MATTER OF DUCHNESKIE f In Section 212 (e) Proceedings A-12308431 Devided by District Director January 4, 1966 As compliance with the foreign residence requirement of section 212(e), Immigration and Nationality Act, would result in hardship to the United States citizen children and spouse of an exchange visitor, a waiver of the requirement is granted, especially since the applicant during her training in the United States participated in the dental treatment of school children, thereby imparting her skill to persons here as well as receiving further training. The applicant, a 37-year-old native and citizen of the Philippine Islands, last entered the United States through the Port of San Francisco, California on July 21, 1957. She was admitted as an exchange visitor for a postgraduate course in dentistry. During her training, she participated in the dental treatment of school age children from schools in New York City. Since this treatment of the children was based upon her already acquired knowledge, from prior training in the Philippine Islands, it has been determined that she came to the United States to impart her skill to persons here, as well as to receive further training. A more liberal attitude may therefore be taken in determining if the necessary degree of hardship has been established.1 On October 15, 1960 she married Edward W. Duchneskie, a native and citizen of the United States. Evidence has been presented to establish that three children were born of this marriage. All were born in the United States. The applicant's husband is the Assistant Sales Manager for an automobile agency, with some four years of seniority. He does not speak the language of the Philippines, could only enter that country as a visitor, and would be unable to seek gainful employment there. 1 1 House Report 721, Subcommittee of the House Committee on the Judiciary, 87 Cong., 1st Sess. (1965), at 122. He would therefore have to earn sufficient money to maintain himself in the United States, as well as to attempt to provide a second household in the Philippines for the applicant and the three small children, during the two year period the applicant must reside abroad. In addition, he has a financial obligation to his mother, who suffers from Parkinsons Disease in an advanced state. If the applicant took her three United States citizen children with her to the Philippines it would seriously handicap, if not eliminate entirely, her opportunities for obtaining employment in that country. If she eventually obtained employment, it would be necessary to secure the services of a reliable person to care for the three small children during her hours of employment. The children, the oldest of whom is less than five years of age, would then be denied the special care and attention of their mother during her hours of employment, thus imposing a hardship upon them. The Secretary of State, on October 22, 1965, recommended to this Service that the waiver be granted to the applicant. The application will be approved. ORDER: The admission to the United States of Mrs. Celia Duchneskie, being in the public interest, the foreign residence and physical presence requirements of section 212(e) of the Immigration and Nationality Act are hereby waived. MATTER OF ARGYROS In Section 246 Proceedings A-12042020 Decided by Board April 15, 1966 Where an alien answered affirmatively when asked by an officer of the Service whether she was willing to make a sworn statement and whether she understood that any statement was to be made freely and voluntarily and might be used by the Government as evidence in any proceeding, such preliminary sworn statement by the alien was made voluntarily and not under duress; is admissible in evidence in rescission proceedings under section 246, Immigration and Nationality Act (8 CFR 246.3); and is not bound by the rules of evidence applicable to judicial proceedings, since rescission proceeding under section 246 are not within Escobedo v. Illinois, 378 U.S. 478 (1964). This case is before us on appeal from a decision of a special inquiry officer dated May 10, 1965, rescinding the adjustment of status previously granted to the respondent under section 245 of the Immigration and Nationality Act [8 U.S.C. 1255]. The respondent is a 36-year-old female, native and citizen of Greece, who entered the United States as a visitor on March 19, 1959. She married Michael Argyros, a United States citizen, on January 25, 1960, and he subsequently filed a visa petition on her behalf. This was approved by the Service, and she was accorded nonquota status. On May 17, 1960, the Service granted the respondent's application under 8 U.S.C. 1255, and her immigration status was adjusted to that of an alien lawfully admitted for permanent residence. On February 2, 1965, there was served on the respondent a letter dated December 21, 1964 which notified her concerning the intention of the Service to rescind, under 8 U.S.C. 1256, the adjustment of her immigration status. At the conclusion of the hearing which was thereafter granted, the special inquiry officer found that the respondent entered into a sham marriage with Michael Argyros solely for the purpose of evading the immigration laws. He concluded that