E-086114
Board decisions October 20, 1955 and April 16, 1956 Service motion January 17, 1956 Decided by Attorney General May 8, 1956
Misrepresentation — Materiality of spurious check as to financial status.
(1) A misrepresentation as to identity which cuts off all inquiry will invalidate a visa even though the alien could have secured a visa had he revealed his true identity, but a misrepresentation which cuts off some inquiry will not invalidate the visa unless it conceals a ground of inadmissibility to the United States.
(2) Therefore, respondent's resort to a spurious check (as evidence he would not become a public charge) to expedite action on his visa application did not amount to a misrepresentation of a material fact so as to invalidate the visa, since the facts indicate he was not inadmissible to the United States at the time.
CHARGES:
Warrant: Act of 1952 — Visa procured by fraud or misrepresentation (1924 act).
Lodged: Act of 1952 — No immigrant visa (1924 act).
BEFORE THE BOARD
(October 20, 1955)
Discussion: This is an appeal from the order of a special inquiry officer finding respondent deportable on the warrant charge set forth above. Voluntary departure was granted. The appeal will be sustained.
Respondent, a 36-year-old single male, was admitted to the United States for permanent residence in 1951, as a nonquota immigrant. He came with his mother, his sister, and his sister-in-law, for whom he apparently acted as a respresentative in securing visas to enter the United States.
It is the Service contention that the respondent's visa was obtained by fraud because it was granted on an application which showed the respondent to be in possession of a check of $13,600 payable to him upon reaching the United States. Actually, he was not entitled to the sum shown. The special inquiry officer concluded that the respondent had been victimized, as were others, by a group of unscrupulous individuals who apparently preyed upon aliens who were interested in appying for visas, but the special inquiry officer stated that since the respondent caused it to appear that he had $13,000 in assets to which he had no valid claim and since the consul stated he would not have issued a visa had he known the check was spurious, it followed the visa had been obtained by fraud.
The respondent testified as follows: He had appeared at the American consulate and obtained information as to the method in applying for a visa; he then went to a travel agency to obtain information as to the cost of transportation; while there he was approached by an individual who stated that she knew B----, an employee of the American consulate, who could expedite the obtaining of the visa; respondent was of the belief that if one had a friend in the consulate it would materially shorten the long time which he knew existed between the application for a visa and the issuance of a visa; he was of the belief that B---- was connected with the American consulate; he accepted the services of B---- who prepared the respondent's papers and had him sign an application which respondent did not read. B---- gave him a check for $13,600 which he told the applicant to take to the American consulate and to produce it, if requested; however, he was assured that he would not be requested to produce it. Respondent stated that he had been told that B---- had a friend in the United States who would be responsible for the amount of the check and that he believed this to be the truth.
Respondent stated that at the American consulate he was questioned as to his financial status and that he replied that his father would make available to him about $13,000 if needed. His own assets at the time totaled about $3,000. He said that he made no reference to the check at the interview and was not asked to produce it. He stated he did not exhibit it. The respondent maintained that he had not presented the check although there is a reference in his application to the fact that the check had been presented. He stated that after the interview, he returned the check to B----. Respondent stated that he had spoken the truth in regard to all questions asked him at the consulate.
After the visa was issued, the respondent sold all his possessions and realized the sum of over $3,000. After paying a certain indebtedness incurred by his mother and purchasing transportation for the group, he had $1,500 left. It was with this sum that he came to the United States.
Respondent testified that he believed he had friends in the United States and Colombia who would have helped him. The record contains affidavits corroborating the statement as to his worth and also contains an affidavit from a United States citizen who had know him well in Colombia. She stated that when she had been informed by the respondent that he had applied for an immigrant visa she had asked him if he wished her to supply affidavits of support but that he had replied it was unnecessary. She stated that she and other members of her family had been willing to furnish affidavits of support.
In Colombia, respondent had been employed in a clerical capacity at a salary of about $100 a month. His employer, an insurance company, furnished him a letter which he presented to the American consul. This letter stated that respondent had been employed for the past 3 years and that he had indicated a desire to enter the United States to obtain employment with the head office in New York; and that they were writing to the head office recommending that he be hired. In the United States respondent is employed in an office and earns about $42 a week.
Respondent's application reveals that he has had 8 years of formal education and additional education of an unstated period in trade schools. It reveals that he was free from serious mental or physical illness; that he could read and write Spanish and English; and that he had no police record.
The special inquiry officer sustained both charges set forth above on the theory that the visa was procured by fraud and was, therefore, invalid. To sustain both charges, the Service has the burden of establishing that the alien was ineligible for the issuance of a visa at the time he received his visa and that he concealed this ineligibility by a willful misrepresentation ( Matter of B---- and P----, 56152/825 and 56154/758, 2 IN Dec. 638, 645; Matter of G----, A-8247543, 4 IN Dec. 735).
