Counsel argues that inasmuch as the respondent is the parent of a citizen who is the unmarried daughter of his citizen wife, he is therefore entitled to second preference quota status under the statute as he interprets it.

The ingenuousness of counsel is commendable but not persuasive. When the language of a statute is plain and unambiguous there is no occasion for construction, and the statute must be given effect according to its plain and obvious meaning. The fundamental rule of statutory construction is to ascertain and, if possible, give effect to the intention or purpose of the legislature as expressed in the statute. Proper interpretation of a statute requires adherence to the plain common sense and meaning of the language therein contained, rather than an application of refined and technical rules of grammatical construction.1

As we read section 203 (a) (2) of the Immigration and Nationality Act (8 U.S.C. 1153 (a) (2)), the second preference category of immigrant visas is available to qualified quota immigrants who are the parents of citizens of the United States, such citizens being at least 21 years of age, or to qualified quota immigrants who are the unmarried sons or daughters of citizens of the United States. We are unable to read into the language of the statute the meaning ascribed by counsel that immigrant visas are available to parents of the unmarried sons or daughters of citizens of the United States.

The report of the committee in each House of the legislature which investigated the desirability of the statute under consideration is a much used source for determining the intent of the legislature, when it sets forth a committee's grounds for recommending passage of the proposed bill and, more important, its understanding of the nature and effect of the measure. Although not decisive, the intent of the legislature as revealed by the committee report is highly persuasive.2

Section 1 of the Act of September 22, 1959 (P.L. 86-363); 73 Stat. 644, H.R. 5896, provides:

Section 203 (a) (2) of the Immigration and Nationality Act is hereby amended by striking out the period and adding the following: "or who are the unmarried sons and daughters of citizens of the United States."

Senate Report No. 962 (September 8, 1959), to accompany H.R. 5896, states that section 1 of the Bill would improve the quota immigrant status of the unmarried sons or daughters over 21 years of age of citizens of the United States by moving them from the

12 C.J.S. 577, 560, 683.

2 Sutherland, Statutory Construction (1943 ed.) pp. 489, 490.

fourth to the second preference in the allocation of immigrant visas within the quotas. The second preference is presently available only to parents of United States citizens. The report made reference to a letter from the Deputy Attorney General, dated June 23, 1959, to the Chairman, Committee of the Judiciary, which stated:

Under existing law (section 203 (a) (4) of the Immigration and Nationality Act) aliens who are the sons and daughters of citizens of the United States are accorded fourth preference in the allocation of immigrant visas within quotas. Under section 1 of the Bill, the adult unmarried sons or daughters of citizens of the United States would be placed in the second-preference category.

We believe that the plain reading of the statute and the legislative history conclusively demonstrates that the allocation of quotas within the second preference group is available only to two categories of immigrants: (1) immigrants who are the parents of citizens of the United States, such citizens being at least 21 years of age; or (2) immigrants who are the unmarried sons or daughters of citizens of the United States. Inasmuch as the respondent does not fall within any of these categories, he is eligible only for nonpreference status. The nonpreference portion of the quota for Lebanon, to which the respondent is chargeable, is oversubscribed. A visa is not immediately available to the respondent and his application for adjustment of status under section 245 was properly denied. The respondent has been granted the privilege of voluntary departure with an automatic order of deportation if he fails to depart as required. The appeal will be dismissed.

ORDER: It is ordered that the appeal be and the same is hereby dismissed.

MATTER OF GAYO-GAYO

In Deportation Proceedings

A-11010264

Decided by Board February 23, 1965

A conviction under 18 U.S.C. 371 of conspiracy to violate 18 U.S.C. 1546 (false statements in immigrant visa) is not tantamount to a conviction under 18 U.S.C. 1546 within the purview of section 241(a)(5), Immigration and Nationality Act.

CHARGES:

Order: Act of 1952-Section 241(a)(1) [8 U.S.C. 1251(a)(1)]-Excludable at entry-Not nonquota immigrant.

Act of 1952-Section 241(a)(5) [8 U.S.C. 1251(a)(5)]—Convicted under Title 18, U.S.C., section 1546.

