Ferrante v. Immigration and Naturalization Service

• Decision Date: 12 September 1968
• Docket Number: 17854.,No. 16658,16658
• Parties: Francesco FERRANTE, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Francesco FERRANTE and Kathy Ferrante, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

399 F.2d 98 (1968)

Francesco FERRANTE, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Francesco FERRANTE and Kathy Ferrante, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Nos. 16658, 17854.

United States Court of Appeals Sixth Circuit.

February 7, 1968.

Rehearing Denied September 12, 1968.

Henry C. Lavine, Cleveland, Ohio, for petitioners.

Paul Nejelski, Atty., Dept. of Justice, Washington, D. C., for respondent; Joseph P. Kinneary, U. S. Atty., Charles G. Heyd, Asst. U. S. Atty., Cincinnati, Ohio, on brief; Maurice A. Roberts, Atty., Dept. of Justice, Robert M. Draper, U. S. Atty., Cincinnati, Ohio, of counsel.

Before McCREE and COMBS, Circuit Judges, and CECIL, Senior Circuit Judge.

CECIL, Senior Circuit Judge.

These appeals were consolidated and involve the deportable status of one Francesco Ferrante, a citizen of Italy. The appeal in No. 16658, Francesco Ferrante, Petitioner v. Immigration and Naturalization Service, Respondent, is from a decision of the Board of Appeals of May 19, 1965, denying the claim of the petitioner that a previous order (June 26, 1964) of rescission of adjustment of status be vacated and dismissing the appeal from the order of deportation of the Special Inquiry Officer (December 28, 1964).

In No. 17854, Francesco Ferrante and Kathy Ferrante, Petitioners, appeal from a decision (March 13, 1967) of the Board of Immigration Appeals affirming the order of November 18, 1966, of the District Director of the Immigration and Naturalization Service, Cleveland District, revoking the approval of the visa petition granted on September 13, 1966, according "immediate relative" status to Francesco as the spouse of an American citizen.

The facts and the history of the proceedings are as follows: Francesco Ferrante was born in and is a citizen of Italy. On August 22, 1960, at the age of 22, petitioner entered this country through the port of New York. He was admitted as a nonimmigrant visitor for pleasure with a visa valid until May 22, 1961. On February 22, 1961, petitioner entered into a ceremonial marriage in Wooster, Ohio, with Ruth Moore, a United States citizen. On May 17, 1961, the Cleveland office of the Immigration and Naturalization Service approved Ruth's petition to accord Francesco nonquota status as a husband of a United States citizen.¹ Francesco's petition to adjust his status to that of a permanent resident pursuant to former Section 1255(a), Title 8, U.S.C. was approved on November 7, 1961.² Francesco was awarded a divorce from Ruth on June 1, 1962, by the Court of Common Pleas of Stark County, Ohio. He was personally served, on February 4, 1963, with notice that the Immigration and Naturalization Service intended to rescind his permanent resident status because his marriage to Ruth was entered into for the sole purpose of enabling Francesco to obtain permanent residence status and not with the intent to establish a valid and subsisting marriage.

Three hearings were held before a Special Inquiry Officer of the Immigration and Naturalization Service in which Francesco, assisted by legal counsel, contested the intended rescission of status. The evidence presented was contradictory and may be summarized as follows: Ruth is 16 years older than Francesco. At the time of the hearings, Ruth was admittedly the common-law wife of Charles C. Lowe. The testimony was that she began living with Charles Lowe about a month prior to her marriage to Francesco. John A. Bricker, a bartender at the E & Z Bar in Akron, Ohio, and Mike Ruffo, a beer salesman, approached Ruth and asked her if she would like to meet and marry a nice young man. She was told by them that the marriage was for convenience only and that shortly after it took place they could be divorced. They told her Francesco needed to be married in order to remain in this country. She stated that she was promised $500 but received only around $350. Bricker, the bartender, corroborated Ruth's testimony but stated that he thought she was to receive only $300.