Whether the alien was ineligible for the issuance of a visa and whether he willfully concealed this ineligibility must be determined not from the opinion of the individual consul who issued the visa but from a consideration as to whether the facts would cause a reasonable person to find that the alien was ineligible ( Matter of M----, A-7099059, 4 IN Dec. 532).
The only ground of ineligibility that could have existed in the instant case (as is implied in the special inquiry officer's opinion) is the possibility that the alien was one likely to become a public charge. A finding that a person was one likely to become a public charge must be "predicated upon the existence of facts or circumstances which indicate a reasonable probability" that the danger exists ( 22 CFR 42.42 (a) (15)). We find that the record does not establish a reasonable probability existed that the alien was one likely to become a public charge. Respondent was a single mature individual with a record of gainful employment. His employer recommended that he be hired in the United States. In fact, he obtained gainful employment in the United States and an affidavit reveals that employment and affidavits of support would have been offered to him even before he came had it been known that he desired those things. Respondent was free of disease or disability. He had no police record. He was educated in both Spanish and English. He had a reasonable amount of assets. His eligibility for the issuance of a visa was clear.
Since respondent was not ineligible for the issuance of a visa, his resort to the spurious check to expedite action on his application, although it must be strongly condemned, did not amount to a misrepresentation of material fact. The visa was validly issued. Neither charge can be sustained.
Order: It is ordered that the appeal be and the same is hereby sustained.
(January 17, 1956)
Discussion: On June 3, 1955, the special inquiry officer found the respondent to be subject to deportation solely on the warrant charge, but granted him the privilege of voluntary departure. The Board of Immigration Appeals has found that the respondent is not subject to deportation and has entered an order under date of October 20, 1955, sustaining his appeal from the decision of the special inquiry officer.
STATEMENT OF FACTS
The respondent is a 36-year-old unmarried male, a native and citizen of Colombia. His only entry into the United States was effected at Miami, Florida, on August 3, 1951, when he presented an immigrant visa issued to him by the American Consul at Bogota, Colombia, on July 18, 1951, under the provisions of section 4 (c) of the Immigration Act of 1924. The respondent was accompanied by his mother (who was dependent upon him for support), sister, and sister-in-law who were in possession of similar visas also issued on July 18, 1951, by the American Consul at Bogota.
Before immigrating to the United States, the respondent was employed as a telephone operator in Bogota by an agency of the Home Insurance Company at a salary of 225 pesos (about $100) a month. His formal education had included attendance at grade schools for a period of 8 years in addition to studies at trade schools. In support of his application for a visa, the respondent signed and submitted to the consul a completed form entitled "Personal Data for Procurement of Visa." In that form there was contained the following information: "Evidence of economic means. I have check drawn to my order in the amount of $13,600." On the reverse side of the form, presumably in the handwriting of a clerk employed by the consul and over the clerk's initials, the following notation appears: "Check No. 459 of Joe Fernandez Y Cia. Ltda. dated July 14/51, against the Chase National Bank of N.Y. issued to P---- S---- C---- in the amount of $13,600.00 presented." [Emphasis added.]
The only other evidence submitted to the consul with respect to the respondent's financial status was a communication from his employer, an agency of the Home Insurance Company, to the effect that they were writing a letter to their head office recommending his employment in the United States.
On March 27, 1952, prior to the commencement of the deportation proceedings, the respondent made a sworn statement before a Service officer that he had paid a certain Mr. B---- $75 or $80 for assistance in obtaining the visa. Mr. B---- told respondent that he had friends in the American Embassy and could expedite the issuance of a visa. Mr. B---- gave him a check in the sum of $13,600, drawn by Joe Fernandez y Cia., Ltda., on the Chase National Bank of New York to the order of the respondent. The respondent did not know Joe Fernandez. Mr. B---- gave respondent the check on the day he went to the American Embassy for his interview so that he might present it if necessary as proof of his financial status. Included in the respondent's sworn statement of March 27, 1952, are the following questions and answers:
Q. Did you suspect or think that there might be anything dishonest or illegal in the manner in which Mr. B---- might procure this visa for you?
A. Yes, I knew. I want to tell you the truth, Mr. D----. I met him when I was getting my papers outside of the American Embassy. He told me he worked for the American Embassy and he told me he would help me if I pay him and I said yes but I want to be sure that I will go to the United States.
* * * * * * *
Q. Did you know that you were presenting this check as proof of your financial integrity; that in fact it was a misrepresentation?
