Petition — Agosto v. Immigration & Naturalization Service

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

to the United States Court of Appeals

for the Ninth Circuit

Ü e— ä C ——.'.—.. —— e.—..—— m/ ... 1?—?ͤ—ͤ—ʃk ͤ4ññ᷑

Rosert S. Bux,

Fallox, Haroreaves, Brxsy & McVey,

30 Hotaling Place.

Sen Francisco, Californie 9411).

Telephone: (415) 781.2338,

Oscar B. GoopMaAN,

GoopMAN AND SNYDER,

230 Les Veges Bouleverd South

Las Veges. Nevede 89/0).

Telephone: (702) 384-556).

Attorneys for Petitioner.

Subject index

Page

rere eee esse ee A eee 1

/ 2

1 —— 2

11K 2

E 3

Reasons for granting the wWwrit ee neeuee 5

1. The decision below conflicts with the decisions of other

courts of appeals as to the proper interpretation of

II ccnccccodecccccossccesocecces 5

2. The decision below raises an important question con-

cerning procedural rights to be accorded a claimant

to United States citizenship ........ 6.6666 cece cue 9

Table of Authorities Cited

Cases Pages

Jolley v. INS, 441 F.2d 1245 (5th Cir., 1971) ........... 6,7

Kessler v. Strecker, 307 U.S. 22 (1939)))0))))̃jõ)ʒů)·;ỹ// ꝙ 7

Maroon v. INS, 364 F.2d 982 (8th Cir., 1966) ....... ... 6,7

Ng Fung Ho v. White, 259 U.S. 276 (1922) ............ 6,9

Nishikawa v. Dulles, 356 U.S. 129 (1958) ............... 10

Olvera v. INS, 504 F.2d 1372 (5th Cir., 1974) .......... 6,7

Pignatello v. Attorney General, 350 F.2d 719 (2d Cir., 1965)

—— «l m 6, 7, 8

Rassano v. INS, 377 F.2d 971 (7th Cir., 1987) 6,7

Tanaka v. INS, 346 F.2d 438 (2d Cir., 1965) ............ 6,7

United States ex rel. Bilokumsky v. Tod, 263 U.S. 149

I tacit Ath a eh i ee hie de eee endnns 6

United States v. Minker, 350 U.S. 179 (1956) ........... 10

Regulations

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Statutes

8 U.S. C.

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In the Supreme Court

OF THE

Runited States

Ocroser TRM, 197%

No.

JosepH V. Acoso,

Petitioner,

v.

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

to the United States Court of Appeals

for the Ninth Circuit

The petitioner respectfully prays that a writ of

certiorari issue to review the judgment of the United

States Court of Appeals for the Ninth Circuit en-

tered in this case on January 24, 1977.

OPINIONS BELOW

The opinion of the Court of Appeals, not published,

affirming the order of the Board of Immigration

Appeals, is set forth at page i of Appendix A, and

the order of the Court of Appeals denying petition

for rehearing en banc is set forth at page iii of

2

Appendix A. The opinion of the Board of Immigra-

tion Appeals is set forth in Appendix B.

JURISDICTION

The judgment of the Court of Appeals was entered

on January 24, 1977. A timely petition for rehearing

en bane was denied on March 23, 1977, and this peti-

tion for certiorari was filed within ninety days of

that date. The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether 8 U.S.C. 1105a(a)(5) requires transfer to

a United States District Court for a de novo hearing

where the Board of Immigration Appeals, the agency

charged with making a final administrative determi-

nation of petitioner’s immigration status, has found

that his evidence is sufficient, if believed, to support

his claim to United States citizenship.

STATUTE INVOLVED

Section 106(a)(5) of the Immigration and Nation-

ality Act, 8 U.S.C. 1105a(a)(5), provides as follows:

Whenever any petitioner, who seeks review of

an order under this section, claims to be a na-

tional of the United States and makes a showing

that his claim is not frivolous, the court shall

(A) pass upon the issues presented when it ap-

pears from the pleadings and affidavits filed by

the parties that no genuine issue of material

fact is presented; or (B) where a genuine issue

of material fact as to the petitioner's nationality

is presented, transfer the proceedings to a United

States district court for the district where the

petitioner has his residence for hearing de novo

of the nationality claim and determination as if

such proceedings were originally initiated in the

district court under the provisions of section 2201

of Title 28, United States Code. Any such peti-

tioner shall not be entitled to have such issue

determined under section 360(a) of this Act or

otherwise.

