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and pressing hearings, could either recall totally the matter heard more than three [3] years before, or thoroughly and conscientiously go through a record, which by his own admission, is more than two hundred and seventy four [274] 1 pages, plus various exhibits and briefs. This is completely inconsistent with the posititon of the former Special Inquiry Officer, who on March 18, 1965, stated on the record that he could not remember anything whatsoever concerning his testimony and extraordinary appearance before the District Court in this matter. Counsel argues that this “proves conclusively” that the special inquiry officer did not comply with the remand order of the Court of Appeals as set forth in the stipulation (pp. 6 and 7, counsel's brief of February 24, 1969).

We are unable to determine on the record before us the extent to which the special inquiry officer reconsidered the original record of testimony pursuant to the stipulation entered into between counsel and the trial attorney on September 9, 1968. To render the special inquiry officer's decision unfair and biased, however, the defect complained of must have been such as might lead to a denial of justice, De Souza v. Barber, 263 F.2d 470 (9 Cir., 1959), cert. denied 359 U.S. 989 (1959). This Board has plenary power to make a de novo review of the record and based on such a re view make its own independent findings on questions of fact and law irrespective of those made by the special inquiry officer, Matter of B-, 7 1. & N. Dec. 1 (A.G., 1956); De Lucia v. INS, 370 F.2d 305, 308 (7 Cir., 1966), cert. denied 386 U.S. 912 (1967); Tovar v. INS, 368 F.2d 1006 (9 Cir., 1966), cert. denied 388 U.S. 915 (1967).

We have carefully reviewed the entire record. We find no basis for counsel's claim that the hearings accorded the respondent by the substituted special inquiry officer were prejudicial and unfair because he succeeded a special inquiry officer who had disqualified himself because of prior testimony in a criminal proceeding in which the respondent was a defendant. This practice is commonplace in both administrative and judicial proceedings. If counsel's argument were to prevail it would be impossible for any special inquiry officer or judge in a judicial proceeding who happens to be an associate in the same tribunal to qualify for completion of a proceeding. A review of the 243 pages of testimony during which the substituted special inquiry officer presided fails to reveal any error on his part with regard to his rulings as to the admissibility of the proffered evidence. We have carefully noted the objec

1 The special inquiry officer in his opinion of October 11, 1968 stated, “The record of hearing constitutes some 253 pages of testimony." We find this number to be correct.

tions raised by counsel for the respondent and find that his position was sustained on at least 48 occasions. We conclude upon a de novo review that the respondent was accorded a fair hearing without bias or prejudice on the part of the substituted special inquiry officer.

The facts germane to the issues before us on appeal have been heretofore clearly set forth in the special inquiry officer's opinion of May 3, 1965 and in the opinions of this Board rendered on August 20, 1965 and November 1, 1965. Counsel maintains that the evidence relied upon by the special inquiry officer is so far removed from the ambit of reasonable doubt that the standard of clear, unequivocal and convincing evidence cannot be met. He argues that the Government's two primary witnesses are “proven and admitted perjurers" who have made statements under oath to various courts and to several agencies of the Government which are diametrically opposed to each other and, therefore, “have proven themselves, beyond a reasonable doubt, to be unworthy of belief” (p. 4, counsel's brief of February 24, 1969; emphasis supplied). Counsel argues on the other hand that the respondent has testified consistently and offered unimpeachable witnesses to sustain his position and allegations.

A determination of whether there is clear, unequivocal and convincing evidence that the respondent was ineligible for an adjustment of his status because his marriage to a United States citizen was not a valid and subsisting marriage for immigration purposes resolves itself into a determination of whose testimony is worthy of belief. Credibility involves more than demeanor. It apprehends the overall evaluation of testimony in light of its rationality or internal consistency and the manner in which it hangs together with other evidence, Carbo v. United States, 314 F.2d 718, 749 (9 Cir. 1963).

Where the testimony of the respondent and his witnesses is in direct conflict with the testimony of witnesses presented by the Government, there must be an evaluation and a weighing of all the evidence and a finding made with regard to its credibility before the test for burden of proof as set forth in Woodby (supra) comes into play. Originally, it is the function of the special inquiry officer and on appeal the function of this Board to make an evaluation and to reach a determination as to whether the evidence is of sufficient quality and substantially to support the rationality of the order of rescission. CF., D'Andrea v. INS, 335 F.2d 377 (6 Cir., 1964), cert. denied 379 U.S. 999 (1965); Matter of Lugo-Guadiana, 12 I. & N. Dec. 726 (BIA 1968).

