A-7099059
Decided by Board October 31, 1951 Reconsidered by Board June 10, 1952 Decided by Attorney General October 2, 1952 Reconsidered by Board October 10, 1952
Visa — Authority of Attorney General in deportation proceedings to review de novo the factual sufficiency upon which an alien was issued an immigration visa by a consular officer in absence of any fraud or misrepresentation on the part of the alien.
(1) When nonquota visa was obtained from United States consul without fraud or misrepresentation but under circumstances indicating an error of judgment on the part of the consul in issuing the document, the Service is not bound by the consular determination and has the authority in deportation proceedings to review de novo the facts relevant to whether the alien was entitled to issuance of the visa and thereafter entitled to admission to the United States.
(2) An alien issued a section 4 (d) immigration visa (Immigration Act of 1924) as a "professor" found not to have been entitled to the issuance thereof, although all the facts were before the consul, there was no misrepresentation of fraud, and the consul had some evidence to support his determination. Based upon such finding, the alien is deportable on charges that at time of entry he was a quota immigrant not in possession of a quota immigration visa and that he was not a nonquota immigrant as specified in his visa.
BEFORE THE BOARD
(October 31, 1951)
Discussion: The facts presented by the appeal in this case are these: Respondent was born in Czechoslovakia on September 28, 1923. He arrived in the United States at the port of New York on January 15, 1949, and was admitted upon presentation of nonquota immigration visa No. 145 issued to him by the American consul at Copenhagen, Denmark, on December 29, 1948, under the provisions of section 4 (d), Immigration Act of 1924 (8 U.S.C. 204) which provides as follows:
When used in this act the term "nonquota immigrant" means — (d) an immigrant who continuously for at least 2 years immediately preceding the time of his application for admission to the United States has been, and who seeks to enter the United States solely for the purpose of, carrying on the vocation of minister of any religious denomination, or professor of a college, academy, seminary, or university; * * *.
The warrant of arrest in deportation proceedings in this case was served upon respondent on December 15, 1949, 11 months after his admission, and hearings thereunder were had on February 16, 1950, and June 22, 1950.
Respondent, shortly before arriving in the United States, received the degree of bachelor of science from the Veterinarian and Agricultural College, Copenhagen, Denmark. He is presently a research fellow at the Iowa State College, Ames, Iowa.
Counsel, in the main, presents the following points in support of cancellation of proceedings:
(1) In the absence of fraud or misrepresentation in the issuance of the visa to the alien, the immigration authorities may not go behind the action of the American consul who issued the visa.
(2) That since the hearing examiner's decision was not excepted to by either the Service or by alien's counsel, such decision was an initial decision and thus became final.
The Service states that the question for determination is whether or not respondent was entitled to the classification of a nonquota immigrant as a "professor," and that inquiry by it may be made at any time after an alien's admission where a prima facie noncompliance appears. Citing Philippines v. Day, Commr. of Immigration, 283 U.S. 48, 51 S. Ct. 358 (1931), holding that section 34, Immigration Act of 1917, does not override or qualify the provisions of section 14, Immigration Act of 1924, with relation to deportation of seamen here illegally and that the 3-year limitation in section 34 does not apply to any alien, including seamen, who entered the United States after the 1924 Immigration Act; United States v. Vanbiervliet, 284 U.S. 590, 52 S. Ct. 132 (1931), holding that the 5-year limitation in section 19, Immigration Act of 1917, does not apply to the case of an alien entering the United States without a visa after the 1924 act and that section 4 thereof permits deportation at any time; United States ex rel. Poppovich v. Karnuth, District Director, 25 F. Supp. 883 (D.C.W.D.N.Y., 1938). This case involved a quota immigrant who was in possession of a reentry permit procured by fraud, in that he did not have prior lawful entry as a basis for issuance of such a permit; United States ex rel. Jacovides et al. v. Day, 32 F. (2d) 542. This case, decided May 6, 1929, involved an alien who arrived with a 4 (d) visa and was excluded by a board of special inquiry as a quota immigrant. The court reversed and found that such alien was coming to the United States to carry on his vocation; Jeu Jo Wan v. Nagle, Commissioner of Immigration, 9 F. (2d) 309 (1925). This case