A-2237374.
Decided by Board May 19, 1954. Approved by Attorney General September 13, 1954.
Inadmissibility under section 212 (a) (19) of the Immigration and Nationality Act — Retrospective and prospective application.
The first part of section 212 (a) (19) of the Immigration and Nationality Act which relates to procuring a visa or other documentation by fraud or by willful misrepresentation of a material fact is retrospective as well as prospective in application. However, the second part, which relates to seeking to enter the United States by fraud or by willfully misrepresenting a material fact is prospective in application only. Hence, prior fraud or misrepresentation in seeking to enter the United States, which falls within the second part of section 212 (a) (19), does not result in a finding of inadmissibility.
DEPORTARLE:
Act of 1917 — Entered at other than a designated port.
Act of 1924 — No immigration visa.
Act of 1918 — No passport.
Act of 1929 — Arrested and deported — Reentered within one year.
Act of 1917 — Afflicted with tuberculosis at time of entry.
BEFORE THE BOARD
(May 19, 1954)
Discussion: The record relates to a native and citizen of Mexico who last entered the United States near Brownsville, Tex., on June 9, 1941. He has been found deportable on the grounds stated above and on March 8, 1949, an order was entered by the Assistant Commissioner granting the respondent the privilege of voluntary departure and the advance exercise of the discretion contained in the 7th proviso to section 3 of the Immigration Act of 1917 to cover his inadmissibility as one who is or may be afflicted with tuberculosis, and, in addition, permission to reapply after arrest and deportation was granted. On October 22, 1952, this Board approved the order of the Assistant Commissioner dated May 6, 1952, authorizing preexamination in addition to the voluntary departure privilege and the advance exercise of the discretion contained in the 7th proviso to section 3 of the Immigration Act of 1917 to cover affliction with tuberculosis. Under date of January 20, 1954, the district director informed the respondent that since he failed to effect departure under the outstanding order of voluntary departure, the last extension of temporary stay having expired on January 1, 1954, it was proposed to recommend a warrant be issued directing deportation to Mexico, and appeal has been taken from this proposal.
In connection with the appeal, attorney for the respondent has enclosed a copy of a letter dated December 14, 1953, from the American Consul at Windsor, Ontario, Canada. This letter referred to the fact that the respondent had entered the United States on August 18, 1934, on a border-crossing card belonging to a friend, and that after an examination of the facts in the case, it was determined that he made a willful misrepresentation of material fact in connection with his entry into the United States at Laredo, Tex., on August 18, 1934. The consul, therefore, advised that respondent is ineligible to receive an immigrant visa and should he appear personally at the consulate to execute a formal application for an immigrant visa, the examining officer would have no alternative other than to deny him an immigrant visa under section 212 (a) (19) of the Immigration and Nationality Act. Counsel for the respondent requests that the respondent be granted a further extension of time in which to depart voluntarily and that the 7th proviso already granted him be extended to cover the charge of inadmissibility set forth by the American consul. However, inasmuch as this is a new ground of inadmissibility set up by the Immigration and Nationality Act, the 7th proviso to section 3 of the Immigration Act of 1917 cannot be used to waive this ground of inadmissibility.
There remains for consideration, in connection with this appeal, determination of whether the ground of inadmissibility found by the American consul is a valid one. Section 212 (a) (19) of the Immigration and Nationality Act provides that the following class of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States:
Any alien who seeks to procure, or has sought to procure, or has procured a visa or other documentation, or seeks to enter the United States, by fraud, or by willfully misrepresenting a material fact.
An examination of this provision readily discloses that it is composed of two parts, which may be divided as follows:
(a) Any alien who seeks to procure, or has sought to procure, or has procured a visa or other documentation, by fraud, or by willfully misrepresenting a material fact;
(b) Any alien who seeks to enter the United States by fraud, or by willfully misrepresenting a material fact.
It is to be noted that the first part referring to procuring a visa or other documentation by fraud or by willfully misrepresenting a material fact contains words in the past tense as well as words in the present tense. This part is retrospective as well as prospective in application. However, the second part referring to seeking to enter the United States by fraud or by willfully misrepresenting a material fact does not contain any words in the past tense. The omission of words in the past tense as to the second part leads to the conclusion that it was intended that the clause referring to entering the United States by fraud or by willful misrepresentation of a material fact should be only prospective in application and should not cover acts of that nature which occurred prior to the passage of the Immigration and Nationality Act.
In the instant case the respondent testified that he effected an entry into the United States on August 18, 1934, by presenting a border-crossing card that was not issued to him but to another man. This conduct did not constitute a ground of inadmissibility under the former immigration statute, inasmuch as there was no showing that he had procured this border-crossing card by fraud or by misrepresentation. We conclude that the respondent is not subject to an additional ground of inadmissibility under the Immigration and Nationality Act of 1952 because of the events which occurred on August 18, 1934. A comparison with section 212 (a) (28) and (31) of the Immigration and Nationality Act appears to confirm this interpretation since both of those subsections specifically refer to aliens who are, or at any time have been members, or who, at any time shall have performed acts included within the proscribed conduct set forth therein. It is, therefore, considered that the previous grant of the discretion contained in the 7th proviso to section 3 of the Immigration Act of 1917 covers any ground of inadmissibility which may be lodged against the respondent insofar as any facts developed in this record are concerned.
We shall direct that the alien be granted an additional period of time within which to comply with the order of the Assistant Commissioner dated May 6, 1952. However, inasmuch as there appears to be a conflict of construction as indicated by the holding of the Department of State and by its regulations, 22 C.F.R. 42.42 (i), which provides that an alien shall be found to be ineligible to receive an immigrant visa under the provisions of section 212 (a) (19) of the act if the consular officer, after reviewing the evidence, knows of or has reason to believe that such alien committed an act, regardless of the time of commission, which would constitute fraud or willful misrepresentation of a material fact for the purpose of gaining admission into the United States, the Immigration and Naturalization Service has requested that the case be forwarded to the Attorney General for review.
Order: It is ordered that the alien be granted an additional period of 6 months from date of notification of the decision within which to comply with the order of the Assistant Commissioner dated May 6, 1952.
In accordance with the provisions of section 6.1 (h) of Title 8, Code of Federal Regulations, the case is certified to the Attorney General for review of the Board's decision.
(September 13, 1954)
The determination of the Board of Immigration Appeals dated May 19, 1954, is affirmed.