Baliza v. I.N.S.

• Decision Date: 28 June 1983
• Docket Number: No. 82-7171,82-7171
• Citation: 709 F.2d 1231
• Parties: 12 Fed. R. Evid. Serv. 759 Roman Agmata BALIZA, Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, Appellee. CA
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1231

709 F.2d 1231

12 Fed. R. Evid. Serv. 759

Roman Agmata BALIZA, Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, Appellee.

CA No. 82-7171.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 20, 1982.

Decided Jan. 18, 1983.

As Modified On Denial of Rehearing

June 28, 1983.

Peter A. Schey, Los Angeles, Cal., Peter A. Aduja, Honolulu, Hawaii, for appellant.

Alan J. Sobol, Lauri S. Filppu, Margaret Perry, Washington, D.C., for appellee.

Petition to Review a Decision of the United States Immigration & Naturalization Service.

Before CANBY, NORRIS and REINHARDT, Circuit Judges.

CANBY, Circuit Judge:

On October 29, 1979, an order to show cause was issued, charging Roman Agmata Baliza with entering the United States with an immigration visa procured on the basis of a fraudulent marriage, in violation of 8 U.S.C. Secs. 1182(a)(19), 1251(a)(1) and (a)(2). The order to show cause also charged Baliza with entering the United States for the purpose of performing skilled or unskilled labor without a valid labor certification in violation of 8 U.S.C. Secs. 1182(a)(14) and 1251(a)(1). The Immigration Judge found that Baliza was deportable as charged and granted him three months voluntary departure. Baliza appealed to the Board of Immigration Appeals which dismissed his appeal.

On petition for review, Baliza argues that the Immigration Judge's determination that his marriage was fraudulent was not supported by reasonable, substantial and probative evidence. In addition, he contends that the government's introduction of his ex-wife's affidavit deprived him of his statutory and constitutional right to confront and cross-examine the witnesses against him. We find it necessary to address only the latter contention. We hold that the government's introduction of the affidavit did deprive Baliza of his right to cross-examine witnesses against him. 8 U.S.C. Sec. 1252(b)(3). We therefore reverse and remand for further proceedings.

Baliza is a thirty-four year old male alien. He is a native and citizen of the Philippines. He entered the United States at Honolulu, Hawaii on January 19, 1973. He was admitted as a nonquota immigrant by reason of his marriage on September 18, 1971, to Leonora Valera Borce, a United States citizen. The marriage, which was celebrated at Ilocos Norte, Philippines was terminated by divorce on February 22, 1974. Baliza admitted these facts, as alleged in the order to show cause, at his January 1980 deportation hearing.

Baliza testified that he and Leonora dated for three to five months prior to their marriage and that they married for love. He stated that they decided to get married before Leonora left for the United States, and that Leonora had promised she would bring him to this country. He testified that when he arrived in Honolulu Leonora met him at the airport. He claimed that they lived together at his aunt's home for three weeks until Leonora ran away with another man. He stated that he filed for the divorce, rather than Leonora, because Leonora was told she could not do so while she was pregnant.

In an affidavit dated December 15, 1978, Leonora stated that she was told to marry Baliza and that everything would be arranged for them. She denied ever living with him, before or after the marriage, and stated that she only found out that he had come to Honolulu when his aunt told her he was there. She also stated that she only went through with the marriage because she was very young and her mother and relatives said she should. Neither Leonora nor the investigator who took her statement testified at the deportation hearing. The Immigration Judge admitted the affidavit, which he recognized as hearsay, over the objection of Baliza's counsel.

The Immigration Judge held that the government met its burden of showing by clear, convincing and unequivocal evidence: (1) that Baliza's marriage took place less than two years prior to his entry; and (2) that the marriage was judicially terminated within two years after entry. He therefore concluded that Baliza had the burden, under section 1251(c) of coming forward with sufficient evidence to rebut the statutory presumption that his visa was procured on the basis of a fraudulent marriage.

The Immigration Judge noted several inconsistencies in Baliza's testimony and also considered the affidavit filed by Baliza's ex-wife. He concluded that Baliza had failed to show by a preponderance of the evidence that the marriage was not entered into in order to evade the immigration laws. He therefore found Baliza deportable under sections 1251(a)(2) and (c).

Baliza's ex-wife's affidavit, taken over a year before the deportation hearing, was hearsay. It was an out-of-court statement by a nonparty offered for the truth of the matter asserted. See Fed.R.Evid. 801. As such, it would not be admissible in court unless it could be shown to fall under one of the exceptions to the hearsay rule. Such a showing was not made in this case.

Administrative proceedings are not, however, bound by strict rules of evidence. de Hernandez v. INS, 498 F.2d 919 (9th Cir.1974). Thus the fact that the affidavit was hearsay is not dispositive. In the context of a deportation hearing this court has held that "the only limitation upon its procedure [is] that a hearing, though summary, must be fair." Navarrette-Navarrette v. Landon, 223 F.2d 234, 237 (9th Cir.1955) (quoting, United States v. Brough, 15 F.2d 377, 379 (2d Cir.1926), cert. denied, 351 U.S. 911, 76 S.Ct. 700, 100 L.Ed. 1446 (1956)). The test is whether the statement is probative and whether its admission was fundamentally fair. Trias-Hernandez v. INS, 528 F.2d 366, 369 (9th Cir.1975); Martin-Mendoza v. INS, 499 F.2d 918, 921 (9th Cir.1974), cert. denied, 420 U.S. 984, 95 S.Ct. 1417, 43 L.Ed.2d 667 (1975).

If credited, the affidavit was probative. It directly contradicted Baliza's testimony on the crucial issue of the case--the genuineness of his 1971 marriage to Leonora. Despite the affidavit's importance, the government made only a minimal effort at authentication. In his appeal to the Board of Immigration Appeals,...