A. Yes, it was a lie * * *
Q. What disposition was made of the check — after you presented it to the American Embassy at Bogota?
A. She asked me how I got the money but she did not ask for the check. She did not see the check.
Q. Did you have the check in your possession?
A. Yes.
Q. Did she ask you for proof of financial soundness? Did she ask you how much money you had?
A. This was shown on my application which Mr. B---- filled out and which I signed.
Q. Was this check for $13,600 actually included in your application papers?
A. No, it was not with the other papers but I had it in my pocket in case they asked me to show it.
Q. Was the amount of the check and the data pertinent to the check, such as the date, signature, and amount included in the application for visa which you signed?
A. Yes, it was included and had she asked me for proof of it, I would have taken it out of my pocket and showed it to her.
Q. What disposition was made of the check?
A. I had it in my pocket while the girl was reviewing my application but she did not ask me for it. After the interview I met Mr. B---- downstairs and he said give me back the check you don't need it any more.
Q. Did you at this time realize that the last part of your application for visa with respect to financial integrity was a falsehood?
A. Yes, I realized that something was wrong.
Q. Then you did know that in offering this check as financial integrity, that this check and what it represented was not yours and it must be returned without it being cashed to Mr. B----?
A. Yes.
Q. You were fully aware of the fact that you submitted a check in your behalf as an applicant for a visa and that the check in no way, shape or form is a valid representation of your financial integrity?
A. Yes, I knew this. When I went in to be interviewed he gave me the check. When I left, I gave it to him back. Then he made me to understand that I could not cash the money. I knew that the money was not mine.
[Emphasis supplied.]
At the warrant hearing, held on May 27, 1953, the respondent's sworn statement of March 27, 1952, was received in evidence without objection. The respondent testified at the hearing that he had signed the "personal data" form without reading it and that it had been filled out for him by Mr. B----. But, according to his sworn statement of March 27, 1952, he knew that the data relating to the spurious check had been inserted in the application ("personal data" form) which he signed; and he then stated that he held the check so that he might exhibit it on demand. It is also noted that at the warrant hearing the respondent testified that he paid Mr. B---- the sum of $200 for his services whereas in his sworn statement of March 27, 1952, he stated that he paid him only $75 or $80.00.
The American consul has submitted an affidavit in which he alleges that he would not have issued the visa to the respondent if he had known that the check for $13,600 was spurious, as the check represented the only tangible evidence presented by the respondent as to his financial worth.
DISCUSSION
Contentions of the Service. The Service contends (1) that the respondent, at the time he applied for and obtained his immigrant visa, failed to establish that he was not inadmissible as an alien "likely to become a public charge" (section 3 of the act of February 5, 1917, 8 U.S.C. 136; and section 23 of the Immigration Act of 1924, 8 U.S.C. 221), and (2) that his visa was invalid because procured by means of a fraudulent misrepresentation concerning his financial status.
Contentions of the Board. The Board's decision of October 20, 1955, is based on the conclusion that the respondent's actual economic status did not render him ineligible for the issuance of a visa and, therefore, that his resort to the spurious check to expedite action on his application did not amount to a misrepresentation of a material fact.
Eligibility of respondent for issuance of visa. When the respondent applied for a visa and for admission to the United States, the burden of proof was upon him to establish that he was not subject to exclusion under any provisions of the immigration laws (section 23, Immigration Act of 1924, 8 U.S.C. 221). Similar provisions are contained in section 291 of the Immigration and Nationality Act.
The American consul has alleged, and the record demonstrates, that the only evidence submitted by the respondent to the consul with respect to his financial status consisted of (1) a letter from his employers to the effect that they were writing their head office in New York recommending his employment there, and (2) a check drawn to the order of the respondent in the amount of $13,600. Since it is conceded by the respondent that the check was spurious and did not represent any moneys to which he was entitled, the only credible evidence bearing on his financial status was the letter from his employers.
In its decision, the Board apparently accepts at face value all of the allegations made by the respondent in the course of the deportation proceedings with respect to what his financial status was at the time he applied for and obtained his visa. We do not credit these allegations because they were not made to the consul and subjected to his scrutiny. For the purposes of our discussion, however, it may be assumed that the respondent might have been able to sustain his burden of establishing admissibility before the consul. But what he might have been able to do is immaterial. The fact remains that he did not do so.
Ever since July 1, 1924, the immigration laws have provided that an applicant for an immigrant visa shall furnish detailed information to the American consul in support of his application (section 7, Immigration Act of 1924, 8 U.S.C. 207; sections 221, 222 of the Immigration and Nationality Act, 8 U.S.C. 1201, 1202). Both statutes provide that the consul shall not issue an immigrant visa if he knows or has reason to believe that the immigrant is inadmissible to the United States (section 2 (f) of the Immigration Act of 1924, 8 U.S.C. 202 (f); section 221 (g) of the Immigration and Nationality Act, 8 U.S.C. 1201 (g)).
