial Attorney

San Francisco, California 94111 Stephen M. Suffin

(Brief filed)

Trial Attroney

(Brief filed)

The respondent appeals from the special inquiry officer's order

of deportation dated May 24, 1971. The case was originally before

us on November 27, 1970. Our order of that date remanded the

case to the special inquiry officer for additional evidence. The

respondent on this appeal excepts to that order.

The respondent, a native and citizen of Mexico, was admitted to

the United States for permanent residence at the port of Calexico,

California, on June 23, 1967. He presented an immigrant visa

issued to him by the United States Consul at Monterrey, Nuevo

Leon, Mexico on June 1, 1967 as the husband of Herminda

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Martinez Borunda, a United States citizen. He was not required to

present a labor certification under section 212(a)(14), Immigration

and Nationality Act, as the spouse of a United States citizen.

The respondent refused to testify at the deportation hearings

accorded him on July 9, 1969 and February 4, 1970. The primary

evidence relied upon by the Service to support the deportation

charge is a sworn statement taken from Erminda Duran, nee

Borunda, on February 18, 1969 (Ex. 10) and an affidavit executed

by her on April 1, 1969 (Ex. 5). The respondent's alleged wife stated

under oath in her statement and affidavit that a prior marriage

contracted by her had not terminated at the time she married the

respondent.

Counsel for the respondent objected to the introduction of the

statement and affidavit on the ground that he had no opportunity

to cross-examine the maker (pp. 5 and 11, hearing of July 9, 1969).

The hearing was adjourned to afford counsel an opportunity to

take the wife's testimony by deposition. It later developed that the

respondent's alleged wife could not be located.

This Board, after a thorough review of the evidence in light of

the objections raised by counsel, remanded the case to the special

inquiry officer with the request that the Service make a further

attempt to locate the respondent's alleged wife in order that she

could be cross-examined by counsel. We noted in our decision that

there was no showing of an investigation in and around Stockton,

California, notwithstanding the fact that the Service had been

informed that "Stockton, California has in the past been her

[respondent's alleged wife's] stomping grounds." We cited in sup-

port of our action a case which holds that the presumption of a

valid marriage may be overcome if the divorce records from the

residences of the parties involved reveal that there was no divorce

from a former spouse and no annulment of the marriage, Spradlin

v. United States, 284 F. Supp. '763 (D. Mont., 1968).

The respondent's alleged wife was thereafter located but counsel

declined to cross - examine her. A search of the court records in

Sacramento, Fresno and San Joaquin, California as well as a

report from the Bureau of Vital Statistics, which maintains a

centralized record of divorces in the State of California, failed to

reveal that the respondent's alleged wife had obtained a divorce

from her former husband (Ex.11).

Counsel maintains that our order of November 27, 1970, remand-

ing the case to the special inquiry officer for further investigation

and a reopened hearing had the effect of denying the respondent

his right to a fair hearing before an impartial tribunal. It is the

position of counsel that the Board's action commingled its func-

tions as an appellate body and trier of fact with those of prosecu-

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for and investigator, thereby denying the respondent a fair hear-

ing and rendering all subsequent proceedings invalid.

Counsel's charge that this Board deviated from its role of

impartial adjudicator misconceives the nature Of our function. The

charge is based on the following chain of reasoning: (1) In deciding

to rest on the original record, without seeking further to locate the

missing -witness, the Service made a deliberate prosecutive judg-

ment to which it should be held. (2) The respondent had a right to

have the deportation order assessed by this Board on appeal

strictly on that record. (3) The respondent had a right to have the

deportation order set aside and the proceedings terminated if, as

he maintained, the record was inadequate to sustain the charge.

(4) In remanding and directing that a further attempt be made to

locate the missing witness, this Board overruled the Service's

prosecutive judgement, thereby leaving its role of impartial adju-

dicator and assuming a prosecutive function.

A contested deportation proceeding is in essence a quest for the

truth. The stakes are high; the Service has the duty of enforcing

the law, and the alien's valuable right to remain here is threat-

ened. We may not approach such an inquiry like an umpire at a

sporting event, awarding the prize to the side that has scored the

most points. The "sporting theory of justice" has long been

disavowed by the courts and there is no reason why we should

accept it. We do not cease to be impartial merely because, in our

quest for the truth, we perceive avenues of inquiry not yet

explored.

