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Keywords

appealhearingtestimonyburden of proofvisasustainedcredibility
appealtestimonydivorcevisaobjection

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Yaldo v. Immigration and Naturalization Service

Facts

Petitioner, a native and citizen of Iraq, entered the United States in 1965 on a student visa. In December of 1966, he married a United States citizen and immediately began proceedings to change his status to permanent resident alien. Shortly after receiving notification of his status change, he left his wife and allowed her to obtain an annulment of the marriage by default. During the hearing, his ex-wife testified that their marriage had never been consummated and that he had admitted to her that he had entered the marriage solely to gain permanent resident alien status.

Petitioner, a native and citizen of Iraq, entered the United States in 1965 on a student visa authorizing him to stay approximately two years. In December of 1966 he married one Sharon Florence, a native United States citizen, and he immediately began proceedings to have his status changed from that of nonimmigrant student to permanent resident alien, the status to which he would be entitled as the spouse of a United States citizen. Six months later petitioner received notification of the change in his status to permanent resident alien, and approximately ten days thereafter he left his wife and instituted divorce proceedings against her. Petitioner subsequently abandoned the divorce proceedings and instead permitted his wife to obtain an annulment of the marriage by default.

Issue

Whether the Special Inquiry Officer committed an abuse of discretion by permitting the ex-wife to testify to confidential communications made during the marriage and whether the government sustained its burden of proof in the recission proceedings by 'clear, unequivocal and convincing evidence.'

The first issue raised here by petitioner is whether the Special Inquiry Officer committed an abuse of discretion by permitting his ex-wife to testify to confidential communications made during the course of the marriage. However, review of the entire record of the recission proceedings discloses that petitioner's counsel made no objection to the ex-wife's testimony concerning petitioner's statements to her that he had married her only to gain permanent resident alien status.

Rule

The government has the burden of proving its case before the Special Inquiry Officer by 'clear, unequivocal and convincing evidence.' The scope of review is limited to whether the administrative tribunal used that standard of proof and whether those findings are supported by 'reasonable, substantial and probative evidence.'

While the government has the burden of proving its case before the Special Inquiry Officer by 'clear, unequivocal and convincing evidence,' the scope of review by this Court is limited to whether the administrative tribunal used that standard of proof in making its findings below and whether those findings are supported by 'reasonable, substantial and probative evidence.'

Analysis

The court found that petitioner's counsel did not object to the ex-wife's testimony regarding statements made during the marriage, which indicated that the marriage was a sham. The court deferred to the Special Inquiry Officer's determination of her credibility. It concluded that the Special Inquiry Officer had applied the correct standard of proof and that the findings were supported by substantial evidence, including the ex-wife's testimony.

Review of the entire record discloses that both the Special Inquiry Officer and the Board of Immigration Appeals employed the proper standard of 'clear, unequivocal and convincing evidence' in making their findings below. Review of the record further discloses that the testimony of petitioner's ex-wife, if believed, would, along with the other evidence, support the findings below.

Conclusion

The court affirmed the decisions of the Board of Immigration Appeals, concluding that the Special Inquiry Officer's findings were supported by reasonable, substantial, and probative evidence.

It is therefore determined that the findings below are supported by 'reasonable, substantial and probative evidence,' and the decisions of the Board of Immigration Appeals are affirmed.

Who won?

The government prevailed in the case because the court found that the Special Inquiry Officer had used the correct standard of proof and that the evidence supported the findings of a fraudulent marriage.

The court held that the Special Inquiry Officer had used the correct standard of proof in making its findings, and that those findings were supported by reasonable, substantial and probative evidence.

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