MATTER OF ATHANASOPOULOS In Section 246 Proceedings A-13864002 Decided by Board December 30, 1971 (1) Communications between respondent and his attorney for the purpose of perpetrating a fraud against the immigration laws are not privileged communications. (2) A delay of approximately 31⁄2 years between the time of the Government's first knowledge of respondent's fraudulent marriage and the initiation of rescission proceedings does not constitute a denial of due process of law since rescission proceedings are civil in nature and pursuant to section 246(a) of the Immigration and Nationality Act may be instituted at any time within 5 years after adjustment of status of a person under section 245 of the Act. (3) Refusal of the special inquiry officer to subpoena certain witnesses and to provide for the taking of depositions in Greece was not a denial of due process where the record clearly reveals that the whereabouts of the witnesses in Greece was unknown and the testimony of the other witnesses to be subpoenaed would be cumulative of competent testimony in the record on the issue in question. (4) Where the Government has produced evidence of a clear case of fraud and of ineligibility for adjustment of status, and the respondent has refused to testify on matters within his personal knowledge and has failed to rebut the evidence of the Government, rescission of adjustment of status is proper. ON BEHALF OF RESPONDENT: Elmer Fried, Esquire 515 Madison Avenue New York, New York 10022 (Brief filed) ON BEHALF OF SERVICE: The respondent, a native and citizen of Greece, appeals from an order entered by the special inquiry officer on August 26, 1969 pursuant to the provisions of section 246 of the Immigration and Nationality Act, 8 U.S.C. 1256. The order rescinds an adjustment of his status to that of a permanent resident alien under section 245 of the Act, 8 U.S.C. 1255. Exceptions have been taken to the finding that the respondent was not in fact eligible for the adjustment of status accorded him. The respondent originally entered the United States as a nonimmigrant professional soccer player (H-2) through the port of New York on August 9, 1963. He married Marta Pinela, a citizen of the United States, in Jamaica, Queens County, New York on May 12, 1964. A petition to accord the respondent immediate relative status was executed by his citizen wife on May 13, 1964 and approved by the Service on July 2, 1964. The respondent's nonimmigrant status was adjusted to that of a permanent resident alien on August 27, 1964, based upon the approved visa petition. The respondent's marriage to Marta Pinela was terminated by a divorce granted in Mexico on June 22, 1968. The Notice of Intention to Rescind, served upon the respondent on June 10, 1969, charges that he was not entitled to immediate relative status as the spouse of a United States citizen and was chargeable to the nonpreference portion of the Greek quota which was not then available because his marriage to Marta Pinela "was a sham marriage entered into solely for the purpose of permitting [him] to adjust [his] status to that of a lawful permanent resident of the United States" (Ex. 1). The respondent, on advice of counsel, declined to testify during the hearing beyond stating his name. Counsel acknowledged that the respondent is an alien and that his status was adjusted to that of a permanent resident as alleged in the Notice of Intention to Rescind. The Government's case is built primarily upon the testimony of the respondent's former wife, Marta Pinela, and one Angel Luis Collazo, who admitted that he arranged the wedding between the respondent and Marta Pinela (p. 71). Supporting documentary evidence entered in the record consists of a record of the respondent's marriage to Marta Pinela on May 12, 1964, the visa petition (Form I-130) executed by the respondent's former wife and received by the Service on May 21, 1964, the memorandum of the creation of a record of lawful permanent residence (Form I-181) dated August 27, 1964, and the application for adjustment of status (Form I-485) executed by the respondent on June 5, 1964 (Exs. 2, 3, 4 and 5). The testimony of the respondent's former wife is fully set forth in the opinion of the special inquiry officer and is incorporated herein by reference. A summary of her testimony is as follows: Her marriage to the respondent was arranged solely for immigration purposes by one Angelo Collazo, who informed her that she would receive $500 as a participant and that there would be no marital obligation on her part to live with the respondent. She further testified that she never lived with the respondent as man and wife. She admitted that the respondent asked her to live with him "two or three times" but she refused because "that wasn't the plan that was offered to me. That isn't what I accepted. Those were not the conditions" (p. 44). The respondent's wife was questioned as to whether the respondent "ever tried to have sexual relations with [her]." She replied, "He never got fresh with me." She was then questioned as to whether she considered "it getting fresh" if her husband wanted to have sexual relations with her. She replied, "I didn't consider him my husband, otherwise I would have had sexual relations with him" (p. 44). The witness, Angel Luis Collazo, identified the respondent's former wife as the person for whom he arranged a marriage in 1964 (p. 71). This witness testified that he arranged for the respondent and his former wife to meet at a restaurant "in downtown Manhattan"; that at this meeting in the presence of the respondent, the conversation included a discussion of a monetary consideration for the marriage and an agreement that there would be no cohabitation (p. 74). He further testified that he was present at the marriage ceremony; that immediately following the marriage, they went to the lawyer's office where papers were signed; that thereafter the respondent's wife was paid $500 and "she gave me $100 back" (pp. 76–78). The respondent, on advice of counsel at the beginning of the hearing, refused to testify on the ground that he was not required to