A-6995468.
Decided by Special Inquiry Officer March 22, 1954. Approved by Board June 11, 1954.
Misrepresentation — Not material where mother of child born out of wedlock stated in application for visa that she had no children.
The statement of a native of Jamaica in her application for a visa that she had no children whereas, in fact, she was the mother of a child born out of wedlock is not misrepresentation of a material fact so as to invalidate her immigration visa, since disclosure of her parenthood would not in and of itself have barred the respondent from a visa under all the circumstances in the case.
CHARGES:
Warrant: Section 241 (a) (1) — Immigration and Nationality Act — Immigration visa procured by fraud or misrepresentation.
Lodged: Section 241 (a) (1) — Immigration and Nationality Act — Immigrant — No immigrant visa.
BEFORE THE SPECIAL INQUIRY OFFICER
(March 22, 1954)
Discussion: This record relates to a 41-year-old female respondent, a native of Jamaica and subject of Great Britain. She last entered the United States at the port of Miami, Fla., on March 18, 1950, in possession of a reentry permit. Her first entry occurred at Miami, Fla., on October 12, 1948, when she was admitted as a nonpreference quota immigrant in possession of a nonpreference quota immigration visa issued to her on September 22, 1948, at Kingston, Jamaica, by Grant K. Smith, Vice Consul of the United States of America. It was charged in the warrant of arrest that respondent is subject to deportation because she was excludable at the time of her entry on March 18, 1950, in that her immigration visa was invalid having been procured by fraud or misrepresentation. Obviously the charge in the warrant of arrest cannot be sustained because when respondent last entered the United States she was in possession of a reentry permit rather than an immigration visa. If, however, the visa which she presented at the time of her admission on October 12, 1948, was invalid because procured by false and misleading statements in the application therefor, her admission for permanent residence was likewise invalid. Consequently, that admission did not give respondent the rights of a person lawfully admitted for permanent residence, and her last entry on March 18, 1950, to resume residence after a visit to Jamaica could be accomplished lawfully only upon the presentation of a valid unexpired immigration visa. If respondent is at all deportable, therefore, it must be on the charge lodged at the hearing. Nevertheless the main question to be determined is whether the visa procured by the respondent on September 22, 1948, at Kingston, Jamaica, was obtained by false and misleading statements so as to make it invalid. (See Matter of G----, A-8247543, 4 IN Dec. 735, decided by the Board of Immigration Appeals on September 2, 1952.)
In the year 1933, at the age of 20, the respondent became the mother of a child born out of wedlock. The father, according to her testimony, was one K---- S---- D----. The child thereafter lived with respondent's grandmother. According to the respondent's testimony her maternal grandparents owned property and raised livestock and were in a position to support the respondent's son. The grandmother did so until sometime in the year 1941 when she died, her husband having predeceased her. Thereafter, according to the testimony of the respondent and her husband, K---- S---- D----, the father of her child, whom she married at Kingston, Jamaica, on February 1, 1950, both she and Mr. D---- contributed to the child's support. According to their testimony they sent the child to various schools and paid the tuition at those schools. During certain periods the child was boarded out and one or both of them paid for that. Both testified emphatically that at no time did their child become the recipient of public funds or of any charitable assistance.
While it is not clear to what extent the respondent supported her son her testimony is clear as to the fact that she never intended to abandon him, that she never considered herself shed of responsibility for him, that she never intended to disavow him as her son. Nevertheless, in 1945, when she first attempted to obtain an immigration visa at the American Consulate in Kingston, Jamaica, she declared in her application for registration as an intending immigrant that she had no children. From 1945 to 1948 she persisted in her pursuit of an immigration visa, which she finally obtained as stated above. In all papers and applications filed with the American Consul at Kingston she reiterated her declaration that she had no children.
