Matter of Magana

In a decision dated July 8, 1977, an immigration judge found the respondent deportable as charged, denied his application for voluntary departure in the exercise of discretion, and ordered him deported. The respondent appealed. The appeal will be dismissed. We will, however, grant the respondent voluntary departure under section 244(e) of the

在1977年7月8日的决定中，一名移民法官认定 respondent 如指控所述可被驱逐出境，行使自由裁量权拒绝其自愿离境申请，并命令将其驱逐出境。Respondent 提出上诉。上诉将被驳回。然而，我们将根据第244(e)条授予 respondent 自愿离境

Interim Decision #2729

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Immigration and Nationality Act, 8 U.S.C. 1254(e). The respondent is a 37-year-old native and citizen of Mexico who entered the United States as an immigrant on October 2, 1972. He obtained his visa based on his marriage to a United States citizen, Renee Bosch. In an Order to Show Cause dated February 11, 1975, it was alleged that at the time of his entry as a permanent resident, the respondent was not lawfully married to Renee Bosch, in that he had previously been married, and that marriage had not been terminated. It was further alleged that because of this prior marriage, the respond- ent had procured his visa by willfully misrepresenting a material fact. The respondent was therefore charged with deportability under sec- tion 241(a)(1) of the Act, 8 U.S.C. 1251(a)(1), as an alien excludable at entry under section 212(a)(19) of the Act, 8 U.S.C. 1182(a)(19). The facts as set forth at a deportation hearing held on March 18, 1977, indicate that the respondent went through a civil marriage ceremony with Maria Elena Martinez-Valenzuela on June 20, 1971, in Guaymas, Mexico. The respondent alleges that he was intoxicated at the time .of this marriage, and that the marriage was never consum- mated. He states that he left Mexico for the United States immediately after the ceremony. Approximately 1-year later, on May 15, 1972, the respondent married Renee Bosch in the State of Washington. According to testimony taken at the hearing from Lhe respondent's counsel, the respondent early in 1974 sought a Mexican annulment of his marriage to Maria Elena. Rather than an annulment, a divorce was decreed by a Mexican court on June 15, 1974. The respondent's counsel, "recognizing the possible consequences" of a Mexican divorce (see transcript at 8), began a proceeding in the State of Washington to have the respondent's marriage to Maria Elena declared invalid. A "Declaration of Invalidity" was issued by the Superior Court of the State of Washington, Franklin County, on October 3, 1975. This decree stated that the parties to the marriage had never consum- mated their union, nor lived together as man and wife, that the marriage was voidable under Mexican law for lack of consummation, that the respondent was inebriated at the time of the marriage, and hence incapable of consent to the marriage, that the parties never intended to marry, unless through a Roman Catholic religious cere- mony, and, finally, that the marriage "should be declared invalid for lack of capacity to consent as of the date it was purportedly contracted and for being voidable under the laws of Mexico for lack of consumma- tion." It was argued both at the hearing and on appeal that this Washington decree voided the respondent's marriage to Maria Elena ab iniLiu, and that, due to the Full Faith and Credit clause of the Constitution (U.S. CONST. Art. IV, Section 1), the Washington decree of invalidity overrode the earlier Mexican divorce decree.

《移民和国籍法》第244(e)条，8 U.S.C. 1254(e)。 Respondent 是一名37岁的墨西哥本土公民，于1972年10月2日作为移民进入美国。他基于与一名美国公民 Renee Bosch 的婚姻获得了签证。在1975年2月11日的出庭通知中，指控称在 respondent 作为永久居民入境时，他与 Renee Bosch 并未合法结婚，因为他此前曾结婚，且该婚姻尚未终止。还指控称，由于此先前婚姻，respondent 通过故意虚假陈述重要事实获得了签证。因此，respondent 被指控根据法案第241(a)(1)条，8 U.S.C. 1251(a)(1)，作为根据法案第212(a)(19)条，8 U.S.C. 1182(a)(19)，入境时不可入境的外国人而可被驱逐出境。 1977年3月18日举行的驱逐出境听证会上陈述的事实表明，respondent 于1971年6月20日在墨西哥瓜伊马斯与 Maria Elena Martinez-Valenzuela 举行了民事结婚仪式。Respondent 声称他在结婚时处于醉酒状态，且婚姻从未 consummated。他说仪式后立即离开墨西哥前往美国。大约1年后，即1972年5月15日，respondent 在华盛顿州与 Renee Bosch 结婚。 根据听证会上从 respondent 的律师处取得的证词，respondent 在1974年初寻求墨西哥宣布其与 Maria Elena 的婚姻无效。墨西哥法院于1974年6月15日判决离婚而非无效。Respondent 的律师“认识到墨西哥离婚的可能后果”（见 transcript 第8页），在华盛顿州启动程序，要求宣布 respondent 与 Maria Elena 的婚姻无效。华盛顿州富兰克林县高等法院于1975年10月3日发布了“无效声明”。该判决指出，婚姻双方从未 consummated 他们的结合，也从未作为夫妻共同生活，该婚姻根据墨西哥法律因缺乏 consummation 而可撤销，respondent 在结婚时醉酒，因此无法同意结婚，双方从未打算结婚，除非通过罗马天主教宗教仪式，最后，该婚姻“应被宣布自据称缔结之日起因缺乏同意能力而无效，并因缺乏 consummation 根据墨西哥法律可撤销。”在听证会和上诉中均主张，该华盛顿判决自始 voided respondent 与 Maria Elena 的婚姻，并且由于宪法的充分信任与信用条款（U.S. CONST. Art. IV, Section 1），华盛顿的无效判决优先于先前的墨西哥离婚判决。