We agree with counsel that the testimony of the respondent's former wife in this proceeding is not consistent with her affidavit in the divorce proceeding instituted in the State of Alabama (Ex. 4). Contradictory evidence of this nature is typical in a rescission proceeding. Nevertheless, her testimony that her marriage to the respondent was arranged for immigration purposes is corroborated by the testimony of her mother. On the other hand, the testimony of the respondent is not consistent with that of his witnesses with regard to when he met his former wife, his subsequent romance with her, when he became employed and who was present at the marriage. Upon evaluating and weighing the evidence submitted by both the Government and the respondent, we find that the testimony of the Government's witnesses is more credible than that of the respondent and his witnesses. Based on this finding, we conclude that there is clear, unequivocal and convincing evidence that the facts alleged as grounds for rescinding the adjustment of the respondent's nonimmigrant status are true.

Counsel urges that the respondent's case is within the purview of section 241.(f) of the Immigration and Nationality Act which provides a waiver of deportability in the case of an alien who was excludable at the time of entry as one who had procured a visa or entry into the United States by fraud or misrepresentation if such alien is the spouse, parent or child of a United States citizen or of an alien lawfully admitted for permanent residence. There is a showing of record that the respondent married another citizen of the United States on June 12, 1965 and it is alleged that he is the father of two minor citizen children born to this union (see Board's decision of May 16, 1966). Counsel's argument that the respondent is exempt from deportation under section 241 (f) is based on the premise that the Supreme Court in the case of INS v. Errico, 385 U.S. 214, 17 L. Ed. 2d (1966) ruled that the statute is humanitarian in nature and has for its purpose the maintenance of the family unit and if there exists any reasonable doubt, such doubt should be resolved in favor of the alien.

We considered a similar argument in Matter of Alemis, 12 I. & N. Dec. 456 (BIA 1967). We held that section 241 (f) by its very terms and the Supreme Court's decision in Errico (supra) are limited solely to a deportation proceeding and are not applicable to a rescission proceeding under section 246 of the Act. The proceeding before us is not a deportation proceeding. See, also, Ferrante v. INS, 399 F.2d 98, at pp. 104–105 (6 Cir., 1968).

Upon careful reconsideration of the entire record, we adopt the allegations set forth in the notice to rescind dated October 27, 1964 and served upon the respondent by certified mail as our findings of fact. Based upon these findings of fact, we conclude that there is clear, unequivocal and convincing evidence that the respondent was ineligible for adjustment of status on June 23, 1960 because his marriage to a United States citizen on February 24, 1960 was a sham entered into solely for the purpose of enabling the respondent to adjust his immigration status in the United States and circumvent the immigration laws. The appeal will be dismissed.

ORDER: It is directed that the appeal be and the same is hereby dismissed.


In Visa Petition Proceedings


Decided by District Director September 26, 1969
Affirmed by Regional Commissioner October 28, 1969

Petitioner/beneficiary, who has a bachelor's degree, with a major in social

work, qualifies on the basis thereof as a member of the professions as a social worker within the meaning of sections 101 (a) (32) and 203(a) (3) of the Immigration and Nationality Act, as amended. [Matter of Cruz, Int. Dec. No. 1920, overruled.]


The petitioner, a 30 year old native and citizen of The Philippines, seeks third preference status as a professional social worker. The petition was denied June 6, 1969, in the light of Matter of Cruz, Int. Dec. No. 1920, as the petitioner lacks a master's degree. On appeal the matter was remanded by the Regional Commissioner for further consideration.

The petitioner possesses a Bachelor of Arts degree issued March 22, 1960 by the Philippine Women's University. The Office of Education, United States Department of Health, Education and Welfare has reviewed a transcript of her studies and found the petitioner's degree is the equivalent of a Bachelor of Arts degree, with a major in Social Work, issued by an accredited college in the United States.

The Department of Labor has issued a labor certification for "entry level" in Social and Welfare Work, following review of the petitioner's statement of qualifications, Form ES-575A and supporting documents consisting of certified copies of the petitioner's college degree and transcript of studies. The petitioner has been employed as a social worker since 1968 by the Department of Social Welfare, Manila, Philippines.

The issue is whether possession of a Bachelor's degree, with a major in Social Work, qualifies the holder, a social worker, as a

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