ATHANSOPOULOS

Interim Decision # 2113

MATTER OF ATHANASOPOULOS

In Section 246 Proceedings \

A-13864002

Decided by Board December 30, 1971

(1) Communications between respondent and his attorney for the purpose of

perpetrating a fraud against the immigration laws are not privileged com-

munications.

(2) A delay of approximately 31/2 years between the time of the Govern-

ment's first knowledge of respondent's fraudulent marriage and the

initiation of rescission proceedings does not constitute a denial of due

process of law since rescission proceedings are civil in nature and pur-

suant to section 246(a) of the Immigration and Nationality Act may be

instituted at any time within 5 years after adjustment of status of a per-

son under section 245 of the Act.

(3) Refusal of the special inquiry officer to subpoena certain witnesses and

to provide for the taking of depositions in Greece was not a denial of due

process where the record clearly reveals that the whereabouts of the wit-

nesses in Greece was unknown and the testimony of the other witnesses to

be subpoenaed would be cumulative of competent testimony in the record

on the issue in question.

(4) Where the Government has produced evidence of a clear case of fraud

and of ineligibility for adjustment of status, and the respondent has re-

fused to testify on matters within his personal knowledge and has failed

to rebut the evidence of the Government, rescission of adjustment of sta-

tus is proper.

ON BEHALF OF RESPONDENT : ON BEHALF OF SERVICE:

Elmer Fried, Esquire Irving A. Appleman

515 Madison Avenue Appellate Trial Attorney

New York, New York 10022

(Brief filed)

The respondent, a native and citizen of Greece, appeals from

an order entered by the special inquiry officer on August 26, 1969

pursuant to the provisions of section 246 of the Immigration and

Nationality Act, 8 U.S.C. 1256. The order rescinds an adjustment

of his status to that of a permanent resident alien under section

245 of the Act, 8 U.S.C. 1255. Exceptions have been taken to the

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finding that the respondent was not in fact eligible for the adjust-

ment of status accorded him.

The respondent originally entered the United States as a non-

immigrant professional soccer player (H-2) through the port of

New York on August 9, 1963. He married Marta Pinela, a citizen

of the United States, in Jamaica, Queens County, New York on

May 12, 1964. A petition to accord the respondent immediate rel-

ative status was executed by his citizen wife on May 13, 1964 and

approved by the Service on July 2, 1964. The respondent's nonim-

migrant status was adjusted to that of a permanent resident

alien on August 27, 1964, based upon the approved visa petition.

The respondent's marriage to Marta Pinela was terminated by a

divorce granted in Mexico on June 22, 1968.

The Notice of Intention to Rescind, served upon the respondent

on June 10, 1969, charges that he was not entitled to immediate

relative status as the spouse of a United States citizen and was

chargeable to the nonpreference portion of the Greek quota which

was not then available because his marriage to Marta Pinela

"was a sham marriage entered into solely for the purpose of per-

mitting [him] to adjust [his] status to that of a lawful perma-

nent resident of the United States" (Ex. 1).

The respondent, on advice of counsel, declined to testify during

the hearing beyond stating his name. Counsel acknowledged that

the respondent is an alien and that his status was adjusted to

that of a permanent resident as alleged in the Notice of Intention

to Rescind.

The Government's case is built primarily upon the testimony of

the respondent's former wife, Marta Pinela, and one Angel Luis

Collazo, who admitted that he arranged the wedding between the

respondent and Marta Pinela (p. 71). Supporting documentary

evidence entered in the record consists of a record of the respond-

ent's marriage to Marta Pinela on May 12, 1964, the visa petition

(Form 1-130) executed by the respondent's former wife and re-

ceived by the Service on May 21, 1964, the memorandum of the

creation of a record of lawful permanent residence (Form 1-181)

dated August 27, 1964,,and the application for adjustment of sta-

tus (Form 1-485) executed by the respondent on June 5, 1964

(Exs. 2, 3, 4 and 5).

