Unpublished Disposition, 940 F.2d 1535 (9th Cir. 1982)

MEMORANDUM^* 

Adelmo Aldemita Lababit petitions for review of a Board of Immigration Appeals decision affirming an order of the Immigration Judge finding him deportable and denying his request for suspension of deportation. Lababit contends the BIA erred in determining that he procured his immigrant visa through fraud in violation of the Immigration and Nationality Act Sec. 212(a) (19), 8 U.S.C. § 1182(a) (19), and provided false testimony at his immigration hearing.

The critical issue is whether the record supports by clear and convincing evidence the Immigration Judge's determination that Lababit fraudulently misrepresented his marital status on his visa application. It is undisputed that Lababit and Grace Advincula participated in a wedding ceremony and signed a marriage contract on December 7, 1981 in the Philippines. On February 16, 1982, Lababit applied for a second preference immigrant visa, stating he was the unmarried son of a lawful permanent resident. He entered the United States in March of 1982. Lababit testified that he believed that he was unmarried when he entered the United States in March 1982 because the 1981 wedding ceremony was never intended to result in an actual marriage. In 1985, he returned to the Philippines, where he and Grace Advincula had a formal church ceremony of marriage. It was not until November of 1988 that the INS issued Lababit an order to show cause why he should not be deported for procuring a visa by fraud.

At his deportation hearing, Lababit stated that the marriage ceremony was a sham intended to save Advincula's family from embarrassment because of her pregnancy. He testified that the plan was the idea of Advincula's sister. Lababit's testimony was supported by his own affidavit, and the affidavits of Advincula and her sister stating that the marriage was intended as a sham to save the Advincula family from shame.

The Immigration Judge rejected the sham marriage claim as inherently incredible. Stressing that Lababit could read and write both English and Philippine dialect when he filled out the visa application, the Immigration Judge stated he was satisfied "beyond a doubt that the marriage document reflects a binding, legal contract by the respondent and Advincula."

The issue to be determined, however, was not whether under our law the marriage contract would be regarded as a binding one. Rather, the issue is whether the government proved by clear and convincing evidence that Lababit in 1982 deliberately and falsely stated that he was unmarried. To support the Immigration Judge's decision, the INS must have shown below by clear, unequivocal, and convincing evidence that Lababit procured his visa by fraud or willful misrepresentation of a material fact in violation of 8 U.S.C. § 1182(a) (19). Hernandez-Robledo v. INS, 777 F.2d 536, 539 (9th Cir. 1985) (citing Woodby v. INS, 385 U.S. 276, 286 (1966)). Section 1182(a) (19)'s requirement of fraud or willful misrepresentation of a material fact is satisfied by a finding that the misrepresentation was deliberate and voluntary. Hernandez-Robledo, 777 F.2d at 539; Espinoza-Espinoza v. INS, 554 F.2d 921, 925 (9th Cir. 1977). This, of course, may be shown by circumstantial evidence. Hernandez-Robledo, 777 F.2d at 539; Espinoza-Espinoza, 554 F.2d at 926.

We cannot say that the INS met its burden in this case. The weight of the evidence, both direct and circumstantial, supports Lababit's claim that he did not intend to marry in 1981 and did not consider himself to be married. Not only do the unrebutted affidavits of Lababit, Advincula and Advincula's sister support that position, but the subsequent formal marriage in 1985 also indicates that Lababit and Advincula viewed the first marriage ceremony as a sham. The Immigration Judge's conclusion that the second marriage was intended to conceal the first marriage is speculative at best.

The other factors on which the government and Immigration Judge relied appear largely irrelevant to the issue of whether or not Lababit believed he was married in 1982. These factors, which include Lababit's education, his ability to read English, the fact that he provided detailed information on the marriage license and that the license would be regarded as an enforceable contract in the United States, have little or nothing to do with his and Advincula's states of mind in 1981 and 1982. The government's reliance on Lababit's statement on the application that he had no children also appears misplaced. At the time the statement was made, the child had not yet been born, so the statement was undeniably true. In fact, virtually all of the evidence on which the Immigration Judge and the government relies is as consistent with Lababit's version of the facts as with the government's.

We must, of course, pay due deference to credibility determinations of the fact finder, but where an Immigration Judge rejects a witness' positive testimony because of a lack of credibility, the Immigration Judge should offer specific cogent reasons for the disbelief. Turcios v. INS, 821 F.2d 1396, 1399 (9th Cir. 1987) (quoting Damaize-Job v. INS, 787 F.2d 1332, 1338 (9th Cir. 1986)). In this case such reasons are lacking. Based upon the record in this case, Lababit's position is not inherently incredible.

The order of deportation is REVERSED.