E-086095
Decided by Board May 23, 1956
Visa procured by fraud or misrepresentation.
A misrepresentation made to a consular officer is not material where the true facts, if known, would not have precluded issuance of a visa. Hence, the charge that a visa was procured by fraud and misrepresentation will not be sustained where the alien's misrepresentation consisted of presenting a spurious check of $3,600 to the consul and the evidence does not establish that the alien was in fact a person likely to become a public charge at the time he applied for the visa.
CHARGE:
Warrant: Act of 1952 — Visa procured by fraud or misrepresentation.
BEFORE THE BOARD
Discussion: This is an appeal from the order of the special inquiry officer finding respondent deportable on the ground stated above. The appeal will be sustained.
The respondent is a 29-year-old single male, a native and citizen of Colombia, who was admitted to the United States for permanent residence in 1951 upon surrender of a nonquota immigration visa. It is the Service contention that the visa was procured by willful misrepresentation concerning financial status. The American consul who issued the visa has stated that had he known that the assets shown by the respondent in his application were greater than respondent actually owned he would not have granted the visa.
From the respondent's testimony given over a period of time, we have the following. While the respondent was still abroad, he was introduced to one B----. B---- learned of the respondent's hope to come to the United States some day and offered his services. He accompanied the respondent to the office of the United States Consul in Colombia and there introduced him to U----, apparently an employee of the Government of the United States in the consul's office. U---- questioned him and indicated that respondent was eligible for the issuance of a visa and supplied him with the necessary forms, suggesting that the respondent hire B---- to assist him in obtaining the necessary documents. Subsequently, U---- informed the respondent that the financial assets shown were not sufficient to support the issuance of a visa and U---- suggested that the respondent go to the office of V---- who would see to it that the respondent would be supplied with a "loan" which would satisfy the financial requirements. The respondent did not desire to go to V---- since he could readily obtain financial assistance from his parents who were employed in responsible positions; however, because he felt obligated to U----, and because he did not wish to do anything "against the advice of Mr. U----" or appear to "oppose" U----, he went to V----'s office. He was accompanied by B---- who had been sent along by U----. At V----'s office, respondent was told V---- was not in and never saw V---- nor ever spoke to him. However, shortly thereafter he was informed by U---- that everything had been taken care of and after the issuance of his visa, U---- handed him two items which respondent had not theretofore seen. One item was his Colombian passport which apparently had been obtained for him by B---- and the other item was a check made in a sum which he could not recall. He was told that this check should be presented to the immigration officials upon his arrival in the United States and thereafter returned to U----. Upon arrival in the United States he was examined by an immigration officer. The respondent showed the immigration officer the sum of $1,000 which he actually possessed and carried with him to the United States but did not show the check which he had placed either in a suitcase or was carrying on his person. Shortly after his arrival, he mailed the check back to U----.
The respondent was confronted with a preliminary application for a visa admittedly bearing his signature but executed in a hand other than his own. The application which carries relating personal information contains a statement that the applicant was a possess or of a check in the sum of $3,600. The respondent denied that he had furnished the information concerning the check or that he had any knowledge that such information appeared upon the application or had been presented to the American consul. He stated that he had signed several documents in the office of the American consul and that he may have signed documents which were blank at the time he signed them.
The respondent's testimony is not entirely consistent. On April 17, 1952, a question-and-answer statement was taken from the respondent by an investigator of the Service through the use of an official interpreter. At that time the respondent testified that he had been asked by the American consul concerning his financial status and he had informed him that he possessed about $1,000 — American dollars. Some-what inconsistent with this statement, he stated that he showed a check for $3,600 signed by V---- made out to his order; that the check had been given to him by a person whom he believed to be V----; that he had gone to the office of V---- alone although B---- had already contacted V----; that V---- told him he would help by giving him a check to present to the American consul to facilitate obtaining his visa; that V---- told him to present the check to the office of the American consulate which respondent "did along with the rest of" his documents; that he told an employee at the American Embassy that the money was his; and that he believed he could have obtained a visa without having shown the $3,600 because he had his own money and could have secured affidavits of support.