In other words, the Congress has declared that an alien must establish his admissibility under the immigration laws before he enters the United States. At that time the alien's evidence may be examined and any necessary investigation conducted. The Board has, on many occasions, stressed not only the importance of full disclosure of the facts by an applicant for an immigrant visa but the fallacy of speculating in a deportation proceeding as to what the actual situation had been at or before the time of entry.
Thus, in Matter of B---- and P----, 56152/825 and 56154/758, 2 IN Dec. 638, the Board was considering the deportability of aliens who had entered the United States under the name and identity of another or under an assumed name. At page 642, the Board stated:
What is the fraud which vitiates an immigration document? It is deceiving this Government by posing as someone else. Suppose upon examination in this country, the individual appears to have been eligible for the same document under his own name, but for some personal reason or misconception of the law found it expedient to obtain the documents in the name of another, has the Government been deceived to its detriment? It has, because the Government has been deprived of its right prescribed by statute to examine his qualifications for admission abroad at the time and place he applies for the visa. There the evidence he submits to establish his admissibility may be verified. His statements concerning his activities and background may be checked against local records. It is particularly unsound to attempt to determine in a deportation proceeding that all the evidence available abroad, 5, 10, or 15 years before, would have shown that the subject was as eligible for an immigration document as the individual he impersonated. [Emphasis supplied.]
The reasoning of the Board in Matter of B---- and P----, supra, is just as logical and pertinent in cases where the alien's fraud relates to his moral character, occupation, health, economic status, or any other condition which is relevant to a determination of his admissibility under the immigration laws.
Again, in Matter of G----, A-8247543, 4 IN Dec. 735, the Board was considering the deportability of an alien who had procured an immigrant visa on the strength of a letter signed by a bank official falsely alleging that the alien had a large sum of money on deposit. The facts in that case are so similar to the facts in the instant case that we are unable to reconcile the Board's decision here with its order of deportation in Matter of G----, supra. In that case the Board pointed out (p. 740) that the alien's false representation had cut off further inquiry by the consul and that it need not speculate on what might have been disclosed by such further inquiry.
In determining today whether the respondent was eligible for an immigrant visa, consideration must be limited to the credible evidence known to the consul at the time he issued the visa. If the consul was not in possession of all the facts favorable to the respondent, it is the respondent who must suffer the consequences because he was under a duty to present all relevant facts as well as to refrain from making false statements (section 7, Immigration Act of 1924, 8 U.S.C. 207). The only credible evidence submitted by the respondent having a bearing on his financial status was the letter from his employer recommending him for employment in the United States. If the consul knew (and the respondent was under a duty to make it known) that the check for $13,600 was spurious, then the respondent would have appeared to be an applicant who was without any funds whatever and whose mother was dependent upon him for support. Under those circumstances, there can be no doubt as to the respondent's ineligibility on the ground that he had failed to sustain the burden placed upon him by section 23 of the Immigration Act of 1924, 8 U.S.C. 221, to wit: to establish that he was not subject to exclusion under the "public charge" provision of section 3 of the Immigration Act of 1917, 8 U.S.C. 136.
The Board cites Matter of M----, A-7099059, 4 IN Dec. 532, for the proposition that the question of respondent's eligibility for a visa may not be determined on the basis of the individual consul's opinion but from a consideration as to whether the relevant facts would cause a reasonable person to find that the alien was ineligible. Matter of M----, supra, did not, however, involve any question of fraud or misrepresentation. In that case the consul, on the basis of conceded facts, issued a nonquota visa under section 4 (d) of the Immigration Act of 1924 because he was of the opinion that the applicant was entitled to such visa as a "professor." The Attorney General sustained the position of the Service in that case to the effect that it could review the facts de novo as to whether the alien was entitled to issuance of the visa. The Service has not introduced the affidavit of the consul in the instant case because his opinion is binding on the Service or the Board. We have never made that contention. The consul's affidavit has been introduced into the record because his opinion supports the conclusion of the Service and merits consideration. Especially does his opinion merit consideration by the Board since it relates to a ground for exclusion which requires the exercise of individual judgment on the part of the consul (See 22 CFR 42.42 (a) (15)).
Materiality of respondent's misrepresentation. As previously indicated, in support of his application for an immigrant visa the respondent falsely alleged that he was the holder of a genuine check drawn to his order for the sum of $13,600. Was this misrepresentation material so as to invalidate the immigrant visa issued to him? The courts have uniformly held that an immigrant visa is invalid if it was procured by means of a material misrepresentation or concealment ( United States ex rel. Jankowski v. Shaughnessy, 186 F. (2d) 580, 582 (C.A. 2, 1951); United States ex rel. Fink v. Reimer, 96 F. (2d) 217, 218 (C.C.A. 2, 1938); Daskaloff v. Zurbrick, 103 F. (2d) 579, 580 (C.C.A. 6, 1939); Heizaburo Hirose v. Berkshire, 73 F. (2d) 86 (C.C.A. 9, 1934); Darabi v. Northrup, 54 F. (2d) 70 (C.C.A. 6, 1931); and Popa v. Zurbrick, 45 F. (2d) 583 (C.C.A. 6, 1930)).
