1611-10688, -10689, and -10690.
Decided by Board May 11, 1955.
Passport — Validity — Sections 101 (a) (30) and 211 (e) of Immigration and Nationality Act — Procurement of visa by fraud, concealment of police record — Section 212 (a) (19) of Immigration and Nationality Act.
(1) A passport issued by the Mexican Consulate General at Los Angeles, California, to an alien who had been in the United States for less than three years, which correctly sets forth his origin, identity, and nationality, will be regarded as valid under section 101 (a) (30) and 211 (e) of the Immigration and Nationality Act notwithstanding an instruction from the Government of Mexico to its consuls that applicants who have been in the United States for less than three years should obtain passports from the Government of Mexico in Mexico City.
(2) Exclusion ground "procured visa by fraud or willful misrepresentation of material facts" under section 212 (a) (19) of the Immigration and Nationality Act is established by testimony of alien that he had obtained an immigrant visa on the basis of (A) a fraudulently obtained police certificate from Mexico City falsely stating that he had not been arrested, (B) an application for visa which concealed the facts relating to four arrests and two convictions, and (C) the payment of 5,000 pesos to have his criminal record suppressed, thereby making it impossible to determine the nature or elements of the crimes committed or to identify the statutes violated.
EXCLUDED:
Section 212 (a) (15) — Act of 1952 — Likely to become public charges (female and minor aliens).
Section 212 (a) (19) — Act of 1952 — Procured visa by fraud or willfully misrepresenting material facts (adult male alien).
Section 212 (a) (20) — Act of 1952 — No valid passports (all aliens).
BEFORE THE BOARD
Discussion: These appeals are from a decision of a special inquiry officer on January 5, 1955, excluding the subjects on the grounds designated above. The adult male alien has submitted a memorandum-letter giving alleged explanations for misrepresentations and concealments of data in obtaining the immigrant visa he has presented. Otherwise, the appeals are submitted on the record.
The special inquiry officer has succinctly set forth the evidence. Such evidence consists of the testimony of the appellants, one witness, and documentary data. Briefly, the appellants are husband, wife, and minor son, ages 32, 30 and 13 years, respectively, natives and citizens of Mexico. On October 1, 1954, they applied to enter at San Ysidro, California, to reside permanently. They presented Mexican passports issued by the Consulate General of Mexico at Los Angeles, California, on July 9, 1954, valid to July 8, 1956; also nonquota immigrant visas issued by the American Consulate at Tijuana, Mexico, on September 30, 1954, to expire January 29, 1955.
One ground of exclusion is assigned under section 212 (a) (20) of the Immigration and Nationality Act and relates to each and all of the appellants, namely, that the passports presented are invalid because Mexican nationals must have resided in the United States for a period of at least three years in order to obtain a Mexican passport in the United States; and the facts establish that these appellants have had less than three years' residence in this country. It is indicated that Mexican nationals not having a period of three years' residence in the United States (according to circular No. 4-8-12 of March 14, 1953, to Mexican consuls) should obtain Mexican passports from Mexico City, Mexico. The term "passport" as used in the Immigration and Nationality Act is defined in section 101 (a) (30), as follows:
The term "passport" means any travel document issued by competent authority showing the bearer's origin, identity, and nationality if any, which is valid for the entry of the bearer into a foreign country.
This record shows that these appellants departed from the United States to Mexico in August 1954 to apply for immigrant visas and at that time were in possession of Mexican passports, the documents they have presented. We do not have the passport applications submitted to the Consul General of Mexico in Los Angeles, California. The appellants must have established to the satisfaction of that official that they were persons of Mexican origin and nationality and were the individuals they claimed to be, and that they were eligible and qualified to receive the documents. No evidence has been offered to refute the pertinent data on the passports, namely, the origin, nationality and identity of the appellants. These are factors pertinent to us. The passports are unexpired. It is immaterial for our purposes whether the documents were issued in Mexico City, or by proper authority in some other locality. The controlling factors are that the Mexican passports which the appellants have presented are satisfactory travel documents in that they show the correct origin, nationality and identity of the bearers and were issued by competent authority. They, therefore, satisfy the requirements of section 211 (e) of the Immigration and Nationality Act and fulfill the description of the term "passport" as set forth in section 101 (a) (30) of such act. Consequently, we conclude that the ground of exclusion assigned under section 212 (a) (20) of the Immigration and Nationality Act, based on a finding that the appellants are not in possession of valid passports, is not sustained.