Respondent has given various explanations since arriving in the United States as to why she failed to reveal the existence of her child when applying for an immigration visa. When she was interrogated by an investigator of the Immigration and Naturalization Service on July 14, 1953, she said that the reason she did not reveal her child in her application for a visa was:
I was embarrassed to say that the child was mine because going to a strange place and the child was born out of wedlock. That is why I said that and my grandmother was taking care of it and I didn't have any responsibility.
Before me the respondent gave as her reason for failing to reveal the existence of her child that she didn't know it was necessary and thought that children born out of wedlock were not recognized in the United States. She testified further that it never entered her mind that revelation of the child might result in her being denied a visa. She claimed that she always thought that her son was well cared for, and that by her statement that she didn't have any responsibility for the child she did not mean that she didn't care what happened to him or that she didn't have any legal responsibility to him. She said, "I always had the child in mind, I never got him off my mind, I never meant that I didn't have responsibility for him." She testified that when she left Jamaica the father of the child was caring for him, and that after she reached the United States she contributed regularly to his support. The respondent claimed that her son was always in good health and that he was neither physically nor mentally defective to the best of her knowledge. She said that when she came to the United States in 1948 she had no intention of abandoning the child, and that in or about 1951 she commenced her efforts to bring the boy to the United States. In 1949 the respondent made a return trip to Jamaica and during her stay there married her present husband, the father of her child. The respondent's testimony was substantially corroborated by her husband, who appeared at the hearing as a witness. In particular, Mr. D---- stated that the boy never became a charge on public funds in Jamaica.
In a memorandum dated September 8, 1953, which was accepted in evidence by me over strenuous objection of respondent's counsel, the consular officers of the American Consulate at Kingston, Jamaica, British West Indies, stated that in their opinion the failure of the respondent to reveal in her application for immigration visa that she was the mother of an illegitimate child was a material misrepresentation, and that her visa was one obtained by misrepresentation of a material fact and was therefore invalid.
The law is settled that a visa obtained by fraud or misrepresentation of a material fact is not a valid one ( Matter of G----, supra). While it has been held that concealment of identity is always material ( Matter of B---- and P----, 56152/825, 56154/758, 2 IN Dec. 638), the Board of Immigration Appeals at page 645 stated:
Confusion may result from a failure to distinguish from the specific problem with which we are here confronted in those cases involving a misstatement or concealment in an alien's application for a visa or other immigration document not of his name and identity but of some other fact concerning himself. There the sound view and that sustained by the judicial authorities is that a false statement in an application will not invalidate an immigration visa or other immigration document if it appears that the person would have been equally entitled to what he obtained had he told the truth. In other words, only a material false statement will invalidate the document, thereby rendering the person deportable.
In Matter of G---- ( supra), a case involving misrepresentation as to financial status, the Board of Immigration Appeals said:
Whatever other tests may have been or may be applied as to materiality, decisions are unanimous in holding that where a misrepresentation is of a sort that would justify the refusal of a visa, the misrepresentation is material and the visa is one obtained by fraud or misrepresentation. If, therefore, it can be determined upon this record that the misrepresentation as to financial status was such a misrepresentation that under the circumstances of this case, the American consul would have been justified in refusing to issue the visa, we need ponder no further and may reach a final determination. We shall therefore first consider whether the misrepresentation in the instant case would have justified the refusal of a visa.
As stated previously in this decision, the report from the American Consulate at Kingston, Jamaica, was accepted in evidence over strenuous objection of respondent's counsel on the ground that the test of admissible evidence in administrative proceedings was whether the particular piece of evidence was probative of the issues involved in the case. In the view I take of this case it is not necessary to determine at this time whether the report was properly accepted, for it is my considered opinion that on the facts herein a knowledge of the truth would not have justified the consul in denying the visa. Certainly the mere fact in and of itself that respondent had been the mother of an illegitimate child, born at least 12 years prior to her first application for an immigration visa, could not have made any difference. But the consul in his report insists that the misrepresentation was material. It therefore becomes necessary to examine whether there is any substance to his contention.
