# Petition — Agosto v. Immigration & Naturalization Service

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1977
- **Citation:** 434 U.S. 901

## Text

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
BD Ge BORED coccccecececeecsoserccosocosocceocccccs 3
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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1749%3A1. Public record. Not legal advice.