Ruth met Francesco two weeks before the marriage and agreed to marry him. Ruth testified that Bricker and Ruffo intimated that a lawyer had agreed to take care of the divorce proceedings. Ruth claimed that she met Francesco only twice before they were married. Their first meeting was when she was introduced to him by Bricker and Ruffo, and the second time when they drove to one city where they could not be married because of some residence requirement. They were married on February 22, 1961, before a Municipal Judge in Wooster, Ohio. Ruth testified that Francesco's aunt and uncle told her that Francesco would have to live at her house "to make it look good." According to Ruth, Francesco slept on the couch while she slept in the bedroom with Charles Lowe. She denies ever having any sexual intercourse with Francesco. After two weeks, Francesco left of his own accord. Charles Lowe stated that he slept with Ruth during the two weeks that Francesco lived with them, that Francesco slept on the couch, and left voluntarily after about a week. Ruth stated that of the $350 she received, she spent $22.50 on a new watch, and $50 on a used car purchase by Charles Lowe. These expenditures were verified by letters from the dealers involved.

Francesco was the only witness to testify on his behalf. He testified that he met Ruth at a wrestling match in Akron, Ohio, in November or December, 1960. They dated several times after that and on their third date she agreed to marry him. Several days prior to the marriage they engaged in sexual intercourse in a Wooster, Ohio, park. After the marriage ceremony, a small reception was held at his uncle's house after which the uncle drove them to Ruth's home. They engaged in sexual intercourse that night. However, sometime that night Ruth told Francesco to sleep on the couch and he did so because he said she was drunk and he was afraid to disobey her. Thereafter Charles Lowe slept with Ruth while Francesco slept on the couch, although Francesco said he had intercourse with Ruth more than once after the marriage. Francesco testified that he and Ruth spent some time with his uncle after the marriage. He denied paying Ruth $350 or Bricker $100 and stated that he did not marry Ruth for the purpose of being able to remain in the United States, but that he married her to start a family life.

The Special Inquiry Officer found Francesco not to be a credible witness. "He had a motive in testifying as he did, namely, the desire to remain in the United States." He chose to believe the other witnesses whose stories were consistent and who had no motive to give false testimony. The Special Inquiry Officer found that the evidence in the case

"supports only one conclusion, namely, that the marriage was entered into with no intent to be a valid and subsisting one and that it was solely for the purpose of enabling the respondent (Francesco) to adjust his immigration status in the United States.

This marriage is deemed invalid for immigration purposes, and therefore the respondent (Francesco) was not entitled to nonquota status."

Consequently, he held that Francesco's adjustment of status to a permanent resident must be rescinded because Francesco was not entitled to nonquota status.

An appeal was taken to the Board of Immigration Appeals which was dismissed on June 26, 1964. The Board accepted the fact that Ruth and Charles Lowe were presently common-law husband and wife, but could not determine, and did not consider important, whether that relationship existed at the time of Ruth's ceremonial marriage to Francesco. The Board considered the issue presented to be one of fact and affirmed the findings of the Special Inquiry Officer. "The adjustment of status will be rescinded because the respondent was not entitled to the nonquota status based upon a marriage to a citizen which is considered invalid for immigration purposes."

On July 10, 1964, Francesco received notice from the Immigration and Naturalization Service that he was required to leave this country before July 31, 1964. Following his failure to leave the country voluntarily by the specified date, Francesco was notified that he was subject to deportation as a nonimmigrant who had remained longer than permitted.³ A hearing was held before a Special Inquiry Officer on October 22, 1964, to permit Francesco to show cause as to why he should not be deported. Francesco contested deportability on the ground that his adjustment of status was improperly rescinded and sought to present evidence to support this position. Francesco's position on this hearing and in all subsequent proceedings was that Ruth was the common-law wife of Charles Lowe at the time she entered into a ceremonial marriage with Francesco and that their marriage can be given no effect. Therefore he concludes that inasmuch as there was no marriage he could not be held to have entered into it solely to adjust his status to a permanent resident. The Special Inquiry Officer, on December 28, 1964, ruled that such a position was an attempt to relitigate the rescission proceedings and was barred by applicable regulations. The Special Inquiry Officer granted Francesco the alternative of voluntary departure in lieu of deportation but ordered "that if the respondent fails to depart when and as required, the privilege of voluntary departure shall be withdrawn without further notice or proceedings and the following order shall thereupon become immediately effective: the respondent shall be deported from the United States to Italy on the charge contained in the Order to Show Cause."

Francesco again appealed to the Board of Immigration Appeals. On May 19, 1965, the Board held that whether Francesco's marriage to a United States citizen was void ab initio because of an existing common-law marriage or whether it was not a bona fide marriage because entered into for the purpose of obtaining nonquota status would be of no...