The testimony of the respondent's former wife is fully set

forth in the opinion of the special inquiry officer and is incorpo-

rated herein by reference. A summary of her testimony is as fol-

lows : Her marriage to the respondent was arranged solely for im-

migration purposes by one Angelo Collazo, who informed her that

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Interim Decision #2113

she would receive $500 as a participant and that there would be

no marital obligation on her part to live with the respondent. She

further testified that she never lived with the respondent as man

and wife. She admitted that the respondent asked her to live with

him "two or three times" but she refused because "that wasn't

the plan that was offered to me. That isn't what I accepted. Those

were not the conditions" (p. 44).

The respondent's wife was questioned as to whether the re-

spondent "ever tried to have sexual relations with [her]." She re-

plied, "He never got fresh with me." She was then questioned as

to whether she considered "it getting fresh" if her husband

wanted to have sexual relations with her. She replied, "I didn't

consider him my husband, otherwise I would have had sexual re-

lations with him" (p. 44).

The witness, Angel Luis Collazo, identified the respondent's

former wife as the person for whom he arranged a marriage in

1964 (p. 71). This witness testified that he arranged for the re-

spondent and his former wife to meet at a restaurant "in down-

town Manhattan"; that at this meeting in the presence of the re-

spondent, the conversation included a discussion of a monetary

consideration for the marriage and an agreement that there

would be no cohabitation (p. 74). He further testified that he was

present at the marriage ceremony; that immediately following the

marriage, they went to the lawyer's office where papers were

signed ; that thereafter the respondent's wife was paid $500 and

"she gave me $100 back" (pp. 76-78).

The respondent, on advice of counsel at the beginning of the

hearing, refused to testify on the ground that he was not re-

quired to establish the Government's case (pp. 16 and 17). At the

close of the hearing after the Government had rested its case, he

also claimed the privilege against self-incrimination under the

Fifth Amendment (pp. 188, 189). The special inquiry officer

states at page 7 in her opinion "... the logical conclusion to be

drawn from the respondent's silence based on the contention that

to testify might incriminate him is that the testimony, if given,

would be adverse to his interest," citing Matter of 0—, 6 I. & N.

Dec. 246 (BIA, 1954).

It is the contention of counsel that the special inquiry officer

erred in drawing an adverse inference from the respondent's re-

fusal to testify based on the Fifth Amendment. He claims that

the privilege was fairly asserted because the questions of the trial

attorney implied that the respondent was suspected of at least a

violation of 18 U.S.C. 371, which defines a conspiracy to commit

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Interim Decision #2113

any offense or to defraud the United States, or any agency

thereof in any manner or for any reason. Counsel cites several

cases decided by the Supreme Court 1 in support of his position.

We agree with counsel that the drawing of adverse inferences

from a claim of Fifth Amendment privilege has been circum-

scribed by recent decisions of the Supreme Court, supra, footnote

1. We need not reach the issue of whether, on the peculiar facts

of this case, the special inquiry officer erred in drawing an ad-

verse inference from the respondent's refusal to testify. Here we

have direct and uncontroverted evidence that the respondent's

marriage to a citizen of the United States was a sham. The re-

spondent's former wife testified that she never lived with the re-

spondent in a marital relationship and that her marriage was ar-

ranged for immigration purposes. The testimony of the arranger,

Collazo, is to the same effect. Their testimony is credible and

remains unrebutted by the respondent. We conclude, without rely-

ing on the respondent's failure to testify, that the essential facts

of a sham marriage are clearly, convincingly and unequivocally

established quite apart from any inference drawn by the special

inquiry officer. Cf. Vlisidis v. Holland, 245 F.2d 812, 814 (3 Cir.,

1957). Since we reach this conclusion separate and apart from

any adverse inference drawn by the special inquiry officer, we

need not deal with counsel's objections.

Counsel challenges the special inquiry officer's ruling that the

information furnished to the Immigration Service by the re-

spondent's former attorney was not a violation of the attorney-

client privilege and that the evidence derived from that informa-

tion is therefore admissible in evidence. The special inquiry

officer stated in her opinion that the attorney-client privilege does

not extend to communications between an attorney and client

where the client's purpose is the furtherance of a future intended

crime or fraud.