STATEMENT OF THE CASE

Petitioner last arrived in the United States on or

about December 11, 1966 and was then admitted

upon presentation of a United States passport (R.

349-351) On September 5, 1967, deportation pro-

ceedings were commenced against petitioner by issu-

ance of an order to show cause, charging that he was

deportable under Section 241(a)(2) of the Immigra-

tion and Nationality Act, 8 U.S.C. 1251(a)(2), as an

alien who had entered the United States without

inspection (R. 349-351). At his initial hearing before

> 8 Meer- ti senied that he

(„R.“) References are to the certified administrative record,

in the Court below on June 13, 1975. (“S.R.") References are

rer QTL

Special officers” are now referred to as “immigration

— R 1.1(1). For consistency, the latter term will be

throughout this petition.

4

was an alien (S. R. 28-31). He contended that he was

a United States citizen under the provisions of 8

U.S.C. 1401(a)(1) by virtue of his birth in Cleve-

land, Ohio (S. R. 34), and that he was therefore not

amenable to deportation proceedings. 8 U.S.C. 1251.

The petitioner’s claim to citizenship rests primarily

upon the testimony of three witnesses, Pietro Pianetti

(S. R. 323-363; 444-455), his wife, Crocifissa Pianetti

(S. R. 363-391; 511-515), and Carmen Ripolino (S.R.

419-444). The Pianettis affiliated the petitioner in

Italy in 1943, and a court order was obtained per-

mitting him to assume their surname (R. 355, 422,

688). Both Mr. and Mrs. Pianetti testified that the

petitioner is the natural child of Angelica Porello,

Mrs. Pianetti’s deceased sister, that he was born in

the United States and sent to Italy to live with the

Pianettis when he was between two and three years

of age. The testimony of Carmen Ripolino, the young-

est child of Angelica Porello, corroborated the Pia-

nettis’ testimony on several important points.

In support of its charge that the petitioner is an

alien subject to deportation, the respondent relied

entirely on documents made in Italy many years ago

purporting to show that the petitioner was born in

Italy (R. 667, 97, 419, 422, S.R. 94-95).

The immigration judge found the testimony of the

Pianettis and Carmen Ripolino not to be credible

(S. R. 608-610). Accordingly, in his decision dated

April 11, 1973, he rejected the petitioner's claim to

citizenship, found the petitioner to be a deportable

alien, and ordered that he be deported to Italy (S.R.

593-627). After summarizing the evidence, the Board

of Immigration Appeals concluded that:

If believed, the testimony of the Pianettis and

of Carmen Ripolino clearly refutes the Service's

otherwise strong documentary demonstration of

the [petitioner's] alienage. (R. 4).

Deferring to the immigration judge on the question

of credibility, the Board of Immigration Appeals

affirmed the decision of the immigration judge on

April 4, 1975 (R. 1-8).

On May 3, 1975, a petition for review was filed

requesting transfer of the proceedings to the United

States District Court for hearing de novo pursuant

to 8 U.S.C. 1105a(a)(5). The Court of Appeals,

with Judge Hufstedler dissenting, rejected petition-

er's request for transfer of the proceedings and

affirmed the decision of the Board of Immigration

Appeals (Appendix A).

L THE DECISION BELOW CONFLICTS WITH THE DECISIONS

OF OTHER COURTS OF APPEALS AS TO THE PROPER IN-

TERPRETATION OF & U.S.C. 1105a(a) (5).

Section 1105a(a)(5) of Title 8 provides that a

nonfrivolous claun to United States citizenship which

presents a “genuine issue of material fact” entitles

the claimant to a de novo hearing on the issue of

nationality before a United States District Court.