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It is true that the judgments of a state court are entitled to full faith and credit, while those of a foreign tribunal are only given effect under principles of comity. However, even assuming that the Washington court judgment takes precedence over the prior Mexican judgment, the respondent is still deportable. This is so because we find that, for immigration purposes, the Washington decree does not relate back to cure the illegality of the respondent's entry. In a recent precedent decision, Matter of Astorga, Interim Decision 2711 (BIA 1979), this Board analyzed a declaration of invalidity issued by a Washington state court under the applicable provisions of the Marriage Dissolution Act (Washington Revised Code Section 26.09.040). We held there that the declaration of invalidity related back for immigration purposes, but we emphasized that no fraud, mis- representation, or manipulation of the immigration laws had been alleged in that case. Astorga involved a visa petition filed on behalf of a beneficiary spouse who allegedly had been previously married in Mex- ico. The Immigration and Naturalization Service argued that the previous marriage had not been terminated, and that the beneficiary's marriage to his citizen wife was therefore invalid. We held the declara- tion of invalidity to apply retroactively because "there is no purpose of the immigration laws that could be furthered by finding his [the beneficiary's] possible previous marriage still valid and a bar to his present marriage." We distinguished those cases where an alien's entry into the United States was dependent upon his being unmarried, where the alien was in fact married when he entered, but later had the marriage annulled ab initio and then argued that he hadn't been married at the time of his entry (see, e.g., Hendrix v. INS, 583 F.2d 1102 (9 Cir. 1978); Matter of Wang, 16 I&N Dec. 87 (BIA 1977); Matter of R—J—, 7 I&N Dec. 182 (BIA 1956)). In a converse situation, as noted in Astorga, supra, in some cases we refused to relate back annulments where no immigration law fraud was noted, and where injustice would result by applying the relation back concept. Matter of Castillo-Sedano, 15 I&N Dec. 445 (BIA 1975); Matter of B—, 3 I&N Dec. 102 (BIA 1947). Our analysis of prior cases dealing with annulments that had been declared void ab initia led us to the conclusion that "annulment decrees may have different effects depending on the nature of the case and the purposes to be served by giving an annulment decree retroactive effect." Astorga, supra, at 5. Having carefully studied the record in the present case, as well as the prior precedent decisions, we have concluded that the decree of invalidity in this case should not he given retroactive effect. The respondent testified that he stated on his visa application that he had not been previously married because his attorney and the judge who performed the ceremony for him and Maria Elena had both told him

确实，州法院的判决享有充分信任与信用，而外国法庭的判决仅根据礼让原则赋予效力。然而，即使假设华盛顿法院判决优先于先前的墨西哥判决，respondent 仍可被驱逐出境。这是因为我们认为，就移民目的而言，华盛顿判决不具有追溯力以纠正 respondent 入境的违法性。 在最近的一个先例决定中，Matter of Astorga, Interim Decision 2711 (BIA 1979)，本委员会根据《婚姻解除法》（Washington Revised Code Section 26.09.040）的适用条款分析了华盛顿州法院发布的无效声明。我们在那里裁定，无效声明就移民目的而言具有追溯力，但我们强调在该案中未指控欺诈、虚假陈述或操纵移民法。Astorga 涉及代表一名据称先前在墨西哥结婚的受益人配偶提交的签证申请。移民和归化局主张先前婚姻未终止，因此受益人与公民妻子的婚姻无效。我们裁定无效声明具有追溯力，因为“找不到任何移民法目的可以通过认定他[受益人]可能的先前婚姻仍然有效并构成对其当前婚姻的障碍来促进。”我们区分了那些外国人进入美国取决于其未婚身份的案件，其中外国人在入境时实际已婚，但后来婚姻被自始无效，然后辩称入境时未婚（见，例如，Hendrix v. INS, 583 F.2d 1102 (9 Cir. 1978); Matter of Wang, 16 I&N Dec. 87 (BIA 1977); Matter of R—J—, 7 I&N Dec. 182 (BIA 1956)）。 在相反情况下，如 Astorga, supra 所述，在某些案件中我们拒绝将婚姻无效追溯，其中未注意到移民法欺诈，且适用追溯效力概念会导致不公正。Matter of Castillo-Sedano, 15 I&N Dec. 445 (BIA 1975); Matter of B—, 3 I&N Dec. 102 (BIA 1947)。我们对涉及被宣布自始无效的婚姻无效的先前案件的分析使我们得出结论：“婚姻无效判决可能具有不同的效力，取决于案件性质和赋予婚姻无效判决追溯效力的目的。”Astorga, supra, at 5。 在仔细研究本案记录以及先例决定后，我们得出结论，本案中的无效判决不应被赋予追溯效力。Respondent 作证说，他在签证申请中声明此前未结婚，因为他的律师和为他与 Maria Elena 主持仪式的法官都告诉他