The facts concerning this phase of the case have been fully dis-

cussed in the opinion of the special inquiry officer and the brief

submitted by counsel. Briefly, they establish that one Peter K.

Timon, whose signature appears as a notary public on the peti-

tion (Form 1-130, Ex. 3) submitted by the respondent's former

wife, appeared voluntarily in the office of the Immigration Serv-

ice at New York on January 4, 1966 and on this occasion surren-

dered voluntarily a list of his immigration clients. Mr. Timon

1 Griffin v. California, 380 U.S. 609, 14 L. Ed. 2d 106 (1965) ; Spevack v.

Klein, 385 U.S. 511, 17 L. Ed. 574 (1967) ; Gastelum-Quinones v. Kennedy,

374 U.S. 469, 10 L. Ed. 2d 1013 (1963).

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Interim Decision #2113

again appeared voluntarily in the Immigration office on July 13,

1966, and surrendered voluntarily some 16 powers of attorney in-

cluding a power of attorney executed by the respondent's former

wife (pp. 124, 163, 172 and Exs. 2 and 3 for identification).

There is evidence of record that the powers of attorney were exe-

cuted by the respective petitioning wives for the purpose of elimi-

nating the necessity of contacting the "immigration wife" when

the time arrived for obtaining an uncontested Mexican divorce (p.

140), There is a statement on Exhibit 4 for identification that

most of the cases were known to the Government prior to the

submission of the list by Attorney Timon.

We have carefully considered counsel's contention that the evi-

dence upon which this proceeding is based is tainted and may not

be used because it is a violation of the attorney-client privilege

and the Fourth Amendment prohibition against illegal search and

seizure. There is evidence of record that Attorney Timon was in

possession of a power of attorney which was signed by the re-

spondent's former wife in his office at the time she signed the

visa petition submitted by him in the respondent's case. When

this evidence is considered with the testimony of the two immi-

gration officers who were concerned with the investigation that

preceded the institution of rescission proceedings against the re-

spondent, we are convinced that Attorney Timon knew or should

have known that his services in behalf of the respondent were for

the purpose of perpetrating a fraud against the immigration

laws. The Supreme Court has said that, "A client who consults an

attorney for advice that will serve him in the commission of a

fraud will have no help from the law," Clark v. United States,

289 U.S. 1, 15, 77 L. Ed. 993, 1000 (1933).

The test for the loss of the attorney-client privilege was stated

by the Court in Clark, supra, 289 U.S. 15, 77 L. Ed. 1000, as fol-

lows:

To drive the privilege away there must be "something to give color to the

charge," there must be "prima facie evidence that has some foundation in

fact". ... When that evidence is supplied, the seal of secrecy is broken.

We are satisfied that the evidence on this issue meets the afore-

stated test. We find no error in the special inquiry officer's ruling

that the communications between the respondent and his attorney

are not protected by the attorney-client privilege under the cir-

cumstances presented by this case.

Counsel asserts that the respondent was prejudiced and denied

due process of law because of the unreasonable delay between the

Government's first knowledge of the alleged fraudulent marriage

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Interim Decision #2113

and its action in starting these proceedings. Counsel asserts that

the Government learned from Attorney Timon on January 4,

1966 that the respondent might have obtained his permanent resi-

dence by a sham marriage but took no action until the Notice to

Rescind was mailed to the respondent on June 10, 1969. It is the

position of counsel that during this delay of nearly three and

one-half years the memories of witnesses had faded, circum-

stances had changed and some witnesses were unavailable.

The Sixth Amendment provides in part, "In all criminal prose-

cutions, the accused shall enjoy the right to a speedy and public

trial." This is a civil proceeding brought under section 246 (a) of

the Immigration and Nationality Act. Under this statute the At-

torney General may institute rescission proceedings "at any time

within five years after the status of a person has been otherwise

adjusted under the provisions of section 245 ... of this Act ...."

(Emphasis supplied.)

