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Keywords

appealhearingtestimonyburden of proofdeportationnaturalization
appealdeportationnaturalization

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Ribeiro v. Immigration and Naturalization Service

Facts

On March 23, 1974, petitioner, a resident of Union, New Jersey, received a phone call from a Mr. Aucides in Montreal, who stated that three individuals from Portugal wished to enter the United States but lacked transportation. Petitioner was to pay the driver $100 in advance, and Aucides was to give the driver $150 on leaving Montreal, which petitioner was to receive upon meeting the returning auto in New York. After waiting for the driver and departing empty-handed, the Immigration Service issued an Order to Show Cause for deportation, leading to the hearing on June 18, 1974.

The following facts are not controverted in the record. On March 23, 1974, petitioner, a resident of Union, New Jersey, received a phone call from a Mr. Aucides in Montreal. Aucides stated that there were three individuals from Portugal in Montreal who wished to enter the United States but lacked transportation. Aucides asked petitioner to arrange for someone to drive from New Jersey to Montreal. The financial arrangements were as follows: petitioner was to pay the driver $100 in advance, Aucides was to give the driver $150 on leaving Montreal, and petitioner was to receive the $150 by meeting the returning auto at a point on the New York State Thruway near Albany.

Issue

Did the government prove that the alien acted 'for gain' as required under 241(a)(13) of the Immigration and Naturalization Act?

Did the government prove that the alien acted 'for gain' as required under 241(a)(13) of the Immigration and Naturalization Act?

Rule

The government has the burden of proving deportability by clear, convincing, and unequivocal evidence, as established in Woodby v. INS.

As the Immigration Judge recognized, the government has the burden of proving deportability by clear, convincing and unequivocal evidence. Woodby v. INS, 385 U.S. 276, 17 L. Ed. 2d 362, 87 S. Ct. 483 (1966).

Analysis

The court found that the government failed to meet its burden of proof regarding the essential element of deportability that the alien acted for gain. The alien's testimony indicated that the $150 he was to receive was intended to reimburse his $100 outlay and cover expenses for the round trip, which was not contradicted by any evidence from the government. The court noted that the government needed to demonstrate that the consideration received was clearly in excess of the foreseeable expenses claimed.

In this situation we believe that the 'clear and convincing' test of Woodby requires that the government shoulder the burden of persuasion that the alien, despite his denials, did in fact act 'for gain.' One way in which this might be done would be a demonstration that the consideration received was so clearly in excess of the foreseeable expenses claimed that the alien's assertion that he did not anticipate gain must be disbelieved.

Conclusion

The court reversed the order dismissing the appeal and directed that the deportation order be vacated, concluding that the government did not prove the essential element of deportability.

In view of the above, the Immigration Judge's determination that the Government had established a prospective 'gain' by clear, unequivocal and convincing evidence cannot be said to be based on 'reasonable, substantial and probative evidence.'

Who won?

The petitioner (alien) prevailed in the case because the court determined that the government failed to prove that he acted for gain, which was necessary for deportability.

The court reversed the order dismissing the appeal and directed that the deportation order be vacated. The court held that the government failed to prove the essential element of deportability that the alien acted for gain.

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