essential facts and issues from the record. In this conclusion, we are influenced by the fact that the respondent's case presented relatively simple issues of law and fact. Thus, while consolidation of dissimilar cases is not to be encouraged, and care must always be taken to insure full protection of the respondent's due process right to a full and fair hearing, we find that the respondent was not prejudiced by the immigration judge's failure to sever in this case.

II

The respondent argues on appeal that his motion to suppress was improperly denied by the immigration judge, and that we should therefore terminate proceedings on the ground that the finding of deportability rests exclusively upon evidence tainted by the allegedly unlawful arrest by the Houston police. For the reasons that follow, this claim is without merit.

In his motion to suppress, the respondent sought exclusion of the employee identification card seized from him by the Houston police incident to his May 1, 1976, arrest. He argued that this arrest was unlawful, and that evidence seized as a result thereof was therefore inadmissible against him in a subsequent deportation proceeding. The immigration judge denied the respondent's motion on the ground that evidence seized by a state police officer, even if incident to an illegal arrest, was nonetheless admissible in a Federal deportation proceeding. We need not address the argument that the immigration judge should have excluded this evidence from the hearing (but see United States v. Janis, 428 U.S. 433 (1976)) for we find that the respondent testified at the hearing to his unauthorized employment (Tr. p. 28, Hearing of June 16, 1976). It is settled that the mere fact of an illegal arrest is not fatal to the initiation of subsequent deportation proceedings. U.S. ex rel. Bilokumsky v. Tod, 263 U.S. 145 (1923); Avila-Gallegos v. INS, 525 F.2d 666 (2 Cir. 1975). Rather, when deportability can be established on the basis of evidence unrelated to the allegedly unlawful arrest, failure to grant a motion to suppress, even if the evidence was in fact seized unlawfully, does not constitute reversible error. Since the respondent admitted his past employment at the hearing, and since this admission

7

7 The respondent initially asserted a right to refuse to testify under the Fifth Amendment to the United States Constitution. This claim was properly rejected by the immigration judge. A respondent may refuse to testify in a deportation proceeding on the basis of the Fifth Amendment only when a particular question relates to activity which is potentially incriminating. See Chavez-Raya v. INS, 519 F.2d 397 (7 Cir. 1975). There is no criminal penalty which attaches to unauthorized employment in the United States. The respondent, therefore, had no valid basis for refusing to testify, and the admission of his testimony, when he chose to comply with the immigration judge's direction, is not subject to attack.

by itself was sufficient to establish deportability under section 241(a)(9), we find that deportability was established by clear, convincing, and unequivocal evidence not subject to any potential taint. We shall therefore dismiss the appeal.

ORDER: The appeal is dismissed.

FURTHER ORDER: The respondent is permitted to depart from the United States voluntarily within 30 days from the date of this order or any extension beyond that time as may be granted by the District Director; and in the event of failure so to depart, the respondent shall be deported as provided in the immigration judge's order.

MATTER OF DEVERA

In Section 246 Proceedings

A-20324729

Decided by Board June 29, 1977

(1) In rescission proceedings under section 246 of the Immigration and Nationality Act, the immigration judge is not bound by judicial rules of evidence. He may receive into evidence any oral or written statement previously made by the respondent or any other person during any investigation or examination which is material and relevant to any issue in the case. See 8 C.F.R. 246.3 and 242.14(c).

(2) The affidavit of the respondent's spouse was admissible under 8 C.F.R. 246.5(b) despite her unavailability for cross-examination where the Service established that it was unable to secure her presence at the hearing by subpoena.

(3) Under section 804(b)(3) of the Federal Rules of Evidence, a statement by an unavailable declarant which would otherwise be inadmissible as hearsay, is admissible if, at the time of its making it so far tended to subject the declarant to criminal liability that a reasonable man would not have made the statement unless he believed it to be true. This statement tended to subject the affiant to criminal liability under 18 U.S. C. 371 on the basis of statements made on the Form I-130 visa petition. Thus this statement would be admissible in judicial proceedings. Affiant meets the unavailability requirement of section 804(a)(5) of the Federal Rules of Evidence based on the Service's unsuccessful efforts to locate her.

(4) An affidavit made by an unavailable declarant which is of sufficient reliability that it would be admissible in a Federal judicial proceeding as a declaration against penal interest is entitled to full weight in an administrative deportation proceeding. (5) The Government has established its case by clear, convincing and unequivocal evidence, where respondent's attempts to rebut statements in the affidavit are not credible, and where the statements in the affidavit are corroborated by testimony of other witnesses.