Prior to enactment of the statute,’ this Court held

that a claimant to citizenship had a constitutional

7 Stat. 651 (1961)

right to a judicial trial on the issue of nationality

if the evidence produced at his administrative hear-

ing was sufficient, if believed, to support a finding of

citizenship. Ng Fung Ho v. White, 259 U.S. 276

(1922); United States ex rel. Bilokumsky v. Tod,

263 U.S. 149 (1923). This Court’s rationale for di-

vesting the executive department of jurisdiction to

pass on a colorable claim to citizenship and requiring

that such a claim be tried in the district court was

the difference in security of judicial over adminis-

trative action.

Although this Court has had no occasion to inter-

pret 8 U.S.C. 1105a(a)(5), those courts of appeals

that have dealt with the statute have uniformly held

that it mandates transfer of the proceedings to a

district court where the evidence on the issue of

citizenship is conflicting and sufficient evidence, if

believed, has been presented by the petitioner to es-

tablish his claim. Pignatello v. Attorney General,

350 F.2d 719 (2d Cir., 1965); Tanaka v. INS, 346

F.2d 438 (2d Cir., 1965); Maroon v. INS, 364 F.2d

982 (8th Cir., 1966); Jolley v. INS, 441 F.2d 1245

(5th Cir., 1971); Olvera v. INS, 504 F.2d 1372 (5th

Cir., 1974); Rassano v. INS, 377 F.2d 971 (7th Cir.,

1967). All of these cases stand for the proposition

that transfer under the statute can only be denied

where an assertion of citizenship is unsupported or

where the facts are undisputed, and considered in

the light most favorable to the claimant, fail to sup-

port a finding of citizenship. In such an instance,

denial of transfer has been equated to a grant of

summary judgment for the government.

7

Reference to the standard set forth in Kessler v.

Strecker, 307 U.S. 22 (1939), decided prior to en-

actment of 8 U.S.C. 1105a(a)(5), suggests that the

court below perceived its duty under the statute to

include weighing the petitioner’s evidence, since

Kessler, by way of dictum, alluded to the requirement

that a petitioner “support his claim by substantial

evidence * * *” 307 U.S. at 35 (emphasis supplied).

Further, as the dissent points out, the majority of

the panel undertook to determine the credibility of

petitioner’s evidence, a function clearly not assigned

to the courts of appeals by the statute. All other

courts of appeals that have interpreted the statute

have limited their role to ascertaining whether the

evidence produced at the administrative hearing pre-

sents a “genuine issue of material fact as to the peti-

tioner’s nationality.” See Pitgnatello v. Attorney

General, supra; Tanaka v. INS, supra; Maroon v.

INS, supra; Jolley v. INS, supra; Olvera v. INS,

supra; Rassano v. INS, supra.

The decision of the Board of Immigration Appeals,

the agency charged with making a final administra-

tive determination of the petitioner’s immigration

status, leaves no room for doubt that petitioner's

evidence presented genuine issues of material fact.

The Board found that:

If believed, the testimony of the Pianettis and

of Carmen Ripolino clearly refutes the Service's

otherwise strong documentary demonstration of

the [petitioner’s] alienage. (R. 4).

With respect to the issue of credibility, the Board

followed the familiar principle of deferring to the

immigration judge, who is in the best position, as the

administrative trier of fact, to judge the veracity

of petitioner’s witnesses (R. 4). Hence, the decision

of the court below deprives petitioner of a judicial

trial provided by the statute, and sanctions final reso-

lution of his claim to citizenship, where credibility

was the determinative factor, to a hearing officer in

the executive department.

In a situation virtually identical to that in the

present case, in that the determinative factor in-

volved the issue of credibility, the Second Cireuit

liberally const ued the statute as requiring solely the

presentation of a nonfrivolous claim to citizenship.

Ordering the proceedings transferred to the district

court, the Court stated:

Thus what Section 106(a)(5) requires, as a con-

dition of a de novo judicial determination of the

claim of citizenship, is nothing more than the

claim not be frivolous. Petitioner’s claim of

citizenship can hardly be classified as frivolous,

and the Board of Immigration Appeals in its

decision denying a reopening of the deportation

proceedings did not take a contrary view. It

merely reasoned, quite correctly, that this admin-

istrative relief was not a prerequisite to obtain-

ing the judicial determination.

* * *

Petitioner’s claim of citizenship involves delicate

issues of credibility that could only be resolved

with the benefit of live testimony and a more

complete documentary record.