involved a certificate issued under section 6 of the act of July 5, 1884, as amended by the act of July 5, 1885; Terzian v. Tillinghast, Commr. of Immigration, 33 F. (2d) 803; this case involved an alien who was coming in as a student under section 4 (e), Immigration Act of 1924, who was excluded because of fraud in connection with his status; Keating ex rel. Mello et al. v. Tillinghast, Commr. of Immigration, 24 F. (2d) 105 (D.C. Mass. 1928); the alien here was excluded upon arrival since he was found to be illiterate; United States ex rel. Katnic v. Reimer, 25 F. Supp. 925 (D.C.S.D.N.Y., 1938); this case also involved an alien who was excluded upon arrival. And that these rulings recognize the inclusive character of section 2 (g) of the Immigration Act of 1924, which reads:
Nothing in this act shall be construed to entitle an immigrant, to whom an immigration visa has been issued, to enter the United States, if, upon arrival in the United States, he is found to be inadmissible to the United States under the immigration laws. The substance of this subdivision shall be printed conspicuously upon every immigration visa.
In Silva v. Tillinghast, 36 F. (2d) 801 (D.C. Mass., December 20, 1929), the court held that section 2 (g), Immigration Act of 1924, providing for admission of an alien in possession of a visa, if otherwise admissible under the immigration laws, does not authorize immigration officials to refuse admittance on ground that visa was mistakenly or improvidedly granted by American consul after exhaustion of quota where all facts entitling alien to admission exist, in the absence of fraud. The point was made that section 2 (g), 1924 Immigration Act, confers upon immigration tribunals the whole power to decide on admissibility, including the question whether the visa was properly granted. The court disagreed and stated that the question whether an alien is "otherwise admissible"; that is, whether he comes within the excluded classes, is by the act expressly reserved to the immigration authorities. But the question whether a visa should be granted is for the consular officer to determine. This power is expressly granted to him under section 2 of the act. The court concluded that in the absence of fraud the immigration authorities in that case did not have the right to question whether the visa presented by the alien was properly issued and where the alien was not otherwise inadmissible.
Thus section 2 (g), quoted above, concerns examination by immigration officials upon arrival. [Emphasis added.] In the instant case proceedings were initiated more than 15 months following arrival. Most of the cases cited were exclusion cases involving examination by immigration officials at time of arrival. Others are not material to the issue here.
Even in the Silva v. Tillinghast case ( supra), the court, it appears, did not hold that proceedings were not in order after arrival, but that reexamination of alien's qualification by immigration officials was precluded, in the absence of fraud.
We believe that even after arrival immigration officials have power to inquire into cases where there is fraud involved. For example, an alien may succeed in entering with a nonquota immigration visa, secured by fraud, and the fact is that the alien was subject to the quota. It could not be seriously contended that the immigration authorities are precluded from taking action merely because the alien's entry occurred some time before. Section 14, Immigration Act of 1924, provides that any alien who at any time after entry is found to have been at time of entry not entitled under said act to enter the United States, shall be deported, etc.
An alien who secures a visa to which he is not entitled by fraud, is in no better position than one who enters illegally without a required visa.
However, the instant case presents no issue of fraud whatever. In effect, the position of the Service is that the consul in effect issued the visa through an error of judgment. We can agree if the consul was clearly wrong — if in fact there was no basis in law for his action — section 14 is authority for a finding of deportability in an expulsion proceeding. This is not such a case. Here the immigration authorities are weighing the evidence before the consul, evidence which tended to support the consul's action, to see if they agree with him, where there was no fraud or misrepresentation on the part of the respondent.
Regulations of the State Department (title 22, C.F.R.) provide as follows:
"42.224 (61.224) Professors. — (a) An applicant for a nonquota immigration visa as a `professor' under sec. 4 (d) of the act ordinarily should be required to show that he had actually been engaged in giving instruction to students as a member of the faculty in a recognized college, academy, seminary, or university and that this vocation has constituted his principal occupation. [Emphasis added.]