establish the Government's case (pp. 16 and 17). At the close of the hearing after the Government had rested its case, he also claimed the privilege against self-incrimination under the Fifth Amendment (pp. 188, 189). The special inquiry officer states at page 7 in her opinion "... the logical conclusion to be drawn from the respondent's silence based on the contention that to testify might incriminate him is that the testimony, if given, would be adverse to his interest," citing Matter of 0-, 6 I. & N. Dec. 246 (BIA, 1954). It is the contention of counsel that the special inquiry officer erred in drawing an adverse inference from the respondent's refusal to testify based on the Fifth Amendment. He claims that the privilege was fairly asserted because the questions of the trial attorney implied that the respondent was suspected of at least a violation of 18 U.S.C. 371, which defines a conspiracy to commit any offense or to defraud the United States, or any agency thereof in any manner or for any reason. Counsel cites several cases decided by the Supreme Court in support of his position. We agree with counsel that the drawing of adverse inferences from a claim of Fifth Amendment privilege has been circumscribed by recent decisions of the Supreme Court, supra, footnote 1. We need not reach the issue of whether, on the peculiar facts of this case, the special inquiry officer erred in drawing an adverse inference from the respondent's refusal to testify. Here we have direct and uncontroverted evidence that the respondent's marriage to a citizen of the United States was a sham. The respondent's former wife testified that she never lived with the respondent in a marital relationship and that her marriage was arranged for immigration purposes. The testimony of the arranger, Collazo, is to the same effect. Their testimony is credible and remains unrebutted by the respondent. We conclude, without relying on the respondent's failure to testify, that the essential facts of a sham marriage are clearly, convincingly and unequivocally established quite apart from any inference drawn by the special inquiry officer. Cf. Vlisidis v. Holland, 245 F.2d 812, 814 (3 Cir., 1957). Since we reach this conclusion separate and apart from any adverse inference drawn by the special inquiry officer, we need not deal with counsel's objections. Counsel challenges the special inquiry officer's ruling that the information furnished to the Immigration Service by the respondent's former attorney was not a violation of the attorneyclient privilege and that the evidence derived from that information is therefore admissible in evidence. The special inquiry officer stated in her opinion that the attorney-client privilege does not extend to communications between an attorney and client where the client's purpose is the furtherance of a future intended crime or fraud. The facts concerning this phase of the case have been fully discussed in the opinion of the special inquiry officer and the brief submitted by counsel. Briefly, they establish that one Peter K. Timon, whose signature appears as a notary public on the petition (Form I-130, Ex. 3) submitted by the respondent's former wife, appeared voluntarily in the office of the Immigration Service at New York on January 4, 1966 and on this occasion surrendered voluntarily a list of his immigration clients. Mr. Timon 1 Griffin v. California, 380 U.S. 609, 14 L. Ed. 2d 106 (1965); Spevack v. Klein, 385 U.S. 511, 17 L. Ed. 574 (1967); Gastelum-Quinones v. Kennedy, 374 U.S. 469, 10 L. Ed. 2d 1013 (1963). again appeared voluntarily in the Immigration office on July 13, 1966, and surrendered voluntarily some 16 powers of attorney including a power of attorney executed by the respondent's former wife (pp. 124, 163, 172 and Exs. 2 and 3 for identification). There is evidence of record that the powers of attorney were executed by the respective petitioning wives for the purpose of eliminating the necessity of contacting the "immigration wife" when the time arrived for obtaining an uncontested Mexican divorce (p. 140). There is a statement on Exhibit 4 for identification that most of the cases were known to the Government prior to the submission of the list by Attorney Timon. We have carefully considered counsel's contention that the evidence upon which this proceeding is based is tainted and may not be used because it is a violation of the attorney-client privilege and the Fourth Amendment prohibition against illegal search and seizure. There is evidence of record that Attorney Timon was in possession of a power of attorney which was signed by the respondent's former wife in his office at the time she signed the visa petition submitted by him in the respondent's case. When this evidence is considered with the testimony of the two immigration officers who were concerned with the investigation that preceded the institution of rescission proceedings against the respondent, we are convinced that Attorney Timon knew or should have known that his services in behalf of the respondent were for the purpose of perpetrating a fraud against the immigration laws. The Supreme Court has said that, "A client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law," Clark v. United States, 289 U.S. 1, 15, 77 L. Ed. 993, 1000 (1933). The test for the loss of the attorney-client privilege was stated by the Court in Clark, supra, 289 U.S. 15, 77 L. Ed. 1000, as follows: To drive the privilege away there must be "something to give color to the charge," there must be "prima facie evidence that has some foundation in fact".... When that evidence is supplied, the seal of secrecy is broken. We are satisfied that the evidence on this issue meets the aforestated test. We find no error in the special inquiry officer's ruling that the communications between the respondent and his attorney are not protected by the attorney-client privilege under the circumstances presented by this case. Counsel asserts that the respondent was prejudiced and denied due process of law because of the unreasonable delay between the Government's first knowledge of the alleged fraudulent marriage |