The latest judicial holding, United States ex rel. Jankowski v. Shaughnessy, supra, is of particular interest. In his application for a visa Jankowski concealed the fact that he had been arrested in England in 1940 and imprisoned or interned there until 1942. He also falsely alleged that he was at sea during the period he was in England. Although the court's opinion does not indicate whether the alien had been convicted of any crime or whether he had been charged with an offense involving moral turpitude, the court stated (p. 582):
The misrepresentation and concealment were material. Had he disclosed those facts (arrest and imprisonment), they would have been enough to justify the refusal of a visa. For surely they would have led to a temporary refusal, pending a further inquiry, the results of which might well have prompted a final refusal.
The decision in the Jankowski case apparently disapproves the earlier decision of the same court in United States ex rel. Iorio v. Day, 34 F. (2d) 920 (C.C.A. 2, 1929). In that case the court held that an alien's concealment of an arrest and conviction for a liquor law violation was immaterial because the crime did not involve moral turpitude. They believe the holding in the Jankowski case is controlling. It is not only the latest judicial determination of the question, but it is more realistic and accords due recognition to the right of the Government to obtain truthful information in the first instance and thereby to launch such investigations as may be deemed necessary on the basis of such information.
We have previously referred to cases in which the Board has recognized the danger of cutting off necessary inquiries when the applicant for a visa supports his application by the making of false statements ( Matter of B---- and P----, supra; Matter of G----, supra). We also refer the Board to its decision in Matter of R----, 56091/636, 1 IN Dec. 613 (1943). The pertinent ground for deportation was that the alien had admitted the commission of a crime involving moral turpitude prior to entry, to wit: perjury. He had made false statements under oath before an American consul and a board of special inquiry to the effect that he had never previously been in the United States. Was such false statement material for the purposes of the perjury statute? At page 614, the Board said:
* * * In an application for an immigration visa or for admission, prior residence in the United States is a material matter as grounds of inadmissibility, such as conviction for crime, may stem from an alien's actions while in the United States, and a denial of ever having been here before cuts off inquiry into the alien's past record. [Emphasis supplied.]
We note that, in Matter of R----, supra, the Board found that the misstatement as to prior residence was material because it shut off inquiry as to possible criminal record, although the investigation actually conducted in that case revealed that the alien had no criminal record whatever.
In the light of the foregoing discussion, we now address ourselves to the question whether the respondent's misrepresentation was material. The question requires us to regard the situation as it would have appeared to the consul if the misrepresentation had not been made. In that event the respondent would have appeared as an applicant who had no funds whatever and one whose mother was dependent upon him for support. It may be, as the respondent now claims, that he did have $1,500 available for his use and the use of his mother, sister, and sister-in-law. But since he preferred to claim ownership only of the spurious check for $13,600 without reference to any moneys he may have actually possessed, he must stand or fall on the record which he himself created. Has such an applicant sustained the burden of proving he was not a person "likely to become a public charge"? The consul who issued the visa is of the opinion that the respondent did not sustain the statutory burden of proof and we agree with his conclusion. For that reason, and also because the respondent's fraud operated to shut off the investigation that a consul is expected and required to make of an applicant who appears to be without any funds, we are impelled to conclude that the respondent's misrepresentation was most material.
Since the Board's decision in the instant case, in our opinion, may constitute a dangerous precedent, we wish to discuss a few hypothetical cases in which applicants for immigrant visas may be encouraged by its ruling to frustrate the enforcement of the immigration laws.
A misrepresentation or concealment by an applicant for a visa may be designed to impede or preclude an investigation which would reveal his ineligibility on various grounds under the immigration laws, such as those relating to health, economic status, narcotics, prostitution, and smuggling of aliens, as well as criminal record. For example, the application for an immigrant visa includes an item which calls for the applicant's "last permanent residence." Suppose an applicant, in response to that item, falsely alleges that his last permanent residence is No. 100 Tenth Street in a certain foreign city although his last permanent residence is actually No. 500 Tenth Street, a building generally known to be occupied in part by a Communist organization. The applicant may honestly believe that he is not excludable under section 212 (a) (28) or any other provisions of the Immigration and Nationality Act, and it may be a subsequent investigation would establish beyond a doubt that he is eligible for an immigrant visa. But if he misstates the place of his last permanent residence to avoid the delay or embarrassment resulting from such investigation, he is fraudulently misstating a material fact, for surely a disclosure by such applicant of his correct residence address "would have led to a temporary refusal, pending a further inquiry, the results of which might well have prompted a final refusal" ( United States ex rel. Jankowski v. Shaughnessy, 186 F. (2d) 580, 581 (C.A. 2, 1951)).
