VP-372317
Decided by Board November 10, 1948
Visa-petition — Scope of inquiry before approval thereof under section 9 of the Immigration Act of 1924 — Revocation — Effect of consular action under section 2 (f) of the Immigration Act of 1924.
1. Neither section 9 of the Immigration Act of 1924, nor regulations thereunder require a general inquiry into an alien's admissibility under all immigration laws; nor is there required a specific inquiry as to the beneficiary's admissibility as one who departs from the United States to escape United States military service.
2. The action taken by a consular officer pursuant to section 2 (f) of the Immigration Act of 1924 in the discharge of his responsibility is not a basis for revoking an approved petition under section 9 of that act.
3. Where a United States citizen has submitted a petition for a preference quota visa on behalf of her alien husband whom she married in 1939, and such petition has been approved, there is no power to revoke such approval where the truthfulness of the allegations contained in the petition are not questioned and there is merely a report (the evidence considered by him not presented) that a consular officer of the State Department has found the beneficiary inadmissible to the United States on grounds unrelated to the matter covered in the visa petition.
BEFORE THE BOARD
This is an appeal to us from an order of the Assistant Commissioner of Immigration and Naturalization revoking a prior approval of a petition for an immigration visa filed pursuant to section 9 of the Immigration Act of 1924 (8 U.S.C., 209).
The petitioner submitted an application to the Commissioner of Immigration and Naturalization on behalf of her husband, whom she married on March 3, 1939, for "issuance of immigration visa." The purpose of the petition filed under section 9 of the Immigration Act of 1924 was to establish a preference quota status under section 6 of the act for the petitioner's husband. As the marriage occurred prior to January 1, 1948, the beneficiary will now be entitled to a nonquota status if the petition is approved.
The petition was approved on June 30, 1947, and the Secretary of State notified as required by section 9. On April 13, 1948, the Department of State transmitted to the Immigration and Naturalization Service a copy of a despatch from the American Consul at Praha dated February 12, 1948, and asked if the Immigration and Naturalization Service desired to reconsider the approval of the petition. The despatch from the Embassy at Praha is as follows:
K---- O---- (the beneficiary) was formally refused a first preference immigration visa on January 21, 1948, as being inadmissible into the United States under the provisions of the Immigration Act of 1917 as amended by the act of September 27, 1944. The Consular section of the Embassy ventures to suggest that this information be brought to the attention of the Department of Justice in order that appropriate action may be taken in connection with the "Petition for issuance of immigration visa" (Form I-133) which was approved by the Commissioner of Immigration and Naturalization on June 30, 1947.
The act of September 27, 1944, referred to in the foregoing despatch, among other things, provided for the exclusion from the United States of "persons who have departed from the jurisdiction of the United States for the purpose of evading or avoiding training or service in the armed forces of the United States during time of war or during a period declared by the President to be a period of national emergency." The Central Office of the Immigration and Naturalization Service held that "since the beneficiary has been found to be inadmissible to the United States it must be concluded that he is not entitled to the status accorded him under the approved petition." It thereupon revoked the approval of the visa petition.
Neither section 9 of the 1924 act nor enabling regulations requires a general inquiry into an alien's admissibility under all immigration laws and specifically nothing is required in regard to an alien's inadmissibility as one who departs from the United States to evade or avoid military service.
Subdivision (e) of section 9 is as follows:
If the Commissioner of Immigration and Naturalization finds the facts stated in the petition to be true, and that the immigrant in respect of whom the petition is made is entitled to be admitted to the United States as a nonquota immigrant under subdivision (a) of section 4, or is entitled to preference as a relative under section 6, he shall, with the approval of the Attorney General, inform the Secretary of State of his decision, and the Secretary of State shall then authorize the consular officer with whom the application for the immigration visa has been filed to issue the immigration visa or grant the preference.
The truthfulness of all allegations contained in the petition is not questioned. Neither is it questioned that the beneficiary is the husband of a United States citizen. The Central Office of the Immigration and Naturalization Service has no power to revoke an approved petition under these circumstances merely on a report that a consular officer of the State Department has found the beneficiary inadmissible to the United States on grounds unrelated to the matter covered in the visa petition. Neither the Central Office of the Service nor we are aware of the evidence which was before the State Department's representative. We are in no position to decide whether we agree with the Consul. It is true a Consular officer has power under section 2 (f) of the 1924 Immigration Act to refuse an immigration visa if he finds the alien will be inadmissible to the United States. This is his responsibility. His action, however, is no basis for revoking an approved petition under section 9. If the visa petition stands approved, the alien is at liberty to present additional evidence to the Consul bearing on the alien's admissibility to the United States. If the visa petition is revoked he is precluded from so doing.
Order: It is ordered that the appeal be sustained and the Assistant Commissioner's order of June 30, 1948, be reversed.