The consul in his report declared that he would not be satisfied that the alien was not willfully concealing the existence of the child and willfully denying the truth of his or her parenthood when she answered, "I have no children." The respondent has conceded that her statement that she had no children was a false statement. The consul says further that to afford the respondent immunity from the consequences of her false statement on the basis of declaring it immaterial is out of keeping with American moral concepts of solicitude for the solidarity of the American home and the accepted principle that a child, to develop properly, should have the close association of its parent or parents. This contention in my opinion is a non sequitur. Holding that the misrepresentation was not material is not a rejection of American concepts of solidarity of the home and solicitude for children. The holding of immateriality means merely that had respondent revealed the truth there would nevertheless have been no legal justification for denying her a visa. The consul's conclusion as to the significance of holding that respondent's misrepresentation was not material is furthermore based on an assumption not justified by the evidence before me — that respondent had abandoned the child and denied its existence and was concealing its existence because she felt to do otherwise would result in denial of her visa. The consul's observations regarding prevailing conditions in Jamaica and regarding incidence of premarital intercourse and bastardy and respondent's own illegitimacy, and his conclusion that having an illegitimate child could therefore not have been a source of embarrassment to the respondent, thus belying her explanation, is in my opinion unwarranted. It may well be that the average Jamaican would not be embarrassed under the same circumstances, but to deny the possibility that the respondent might have been embarrassed and to deny that she was, in view of her testimony, is to shut one's eyes to the truth of human sensitivity and individuality.
The consular memorandum reports that section 15 of the Bastardy Law of Jamaica, as amended, declares that every woman who is able to do so and neglects to maintain her illegitimate child, whereby the child becomes a charge on public funds, shall be punishable as an idle and disorderly person and vagrant. Section 3 of the Immigration Act of February 5, 1917, declares vagrants ineligible to receive visas and excludes them from admission to the United States. The consul, therefore, concludes that it was material for him to have known that respondent was the mother of an illegitimate child. Apparently the basis for this conclusion is the possibility that respondent might have been a vagrant under the Jamaican law cited above and, therefore, ineligible for a visa and admission into the United States. There is no denying the possibility that the respondent was in violation of the Jamaican Bastardy Law, but the mere possibility that she was a violator and that she was possibly excludable from the United States and ineligible for a visa would not justify denial of the visa to her. The Immigration Act of 1917 declared a vagrant ineligible for a visa, not one who might conceivably be a vagrant. Thus it was not being the mother of an illegitimate child in and of itself which could have barred the respondent from a visa, but an additional condition that she was convicted of the offense of deserting her illegitimate child and allowing him to become a charge on public funds. What was material then was whether the respondent had abandoned her child and whether it had become a charge on public poor funds. Respondent's failure to reveal her parenthood undoubtedly prevented the consul from asking the next question, but the mere fact that he was so prevented should not result in a declaration that the visa was obtained by fraud, unless the truth would have established a condition making denial of the visa proper. (See Matter of B---- and P----, 56152/825, 56154/758, 2 IN Dec. 638; Matter of B----, A-4048121, 3 IN Dec. 278; and Matter of T----, A-7138424, A-7192353-4, 3 IN Dec. 641.) The respondent has testified that she never was arrested and was never convicted of any crime or violation of law. She has testified specifically that she was never charged with violation of the Jamaican Bastardy Law and was never convicted of a violation of that law. Her husband has corroborated her testimony. I see no reason to doubt the truth of her statements. In the absence of any report by the consul that the respondent was in fact convicted of a violation of the statute in question it must be assumed that she was never so convicted. It is, therefore, concluded that had the respondent revealed the truth about her parenthood it would have been no legal ground for denying her an immigration visa.
Let it be made plain that in failing to attach fatal consequences regarding the validity of the respondent's visa to her false statements in her application therefor, it is not intended to condone her conduct, but declaring respondent's conduct undesirable and even reprehensible is a far cry from disrupting her life because of her deceit.