Interim Decisiosi #2729

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that that marriage was invalid (transcript at p. 15: "the judge told me I didn't have to do anything [about his marriage to Maria Elena] because the marriage was invalid when the parents wanted the marriage to be celebrated, performed by the church"). The immigration judge found this testimony to be totally unbelievable. An immigration judge's findings with regard to the credibility of witnesses appearing before him are entitled to considerable weight (Matter of Teng,15 I&N Dec. 516 (BIA 1975); Matter of T--, 7 I&N Dec. 417 (BIA 1957)), and in this case especially we are inclined to agree with the immigration judge's analysis of the respondent's testimony. In Mexico, civil ceremonies only, not religious ceremonies, result in valid marriages. See generally Matter of A—E—, 4 I&N Dec. 405 (BIA 1951). It is incredible that a judge and a lawyer in Mexico would have informed the respondent that a civil ceremony was ineffective if a religious ceremony was desired. We find that the respondent did materially misrepresent his marital history when he applied for an immigrant visa. As mentioned previously, in those cases dealing with the retroactivi- ty of annulments (and, in Astorga, supra, with Washington decrees of invalidity), we have applied the relation back doctrine only where to do so would bring about a more just result.' In the present case, given the respondent's misrepresentations, we find that justice would be better served by not relating the Washington decree back for immigration purposes? We thus consider the respondent to have been married to Maria Elena at the time he entered the United States as the husband of Renee Bosch, and we therefore agree with the immigration judge that the respondent is deportable as one who procured his immigrant visa through fraud or misrepresentation. The respondent, through counsel, makes several procedural argu- ments on appeal. He contends that a witness should have been called at the hearing to authenticate the Mexican divorce decree. 8 C.F.R. 287.6 governs the admissibility of official records in immigration proceed- ings, and that regulation does not require that such records be authen- ticated by witnesses appearing in person. Rather, for foreign records,

该婚姻无效（transcript 第15页：“法官告诉我，我不需要做任何事情[关于他与 Maria Elena 的婚姻]，因为当父母希望婚姻由教堂庆祝、举行时，婚姻就是无效的”）。移民法官认为此证词完全不可信。移民法官关于在其面前出庭的证人可信度的认定应给予相当重视（Matter of Teng, 15 I&N Dec. 516 (BIA 1975); Matter of T--, 7 I&N Dec. 417 (BIA 1957)），在本案中，我们尤其倾向于同意移民法官对 respondent 证词的分析。在墨西哥，只有民事仪式而非宗教仪式才能产生有效婚姻。See generally Matter of A—E—, 4 I&N Dec. 405 (BIA 1951)。墨西哥的法官和律师会告知 respondent 如果希望宗教仪式则民事仪式无效，这令人难以置信。我们认定 respondent 在申请移民签证时确实重大虚假陈述了其婚姻历史。 如前所述，在处理婚姻无效追溯力的案件中（以及在 Astorga, supra 中处理华盛顿无效判决的案件中），我们仅在这样做能带来更公正结果时才适用追溯效力原则。¹ 在本案中，鉴于 respondent 的虚假陈述，我们认定不将华盛顿判决追溯适用于移民目的更能实现正义²。因此，我们认为 respondent 在作为 Renee Bosch 的丈夫进入美国时与 Maria Elena 已婚，因此同意移民法官的认定，即 respondent 作为通过欺诈或虚假陈述获得移民签证的人可被驱逐出境。 Respondent 通过律师在上诉中提出若干程序性论点。他主张听证会上应传唤证人来认证墨西哥离婚判决。8 C.F.R. 287.6 管辖移民程序中官方记录的采纳，该法规不要求此类记录由亲自出庭的证人认证。相反，对于外国记录，