We find no support in the cases cited by counsel in his brief 2

for his argument that the respondent has been denied his consti-

tutional rights by reason of the delay in the initiation of rescis-

sion proceedings. Three of the cited cases are concerned with ap-

peals from convictions for violations of the federal narcotic laws

and are criminal proceedings as distinguished from civil proceed-

ings.

The case of Pierno v. INS, supra, footnote 2, is not relevant to

the case before us. The Pierno case concerns a finding of statu-

tory ineligibility for section 245 relief based solely upon an auto-

matic revocation of visa approval pursuant to 8 CFR 205.1 (a) (2)

because of the intervening death of the petitioning citizen spouse.

The Service argued that the automatic revocation of visa ap-

proval pursuant to the regulations precluded the grant of relief

under section 245.

The court held that since the authority for the automatic revo-

cation regulation was derived from section 205 of the Act, a per-

missive statute granting the Attorney General discretion in deter-

mining what shall constitute good and sufficient cause for

revocation, there could be no "wooden application of rules for au-

tomatic revocation." The court in its review of the evidence noted

that the petitioning spouse had died during the eight months'

stay of the section 245 proceeding by the Service while awaiting

final disposition of an annulment proceeding brought by the peti-

2 Nickens v. United States, 323 F.2d 808 (D.C. Cir., 1963) ; Ross v. United

States, 349 F.2d 210 (D.C. Cir., 1965) ; United States v. Sanchez, 361 F.2d

824 (2 Cir., 1967) ; Pierno v. INS, 397 F.2d 949 (2 Cir., 1968).

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tioner's son. The court by way of dictum said at page 951 that

the beneficiary ". . . need not be penalized as a result of events oc-

curring during an unusually long investigation which are totally

unrelated to that investigation." (Emphasis supplied.) The record

establishes to our satisfaction that the events which occurred dur-

ing the three and one-half year period referred to by counsel

were directly related to the investigation of the respondent's eli-

gibility for adjustment of status under section 245 of the Act. Cf.

U.S. ex rel. Circella v. Sahli, 216 F.2d 33, 39 (7 Cir., 1954), cert.

denied 348 U.S. 964.

Counsel contends that the respondent was deined due process

of law by reason of the special inquiry officer's refusal to sub-

poena certain witnesses requested by the respondent and to pro-

vide for the taking of depositions in Greece. Counsel argues that

the refusals were in all cases not based on considerations as to

whether the testimony was likely to be relevant, material or nec-

essary, but on whether the witnesses were immediately available

in order to meet the deadline for the running of the\ five-year

statute of limitation provided by section 246 (a) of the Act.

8 CFR 287.4 (a) (2) provides the special inquiry officer with

discretion "... upon application of ... the alien ... [to] ... issue

subpoenas requiring the attendance of witnesses or for the pro-

duction of ... other documentary evidence, or both." The regula-

tion also provides that the party applying for a subpoena shall be

required, "as a condition precedent to its issuance, to state in

writing or at the proceeding what he expects to prove by such

witnesses or documentary evidence, and to show affirmatively

that he has made diligent, effort without success to produce the

same. Upon being satisfied that a witness will not appear and tes-

tify or produce documentary evidence and that his evidence is es-

sential, the ... special inquiry officer shall issue a subpoena."

(Emphasis supplied.)

We have carefully reviewed the record of counsel's requests for

the production of witnesses and the taking of depositions in

Greece. Following a statement by the trial attorney that "The

government rests" (p. 90), counsel for the respondent stated for

the record that he would "like the production of certain wit-

nesses, some under the control of the government, some not" (p.

94). Among the witnesses named by counsel are Attorney Peter

Timon, the respondent's former counsel, an Assistant United

States Attorney alleged to have been in charge of prosecution of

this case, each investigator who investigated the case, and a Mr.

Kaparonis who allegedly participated in the "conversations, acts

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and agreements" when the marriage was arranged (p. 94). Dur-

ing the discussion which followed counsel's request, we find no

statement on the part of counsel as to what he expects to prove

by the production of the witnesses, nor is there any affirmative

showing on the part of counsel that prior to this request he had

made a diligent effort without success to produce the witnesses

(pp. 95-101).

