to deportation on the charge designated above and directed that he be deported from the United States pursuant to law on the charge stated in the warrant of arrest. The Assistant Commissioner, Adjudications Division, in a decision dated April 2, 1952 granted the respondent permission to depart voluntarily from the United States, in lieu of deportation and directed that if he failed to depart when and as required he be deported pursuant to law on the charge stated in the warrant of arrest.

Counsel in support of his motion submitted a self-explanatory affidavit subscribed and sworn to by the respondent and a photostatic copy of a certificate showing that he was separated from the armed forces of the United States on July 16, 1954 and was honorably discharged therefrom on July 1, 1960.

The Service representative on motion asserted that counsel's motion is premature inasmuch as the respondent's petition for naturalization is now being considered and processed by the New York office of the Service for the purpose of determining whether or not the Service is disposed to recommend to the court that the petition be granted. Counsel and the Service representative in oral argument admitted they had no objection to having action on the instant motion held in abeyance pending the outcome of the interlocutory proceedings by the New York, New York office of the Service on the respondent's petition for naturalization under section 329 of the Immigration and Nationality Act. Accordingly, the following order will be entered.

ORDER: It is ordered that action on the motion be held in abeyance pending the outcome of the preliminary proceedings on the alien's petition for naturalization under section 329 of the Immigration and Nationality Act.

BEFORE THE BOARD

This case comes forward pursuant to the respondent's motion requesting the withdrawal of the outstanding order and warrant of deportation and further requesting that the proceedings be reopened to permit the respondent an opportunity to petition for naturalization pursuant to the provisions of section 329 of the Immigration and Nationality Act, as amended. The respondent, a 32-year-old male, native and citizen of Yugoslavia, has had continuous residence in the United States since his last admission at New York, New York on or about September 1, 1950 as a nonimmigrant crewman. Deportability has been established under the Immigration Act of 1924, as amended, no immigrant visa.

According to information available in the file the respondent filed a petition for naturalization and has been found eligible therefor under the provisions of section 329 of the Immigration and Nationality Act. When this case was last before this Board on December 26, 1961, we directed that action on the motion be held in abeyance pending the outcome of the preliminary proceedings on the alien's petition for naturalization under section 329 of the Immigration and Nationality Act. According to information available in the file the Service has found the respondent eligible for naturalization under the provisions of section 329 of the Immigration and Nationality Act. The Service has indicated that they will make a favorable recommendation to the court if this Board terminates the deportation proceedings.

After carefully considering all the evidence of record, it is our considered opinion that the respondent should be afforded an opportunity to prosecute his petition for naturalization pending in the United States District Court, Eastern District, Brooklyn, New York. In the event the respondent's petition for naturalization is denied, the existing record will constitute a record for deportation purposes. ORDER: It is ordered that the motion be granted.

It is further ordered that the outstanding order and warrant of deportation be withdrawn and the deportation proceeding terminated for the limited and sole purpose of permitting the alien to proceed with the final hearing on his petition for naturalization under section 329 of the Immigration and Nationality Act, presently pending in the United States District Court, Eastern District, Brooklyn, New York.

It is further ordered in the event the alien's naturalization is denied, the order and warrant of deportation be reinstated and executed.

MATTER OF AVALOS ZAVALA

In Deportation Proceedings

A-13123424

Decided by Board March 10, 1965

Respondent's misrepresentations as to marital status and the existence of minor children were material under section 212 (a) (19), Immigration and Nationality Act, since the facts, including respondent's pending divorce suit, his love for his cousin who also had a visa application pending, and his desire to marry her in the United States, if revealed to the consul, might have resulted in a finding of excludability under section 212(a)(13) of the Act. [Matter of M-R-, 9 I. & N. Dec. 602, and Matter of J-D—D—, 9 I. & N. Dec. 636, distinguished.]

CHARGES:

Order: Act of 1952-Section 241(a)(1) [8 U.S.C. 1251(a)(1)]—Excludable at entry-Visa procured by misrepresentation of material fact.

Act of 1952-Section 241(a)(1) [8 U.S.C. 1251(a)(1) ]—Excludable at entry-No valid visa.

The Service appeals from the order of the special inquiry officer terminating proceedings. The appeal will be sustained.

Respondent, a 40-year-old married male, a native and citizen of Peru, was admitted to the United States on March 16, 1962, upon surrender of a non-quota immigrant visa issued to him on January 18, 1962, at Lima, Peru. The Service charges that the respondent obtained his visa by misrepresenting a material fact, when he showed himself to be without wife and children whereas, in fact, he was married and had four minor children.