Section 211 (e) of the Immigration and Nationality Act reads:
Every alien making application for admission as an immigrant shall present a valid unexpired passport, or other suitable travel document, or document of identity and nationality, if such document is required under the regulations issued by the Attorney General.
The female and the minor male appellants have been excluded as persons likely to become public charges within the provisions of section 212 (a) (15) of the Immigration and Nationality Act. This finding is based on the fact that the husband/father of the appellants has been found inadmissible; and the spouse and minor child would be without financial support. The female appellant is age 30 years and is apparently in good physical condition. She has had gainful employment. The minor appellant is age 13 years and is apparently in good physical and mental condition. As immigrants seeking to enter this country to reside permanently, the female appellant would be able to obtain employment and thus earn a livelihood for herself and her son. In view of all the evidence in the record it will be concluded that the female and the minor appellants are not persons likely to become public charges and, consequently, are not inadmissible under the provisions of section 212 (a) (15) of the Immigration and Nationality Act. Their appeals will be sustained.
The other ground of exclusion is assigned under section 212 (a) (19) of the Immigration and Nationality Act and relates solely to the adult male alien. This particular provision of law is composed of two parts and provides that the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States:
(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 ( Matter of M----, A-2237374, Int. Dec. No. 593, A.G., September 13, 1954).
The adult male appellant, if excludable on the factual situation revealed by the evidence, would come within the first part of section 212 (a) (19) of the Immigration and Nationality Act (quoted above) as one who has procured a visa by fraud or willfully misrepresenting a material fact. Briefly, the facts show that when he executed an application for an immigrant visa on September 30, 1954, at Tijuana, Mexico, he concealed the fact that he had been arrested and convicted for crime in Mexico City, Mexico. Moreover, he presented a police certificate from Mexico City in which no arrests were noted. Such certificate had been fraudulently obtained by him for the specific purpose of obtaining a visa. He admits he paid a monetary consideration (5000 pesos) through his mother in Mexico City, and an attorney, to have his true criminal record suppressed. The criminal conviction record was discovered only after his fingerprints were forwarded to the Embassy in Mexico City for check, which was after his immigrant visa was issued. He admits that when he was arrested in 1950 in Mexico City he gave the name E---- V---- instead of his true name.
There is some evidence that he falsely alleged that he was purchasing a home in the United States when he sought to obtain his visa. We do not feel that the matter is material. He has denied that the allegations were false. The discussion will be confined to the concealment or suppression of criminal record.
The adult male alien, according to fingerprint check, was arrested in Mexico City, Mexico, on four occasions. He has been convicted on at least two occasions. One conviction occurred on August 21, 1950. This conviction involved the offenses listed under the name E---- V---- and consisted of inflicting injuries (lesiones) on an authorized agent (police officer). The subject was sentenced to a term of eight months imprisonment, sentence suspended upon payment for bond in the sum of 100 pesos. One conviction was for robbery when he was age 15 years. We do not have the court records of indictments, convictions, and judgments. We cannot, therefore, determine the nature or elements of the crimes committed; and we cannot positively identify the statutes violated. Since the subject admits that the records have been suppressed or "fixed" we do not know that such records are available.
Chapter 1, Title 6, Article 180, Code of Federal District of Mexico, relates to inflicting wounds, lesiones, and other injuries and resisting arrests. Article 289 of such title provides that should the injury require 15 days or less to heal the penalty shall be three days to four months imprisonment; and if more than 15 days are required the penalty shall be four months to two years imprisonment. Codes and principal laws of the several States of Mexico are practically verbatim copies of those enacted by the General Government for the Federal District and Territories, which are under exclusive Federal jurisdiction. (Compendium of the Laws of Mexico Prefatory — Page XIII) Lesiones, a crime, as defined in the Penal Code of the State of Sonoro, Mexico, may or may not involve moral turpitude depending on the elements of the crime in the record of conviction ( Matter of L----, 56156/336, 2 IN Dec. 54).