This Board is an appellate administrative body created to decide

questions of law. Section 242(b)(4) of the Immigration and Nation-

ality Act provides that "no decision of deportability shall be valid

unless it is based upon reasonable, substantial and probative

evidence." The Supreme Court has interpreted section 242(b)(4) to

mean that no deportation order may be entered unless it is found

by clear, convincing and unequivocal evidence "that the facts

alleged as grounds for deportation are true," Woodby v. INS, 385

U.S. 276 (1966).

8 CFR 3.1(dX2) provides that the Board may return a case to the

Service for such further action as may be appropriate without

entering a final decision on the merits of the case. When it is

apparent from the record that the facts alleged as grounds for

deportation may be proved or disproved by supplementing the

record with additional evidence, we believe that in determining

the truth, it is our duty both to the Government and the alien, in

the administration of justice, to remand the case for such evi-

dence. Our authority to reopen and remand a case for such a

purpose has been sustained by the courts, Tejeda v. INS, 346 F.2d

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389, 392 (C.A. 9, 1965); Field v. INS,313 F.2d 743 (C.A.3, 1963); Wood

v. Hoy, 266 F.2d 825, 831 (C.A.9, 1959); Tandaric v. Robinson, 257

F.2d 895, 899 (C.A. 7, 1958). Cf. United States v. Ramos, 413 F.2d

743, 746 (C.A. 1, 1969).

Accordingly, we find no merit to counsel's contention that the

Board's action in this case commingles its functions as an appel-

late body with those of a prosecutor and investigator. 8 CFR

3.1(d)(1) confers upon the Board such authority "as is appropriate

and necessary for the disposition of the case." Cf. Matter of N—, 9

I. & N. Dec. 506, 511 (BIA, 1961).

Counsel also contends that, assuming the respondent had a fair

hearing, the evidence of record fails to meet the exacting standard

demanded by the Supreme Court in Woodby v. INS, supra. The

primary evidence relied upon by the special inquiry officer in-

cludes the sworn statement taken from the respondent's alleged

wife on February 18, 1969 (Ex. 10), an affidavit executed by her on

April 1, 1969 (Ex. 5), and a report of investigation (Ex.11) dated

April 16, 1971, to the effect that there is no record of her divorce in

the State of California.

We reject counsel's contention that the evidence is insufficient

to overcome the presumption of validity which attaches to the

respondent's marriage to a citizen of the United States under

California law. This presumption is not applicable here because,

after a thorough investigation by the Service, there is no evidence

that the first marriage of the respondent's citizen wife was

dissolved by divorce or annulment, In re Smith's Estate, 201 P.2d

539, 540 (Sup. Ct. Cal., 1949); Spradlin v. United States, supra.

Counsel also contends that there must be some proof that the

alleged citizen wife's first husband was not living at the time of

her marriage to the respondent. It has been judicially determined

in California that in order for a presumption of statutory validity

to attach to a second marriage entered into by a married person,

the second marriage must have been contracted in good faith,

founded on the honest belief that the former spouse was dead and

that an adequate investigation had in fact been made to verify

this belief, Goff v. Goff, 52 C.A. 2d 23, 125 P.2d 848, 851 (C.A. Cal.,

1942).

We are satisfied from the evidence before us that the alleged

citizen wife did not contract a marriage in good faith, founded on

the honest belief that her former spouse was dead. There is no

evidence of any investigation on her part to verify such belief. She

stated in her affidavit of April 1, 1969 that the respondent paid her

a total of $215 to marry him for immigration purposes. She also

stated that she first met the respondent "about a week before

[she] married him" (Ex. 5). Thus, the evidence before us precludes

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the applicability of the statutory presumption of the validity of a

second marriage.

The respondent's deportability has been established by evidence

that is clear, convincing and unequivocal. The order of deportation

is affirmed and the appeal will be dismissed.

ORDER: It is ordered that the appeal be and the same is hereby

dismissed.

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