About ten months later the respondent at his deportation hearing testified to the following facts: He identified the question-and-answer statement as having been made by him and as bearing questions and answers which he believed to be correct. He stated B---- had presented him to V---- who asked for $30 for his services; that the check in question had not been presented by himself to the consul; that his statements in his question-and-answer statement to the effect that he had presented the check were made because of his assumption that the check had been presented; that he actually had never been given a check by V---- and that he assumed it was presented by either B---- or U---- and that U---- gave him the check with instructions to return it after he arrived in the United States. He then changed his testimony to state that he meant B---- had given him the check with instructions to return it and that it had not been U----. He was insistent, however, that he had not received the check until after the visa had been issued to him. He also stated nothing had been asked of him at the consulate; and that everything had been taken care of by B---- and U----. He stated that the question-and-answer statement did not reflect the sum total of his conversations with the Service investigator and that the answers there shown were in effect conclusions which had not incorporated the explanatory statements preceding them. He further stated that he was excessively nervous at the time the statements had been made. He stated he was of the impression that either B---- or V---- had taken the check to the consulate. He then stated that his Colombian passport had been delivered to him by Mr. U---- after he obtained the visa; and that he did not know how the passport had come into the possession of U----, the occasion when he received it from U---- being the first time he had seen it. He stated he had never been asked to present affidavits of support. He said that the question-and-answer statement showing that he had presented the check was in error. He stated that he had paid B---- a fee of $180 for his complete services.
On the back of the visa application is a handwritten notation stating that a check issued to the respondent in the sum of $3,600 drawn by V---- and Company has been presented. This notation bears an illegible signature or abbreviation. If it is the initials of the person who made the notations, the last letter could well be the letter "U" possibly standing for U----.
A mere finding that the respondent was or was not innocent in the deception which was practiced upon the American consul, would not dispose of the issue. It would be necessary to determine whether the deception was as to a material matter, that is, one which if the true facts had been known would have precluded him from receiving a visa and entering the United States. This determination is at this stage of the proceedings one for this Board. Therefore, the statement of the American consul that he would not have issued a visa had he known the true facts must be considered but it is not controlling ( Matter of S---- C----, E-086114, Int. Dec. No. 763). The only apparent ground of inadmissibility which it is implied could have existed at the time the respondent applied for his visa was the possibility that he would become a public charge.
The record does not establish that respondent was one likely to become a public charge. At the time of applying for his visa, he was a 25-year-old single male. He had graduated from high school, had 2 years of university, and had also taken voice training. He had then been employed for about 2 years with an insurance firm in a position of responsibility and confidence which his employer certified had been fulfilled honorably in a satisfactory manner. He had no police record; he had completed 3 years of military training satisfactorily and he was free from mental or physical defects. He was in possession of $1,000 — American dollars.
In view of his youth, his lack of dependants, his education, his willingness to work and his record of steady employment, his satisfactory endurance of the rigors usually attendant upon 3 years of military training, his possession of a substantial amount of money at so early an age, indicating a thrifty and saving nature, we cannot find the likelihood that he was one who would become a public charge upon entry. In fact, the record establishes that after utilizing a good portion of his savings in becoming established in the United States, he is now regularly employed as an assistant bookkeeper for a responsible business firm; that he earns $58 a week; and that he is again accumulating assets in the United States.
We fail to find the existence of fraud or willful misrepresentation of a material fact ( Matter of S---- C----, supra; Matter of G---- G----, A-8949107, Int. Dec. No. 784). The proceedings will, therefore, be terminated.
In arriving at his conclusion that the charge in the warrant of arrest was sustained, the special inquiry officer drew upon his experience in hearing "several cases involving the same situation and utilizing his own knowledge and the demeanor of the respondent" found that the check "must have been presented to the consulate in connection with the application for a visa." If this is a finding that the respondent in person presented the check, based as it is in part on the hearing officer's private knowledge, it would be grievous error. The knowledge of a hearing officer of information adverse to an alien cannot be given consideration and made the basis of decision without being entered into the record and subjected to the usual privilege of cross-examination and explanation and the presentation of counter evidence by the alien, anymore than can be the testimony of any adverse witness. Since we terminate the proceedings, it is unnecessary to do more than mention this matter.
Order: It is ordered that the proceedings be and the same are hereby terminated.