Pignatello v. Attorney General, 350 F.2d 719, 723.

Indeed, the decision below marks the Ninth Circuit

Court of Appeals as the only court which has denied

transfer under the statute where the administrative

decision turned on the question of the credibility of

petitioner’s witnesses. Other courts have consistently

confined their review of the administrative record

to determining whether the petitioner had presented

evidence, sufficient if believed, to entitle him to a

finding of citizenship. In the instant case, the proper

scope of review does not go beyond a reading of the

decision of the Board of Immigration Appeals, which

clearly indicated that petitioner had presented a

colorable claim to citizenship. By extension of its

review to include weighing the evidence and deter-

mining its credibility, the court below has contra-

vened the intention of Congress when it codified the

procedure for effectuating the constitutional principle

enunciated in Ng Fung Ho v. White, supra. Further-

more, its decision is in direct conflict with the decisions

of all other courts of appeals that have construed 8

U.S.C. 1105a(a)(5). Said conflict justifies the grant

of certiorari to review the judgment below.

2 THE DECISION BELOW RAISES AN IMPORTANT QUESTION

CONCERNING PROCEDURAL RIGHTS TO BE AOCORDED A

CLAIMANT TO UNITED STATES CITIZENSHIP.

The decision below, if allowed to stand, would most

certainly have a chilling effect on the administration

of our immigration laws, since it authorizes the ex-

ecutive department to strip away citizenship without

according the claimant his constitutional and statu-

tory rights to a judicial trial. Such a decision flies

in the face of the traditional concern courts have

displayed in safeguarding the precious right to Amer-

10

ican citizenship. United States v. Minker, 350 U.S.

179 (1956); Nishikawa v. Dulles, 356 U.S. 129 (1958).

The decision below deserves review by this Court

because of the important question it raises concern-

ing the procedural rights of a claimant to citizenship.

We submit that it would be appropriate for this

Court to grant certiorari and consider, for the first

time, the proper interpretation to be given to 8 U.S.C.

1105a(a) (5).

CONCLUSION

For the reasons stated, it is respectfully submitted

that the petition for a writ of certiorari should be

granted.

Dated, San Francisco, California,

April 7, 1977.

Respectfully submitted,

Rosert S. Brxsy,

Fation, Haroreaves, BNA & McVey,

Oscar B. GoopMAN,

GooDMAN AND SNYDER,

Attorneys for Petitioner.

(Appendices Follow)

Appendix A

United States Court of Appeals

for the Ninth Circuit

No. 75-2028

Joseph V. Agosto, . )

vs.

Immigration and Naturalization Ser-

vice,

Respondent.

[January 24, 1977]

Petition to Review an Order of Deportation Issued

by the Board of Immigration Appeals

MEMORANDUM

Before: Hvurstrepiter, SNEED and KENNEDY,

Cireuit Judges.

Petitioner Joseph V. Agosto seeks review pursuant

to 8 U.S.C. § 1105a of an affirmance by the Board of

Immigration Appeals of an order for his deportation

issued by an immigration judge. He claims that he

has presented a “genuine issue of material fact as to

This] nationality” which entitles him to a de novo

hearing on this issue in the district court. 8 U.S.C.

§ 1105a(a)(5). The evidence presented to the immi-

gration judge does not disclose a colorable claim to

United States nationality; nor does it meet the stand-

ard set forth in Kessler v. Strecker, 307 U.S. 22, 35

(1939).

AFFIRMED.

Hurstep.er, Circuit Judge, dissenting :

If our function in reviewing this record were to de-

termine the credibility of petitioner’s evidence, I

would agree with my brothers. As a fact finder, I, too,

would not have credited the testimony presented by

petitioner. I dissent for the sole reason that I do not

believe our legally assigned role includes a decision

on credibility, and, on that basis, I am unable to say

that petitioner’s evidence, if believed, would not pre-

sent a colorable claim to American citizenship.

——6—‚—Fęę mee

United States Court of Appeals

for the Ninth Circuit

No. 75-2028

Joseph V. Agosto, )

Petitioner,

vs.

Immigration and Naturalization Ser-

vice,

Respondent.