ON BEHALF OF RESPONDENT: John L. Weir, Esquire

483 Castro Street

San Francisco, California 94114

BY: Milhollan, Chairman; Wilson, Appleman, and Maguire, Board Members

The respondent, a native and citizen of the Philippines, was served with a Notice of Intent to Rescind Adjustment of Status under section 246 of the Immigration and Nationality Act on April 10, 1974. Pursuant to 8 C.F.R. 246.1, the respondent requested a hearing before an immigration judge in lieu of filing a written answer to the allegations con

tained in the notice. At the hearing, the respondent denied all of the allegations contained in the Notice of Intent. The immigration judge found that the respondent had been ineligible for adjustment of status, and rescinded the respondent's permanent resident status. The respondent appeals. The appeal will be dismissed.

The respondent entered the United States from the Philippines as a temporary visitor on June 27, 1972. He married a native born United States citizen on September 3, 1972, in Reno, Nevada. Upon approval of a petition to classify the respondent as an immediate relative, the status of the respondent was adjusted to that of a lawful permanent resident on December 19, 1972. In the Notice of Intent to Rescind, the Service charged that the respondent's marriage had never been consummated, that he and his spouse had never cohabited as husband and wife, and that the sole purpose of the marriage had been to circumvent the immigration laws of the United States. The Service thus charged that the respondent had been ineligible for an immediate relative visa, and was therefore not exempt from the labor certification requirement of section 212(a)(14). Accordingly, it was charged that the respondent's permanent resident status was subject to rescission.

The hearing was held on November 12, 1974, and, after two continuances, was completed on December 4, 1974, and April 4, 1975. The respondent testified that he had first met his wife in the summer of 1972, when he was living with his cousin in San Francisco, California. After a short courtship, she agreed to marry him. On September 3, 1972, they were married in Reno, Nevada, in the presence of his cousin. After the wedding, the respondent and his wife had returned to San Francisco, where they had lived with his cousin for a period of approximately two or three weeks. In October, 1972, the respondent left San Francisco for job-training in Los Angeles. He maintained no contact with his wife or his cousin during his absence. In November of 1972, he returned to San Francisco when he was notified by his cousin of a forthcoming Service interview concerning his application for adjustment of status. In San Francisco, he found that his wife was now living with a female friend, and that she evidenced no desire to return to him. Nonetheless, the respondent and his wife spent the night preceding the interview together at his cousin's home. At the Service interview on the following morning, the respondent and his wife reasserted that they were cohabiting at the cousin's address. The respondent also testified that he had tried to persuade his wife to resume cohabitation with him, but that she had refused.

The respondent's cousin also testified at the hearing. Her testimony contradicted that of the respondent in several ways: (1) She stated that she had seen the respondent's wife only three times: at the wedding in Reno (Tr. p. 60), the day after the wedding in San Francisco (Tr. p. 63),

and on the night before the November Service interview, when the respondent and his wife had eaten a meal at the cousin's house (Tr. pp. 77-78); (2) the respondent had left for his job-training in Los Angeles two days after the wedding (Tr. p. 75).

Although the immigration judge found the respondent's testimony to be less credible, he found that on the basis of this evidence alone, the respondent's ineligibility for adjustment of status had not been established by clear, convincing, and unequivocal evidence. See Yaldo v. INS, 424 F.2d 501 (6 Cir. 1970) (immigration judge's op., p. 3).

On November 12, 1974, the first day of the hearing, the Service also sought to introduce the affidavit of the respondent's wife. In this affidavit, obtained by a Service investigator at the wife's place of employment on August 31, 1973, the wife stated that the marriage had never been consummated, that she and the respondent had never cohabited, and that she had married the respondent as a favor to an unnamed friend. She further stated that after the marriage, she and the respondent had gone their "separate ways." The Service officer to whom the statement had been made testified at the hearing. He stated that the affidavit was typed by the respondent's wife after she had been advised of her rights to remain silent and to consult an attorney.

The respondent's objection to the introduction of this affidavit was sustained by the immigration judge on the first two hearing dates. The immigration judge held that the affidavit, although admissible into evidence under 8 C.F.R. 246.3 and 8 C.F.R. 242.14(c), should not be so admitted until the Service had produced the affiant for crossexamination by the respondent, or established that a reasonable attempt had been made to do so, as provided by 8 C.F.R. 246.5(b). On April 4, 1975, after testimony by the Service investigator concerning his successful attempts to locate and serve a subpoena upon the affiant, the immigration judge admitted the affidavit into evidence. Primarily on the basis of this affidavit, the immigration judge found that the Service had established that the respondent's marriage had been entered into for the purpose of evading the immigration laws, and thus that it would not support the grant of immediate relative benefits under section 201(b) of the Act. Since the respondent had conceded that he had not been issued a labor certification under section 212(a)(14) (see Matter of Suleiman, Interim Decision 2522 (BIA 1974)), the immigration judge found that he had been ineligible for adjustment of status, and therefore found rescission to be in order.

The respondent, on appeal, first contends that the affidavit, an ex parte statement of a witness not presented for cross-examination, was improperly admitted into evidence. This argument is without merit. The immigration judge in rescission proceedings is not bound by judicial rules of evidence. Martin-Mendoza v. INS, 499 F.2d 918 (9 Cir. 1974);