it requires an attestation of genuineness by a person having custody over the records, and a certification by a United States Foreign Service officer as to the genuineness of the signature, and as to the official position of the person having custody over the records. In the present case, the genuineness of the copy was attested to by an officer of the Civil Registry in Guaymas, Sonora, Mexico, and there was a certifica- tion by an Immigration officer. While the certification should have been made by a Foreign Service officer, we do not believe that this deviation from the exact procedures set forth in the regulation re- quires a remand, especially as our decision in this case does not in any way depend on the Mexican divorce. The respondent further alleges that he was denied procedural due process because the Service did not honor his requests for admissions or answer interrogatories, and that the failure to respond to the interrogatories "constituted admissions of those matters." Brief at 6. Suffice it to say that the Federal Rules of Civil Procedure are not applicable in deportation proceedings, and there is no requirement that requests for discovery be honored. Son FED. R. CIV. P. 1, describ- ing the score of the rules. The respondent's counsel protested at the hearing that he had had no notice that a deportation hearing would be held that day, and that when he appeared at Service offices on March 18, 1977, he believed it was only for an 1-120 interview regarding the respondent's wife. The Acting Trial Attorney stated that counsel had been advised of the deportation hearing by telephone on March 11, 1979. The immigration judge refused to continue the hearing, pointing out that counsel had been representing this respondent for two years, and was therefore familiar with the case, and noting that the hearing had been scheduled in advance, and that there was evidence that counsel had notice of the hearing. We find no error in the immigration judge's denial of the request for a continuance. Finally, the respondent contends that the immigration judge was strongly biased against him, and that the immigration judge had prejudged the case. He argues that he was thereby denied a fair hearing. We have examined the record carefully, and, while we find that the immigration judge may have made some ill-advised comments at the hearing, he was by no means so biased as to be incapable of rendering a fair decision. Although we are dismissing this appeal with regard to the findings of deportability, we find that the respondent should have been granted the privilege of voluntary departure. We will therefore sustain the appeal as to the denial of voluntary departure. ORDERS The appeal is dismissed, except as regards the denial of voluntary departure.

它要求由保管记录的人出具真实性证明，并由一名美国外交官对签名的真实性以及保管记录的人的官方职位作出认证。在本案中，副本的真实性由墨西哥索诺拉州瓜伊马斯市民事登记处的一名官员证明，并且有一名移民官员的认证。虽然认证本应由一名外交官作出，但我们不认为这种偏离条例所规定的确切程序需要发回重审，尤其是因为我们对本案的裁决在任何方面都不取决于墨西哥离婚。 被申请人进一步主张，他未获得程序性正当程序，因为移民局未履行其请求承认或答复质询的要求，而未答复质询“构成对这些事项的承认”。简报第6页。只需说明，《联邦民事诉讼规则》不适用于驱逐出境程序，也没有要求必须履行发现请求。见《联邦民事诉讼规则》第1条，其中描述了该规则的范围。 被申请人的律师在听证会上抗议称，他没有收到当天将举行驱逐出境听证会的通知，并且当他于1977年3月18日出现在移民局办公室时，他认为只是为了就被申请人的妻子进行1-120面谈。代理庭审律师表示，律师已于1979年3月11日通过电话被告知驱逐出境听证会。移民法官拒绝继续听证，指出律师已代理该被申请人两年，因此熟悉本案，并指出听证会已提前安排，且有证据表明律师已收到听证通知。我们认定移民法官拒绝延期审理的请求并无错误。 最后，被申请人主张移民法官对他有强烈偏见，并且移民法官已预先判断本案。他辩称，他因此未获得公平听证。我们仔细审查了记录，虽然我们认定移民法官在听证会上可能发表了一些不明智的评论，但他绝没有偏见到无法作出公平裁决的程度。 尽管我们就驱逐出境认定驳回本上诉，但我们认定本应给予被申请人自愿离境的特权。因此，我们将就拒绝自愿离境部分支持上诉。 命令 除关于拒绝自愿离境的部分外，上诉被驳回。

Interim Decision #2729

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FURTHER ORDER' The outstanding order of deportation is withdrawn, and in lieu of an order of deportation the respondent is allowed to depart voluntarily, without expense to the Government, within 30 days from the date of this order or any extension beyond that time as may be granted by the District Director and under such conditions as he may direct. In the event of the respondent's failure so to depart, the order of deportation will be reinstated.

进一步命令 现有驱逐出境令予以撤回，代替驱逐出境令，允许被申请人在本命令作出之日起30日内或地区局长可能批准的超过该期限的任何延长期内，按地区局长可能指示的条件，自费自愿离境，不由政府承担费用。如被申请人未能如此离境，驱逐出境令将恢复生效。