[Filed Mar. 23, 1977]

ORDER

Before: HursTep.er, SN and KENNEDy,

Circuit Judges.

The panel as constituted in the above case has voted

to deny the petition for rehearing and stay of man-

date, and have voted to reject the suggestion for a

rehearing in banc.

The full court has been advised of the suggestion

for in bane rehearing and stay of mandate, and no

judge of the court has requested a vote on the sug-

gestion for rehearing in bane. Fed. R. App. P. 35(b).

The petition for rehearing is denied and the sug-

gestion for a rehearing in banc is rejected.

Dated: March 18, 1977.

Appendix B

( Letterhead of

United States Department of Justice

Board of Immigration Appeals

Washington, D.C. 20530)

Apr. 4, 1975

File: A17 038 159—Seattle

Inre: Vincenzo Pianetti aka Vincenzo Di Paola or

Joseph Vincent Agosto

In Deportation Proceedings

Certification

On Behalf of Respondent: Robert S. Bixby, Esq.

30 Hotaling Place

San Francisco, CA 94111

Robert G. Karr, Esq.

9615 Bridgeport Way,

S. W.

Tacoma, Washington

98402

On Behalf of I&N Service: David L. Milhollan

Appellate Trial Attorney

Oral Argument: October 30, 1973

Charges:

Order: Sec. 241(a)(2), I&N Act (8 U.S.C. 1251

(a)(2))—Entry without inspection

Lodged: See. 241(a)(1), I@N Act (8 U.S.C. 1251

(a) (1))—Exeludable at entry, convicted

of a crime involving moral turpitude

Application: Termination, adjustment of status under

section 245, suspension of deportation

under section 244(a), waiver of inad-

missibility under section 212(h), volun-

tary departure

*

In a decision dated April 11, 1973, the immigration

judge ordered the respondent deported to Italy, but

certified his decision to us pursuant to our order of

July 12, 1971. The immigration judge's decision will

be affirmed.

ALIENAGE

The fundamental issue in this case concerns the re-

spondent's citizenship. The Service alleges that the

respondent was born of unknown parents in Italy,

that he was placed in a foundling home, and that

shortly thereafter he was entrusted to the care of a

childless couple who subsequently “affiliated” him

under Italian law. The respondent, however, claims

that he was born in the United States in 1924, and

that his natural mother sent him to Italy at age two

or three where he resided with relatives during his

youth.

The Service's case is largely documentary in na-

ture. Counsel attacks that case, contending that most

of the Italian records showing the respondent to have

been born in Italy in 1927 are themselves founded on

one erroneous record, which was “created” in an ef-

fort to conceal certain aspects of the respondent's

birth.

We find, however, that the Service's case is predi-

cated on three records made approximately at the

time of the respondent's birth. These three records

appear to have been made separately and to have in-

volved various persons who would have heen able to

determine whether they were dealing with a newhorn

infant or with a child of two or three vears.

Exhibit 64 is a copy of an entry in the Registry of

Births for the City of Agrigento, Italy, for the vear

vi

1927. It indicates that the respondent was born on

July 17, 1927, of a woman who did not wish to be

named, and that he was sent to a foundling home in

the custody of the person who declared his birth be-

fore the registrar. See also Exhibit 4.

Exhibit 65 is a recitation of an annotation which

appears in the records of a foundling home located

in the same city of Agrigento. That record indicates

that the respondent may have been born on July 16

and not July 17, 1927. However, the record does show

that he was placed in the foundling home and subse-

quently entrusted to the woman who later affiliated

him.

Exhibit 22 is a recitation from the records of that

foundling home indicating that the respondent was

baptized on July 18, 1927, two days after his actual

birth and one day after the date on which the Civil

Registry of Agrigento shows him to have been born.

The respondent concedes that these as well as other

Italian records relate to him. He asserts, however,

that these records were “created” by his influential

maternal grandfather in an effort to conceal the fact

that one of the grandfather's daughters had given

birth to an illegitimate child in the United States.