During the hearing of August 19, 1969, counsel requested the

issuance of a subpoena to compel the appearance of Attorney

Timon, since he assumed that "Mr. Timon has no intention of vol-

untarily appearing" pursuant to counsel's request forwarded by

mail on August 4, 1969 (pp. 105-106). Counsel at this time also

requested the taking of depositions from two witnesses who were

overseas and whose testimony he considered crucial for the re-

spondent's defense (p. 106) . Concerning the subpoena for Attor-

ney Timon, the special inquiry officer referred to an "off the rec-

ord discussion" at counsel's request during the hearing of August

1, 1969. The special inquiry officer stated for the record that

pursuant to this discussion, it was her understanding that counsel

was interested in the testimony of Attorney Timon in order to de-

termine whether it was from Mr. Tirnon or from his records

"that the Service investigation in this matter resulted" (p. 108).

We are satisfied after thoroughly considering the exchange be-

tween counsel and the trial attorney (pp. 109-113), and the testi-

mony of the supervisory inspector of the Frauds Section in the

New York office of the Immigration Service (pp. 139-185) that

the respondent's case had been identified from Service records

prior to the receipt by the Service of a record of Mr. Timon's

clients (pp. 141, 150). We find no error on the part of the special

inquiry officer in refusing counsel's request to adjourn the hear-

ing for the purpose of having Attorney Timon and the two in-

vestigators appear as witnesses {pp. 133, 134, 135) since there

was competent evidence on this issue in the record.

Counsel during the hearing of August 19, 1969 requested an

adjournment in order that he might fly to Greece for the purpose

of taking depositions from the respondent's uncle and another

man named "Jimmy [Kaparonis]." Counsel stated that the two

witnesses "could contradict the Government testimony" since they

"were present at the time of the alleged conversations of these

Government witnesses" (p. 135). Counsel did not specify what

"Government testimony" these witnesses would contradict. He

made no attempt to show affirmatively that he had made diligent

effort without success to produce the witnesses. Counsel takes the

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Interim Decision #2113

position that the Government should assist in locating the wit-

nesses (p. 107).

An alien in a rescission proceeding must be afforded due proc-

ess, including a fair hearing. We find no substance to counsel's

claim that the special inquiry officer erred in denying his request

to subpoena certain witnesses and to take depositions in Greece.

The record clearly reveals that the whereabouts of the two wit-

nesses in Greece was unknown and that the testimony of Attor-

ney Timon and the two investigators who were not available

would be cumulative of testimony proffered by the witnesses

Whalen and Spivack, both employees of the Immigration Service.

Failure to produce for crossexamination witnesses who cannot be

found or whose presence cannot be procured does not make this

proceeding unfair, Navarrette-Navarrette v. Landon, 223 F.2d

234, 237 (9 Cir., 1955), cert. denied 351 U.S. 911 (1956) ; U.S. ex

rel. Impastato v. O'Rourke, 211 F.2d 609, 611 (8 Cir., 1954), cert.

denied 348 U.S. 827 (1954). There is no showing that the hearing

was unfair, and we find no error.

Counsel contends that the respondent is immune from rescis-

sion proceedings by reason of section 241 (f) of the Immigration

and Nationality Act since he is now married to and living with a

citizen of the United States. Section 241 (f) provides a waiver of

deportability in the case of an alien who was excludable at the

time of entry as one who had procured a visa or entry into the

United States by fraud or misrepresentation if such alien is the

spouse, parent or child of a United States citizen or an alien law-

fully admitted for permanent residence. Counsel's argument is

based on the premise that Congress did not intend to have its

grant of immunity under section 241 (f) depend on which admin-

istrative procedure, i.e., a section 245 adjustment as opposed to

an entry with an immigration visa, was used to acquire the resi-

dence status that Congress intended to protect. Counsel cites no

authority for his position.

