A-6223094
Decided by Board April 16, 1957
Section 241 (a) (1) — Failure to disclose membership in foreign Communist Party — Alien deportable on charge that visa obtained under 1924 act was invalid, despite dismissal of charge under 1918 act on evidentiary grounds.
Willful failure to disclose membership in foreign Communist Party invalidates visa obtained under 1924 act and renders alien deportable under section 241 (a) (1) of the 1952 act, notwithstanding that charge based on section 241 (a) (1) and the 1918 act is dismissed on evidentiary grounds. The two charges are independent of each other and it is immaterial whether they spring from the same factual basis. (See note at end of decision.)
DEPORTABLE:
Act of 1952 — Section 241 (a) (1) [ 8 U.S.C. 1251 (a) (1), 1952 ed.] — Excludable at entry as an alien who procured a visa by fraud or misrepresentation, contrary to sections 13 and 14 of the Immigration Act of 1924 [8 U.S.C. 213, 214, 1940 ed.].
BEFORE THE BOARD
Discussion: This case is before us on motion of counsel for reconsideration of the Board's order of December 18, 1956, holding the alien deportable on the above-stated charge. Respondent, a 43-year-old native and citizen of Italy, last entered the United States for permanent residence at New York on March 29, 1948, upon presentation of a preference quota immigration visa issued to him by the American Consulate at Genoa, Italy, on February 18, 1948, as the husband of a United States citizen.
A warrant of arrest in deportation was issued on May 20, 1954. Respondent was initially held deportable on March 14, 1955, as an alien excludable at entry [section 241 (a) (1); 8 U.S.C. 1251 (a) (1)] as a past member of the Communist Party of Italy [Act of October 16, 1918, as amended; 8 U.S.C. 137]. However, this charge was overruled by the Board on December 18, 1956, for in the case of an alien entering before 1950, the proscribed character of the Communist Party of Italy must necessarily be established by appropriate evidence and the Government failed to discharge this statutory burden of proof. On the same occasion, the Board sustained the deportation charge that respondent was excludable at entry [section 241 (a) (1); 8 U.S.C. 1251 (a) (1)] for procuring a visa by fraud or misrepresentation [sections 13 and 14 of the Immigration Act of 1924; 8 U.S.C. 113, 114].
Respondent's preference quota immigration visa (as the husband of a United States citizen) was issued at the American Consulate, Genoa, Italy, on February 18, 1948. Respondent was admittedly a member of the Communist Party of Italy from June 1945 to March 1946, or later, while he was Mayor of Pietrasanta, Italy, but respondent failed to mention this fact when he applied for his visa. The Board held on December 18, 1956, that this material information was purposely concealed and, therefore, respondent's actions constituted obtaining a visa by fraud or misrepresentation, citing Matter of S---- C----, E-086114, Int. Dec. No. 763 (Atty. Gen., 1956), and Matter of G---- M----, A-8948706, Int. Dec. No. 762 (Atty. Gen., 1956).
In the Matter of S---- C----, supra, it was stated that:
The law is settled that a misrepresentation of fact, whether willful or innocent, made in applying for a visa, will not invalidate the visa, if the alien would have been eligible to secure the visa had the true facts been known * * *. This rule has been recognized and accepted as the law by administrative authorities whether this Board, the Commissioner, or hearing officers * * *. It is also followed by the Department of State.
There is a departure from this rule in an identity case, that is, a case where an alien secured a visa by posing as another. In such a case, the visa is declared invalid even though the alien could have obtained a visa had he given his true name. The reasons usually given for the exception is that a misrepresentation as to identity cuts off all inquiry and makes it difficult to keep adequate check on the alien after arrival * * *.
* * * the rule is that a misrepresentation which cuts off all inquiry will invalidate a visa, even though the alien could have secured a visa had he given his true identity, but that a misrepresentation which cuts off some inquiry, will not invalidate the visa unless it concealed a ground of inadmissibility to the United States.
In the Matter of G---- M----, supra, an alien sought a nonresident alien's border-crossing card, but concealed his prior United States residence of 23 years and falsely represented his purpose in coming to this country. In that case, the Attorney General determined that, since the alien would have been entitled to the border-crossing privilege even if he had made a truthful application, the false statement was not material and that the ground of exclusion under section 212 (a) (19) was not sustained.