The respondent produced three witnesses other than

himself who testified in direct support of his claim to

United States citizenship. The testimony of the per-

sons who affiliated him in Italy directly contradicts

the accuracy of the Service“ documentary case, and

the assertions of the respondent's alleged half brother

comport with the respondent's view of his birth.

vii

Mr. and Mrs. Pianetti affiliated the respondent in

Italy in either 1943 or 1944 (see Ex. 31). They both

testified several times during the course of the hear-

ing. The translated Italian documents in the record

indicate that Mrs. Pianetti is the woman who took the

respondent from the foundling home less than two

months after his birth. She, however, categorically

denied any such occurrence, and asserted that the

respondent was the natural child of her sister and was

born in the United States.

Her husband, Mr. Pietro Pianetti, confirmed this

account, and testified that he and the respondent's

maternal grandfather journered to Palermo, Italy,

in 1927 to meet the respondent who was then arriving

by ship from the United States. The respondent was

supposed to have heen between the ages of two and

three years upon his arrival in Italy.

The respondent has been unable to present any of-

ficial or unofficial documentary evidence in support

of his claimed birth in the United States. He did,

however, produce a United States citizen witness

whose mother appears to have been the same person

the respondent claims was his natural mother.

This witness, Carmen Ripolino, testified that he

was born in September of 1925, and that he was

raised with a brother who was born in August of

1923. The witness asserted that his mother, who died

in 1937, had informed him that she had had a third

son born in the United States, but who had been sent

to Italy at an early age.

If believed, the testimony of the Pianettis and of

Carmen Ripolino clearly refutes the Service’s oth-

erwise strong documentary demonstration of the

respondent’s alienage. The immigration judge, how-

ever, found the Pianettis not to be credible witnesses,

and he concluded that they were coached as to their

testimony (immigration judge’s opinion pp. 17-18).

The immigration judge was in the best postion to

judge the veracity of these witnesses, who have close

personal relationships to the respondent. Counsel for

the respondent accurately asserts that the immigra-

tion judge’s opinion does not fully reflect the potential

import of the testimony of Carmen Ripolino, and that

the immigration judge evidently misread part of the

testimony of Mr. and Mr. Pianetti. However, we can-

not agree with counsel in his contention that the im-

migration judge failed to comprehend the changes in

the respondent's claimed date of birth. Rather, in

his decision the immigration judge appears to have

attempted to confront all the various claims made by

the respondent during the course of these proceedings

(see immigration judge's opinion p. 2). Our review of

the record convinces us that the immigration judge

was correct, and that no error has resulted from the

immigration judge’s apparent misreading of certain

testimony.

It is not beyond the realm of possibility that the

respondent’s claim to United States citizenship is

legitimate. However, in order for us to accept the re-

spondent’s version of his birth, as presented by the

witnesses he produced and as indicated by the other

ix

evidence of record, we would be required to find: (1)

that the respondent’s natural father was Salvatore

Agosto (Tr. pp. 305, 340); (2) that Salvatore Agosto

fathered a child born in 1921 in Cleveland, Ohio,

whose name was Joseph, or Giuseppe, Agosto (Exs. 2

& 3), but that this child was not the respondent; (3)

that the respondent's mother gave birth to a son in

Akron, Ohio, in August of 1923 (Tr. p. 392), and that

the father of this child was Giacomo Ripolino and not

the father of the respondent (Tr. p. 395); (4) that the

respondent's mother next gave birth to the respondent

in August of 1924, one year later, in Cleveland, Ohio

(Tr. p. 514); (5) that she knew the father of the re-

spondent to be Salvatore Agosto (see Tr. 305, 340)

and named the respondent Joseph or Joe Agosto, the

same name that was given to an earlier child of the

respondent’s father (Tr. p. 482); (6) that the re

spondent’s mother again began living in the same

household as Giacomo Ripolino, and gave birth to a

third son in Akron, Ohio, another year later in Sep-

tember of 1925 (Exs. 60 & 61; Tr. p. 399); (7) that

the respondent’s mother had him baptized in the

United States (Tr. pp. 355-57); (8) that the respond-

ent, who can afford to send an investigator to Italy to

search records (Tr. pp. 425-26), has not been able to

produce a certificate of his United States baptism,

even though he ostensibly knows the name under

which he would have been baptized and the general

vicinity of Ohio in which the baptism likely would

have occurred.