"42.225 (61.225) (b) sec. 4 (d) of the act requires that an applicant for a nonquota immigration visa under that section shall establish that he has been following the vocation of minister of religion or professor of a college, academy, seminary, or university for a period of at least 2 years immediately preceding the date of his application for admission."
Note 147 of Visa Supplement A issued by the State Department relating to professors indicates that there are certain other cases in which persons may qualify as "professors" and that included under that section are teachers of foreign languages who are properly equipped for that occupation whether or not they hold college or university degrees, and the terms "academy" and "seminary" in the same section are construed as applicable to any reputable institutions of learning which are equipped to prepare students for college.
The reason for the foregoing is that it is evident that the intent of the law is to enable * * * institutions of learning in the United States to bring * * * professors from foreign countries rather than to except such persons from quota requirements simply because of their vocational status.
The evidence of record appears to establish that the respondent met the qualifications for a 4 (d) status and the Consul issuing the visa was so satisfied. We agree with the hearing examiner that the proceedings should be canceled. The hearing examiner found (and the examining officer took no exception) that the respondent presented all proper documents to the consul and that upon arrival in the United States he was examined and admitted; that respondent was graduated from the Veterinarian and Agricultural College in Copenhagen, Denmark, receiving the degree of bachelor of science and that during his undergraduate work he gave lectures in college which, while they were irregular lectures or seminars, were considered as approximately the same style or method of teaching as respondent is presently required to perform in his present position at Iowa State College. Also respondent taught language while a member of the Royal Air Force from December 5, 1940, to January 11, 1946, and also it is indicated he held seminars and gave lectures at the Veterinarian and Agricultural College at Copenhagen. He concluded that in the absence of any evidence indicating fraud and the fact that he was legally inspected and admitted to the United States and the further fact that he proceeded directly to Iowa State College and took up his position as a research fellow there, that the validity of the visa issued to him should not now be questioned.
We do not pass upon counsel's second contention at this time.
Order: It is ordered that the proceeding be quashed.
RECONSIDERED BY BOARD
(June 10, 1952)
Discussion: The Service has presented a motion to the Board asking that it reconsider and withdraw its decision of October 31, 1951, canceling proceedings, or, in the alternative, that the case be certified to the Attorney General for review pursuant to 8 C.F.R., 90.12 (c).
The facts are adequately set forth in the Service's opinion of February 26, 1951, and the Board's opinion of October 31, 1951, both contained in this record. We note that certain minor errors appear in both the Board's decision of October 31, 1951, and the hearing officer's discussion. Same, however, are not material to the issue in the case.
The proceedings in this case arose by way of deportation action initiated by the Immigration Service some 11 months after the alien, a Czechoslovakian, was admitted to the United States upon presentation of a nonquota immigration visa issued to him by the American consul at Copenhagen, Denmark, on December 29, 1948, under the provisions of section 4 (d) Immigration Act of 1924.
During oral argument on the motion counsel for the Service called attention to line 14, p. 5 of the Board's decision of October 31, 1951, with respect to the dates "December 5, 1940, to January 11, 1946." These dates also shown in the hearing officer's decision, at p. 2, line 28, are apparently in error and should read "from November 1944 to January 1946."
We see no reason to reverse our order canceling proceedings. The question appears to be one of law and fact. The Service, through its representative, argued rather apprehensively that its authority to investigate cases of this nature after an alien has been admitted to the United States will be circumscribed by the Board's ruling. Such, of course, is not the fact and our decision makes this plain.
We have indicated that in all cases where there is fraud in obtaining an immigration visa or entry, or where no factual basis existed upon which an alien obtained or secured a particular immigration status in the issuance of an immigration visa, there is authority in law for the Service to exclude, or, if the alien has entered the country, to initiate deportation proceedings.