We have considered the question of whether section 241 (f) is

available in rescission proceedings. We held in Matter of Alemis,

12 I. & N. Dec. 456 (BIA, 1967), that section 241 (f) by its very

terms and the Supreme Court's decision in INS v. Eyrico, 385

U.S. 214 (1966), is limited solely to a deportation proceeding and

is not applicable to a rescission proceeding under section 246 of

the Act. The proceeding before us is not a deportation proceed-

ing. See also, Ferrante v. INS, 399 F.2d 98 at pp. 104, 105; Fo-

jon-Casal v. Attorney General, Civ. No. 2063-68 (unreported

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D.C., D.C.); and Matter of Vilanova-Gonzalez, Interim Decision

No. 2008 (BIA, 1969).

Counsel contends that the record does not establish by clear,

convincing and unequivocal evidence that the respondent's mar-

riage to Marta Pinela was a sham, entered into solely for the pur-

pose of permitting him to adjust his immigration status to that

of a lawful permanent resident alien. Counsel asserts that the

Government never established that the respondent was a knowing

participant in the marriage fraud. He maintains that without

such proof the Government has failed to establish a prima facie

case and for this reason the respondent's silence may not be used

to bolster the insufficiency of the Government evidence. Counsel

cites the case of Gastellum-Quinones v. Kennedy, 374 U.S. 469,

479 (1963), in support of his argument.

We find no substance to counsel's argument that the Govern-

ment has failed to establish a prima facie case because there is no

showing that the respondent was a knowing participant in the

marriage fraud. The testimony of the respondent's former wife

and the arranger, Collazo, that the respondent was present at the

time the sham marriage was arranged is uncontroverted. The ar-

ranger, Collazo, testified that the respondent's uncle spoke to the

respondent in "Greek" during the meeting at which the marriage

was arranged (p. 88). There is no reason why we should not con-

clude that the uncle truthfully informed the respondent in Greek

just what was taking place, i.e., that a sham marriage was being

arranged for him with the woman who was present, in order that

his immigration status could be adjusted. We are satisfied from

the testimony of the arranger concerning events which followed

the first meeting between the respondent and his former wife

that he (respondent) knew full well that the marriage was solely

for immigration purposes (pp. 75, 77, 79-81). For example, the

respondent permitted the arranger, Collazo, to place around his

apartment women's clothing furnished by his uncle for the pur-

pose of making it appear that his wife was residing there (pp.

78, 79). It is inconceivable under the circumstances that the re-

spondent could not have known what was going on. Accordingly,

the Supreme Court's decision in Gsatelum-Quinones, supra, has

no application to the respondent's case.

It is the function of the special inquiry officer and on appeal

the function of this Board to make an evaluation and to reach a

determination as to whether the evidence is of sufficient quality

and substantiality to support the rationality of the order of res-

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cission. Cf. D'Andrea v. INS, 335 F.2d 377 (6 Cir., 1964), cert.

denied 379 U.S. 999 (1965) ; Matter of Lugo-Guadiana, 12 I. & N.

Dec. 726 (BIA, 1968). The respondent in this proceeding was not

deprived of an opportunity to produce evidence in refutation of

the testimony of his former wife and the witness, Collazo. Cf.

Sercerchi v. Ward, 27 F. Supp. 437, 440 (D. Mass., 1939) and

cases cited. Their unrefuted testimony is candid, unequivocal and

credible.

The good faith of the marital relationship is the very essence

of this rescission proceeding and by its very nature is within the

personal knowledge of the respondent. His failure to rebut the

testimony of the Government witnesses does not diminish its

quality when, as here, the case is clear cut. We conclude that the

special inquiry officer has made a "fair assessment of the record."

Cf. Peurifoy v. Commissioner, 358 U.S. 59, 61 (per curiam 1958).

There is clear, unequivocal and convincing evidence that the re-

spondent was not in fact eligible for adjustment of status under

section 245 of the Immigration and Nationality Act, as amended.

We affirm the order entered by the special inquiry officer and will

dismiss the appeal.

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

hereby dismissed.

837