He is also guilty of perjury in violation of 18 U.S.C. 1621, of making a false, fraudulent statement in a matter within the jurisdiction of an agency of the United States in violation of 18 U.S.C. 1001, and of making a false statement under oath with respect to a material fact in an application for an immigration document in violation of 18 U.S.C. 1546.
Let us consider a few additional examples. The application for an immigrant visa includes the statement: "I have not been arrested or indicted for, or convicted of any offense." Suppose an applicant intentionally fails to correct that statement although he has been arrested and convicted for what he honestly believes to be a minor offense. However, a full disclosure of the facts and circumstances under which he was arrested and convicted might suggest to the consul that the applicant is a person afflicted with psychopathic personality and, therefore, excludable under section 212 (a) (4) of the Immigration and Nationality Act. That very situation arose in the Matter of F---- R----, A-8401009, 6 IN Dec. 813 (Dec. 20, 1955), where the Board, upon reconsideration, adopted the Service view that the immigrant visa was invalid because procured by a fraudulent misrepresentation of a material fact.
The application for an immigrant visa also includes an item calling upon the applicant to state his "occupation." Suppose an applicant intentionally describes himself as a "tailor" although the truth is that he has been employed as the manager of an establishment which is frequented by prostitutes. The applicant may honestly believe that the nature of his employer's business and his own activities with respect thereto do not render him ineligible for an immigrant visa under section 212 (a) (12) of the Immigration and Nationality Act. Shall we condone his misstatement upon discovery of the truth because the alien, in the course of deportation proceedings, contends that a timely investigation would not have established his ineligibility?
Let us consider one further illustration. The application for an immigrant visa contains an item "final destination in the United States." Suppose the applicant, in answer to that question, falsely states: "John Smith, a friend, 105 Fifth Avenue, New York City," whereas the truth is that he is destined to William Brown, cousin, 2500 Tenth Street, New York City, a notorious racketeer known to be engaged in various illegal activities. Here, again, the alien may honestly believe that he is eligible for the issuance of an immigrant visa and for admission to the United States. But a truthful answer would have undoubtedly alerted the consul to the necessity of launching a further inquiry to ascertain, among other things, whether the alien is coming to the United States to engage in some form of unlawful, commercialized vice (section 212 (a) (12) of the Immigration and Nationality Act). Shall we, in the course of deportation proceedings, condone the alien's fraud and accept his contention that a timely investigation would not have established his ineligibility?
The Board has already indicated that, under certain circumstances, we need not speculate in a deportation proceeding as to what the actual situation was at the time the alien applied for and obtained his visa by the making of false statements ( Matter of B---- and P----, 56152/825 and 56154/758, 2 IN Dec. 638, 642, and Matter of G----, A-8247543, 4 IN Dec. 735, 740). The Board has also indicated that certain false statements are always material because they preclude adequate scrutiny of an applicant's qualifications or cut off inquiry into matters affecting his eligibility.
False statements as to name and identity, Matter of B---- and P----, supra, and Matter of C----, A-8581279, 6 IN Dec. 746 (Oct. 5, 1955); false statements as to prior residence in the United States, Matter of R----, 56091/636, 1 IN Dec. 613; false statements which cut off inquiry as to possible ineligibility on medical grounds, Matter of F---- R----, A-8401009, 6 IN Dec. 813 (Dec. 20, 1955).
The Board should now declare that any false statement knowingly made in support of an application for a visa is material (1) if a truthful answer would in and of itself establish the applicant's ineligibility to receive a visa, or (2) if the false statement is designed or has a natural tendency to impede, hinder, or forestall an investigation into the applicant's eligibility for the issuance of a visa.
We believe the Board agrees with our view that an applicant for a visa should not be permitted to sit in judgment upon the question of his own eligibility and to deceive the consul into a belief that further investigation of his qualifications is not required. If the Board adheres to its determination of October 20, 1955, its decision will not only be inconsistent with prior rulings of the Board in similar cases, it will encourage applicants for visas to resort to fraudulent practices in the belief that they will be able to defeat any subsequent deportation proceedings by alleging they could have established their eligibility without the use of false statements. Neither respect for the law nor its proper enforcement can thrive under such conditions.
For the reasons stated above, the Service contends (1) that the credible evidence submitted to the consul by the respondent failed to establish his eligibility to receive an immigrant visa, and (2) that the visa obtained by him was invalid because procured by means of a fraudulent misrepresentation as to his financial status.
