A-8945846.
Decided by Board October 18, 1955.
Inadmissibility under section 212 (a) (19) of Immigration and Nationality Act — Second clause prospective only.
The second clause of section 212 (a) (19) of the Immigration and Nationality Act is prospective in application only and has no relation to past events whether or not such events occurred before or after the effective date of the act. Therefore, a native and citizen of Mexico who attempted to enter the United States in 1954 by falsely claiming United States citizenship and who was returned to Mexico without a formal exclusion proceeding is not thereafter inadmissible as an alien who seeks to enter the United States by willfully misrepresenting a material fact. (Cf. Matter of M----, A-2237374, Int. Dec. No. 593.)
BEFORE THE BOARD
Discussion: The Acting Assistant Commissioner on motion filed pursuant to 8 C.F.R. 6.2 moves this Board to reconsider an order entered in the above-captioned case on August 30, 1955, providing for the alien's admission as a nonquota immigrant for permanent residence. We found as a matter of law that appellant was not inadmissible to the United States under the provisions of section 212 (a) (19) of the Immigration and Nationality Act.
Section 212. (a) Except as otherwise provided in this Act, the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States: * * *
(19) 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.
The facts of the case have been fully set forth in our opinion of August 30, 1955. Briefly, they establish that the appellant, a native and citizen of Mexico, the wife of a United States citizen, last applied for admission into the United States at the port of San Ysidro, California, on June 14, 1955, and presented a nonquota immigrant visa issued to her by the United States Vice Consul at Tijuana, Mexico, on June 13, 1955, and valid to October 12, 1955.
A special inquiry officer found her inadmissible under section 212 (a) (19) of the Immigration and Nationality Act as an alien who sought to enter the United States on January 18, 1954, by willfully misrepresenting a material fact. There is a showing that the appellant did attempt to enter the United States at the port of San Ysidro, California, on January 18, 1954, by falsely claiming to be a citizen of the United States. It was ascertained on that occasion that she was in possession of a nonresident alien's border-crossing identification card which had been issued to her in 1947. The border-crossing identification card was lifted and she was returned to Mexico without a formal exclusion proceeding.
The appellant was excluded in the instant proceeding under the second clause of section 212 (a) (19) of the Immigration and Nationality Act of 1952. The pertinent portion of the statute may be stated: "Any alien who * * * seeks to enter the United States, by fraud, or by willfully misrepresenting a material fact * * * shall be excluded from admission into the United States." We reasoned in our opinion of August 30, 1955, that this clause contains words in the present tense only and has no application to past events. In other words, the fact that appellant attempted to enter the United States on a prior occasion by claiming to be a citizen is not a ground for exclusion because the second clause of the statute is not applicable to past events.
The Acting Assistant Commissioner urges that the foregoing interpretation is contrary to our ruling in Matter of M----, A-2237374, Int. Dec. No. 593 (A.G., September 13, 1954). He urges that in the instant case we are extending the period of immunity to include all acts of fraud or willful misrepresentation falling within the second clause of section 212 (a) (19) committed at any time prior to an alien's last application for admission to the United States. He supports his allegations by reference to a statement found in the text of Int. Dec. No. 593 ( supra). It reads:
The omission of words in the past tense as to the second part (section 212 (a) (19)) 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.
The Acting Assistant Commissioner also makes the allegation that the Department of State, relying upon the Attorney General's approval of the Board's ruling in Int. Dec. No. 593, has promulgated regulations which in effect limit the period of immunity only to acts of fraud or willful misrepresentation committed prior to the effective date of the Immigration and Nationality Act of 1952, namely December 24, 1952.
State Department regulation, 22 C.F.R. 42.42 (a) reads in pertinent part as follows:
The following implementation of section 212 of the act shall govern the issuance or refusal of immigrant visas * * *
(19) Fraud and misrepresentation. (i) An alien * * * (b) who entered or who seeks to enter the United States on or after December 24, 1952 by fraud, or by willfully misrepresenting a material fact, shall be ineligible to receive an immigrant visa under the provisions of section 212 (a) (19) of the act. * * *
We do not agree with the position taken by the Acting Assistant Commissioner. The alien in Matter of M---- (Int. Dec. No. 593, supra), had made a false statement to effect entry in 1934. Based upon the facts then before us we noted in our opinion (Int. Dec. No. 593) that the first clause of section 212 (a) (19) ( supra),fn1 relating to the procurement of a visa or other documentation, contains words in the past tense as well as the present. We concluded that this clause is retrospective as well as prospective. We then noted that the second clause of section 212 (a) (19) which relates solely to the alien who seeks to enter the United States does not contain any words in the past tense. We reasoned that the omission of words in the past tense in the second clause of the statute (they were specifiically set forth in the first clause) denotes clear legislative intent that the clause referring to entering the United States should be only prospective in application. Our reference that the second clause should not cover acts occurring prior to the passage of the Immigration and Nationality Act of 1952 was directed solely to the 1934 entry with which we were then concerned.
The meaning of a statute is to be found in its words, without resort to any materials dehors the words of the statute itself, since it is presumed that the legislature chose apt words to express its intention. The plain language of the statute before us dictates the immunity from exclusion of an alien who has sought to enter the United States on a prior occasion by fraud or willfully misrepresenting a material fact and not any proposed extension of our ruling in Int. Dec. No. 593, ( supra), as is suggested by the Acting Assistant Commissioner. Congress could have readily provided for the exclusion of an alien who in the past has sought to enter or has entered by fraud or willfully misrepresenting a material fact by repeating in the second clause of section 212 (a) (19) the same words in the past tense as used in the first clause. This they did not do.
Cf. Maillard et al. v. Lawrence, 16 Howard 251, 14 L.Ed. 925 (1853); United States v. Saunders, 22 Wallace 492, 22 L. Ed. 736, (1874); Blake v. National Banks, 23 Wallace 307, 23 L. Ed. 119 (1875), and cases cited therein.
Ordinarily statutes provide for the future and they will not be applied retroactively unless that purpose plainly appears in the language thereof ( Brewster v. Gage, 280 U.S. 327, 337 (1929)). This rule is universally applied where the statute provides for a forfeiture as in the instant case ( United States v. Batre, 69 F. (2d) 673, 674 (C.C.A. 9, 1934); 3 Sutherland, Statutes and Statutory Construction (1943), pp. 47, 49). An interpretation which on the one hand construes a statute as prospective in its application with respect to "any alien who * * * seeks to enter the United States" but on the other hand applies this quoted phrase from the second clause of section 212 (a) (19) retrospectively to any alien who has sought to enter the United States or has entered subsequent to the effective date of the 1952 act does not meet the tests of statutory construction noted above. Such an application in our opinion would defeat the intention of Congress which has been clearly set forth in carefully chosen words of the present tense. The regulation promulgated by the Department of State (footnote 2) merely represents a conflict of interpretation which can be readily reconciled. The motion will be denied. Our opinion and order of August 30, 1955, is hereby affirmed.
Order: It is directed that the motion be and the same is hereby denied.