Respondent's concealment in the instant situation made a prima facie case for refusal by the American consul to issue a visa to him in 1948 without further investigation. The fact that the ground of deportation under the Act of October 16, 1918, was overruled on the basis of evidentiary defects does not firmly establish that respondent was not in fact excludable in 1948, nor that he was actually eligible to obtain a visa at that time. Hence, counsel's argument of nonmateriality and nonexcludability (based on Matter of S---- C----, supra, and Matter of G---- M----, supra) must fail ( Matter of F---- M----, A-8664171, Int. Dec. No. 854 (B.I.A., Mar. 1, 1957)). Cf. United States v. Flores-Rodriguez, 237 F. (2d) 405 (C.A. 2, 1956) [ Matter of F---- R----, A-8401009, 6 IN Dec. 813, B.I.A., 1955].
In Matter of F---- M----, supra, an alien who had entered into a recent bigamous marriage, listed the second woman as his wife in applying for a visa and failed to mention his first marriage and 6 children. The Board stated:
"An alien has the burden of establishing eligibility for the issuance of a visa. Where the true facts would have required a consul to rule that an applicant for a visa had not borne the burden of establishing eligibility, we must hold that concealment of the true facts resulted in the procurement of a visa which was not valid. In the case before us, had the truth been revealed by the respondent, it appears that he would have made either a valid admission of the commission of bigamy or he would have admitted the essential elements of the commission of bigamy. In either event, a serious question would have been raised as to his eligibility for the issuance of a visa. The question raised would have required the refusal of the issuance of the visa which respondent received on April 29, 1954. We, therefore, rule that the visa respondent received was not a valid one ( Matter of G----, A-8247543, 4, I. N. Dec. 735; Matter of R---- J----, A-8609551, Int. Dec. No. 782; Matter of B----, A-8315659, Int. Dec. No. 844, January 25, 1957). The charge that respondent was not in possession of a valid visa is sustained.
"We agree with the special inquiry officer that the record failed to establish that the respondent made the misrepresentation willfully and purposefully to obtain a benefit under the immigration and nationality laws. It, therefore, cannot be held that the charge based on section 212 (a) (19) of the Immigration and Nationality Act is sustained. * * *"
Furthermore, apropos of this point, the court stated in Landon v. Clarke, 239 F. (2d) 631 (C.A. 1, 1956), in holding that the alien's false representation that she was single and her use of her maiden name were material and constituted willful misrepresentation of material facts:
The district court's [contrary] view, necessitating, as it does, proof of whether an alien would have been excludable if he had told the truth, or if the proper investigation had been held, in order to decide the materiality of a misrepresentation, would force the courts into the realm of conjecture and speculation, in trying to make a decision only the proper authorities could have capably made.
Morover, in Ablett v. Brownell, 240 F. (2d) 625 (C.A.D.C., 1956), an alien's concealment of a criminal conviction in applying for a visa was held to be sufficient basis for deportation under sections 13 and 14 of the Immigration Act of 1924, for the court stated:
* * * The rule is now well settled that a visa obtained by misrepresentation of a material fact, that is, a fact which under the law is relevant to the alien's admission, is not a valid visa and hence is no visa. * * * (The alien's) concealment of the brothel conviction resulted in the acquisition of a visa on July 17, 1951, which he could not have acquired at that time, or perhaps ever, if the truth had been told. The fact that he perhaps might have obtained a visa at some later date is irrelevant here * * *.
Counsel urges that since the 1918 act charge was dismissed on evidentiary grounds, the remaining charge should also fail, for it is grounded on the same facts and proof as the 1918 act charge. While a specific proof requirement exists in relation to certain charges arising under the Act of October 16, 1918, no similar evidence requirement is applicable to a visa fraud charge arising under the Immigration Act of 1924. These deportation charges are totally independent of each other in their application and, hence, it is immaterial whether they spring from the same factual basis.
For all of these reasons, we are impelled to affirm our prior view and deny the motion.
Order: It is hereby ordered that the motion be denied.