The report of the consul indicates that it was concluded that the respondent abandoned her child because of the statement she made to an investigator of the Immigration and Naturalization Service on July 14, 1953. That statement is quoted above. In the opinion of the special inquiry officer the interpretation placed upon the respondent's language by the consular officer is not justified. First of all, at the time the respondent made the answer in question she had already commenced proceedings to bring her child to the United States. Secondly, the statement itself is not factually accurate because at the time the respondent filed her formal application for a visa the respondent's grandmother had been dead approximately 7 years. Just what was meant by the statement therefore is not clear, but it is as logical to conclude that the respondent meant that because her grandmother was taking care of her son it wasn't necessary for her to contribute as to reach the interpretation placed upon the respondent's words by the consular officer. In any event, in view of all the evidence before me I am unable to make a finding that the respondent had, either in her mind or as a matter of fact, abandoned or disclaimed responsibility for her son.
The consular report claims that the respondent's concealment prevented the consul from complying with section 42.307 (b), (c), and (d) of the visa regulations applying to the immigration laws and regulations in force prior to the Immigration and Nationality Act. That regulation prescribes certain duties of the consul when he is confronted with a situation where one member of a family is desirous of proceeding to the United States leaving other members of the same family behind. It is true that respondent's failure to reveal her child prevented the consul from performing his function under the cited regulation, but the consul's conclusion that in invoking the regulation he would have been justified in informally refusing an immigration visa to the respondent appears to be based on the premise that she did not consider that she had any responsibility for the child and the consul would have felt it improper to facilitate the abandonment of the child. As mentioned previously in this decision there is ample evidence that the respondent never intended to and never did abandon her child. The special inquiry officer therefore cannot agree with the consul's conclusion that he would have been justified in refusing the visa to the respondent under section 42.307 of the visa regulations.
It is my conclusion, therefore, that the respondent's misrepresentation in her application for a visa was not material. In view of that finding the proceedings herein should be terminated. An order to that effect will be entered.
The respondent designated Jamaica as the place to which she wishes to be sent if ordered deported.
Findings of Fact as to Deportability: On the basis of all of the evidence before me I hereby make the following findings of fact:
(1) That the respondent is an alien, a native of Jamaica and subject of Great Britain;
(2) The respondent last entered the United States on March 18, 1950, at Miami, Fla., in possession of a reentry permit;
(3) That the issuance of the reentry permit was based on the fact that on October 12, 1948, the respondent had entered the United States in possession of a nonpreference quota immigration visa;
(4) That in her application for nonpreference quota immigration visa executed and sworn to on September 22, 1948, the respondent made a false statement of fact, that she had no children, when in fact she was the mother of an illegitimate child then living.Conclusions of Law as to Deportability: On the basis of the foregoing findings of fact I make the following conclusions of law:
(1) That the respondent's false statement in her application for immigration visa was not material;
(2) That under section 241 (a) (1) of the Immigration and Nationality Act the respondent is not subject to deportation in that at the time of entry she was within one or more of the classes of aliens excludable by the law existing at the time of such entry, to wit, an immigrant not entitled under the act of May 26, 1924, to enter the United States for the reason that the immigration visa which she presented was not valid because procured by fraud or misrepresentation;
(3) That under section 241 (a) (1) of the Immigration and Nationality Act the respondent is not subject to deportation in that at time of entry she was within one or more of the classes of aliens excludable by the law existing at the time of such entry, to wit, an immigrant not in possession of a valid immigration visa in violation of section 13 (a) of the act of May 26, 1924, and not exempt from the presentation thereof by the said act or regulations made thereunder.Order: It is ordered that proceedings in this case be terminated.
(June 11, 1954)
Discussion: The case is before us by certification. The special inquiry officer has ordered termination of proceedings. The facts are fully stated in his order. We have carefully reviewed the evidence. We find the respondent's misrepresentation in her application for a visa was not material. The proceedings were properly ordered terminated.
Order: It is ordered that the proceedings be and the same are hereby terminated.