Furthermore, the only direct evidence in support

of the respondent's position comes from persons with

family ties to the respondent. There is not only a

conspicuous absence of documentary support for the

respondent’s claim, but also an absence of evidence

from disinterested persons.

Counsel for the respondent relies on the respond-

ent's Italian marriage in 1944 to a 23-year-old school-

teacher as further evidence that the respondent could

not have been born in July of 1927. Counsel argues

that it is quite unlikely that a 23-year-old woman

would marry a 17-year-old boy given the strict stand-

ards then prevailing in a small Roman Catholic com-

munity in Italy. Counsel, however, ignores the

respondent’s sworn pleading in a declaratory judg-

ment action in the state of Washington in which

the respondent sought to have his present marriage

declared valid (see Ex. 44). The schoolteacher had

evidently been tutoring the respondent and had be-

come pregnant, thus necessitating the marriage.

During the course of this proceeding, the respond-

ent has demonstrated considerable flexibility in adapt-

ing his story to the Service’s proof. His date of birth,

as he has alleged or as has been alleged by his wit-

nesses, has fluctuated from 1921 (Tr. pp. 11, 68), to

1925 (Tr. pp. 295, 343), to 1924 (Tr. pp. 483, 514).

Nevertheless, in his court action seeking a declaration

as to the validity of his present marriage, he was

quite willing to let the court believe him to have been

17 at the time of his marriage in Italy (see Exs. 43

& 44). This court action was undertaken at a time

when the respondent was making a substantially dif-

ferent claim before the immigration judge.

xi

We find that the Service’s case as to alienage is

clear, convincing and unequivocal. The respondent is

an alien, born in Italy in July of 1927. He is properly

the subject of this deportation proceeding.

DEPORTABILITY

The immigration judge found the respondent de-

portable as an alien who had entered without inspec-

tion, and as an alien who was excludable at entry for

having been convicted of crimes involving moral

turpitude. On appeal, counsel does not challenge

these findings, except as to the underlying fact of

alienage.

We have decided the question of alienage against

the respondent. Furthermore, our review of the ree-

ord convinces us that the immigration judge was

correct in his conclusions with respect to deport-

ability.

RELIEF FROM DEPORTATION

During the course of the proceedings below, the

respondent sought various forms of relief from de-

portation, all of which were denied by the immigra-

tion judge. On appeal, the respondent only contests

the immigration judge’s rulings as to relief under

section 245, section 244(a), and section 244(e).

The immigration judge found that the respondent

had entered the United States under a willfully false

claim to United States citizenship. The immigration

judge therefore concluded that the respondent was

statutorily ineligible for adjustment of status because

SS ⁵ůͥſçpà̃̃ m ÿãm3ufꝛ!

the respondent had not been “inspected and admitted

or paroled” into the United States within the pur-

view of section 245. The respondent contends that

his claim to citizenship has always been asserted in

good faith. He thus argues that he was “inspected”

within the contemplation of section 245.

The respondent's claim to eligibility for relief

under section 245 is predicated on his having believed

the version of his birth which he presented during

these proceedings. Such a good faith belief in major

part depends on his having been told this version as

a youth in Italy by the persons who “affiliated” him.

This story, however, is so extraordinary that we have

great difficulty believing that it would have been in-

vented and told to an adolescent as the truth, when

in fact it was not the truth. We have found the story

to be a fabrication, and we also conciude that it was

never told to the respondent during his youth. The

respondent entered the United States under a know-

ingly false claim to citizenship, and he is statutorily

ineligible for adjustment of status.

We also agree with the immigration judge's con-

clusion with respect to the respondent’s applications

for suspension of deportation and for voluntary de-

parture. In order to be statutorily eligible for either

form of relief, the respondent must establish that

he has been a person of good moral character within

the period preseribed for each type of relief. The

respondent, however, knowingly gave false testimony

before the immigration judge; his claim to citizenship

has been knowingly false since its inception. He is

—

thus statutorily precluded from establishing the requi-

site good moral character by virtue of section

101(f)(6) of the Act.

The decision of the immigration judge was correct.

ORDER: The decision of the immigration judge

is affirmed.

·ͤ—tkn:“ũ 3ů3ũ2ũ4 2

Chairman David L. Milhollan abstained from con-

sideration of this case.