Motion is hereby made that the Board of Immigration Appeals reconsider and withdraw its order of October 20, 1955, and enter an order dismissing the respondent's appeal from the order of the special inquiry officer.
If the motion is denied, request is hereby made that the case be certified to the Attorney General pursuant to 8 CFR 6.1 (h).
(April 16, 1956)
Discussion: On October 20, 1955, we entered an order sustaining the respondent's appeal from the decision of the special inquiry officer finding him deportable on the warrant charge. We ordered proceedings terminated. The Acting Assistant Commissioner requests that we reconsider our decision and enter an order dismissing the respondent's appeal from the order of the special inquiry officer.
The facts have been fully stated in previous orders. Briefly, the respondent, a 36-year-old male, a native and citizen of Colombia, obtained an immigrant visa which the Service contends is invalid because in applying for the visa the respondent stated he had a check drawn to his order in the amount of $13,600. The respondent was actually in possession of a check which had been given to him by a group of unscrupulous individuals who apparently preyed upon aliens who were interested in applying for visas. He had no claim to the money, except perhaps as a borrower. The respondent testified that he did not present the check he had on his person but when questioned about his assets at the consulate replied that his father would make available to him about $13,000 as needed. His own assets at the time totaled about $3,000. He stated he was not asked to produce the check and did not produce it. His preliminary application for a visa contains a statement that the check was presented. The conflict between the testimony of the respondent and the note on the preliminary application is not explained in the record. The strong possibility exists that a confederate of the ring which assisted the alien to come to the United States worked in the consulate.
Two questions — one factual, one legal — are presented by this appeal. The factual issue is as to whether the respondent was a person likely to become a public charge at the time he applied for a visa. We held the record did not establish that at the time respondent applied for a visa he was a person likely to become a public charge. The Service argues in great detail that this conclusion is erroneous. We believe a finding to the contrary would be without foundation. Our original order discusses this matter fully.
The legal issue does not merit extended discussion, but since the Acting Assistant Commissioner has requested that this motion be certified to the Attorney General if it is denied, we shall attempt briefly to answer his contentions.
The law is settled that a misrepresentation of fact, whether willful or innocent, made in applying for a visa, will not invalidate the visa, if the alien would have been eligible to secure the visa had the true facts been known ( United States ex rel. Teper v. Miller, 87 F. Supp. 285 (D.C., S.D.N.Y., 1949) and cases cited there). This rule has been recognized and accepted as the law by administrative authorities whether this Board, the Commissioner, or hearing officers ( Matter of D----, A-6995468, 6 IN Dec. 77 (1954); Matter of P----, A-6401882, 4 IN Dec. 684, 688 (1952); Matter of B----, A-4048121, 3 IN Dec. 278, 284 (1948)). It is also followed by the Department of State.
There is a departure from this rule in an identity case, that is, a case where an alien secured a visa by posing as another. In such a case, the visa is declared invalid even though the alien could have obtained a visa had he given his true name. The reasons usually given for the exception is that a misrepresentation as to identity cuts off all inquiry and makes it difficult to keep adequate check on the alien after arrival ( Matter of B---- and P----, 56152/825 and 56154/758, 2 IN Dec. 638, 645; Matter of G----, A-8247543, 4 IN Dec. 735, notes 3 4, pp. 738, 739; United States ex rel. Fink v. Reimer, 96 F. (2d) 217 (C.C.A. 2, 1938)).
Stated in other words, the rule is that a misrepresentation which cuts off all inquiry will invalidate a visa even though the alien could have secured a visa had he given his true identity, but that a misrepresentation which cuts off some inquiry will not invalidate the visa unless it concealed a ground of inadmissibility to the United States.
The Acting Assistant Commissioner refuses to recognize the existence of this rule and the exception in identity cases. He claims the rule is that any misrepresentation whether innocent or willful must be held to invalidate a visa if the false statement is designed or has a natural tendency to impede, hinder, or forestall an investigation into the applicant's eligibility for the issuance of a visa.
The Acting Assistant Commissioner's position would eliminate the settled and general rule and adopt the exception which exists in identity cases as the general rule. This position is untenable ( Matter of G---- M----, A-8948706, Interim Decision No. 762, Atty. Gen., Apr. 2, 1956).
The Acting Assistant Commissioner cites several administrative decisions in support of his position. None of these decisions expressly or by implication supports his view. We shall deal with them briefly. Matter of B---- and P----, supra, clearly sets forth both the general rule and the exception in identity cases (p. 645). Matter of G----, supra, contains the express statement that we were not considering a "situation where there existed a misrepresentation which would not have caused the refusal of the issuance of a visa." Matter of R----, 56091/636, 1 IN Dec. 613, concerned materiality in relation to the commission of the crime of perjury. This issue was not involved herein. Matter of C----, A-8581279, 6 IN Dec. 746, concerned a misrepresentation as to identity and is not controlling here. Matter of F---- R----, A-8401009, 6 IN Dec. 813 (1955), reiterates the rule we have followed in deciding this case. The alien there was a psychopathic personality and, therefore, inadmissible to the United States at the time he applied for a visa. In the instant case the record clearly establishes the alien was not possibly inadmissible to the United States.