Counsel for the Service in his argument seemed to feel that the Board in reaching its decision relied heavily on the case of Silva v. Tillinghast, 36 F. (2d) 801, wherein the court held that whether an alien is "otherwise admissible" is by law expressly reserved to the immigration authorities, but the question of whether a visa should be granted is for the consular officer to determine under the power of section 2 (g), Immigration Act of 1924. The court concluded that in the absence of fraud the immigration authorities do not have the right to question whether the visa presented by the alien was properly issued and where the alien was not otherwise inadmissible. [Emphasis added.]
We noted that in all of the cases cited by the Service, including those cited by the Service's representative during oral argument on the motion, involved either fraud or a total lack of a particular immigration status claimed.
Heizaburo Hirose v. Berkshire, 73 F. (2d) 86 (C.C.A. 9, October 22, 1934).
In the case before us no issue of fraud is alleged and in fact absence of any fraud or misrepresentation on the part of the alien is conceded. Nor is there a showing that the alien did not present any evidence when he applied for and was granted a nonquota visa as a professor under section 4 (d), Immigration Act of 1924.
In essence, what the Service argues is that on the evidence presented to the consul by the alien it, contrary to the consul's action, would have found that the alien did not measure up to the full requirements to receive a nonquota visa as a professor. We hold that error of judgment on the part of the consul in evaluating the evidence presented to him will not now justify disturbing the consul's finding in the absence of fraud or misrepresentation, or a total absence of any evidence before him.
Order: It is ordered that the motion to reconsider be and the same is hereby denied.
Pursuant to section 90.12 (c), 8 C.F.R., the case is certified to the Attorney General for review of the Board's action.
The decision and order of the Board of Immigration Appeals, dated October 31, 1951, as reaffirmed in its decision and order of June 10, 1952, is hereby reversed. The alien was permitted to enter the United States by the Immigration authorities as a nonquota immigrant after having obtained a nonquota immigration visa from the United States consul in Copenhagen without fraud or misrepresentation. Some evidence existed to support the alien's claim to a nonquota immigrant status. Thereafter deportation proceedings were instituted under section 14 of the Immigration Act of 1924. As I interpret section 14, once deportation proceedings have been instituted pursuant to it, a de novo review of the facts relevant to the question whether the alien was entitled to enter the United States at the time of entry is required even under circumstances such as are present in the instant case. This order does not determine that question or, except as indicated, any other question present in the case. The Board of Immigration Appeals is authorized to take such further action as may be not inconsistent with this order.
RECONSIDERED BY BOARD
(October 10, 1952)
Discussion: This case is before us on the basis of the Attorney General's order, reversing the decision and order of this Board dated October 31, 1951, as reaffirmed by us on June 10, 1952.
The facts in this case are fully set forth in our previous decision of October 31, 1951, at which time we ordered that the proceedings be terminated. The effect of the Attorney General's decision is to sustain the position of the Service that the respondent is deportable on the grounds stated in the warrant of arrest; that is, that at the time of entry he was a quota immigrant who was not in possession of a quota immigration visa and that he was not a nonquota immigrant as specified in his visa. Since it has been determined that the respondent's entry was unlawful and that he is deportable, we will give consideration to the question of whether discretionary relief should be granted in this case.
The respondent has no criminal record and we are satisfied regarding his good moral character during the last 5 years. It appears that, at this time, he may be in a position to meet the requirements for obtaining a nonquota visa under the provisions of section 4 (d) of the Immigration Act of 1924. We will, therefore, afford him an opportunity of adjusting his immigration status. Accordingly, the following order will be entered.
Order: It is ordered that the order of the Acting Assistant Commissioner dated February 26, 1951, and the orders of this Board dated October 31, 1951, and June 10, 1952, be and the same are hereby withdrawn.
It is further ordered that the alien be permitted to depart from the United States voluntarily at any time prior to December 24, 1952, without expense to the Government, to any country of his choice, under such conditions as the officer in charge of the district deems appropriate.
It is further ordered that preexamination be authorized, provided that the respondent avails himself of this privilege on or before December 23, 1952.