The adult male alien admits that he "knifed" an individual after an argument and fight in Mexico City, and "hit him in the forehead." He asserts that he did not serve any time in prison because he was injured and required hospitalization. Certain letters or correspondence between the subject's counsel and mother, also between his counsel in Mexico City and counsel in the United States, have been translated in the record, which corroborate the statements and admissions the subject has made relative to his acts to suppress his criminal record. He has stated that he had the record "fixed."
The issue to be resolved is whether the acts of fraud or misrepresentations committed by the subject, which he admits were intentional and to secure an immigrant visa, support a ground of inadmissibility.
The term "fraud" as used in the Immigration and Nationality Act is not defined in section 101 of such act. The term has many definitions. In common usage it means deception, trickery, artifice, or acts to deceive, cheat or mislead. An applicant for an immigrant visa has the burden of proof to establish eligibility to receive the document. Certified copies of police and prison records are supporting documents required by applicable regulations (22 C.F.R. 42.35). Evidentiary data contained in police and prison certificates is, therefore, material in determining eligibility of an applicant to receive an immigrant visa, and in ascertaining whether there are existing any grounds of inadmissibility under the immigration laws ( Matter of P----, 3 IN Dec. 20).
The term "fraud" has many definitions. It is defined as an act, or course of deception deliberately practiced with a view to gaining a wrong or unfair advantage; deceit; trick; an artifice by which the right or interest of another is injured — Century Dictionary — Misrepresentation of facts is fraud. Anything calculated to deceive, whether it is a single act or a combination of circumstances, or acts or words which amount to a suppression of the truth or mere silence. Vol. 23 Am. Juris. 753. Acts perpetrated to deceive or mislead others are acts of fraud. Misrepresenting or concealing material facts, by words or actions constitutes fraud. Tyler v. Savage, 143 U.S. 79, 36 L. Ed. 82.
Essentially the acts and manipulations of the adult male alien, which resulted in suppressing a record of his convictions for crime in Mexico City, Mexico, and also resulted in the issuance of a police certificate which showed no arrests or convictions, were certainly acts intentionally committed for the purpose of deceiving and misleading the visa issuing official. Although the assumed name under which he was convicted on one occasion has been revealed through investigation and fingerprint study, the fact that the criminal and prison records were "fixed" has delayed or made it impracticable to obtain an accurate court record of his convictions. Consequently, we cannot ascertain from the evidentiary data in the record whether there has been a conviction for a turpitudinous offense; or if so, whether the crime was a "petty offense." It is emphasized that the subject took positive action to obtain a police clearance by expending money and having the court criminal records suppressed. His acts demonstrate dishonesty. Such acts cut off inquiry and, in some instances, were misleading as to identity because of use of an assumed name. We find, therefore, that the adult male alien has procured his immigrant visa by acts of fraud and willful misrepresentation, intentionally and purposely designed to cut off inquiry concerning his identity and eligibility to receive an immigrant visa. The fraudulent acts and willful misrepresentations were material. The subject is inadmissible solely under section 212 (a) (19) of the Immigration and Nationality Act. His appeal will be dismissed.
A criminal record concealed or suppressed by an alien seeking an immigration document is immaterial where the convictions did not include crimes involving moral turpitude ( United States ex rel. Iorio v. Day, 34 F. (2d) 920). On the other hand, if the record concealed or misrepresented contained convictions for crimes involving moral turpitude, the matter was material because it was pertinent in determining the admissibility of the applicant ( United States ex rel. Teper v. Miller, 87 F. Supp. 285). Conviction for a crime that is a misdemeanor, classifiable as a "petty offense" does not require denial of an application for an immigrant visa ( Matter of C----, E-092142, Int. Dec. No. 635) by reason of section 4 of Public Law 770, enacted September 3, 1954.
Order: It is ordered that the appeals relating to the female alien and the minor male alien be sustained.
It is further ordered that the appeal of the adult male alien be dismissed.