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Navarrette-Navarrette v. Landon, 223 F.2d 234 (9 Cir. 1955); Matter of J—, 6 I. & N. Dec. 496 (BIA 1955). Under 8 C.F.R. 242.14(c), made applicable to rescission proceedings under 8 C.F. R. 246.3, the immigration judge may receive into evidence any oral or written statement which is material and relevant to any issue in the case previously made by the respondent or any other person during any investigation or examination. Clearly, the affidavit satisfied these two criteria.

Under 8 C.F.R. 246.5(b), the respondent in rescission proceedings has the right to a "reasonable opportunity" to cross-examine the maker of a declaration adverse to his interests. However, the use of the word "reasonable" necessarily implies practical limitations on this right. When, as here, the Government has established that it has been unable to secure the presence of the affiant by subpoena, the admission of an affidavit without cross-examination of the affiant by the respondent does not run afoul of 8 C.F.R. 246.5(b) or violate the respondent's due process right to a fair hearing. Martin-Mendoza v. INS, supra; de Hernandez v. INS, 498 F.2d 919 (9 Cir. 1974); Navarrette-Navarrette v. Landon, supra; U.S. ex rel. Impastato v. O'Rourke, 211 F.2d 609 (8 Cir. 1954); Matter of Conliffe, 13 I. & N. Dec. 95 (BIA 1968). We hold that the affidavit of the respondent's spouse was admissible into evidence at the rescission hearing, despite the unavailability of the affiant for cross-examination, when the Service established that it had been unable to procure the presence of the affiant by subpoena.

The respondent next contends that, even if admissible, the affidavit could not validly form the primary basis for a finding of ineligibility, since its probative value should have been substantially discounted by the respondent's lack of opportunity to cross-examine the affiant. In basing his finding primarily on the affidavit, Judge Kroll, in a comprehensive and scholarly opinion, found no judicial or Board authority for the proposition that a finding may be based on "ex parte affidavits, the makers of which have not been presented for cross-examination because they were unavailable, where the charge was unsustainable without reliance on the affidavits." (immigration judge's op., p. 11.) However, relying on the fact that the affidavit would have been admissible in Federal judicial proceedings as a declaration against penal interest made by an unavailable witness, the immigration judge found that the affidavit was entitled to sufficient weight to sustain the finding of ineligibility.

Administrative proceedings must conform to the Fifth Amendment requirements of fundamental fairness. Harisiades v. Shaughnessy, 342 U.S. 580 (1951). See also Woodby v. INS, 385 U.S. 276 (1966). Courts have expressed substantial concern over whether an administrative finding based primarily upon ex parte hearsay statements would comport with the due process requirements of a fair hearing. Martin

Mendoza v. INS, supra; de Hernandez v. INS, supra; NavarretteNavarette v. Landon, supra. As the immigration judge notes in his opinion, in all cases in which judicially inadmissible evidence has been admitted in administrative proceedings, the ultimate findings have been entirely sustainable based upon other, unchallenged evidence. In de Hernandez and Navarette-Navarette, for example, the Government presented the confession of the respondent in addition to the ex parte affidavit of an unavailable witness. In Martin-Mendoza, the finding could have been based upon the statements of a Government witness made at the hearing itself.

However, we do not address the issue in this case of whether a finding based primarily upon judicially inadmissible evidence would comport with the requirements of fundamental fairness. The affidavit in this case is not the sort of uncorroborated hearsay evidence which, though admissible in administrative proceedings, might well be insufficient basis, standing alone, for a decision under the authority above. Under section 804(b)(3) of the Federal Rules of Evidence, governing proceedings before Federal courts and United States magistrates, a statement by an unavailable declarant which would otherwise be inadmissible hearsay is admissible if the statement "at the time of the making so far tended to subject [the declarant] to . . . criminal liability . . . that a reasonable man in his position would not have made the statement unless he believed it to be true." Under section 804(a)(5), an “unavailable witness" is a witness absent from the hearing where "the proponent of the statement has been unable to procure his attendance or testimony by process or other reasonable means."

The affiant's statements contained in the affidavit and admitted into evidence against the respondent clearly tended to subject her to criminal liability under 18 U.S.C. 371, which makes criminal any conspiracy to defraud the United States Government. See Lutwak v. United States, 344 U.S. 604 (1953); United States v. Pantelopoulos, 336 F.2d 421 (2 Cir. 1964). The visa petition (Form I-130) executed by the affiant contains a notification of the criminal penalties resulting from any willful misrepresentations on the Form I-130. Similarly, the fact that the Service officer who obtained the affiant's statement advised her of her rights to silence and to consult an attorney is evidence that she was on notice of the criminal penalties resulting from her conduct. The attempts by the Service to locate the affiant satisfy the unavailability requirement of section 804(a)(5). We conclude, therefore, that the affidavit would have been properly admitted into evidence in a Federal judicial proceeding.