Respondent married in Peru on May 19, 1950. He did not establish a separate home for his wife; for a time they lived with her parents. They separated sometime before 1955, but had marital relations until that year. There are four minors of the union. About 1959 or 1960, respondent and his cousin Dora Mercado decided they would like to get married. The law did not bar such marriage but respondent was unable to obtain a divorce from his wife because she

demanded too much money. Dora made up her mind that she could not continue living in Peru near the respondent while he was not free to marry. She decided to come to the United States; respondent decided he would also come and that he would marry Dora when he was free to do so. On October 3, 1961, the respondent filed an action for divorce against his wife. (As of October 10, 1963, the divorce had not been granted although it appeared to be ready for a decision upon the petition of the interested party.) Both respondent and Dora applied for visas in 1962. Respondent stated he represented himself as being single because it was his intention to marry in the United States and because he thought the court action would solve the situation. Respondent and Dora left Peru by different airports primarily to prevent her parents from knowing that he was going to the United States with her. Upon arrival in the United States they began living together as husband and wife; about 20 days after arrival, upon learning that Dora was pregnant, respondent married her (April 12, 1962). Two children were born of this union.

Respondent alleges that he sends $95.00 a month for the support of his children in Peru; his wife has charged him before Peruvian officials with abandonment. The respondent's actions came to light after his wife had informed the United States Consul at Lima, Peru that respondent had traveled to the United States with a woman and might try to marry her here.

The special inquiry officer held that respondent had made a wilful misrepresentation as to his marital status and the existence of children, but that since the true facts would not have revealed that he was within the excluding provisions of section 212 (a) of the Act and since in several decisions, the Board has held that similar misrepresentations had not cut off a line of inquiry relevant to an alien's eligibility, the proceedings should be terminated. The special inquiry officer did not consider it a distinguishing factor that the respondent intended marrying his cousin in the United States.

The Service contends that the information withheld from the consul was material to the issuance of the visa because (1) had the consul known of the respondent's dependents, he would not have issued a visa without having been satisfied that respondent had the ability to support his family- an ability that the respondent was in no position to establish; (2) abandonment of children may involve moral turpitude and since there was the possibility that respondent was abandoning his children, consul could have refused to issue a visa: and (3) had consul known the facts, he would have refused to issue a visa on the groud of one since respondent was coming to the United States for an immoral purpose.

Counsel contends that Board precedents in similar situations require a finding that merely leaving behind children who were later supported did not constitute abandonment (Matter of M-R-, 9 I. & N. Dec. 602). He contends that since there was neither an abandonment nor prosecution for abandonment before the respondent left there could have been no question of denying respondent a visa because of the possible commission of a crime involving moral turpitude. Counsel contends the record does not establish it was the respondent's purpose to bring his cousin to the United States as a concubine since the record does establish that he intended to marry her as soon as he was legally free to do so he having already started divorce proceedings to free himself. Counsel contends that in any event, respondent is not charged with having entered the United States for an immoral purpose, and it would have made no difference to his eligibility for the issuance of a visa had the information been known. Matter of S-B- and C-, 9 I. & N. Dec. 436, and Matter of Martinez-Lopez, Int. Dec. No. 1312, are cited.

To permit a finding that the misrepresentation was not material, the respondent must establish that he was not inadmissible to the United States on the true facts and that his misrepresentation did not cut off an inquiry which might have properly resulted in a denial of the visa (Matter of S-B- and C—, supra, at 448-9).

Respondent and his present wife testified in a frank and cooperative manner in their pre-hearing statements. (Counsel refused to permit respondent to testify at the hearing (p. 22).) The respondent had never been arrested in Peru. There is no reason to doubt respondent's testimony that when he left for the United States with his cousin, he did not intend to marry her until his divorce became final.

In deciding whether inquiry might have revealed a ground of inadmissibility, an absolute defence is not presented by showing that the applicant may not have been inadmissible; the important factor is how the case would have appeared to the consul had he been in possession of all the facts at the time application was made. If having been in possession of all the facts, it would have appeared probable to the consul that respondent was inadmissible, then the concealment of those facts was a material matter (Matter of S—B— and C—, supra, at 449-50). Certainly, with information that the respondent, a married man with a family, was leaving the family, consul would have questioned respondent about his plans for his family, and could have learned of the respondent's separation from his wife, the pendency of the divorce suit and failure to prosecute it, respondent's love for his cousin who too had her visa application