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that he remained in Mexico "some ten or twelve hours"; that he has neither worked nor resided in Tijuana since he was admitted to the United States as an immigrant; and that he has been steadily employed in the United States since his entry for permanent residence (p. 27). Regardless of the respondent's testimony, we believe, in light of the record before us, that his depature on February 21 or February 22, 1968 and ensuing absence did not constitute the innocent, casual and brief trip described by the Supreme Court in Fleuti (supra). Clearly the evidence of record establishes that the respondent's activities during his absence from the United States (preceding his last return on February 23, 1968) involved conduct considered to be criminal by the Immigration and Nationality Act. He now stands convicted for violating 8 U.S.C. 1324 (a) (2) and (4). This fact could support an inference that his purpose in departing from the United States was to accomplish an object which is contrary to a policy reflected in our immigration laws. In any event, we conclude that the respondent's departure can be regarded as "meaningfully interruptive" of his permanent residence. The Supreme Court's ruling in Fleuti (supra) is of no benefit to the respondent. Cf. Matter of Caudillo-Villalobos, 11 I. & N. Dec. 15 (BIA, 1965), aff'd 361 F.2d 329 (5 Cir., 1966); Matter of Corral Fragoso, 11 I. & N. Dec. 478 (BIA, 1966).
We find on the basis of the foregoing that the respondent last entered the United States on February 23, 1968 within the meaning of section 101 (a) (13) of the Immigration and Nationality Act. The evidence establishes that the respondent, while in Tijuana, Mexico on February 21 and 22, 1968, arranged for the entry of and assisted two aliens to enter the United States in violation of the immigration laws; that subsequent to his return to the United States on February 23, 1968, he further participated in the smuggling operation by attempting to transport the two aliens to an interior destination and that the respondent has been convicted for a violation of the immigration laws. The respondent, prior to his entry on February 23, 1968, did "knowingly and for gain" assist two aliens to enter the United States in violation of law. Accordingly, we conclude that there is clear, unequivocal, and convincing evidence that the facts alleged as grounds for deportation are true, Woodby v. INS, 385 U.S. 276 (1966).
The respondent made no application for any form of discretionary relief. He does not appear to be eligible for voluntary departure because he is precluded from establishing good moral character under section 101 (f) (3) as an alien who during the pe
riod for which good moral character is required, is or was a person described in section 212 (a) (31) of the Act (8 U.S.C. 1182 (a) (31)). This section provides in substance that any alien who at any time shall have knowingly and for gain, encouraged, induced, assisted, abetted or aided any other alien to enter or try to enter the United States in violation of law shall be ineligible to receive a visa and shall be excluded from admission to the United States.
An appropriate order will be entered dismissing the appeal. ORDER: It is directed that the appeal be and the same is hereby dismissed.
MATTER OF YALDO
In Deportation Proceedings
Decided by Board July 8, 1969
Where the "good faith" of an alien's supporting marriage for adjustment of status under section 245 of the Immigration and Nationality Act, as amended, is a relevant issue, testimony of the alien's wife concerning confidential communications between the spouses during the period of coverture is admissible in evidence in rescission proceedings under section 246 of the Act.
Order: Act of 1952-Section 241 (a) (2) [8 U.S.C. 1251(a) (2)]—Nonimgrant student-remained longer.
ON BEHALF OF RESPONDENT:
John Palumbo, Esquire
21261 Kelly Road
East Detroit, Michigan 48021
ON BEHALF OF SERVICE:
R. A. Vielhaber
The respondent, a native and citizen of Iraq, appeals from an order entered by the special inquiry officer on December 26, 1968 granting him voluntary departure in lieu of deportation as an alien who, after entry as a nonimmigrant student, has remained in the United States longer than permitted (8 U.S.C. 1251(a) (2)). Exceptions have been taken to the finding of deportability and to an order entered on August 12, 1968 rescinding the adjustment of the respondent's immigration status to that of a permanent resident alien pursuant to section 246 of the Immigration and Nationality Act (8 U.S.C. 1255).
The respondent, a divorced male alien, 22 years of age, last entered the United States through the port of Boston, Massachusetts on or about July 14, 1965. He was then admitted as a nonimmigrant student for a period to expire on July 13, 1966. His status was adjusted to that of a permanent resident alien on April 21, 1967. He acquired immediate relative status on the basis of a marriage to a United States citizen on December 12, 1966.