One of the primary purposes of the right to cross-examine in any forum is that cross-examination is believed to insure the reliability and credibility of a witness' testimony. See 5 Wigmore, Evidence $1367 (3d)

ed. 1940). However, reliability and credibility are likewise insured when, as here, an ex parte statement falls within an express exception to the rule against hearsay. See Advisory Committee on Rules of Evidence, Note to Rule 804, Commerce Clearing House, 1975. Crossexamination and specific exceptions to the hearsay rule have, in this respect, the analogous purpose of insuring the reliability of evidence. We find, therefore, that 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. When, as here, the respondent's attempts to rebut the adverse implications of the affidavit have been found not credible on essential points by the trier of fact (see Matter of S-, 8 I. & N. Dec. 574 (BIA 1960)), and when the implications contained in the affidavit have been corroborated by other testimony given at the hearing, we must find that the Government has established its case by clear, convincing and unequivocal evidence. The appeal will therefore be dismissed.

ORDER: The appeal is dismissed.

MATTER OF MANNEH

In Exclusion Proceedings

A-20460984

Decided by Board July 8, 1977

(1) The provision of 8 C.F.R. 236.1 which confers on immigration judges that authority which is appropriate and necessary for the disposition of cases, does not confer upon him the authority to entertain an application for adjustment of status under section 245 of the Immigration and Nationality Act, in exclusion proceedings.

(2) The immigration judge's authority in exclusion proceedings is contingent upon any limitations found elsewhere in the Act or regulations. With respect to the consideration of applications for adjustment of status filed under section 245 of the Immigration and Nationality Act, the immigration judge is only permitted to consider those made by an alien after he has been served with an order to show cause or warrant of arrest, in proceedings under section 242 of the Act. Any other alien seeking adjustment of status under section 245 must apply to the district director. See 8 C.F.R. 245.2(a)(1).

EXCLUDABLE:

Order: Act of 1952-Section 212(a)(20) [8 U.S.C. 1182(a)(20)]—Immigrant-no visa

ON BEHALF OF APPLICANT:
Richard D. Steel, Esquire

636 Public Ledger Building
6th & Chestnut Streets

Philadelphia, Pennsylvania 19106

ON BEHALF OF SERVICE:
Mary Jo Grotenrath
Appellate Trial Attorney

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

The applicant appeals from the immigration judge's decision in which he found that he lacked authority to consider the applicant's application for adjustment of status. The appeal will be dismissed.

This case was remanded to the immigration judge by order of the United States District Court (ED Pa. August 23, 1976) Civil Action No. 76-1903, for a determination of his authority to consider the application. The immigration judge concluded that he lacked authority. The applicant brought this appeal.

The applicant argues that immigration judges have authority to consider adjustment of status applications by virtue of the regulation which confers on them in the conduct of exclusion proceedings: that the authority which is "appropriate and necessary for the disposition of such cases," 8 C.F.R. 236.1. That regulation provides:

In determining cases referred for further inquiry as provided in section 235 of the Act, special inquiry officers shall have the powers and authority conferred upon them by the Act and this Chapter. Subject to any specific limitation prescribed by the Act and this chapter, special inquiry officers shall also exercise the discretion and authority conferred upon the Attorney General by the Act as is appropriate and necessary for the disposition of such cases.

Adjustment of status, he argues, is within the category of a disposition of the case which is "appropriate and necessary." He cites our decision of Matter of Ducret, Interim Decision 2483 (BIA 1976) in support of his argument.

In Matter of Ducret, supra, we found that the immigration judge by virtue of his authority to take such action "consistent with applicable provisions of law and regulation as may be appropriate to the disposition of the case" (8 C.F.R. 242.8(a)) possesses authority to grant nunc pro tunc permission to reapply for admission to an alien in deportation proceedings who is charged with deportation on the ground that he reentered after having been deported, without having first secured the permission of the Attorney General. The action found to be within the scope of that "appropriate to the disposition of the case" in Matter of Ducret, supra, was not subject to a specific limitation elsewhere in the Act or regulations, nor was it inconsistent with the Act or regulations.

In Matter of DeG-, 8 I. & N. Dec. 325 (BIA 1959, A.G. 1959), the Attorney General, discussing the scope of the Board's authority in exclusion proceedings encompassed by the phrase "such discretion and authority as is appropriate and necessary for the disposition of the case" held that the Board's authority over discretionary applications for relief is both subject to the limitations prescribed by the regulations and confined to the jurisdiction in which the Board is authorized to operate. DeG-, involved an application for relief under a different section than is sought here but like this case, it involved Service regulations which provided that the application be submitted to the District Director. The Attorney General's holding in that case is applicable here.

The immigration judge's authority in exclusion proceeding granted by 8 C.F.R. 236.1 is as quoted above:

“[s]ubject to any specific limitation prescribed by the Act and this chapter."

We find that in this case, unlike the situation in Ducret, the authority sought to be brought within the scope of the immigration judge's authority is specifically limited elsewhere in the regulations to the District Directors, with the exception of the cases of aliens who have been served with Orders to Show Cause, whose applications may be considered only in deportation proceedings.

In pertinent part, the provisions of the regulations which relate to adjustment of status provide:

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