It is noted in passing, that in Matter of C----, 6, I. N. Dec. 746, the exception to the general rule was applied. It was administratively held that a married woman who received a visa in her maiden name, had obtained her visa by misrepresentation. On February 15, 1956, Judge Wyzanski held that the administrative view was in error. He applied the general rule and held that, since the alien would have been entitled to the same visa had she revealed her marriage name, the visa was valid although she had been guilty of misrepresentation ( Clarke v. Landon, 139 F. Supp. 113 (D.C. Mass., 1956)). EDITOR'S NOTE. — On December 17, 1956, the Court of Appeals for the First Circuit, reversing the decision of the district court, held that a misrepresentation concerning identity by an incoming alien which results in entry into this country without the proper statutory investigation by immigration authorities is material, justifying deportation, no matter what the outcome of the investigation would have been if it had been made ( Landon v. Clarke, 239 F. (2d) 631; rehearing denied Jan. 9, 1957).
The Acting Assistant Commissioner places great reliance upon the decision in United States ex rel. Jankowski v. Shaughnessy, 186 F. (2d) 580 (C.A. 2, 1951). Jankowski is rather short on facts, but reveals that the alien obtained a visa in 1947. He failed to reveal that he had been arrested "and imprisoned or interned" in England from 1940 to 1942. The reason for the imprisonment or internment is not shown. No conviction of crime is mentioned. The court held the misrepresentation was material for had the truth been told a visa might well have been refused. Jankowski has shades of obscurity but the key to it appears to lie in two facts. One, the court cites previous decisions which affirm the general rule we have stated. Two, mention is made of internment, not conviction for crime. These facts would cause it to appear that incarceration was the result not of conviction of crime but for activity which might cause an alien to be found inadmissable to the United States, under the Act of October 16, 1918, or section 3 of the Immigration Act of February 5, 1917, making inadmissible persons who are anarchists, subversives or believers in sabotage, etc. Thus, it appears that the misrepresentation was such that had Jankowski told the truth, he would not have been clearly admissible and probable cause for his exclusion from the United States would have been found.
The Acting Assistant Commissioner is of the belief that Jankowski has overruled United States ex rel. Iorio v. Day, 34 F. (2d) 920 (C.C.A. 2, 1929). This conclusion cannot be supported. Iorio was an alien, who, in applying for a visa to return to the United States, concealed the fact that he had been imprisoned in the United States as a result of conviction for violation of the prohibition laws. After entry he had regularly engaged in the illicit sale of liquor. The court held that the concealment was not material for the convictions did not involve moral turpitude and had Iorio told the truth it would not have been enough to justify the refusal of a visa or exclusion upon entry. Both Iorio v. Day, supra, and United States ex rel. Fink v. Reimer, 96 F. (2d) 217 (C.C.A. 2, 1938), which relies upon Iorio, are cited with approval in Jankowski. There is, therefore, completely no basis to conclude that Iorio or the general rule was questioned by the court in Jankowski.
The Acting Assistant Commissioner terms our decision as possibly setting a "dangerous precedent." The argument is without merit and comes some 25 years too late. The precedent was set at least by Iorio decided in 1929 (See United States ex rel. Thomas v. Day, 29 F. (2d) 485 (C.C.A. 2, 1928)). For years it has been followed by judicial and administrative authorities ( United States ex rel. Teper v. Miller, supra; Matter of G---- M----, supra). Whether it is a "dangerous" law is primarily a question for Congress which has taken no steps to change it. However, we may note that the Acting Assistant Commissioner, although he has the experience and statistics of over a quarter of a century to draw upon for examples to support his contention that the law is "dangerous," cites hypothetical cases.
The motion will be denied.
The Acting Assistant Commissioner has requested that in the event of a denial this case be certified to the Attorney General.
Order: It is ordered that the motion be and the same is hereby denied.
It is further ordered that pursuant to 8 CFR 6.1 (h) the case be certified to the Attorney General.
(May 8, 1956)
This case is before me for review of a decision of the Board of Immigration Appeals, sustaining the respondent's appeal from an order dated June 3, 1955, by a special inquiry officer of the Immigration and Naturalization Service finding the respondent deportable, under section 241 (a) (1) of the Immigration and Nationality Act of 1952, in that, at the time of the respondent's entry he 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 he presented was not valid because procured by fraud or misrepresentation.
The order of the Board of Immigration Appeals sustaining the appeal of the alien is approved.