His marriage to a United States citizen was terminated by a decree of annulment entered on October 20, 1967.
The Board of Immigration Appeals on August 12, 1968 dismissed an appeal from the special inquiry officer's decision of April 8, 1968 rescinding the adjustment of the respondent's status to that of a permanent resident alien. The rescission of the respondent's permanent resident status returned him to the status of a non-immigrant visitor. He was notified on August 28, 1968 that he would be required to depart from the United States on or before September 28, 1968. He has remained in the United States subsequent to September 28, 1968 and is deportable on the charge stated in the order to show cause. See Ferrante v. INS, 399 F.2d 98 (6 Cir., 1968).
The respondent contests his deportability on the ground that error was committed by the special inquiry officer during the rescission proceeding. He moves this Board for a reconsideration of our decision and order entered on August 12, 1968 dismissing his appeal from the order of rescission entered by the special inquiry officer on April 8, 1968. Counsel maintains that it was error to admit the testimony of the respondent's former wife during the rescission hearing, because conversations which took place between them during the period of coverture are privileged. Counsel relies on the law of Michigan relative to such privilege. 1 He also refers to the Supreme Court's decision in Pereira v. United States, 347 U.S. 1 (1954) where the Court stated at page 6 "while divorce removes the bar of incompetency, it does not terminate the privilege for confidential martial communications."
There may be some question whether, on this appeal from a deportation order, we should consider such a challenge to the underlying rescission order. The better practice would seem to be a direct challenge in the rescission proceeding itself. Since the record in that proceeding was received in evidence in the deportation hearing, however, and is thus physically a part of the deportation record now before us, we can conveniently consider the issue at this point.
We reject counsel's contention that the law of Michigan relative to privileged communications controls in this proceeding. The question of whether testimony is privileged in a federal proceed
1 Michigan Statutes Annotated, 27A.2162.
2 The Pereira case also supports a holding that the scope of the privilege extends only to utterance during the existence of the marital relationship and not to acts or to utterances made prior or subsequent to the marriage, Voliantis v. INS, 352 F.2d 766, 768 (9 Cir., 1965).
ing concerned with confidential communications between husband and wife is controlled by federal judicial interpretation in the absence of congressional legislation on the subject and not by local statute. Cf. Wolfe v. United States, 291 U.S. 7 (1934); Blau v. United States, 340 U.S. 332 (1951); Fraser v. United States, 145 F.2d 139, 144 (6 Cir., 1944), cert. denied 324 U.S. 849. Furthermore, even if the Michigan statute did control, we note that it contains exceptions which would permit the testimony of the respondent's wife where marital fraud is involved.3
We noted in our decision of August 12, 1968 that the Supreme Court's decision in Pereira sustained the privilege accorded confidential communications between spouses during the existence of the marital relationship. Our conclusion that the testimony of the respondent's wife was admissible in the rescission proceeding is based upon the following statement of the Supreme Court found in Lutwak v. United States, 344 U.S. 604 (1953), at page 614:
When the good faith of the marital relation is pertinent and it is made to appear... that the relationship was entered into with no intention of the parties to live together as husband and wife but only for the purpose of using the marriage ceremony in a scheme to defraud, the ostensible spouses are competent to testify against each other.
The "good faith" of the marital relationship is the very essence of the rescission proceeding. The respondent's former wife obtained an annulment on the ground that the respondent had no intention of keeping his marriage vows but entered into the marriage for the sole purpose of adjusting his immigration status. This is prima facie evidence that the marriage was a sham and entered into solely for the purpose of affording a vehicle for securing an adjustment of his immigration status. Furthermore, the record of the annulment proceeding (Ex. 4) was introduced as evidence in the rescission proceeding, and counsel for the respondent was afforded an opportunity to cross-examine the respondent's former wife. Counsel stated for the record that he had no objection to the introduction of the record of the annulment proceedings "since it is a part of the public record," although he did qualify his nonobjection with a request for the right of cross-examination, which was granted, and a statement that he did not necessarily "agree to the contents of what these records may show" (p. 21). Under the circumstances, we conclude that
3 The Michigan statute (27A.2162) states the common law rule and provides for numerous exceptions, one of which reads "where the cause of action grows out of a personal wrong or injury done by one to the other."