she had not been eligible for the adjustment of status granted to her under 8 U.S.C. 1255 and entered the above-mentioned order of May 10, 1965 rescinding that action. The issue on this appeal is whether the special inquiry officer's action was correct. We have carefully reviewed the entire record. The facts in this case are fully set forth in the special inquiry officer's decision. At the hearing (Tr. p. 2), the respondent admitted the first seven factual allegations in the letter of the Service dated December 21, 1964 which related to her alienage, arrival as a visitor, marriage, and the adjustment of her immigration status. The one matter that was not admitted was the allegation of the Service that she entered into a sham marriage with Michael Argyros solely for the purpose of evading the immigration laws. The respondent was questioned under oath by Investigator Opolion of the Service on November 13, 1963. The stenotypist, Patrick J. Killela, was a witness at the hearing and read the respondent's statement of November 13, 1963 into the record from his original stenotype notes (Tr. pp. 139-201). The notes and transcript are Exhibits 11 and 16, respectively. Counsel attached to his brief a list of 31 instances in which were was a variation between that which appears in the transcript and that which appears in the stenotype notes. The special inquiry officer discussed this matter in his decision (pp. 41-43). It appears that Mr. Killela, in transcribing the notes on the day after the hearing before Mr. Opolion, inserted certain matters from memory which were not actually in his notes. The special inquiry officer stated that he would rely on the version of the questions and answers as they were read into the record of the hearing by Mr. Killela from his original notes rather than on the version contained in the transcript (Ex. 16). We have also used the version contained in the record of hearing rather than Exhibit 16. The differences between the two versions are relatively minor. Since the special inquiry officer and this Board have not relied on the disputed version contained in Exhibit 16, we will dismiss counsel's contention concerning this matter. Part 246 of 8 CFR contains the regulations relating to rescission of adjustment of status under 8 U.S.C. 1256. 8 CFR 246.3 makes applicable certain other regulations including the procedure specified in 8 CFR 242.14 (c) which is as follows: "The special inquiry officer may receive in 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, examination, hearing, or trial." Hence, there is specific authority in the regulations for the special inquiry officer to consider, in this rescis sion proceeding, the respondent's testimony on November 13, 1963. Counsel has argued vigorously that the testimony of the respondent on November 13, 1963 is a "confession". We are unable to perceive why counsel deems this so important, and we consider it entirely immaterial whether this testimony of the respondent is characterized as a "confession" or "testimony" or in some other manner. The matter which is of consequence is whether the respondent's testimony on November 13, 1963 was properly admitted in evidence at the hearing. In urging that the respondent's "confession" of November 13, 1963 was inadmissible, counsel contends that it was involuntary; that she was not advised of the right to counsel; and that she was not advised of her right to remain silent (brief, pp. 24-36). At the commencement of the formal examination on November 13, 1963, the respondent answered affirmatively when she was asked by the investigator whether she was willing to make a sworn statement and whether she understood that any statement was to be made freely and voluntarily and that it might be used by the Government as evidence against her in any proceeding. After careful consideration of the respondent's testimony at the hearing concerning the taking of the statement and the testimony of the investigators and the stenotypist, we are satisfied that the respondent's testimony on November 13, 1963 was given, voluntarily and not under duress. Counsel has placed considerable reliance on Escobedo v. Illinois, 378 U.S. 478 (1964); We discussed the same contentions in Matter of Pang, Int. Dec. No. 1479 (1965), and indicated why Escobedo was not controlling in a deportation proceeding. Similarly, we hold that Escobedo is not applicable in a rescission proceeding under 8 U.S.C. 1256. In his brief (p. 26), counsel indicated that any distinction between criminal proceedings and deportation proceedings had been laid to rest with respect to coerced confessions", citing Bong Youn Choy v. Barber, 279 F.2d 642, 647 (9th Cir., 1960). Actually, that case did not represent any change in the law since it has never been considered that a deportation could be predicated on a confession or statement which had not been made freely and voluntarily. On the facts in the Bong Youn Choy case, the court found that he had been coerced into making the admissions; in this respondent's case, we have found that her testimony was given voluntarily and not under duress. Since the facts in the two cases differ, the Bong' Youn Choy case is not controlling as to this respondent. 245-235-67- -39 |