Respondent appeals from the order of the special inquiry officer finding him deportable on the first charge set forth above. The trial attorney appeals from the order of the special inquiry officer finding that the respondent was not deportable upon the second charge set forth above. Both appeals will be dismissed.

Respondent, a 32-year-old married male, a native and citizen of Spain, entered the United States on March 31, 1956 in transit to Spain; but failed to depart. On June 16, 1956 he married Milagros Rivera. He was apprehended by the Service on December 19, 1956 and on December 22 was returned to Spain. His wife filed a visa petition for him in January 1958; the petition was approved; the respondent entered the United States on March 16, 1958 with a nonquota visa issued to him as the husband of an American citizen.

The Service claims that the marriage was one entered into with the understanding by both parties that it would be one in name only, that it would not be consummated, and that it would be terminated when it had served its purpose of securing respondent's admission for permanent residence. Respondent contends that he married for love, that the marriage was consummated, that he lived

with his wife, and that he left her only when he found that she had been unfaithful to him. The special inquiry officer found the parties had not entered into a bona fide marriage relation.

The Service case is based on the testimony of Milagros Rivera and prehearing admissions against interest made by respondent. Counsel attacks Rivera as a person who was untruthful, of questionable character and whose testimony was induced by fear that she might otherwise be prosecuted for perjury since her unfavorable testimony was in conflict with a prehearing statement she had made. He contends that her testimony, contradicted as it is by that of respondent, a stable person, who has proven a good husband and provider (he remarried), is not credible. The conflicting testimony of Rivera has been set forth by the special inquiry officer and need not be repeated. We find as did the special inquiry officer that Rivera's testimony is corroborated by prehearing admissions against interest made by the respondent. We find that respondent's admissions were neither made under duress nor made to conform with testimony of Rivera. The information he furnished goes far beyond hers. We believe that the record adequately supports the first charge. The respondent's appeal will be dismissed.

Counsel contends the special inquiry officer was unduly influenced by the fact that the respondent was convicted on a criminal charge in connection with his marriage. The special inquiry officer stated that the criminal proceedings were such that the doctrine of collateral estoppel could not apply to the charge in question. There is no evidence that he was improperly influenced by the court decision; the reasons for his findings are fully set forth. There is no reliance upon the criminal proceeding.

The Service appeal will now be considered. On March 6, 1962, respondent, along with two others, was indicted for conspiracy to violate the immigration laws of the United States. The indictment contained four counts. Respondent was convicted and sentenced on count one. The count laid under 18 U.S.C. 371 charges that from about May 1956 to May 1959, the respondent and two others conspired to violate 18 U.S.C. 1001 (false statements) and 1546 (false statements in immigration visa) and to defraud the Government in the exercise of its governmental function of administering the immigration laws. In pursuance of the conspiracy five overt acts relating to the respondent's marriage to Rivera, his obtaining a visa, and his entry with a nonquota visa are set forth.

Respondent's deportation is sought under the underlined portion

of section 241 (a) (5) of the Act (8 U.S.C. 1251(a)(5)); the section provides for the deportation of an alien who

has failed to comply with the provisions of section 265 unless he establishes to the satisfaction of the Attorney General that such failure was reasonably excusable or was not willful, or has been convicted under section 266 (c) of this title, or under section 36(c) of the Alien Registration Act, 1940, or has been convicted of violating or conspiracy to violate any provision of the Act entitled "An Act to require the registration of certain persons employed by agencies to disseminate propaganda in the United States, and for other purposes", approved June 8, 1938, as amended, or has been convicted under section 1546 of title 18 of the United States Code; (Emphasis supplied.)

The special inquiry officer dismissed the charge based on section 241(a)(5) of the Act, finding that the section required a conviction under 18 U.S.C. 1546 whereas the conviction in the instant case had been under 18 U.S.C. 371. The special inquiry officer felt that had Congress who made conviction for a violation of 18 U.S.C. 1546 a ground of deportability intended to also make conviction for a conspiracy to violate 18 U.S.C. 1546 a ground of deportation, they would have provided as they had elsewhere in section 241(a)(5) of the Act for the deportation of an alien "convicted of violating or conspiracy to violate" the law in question. The special inquiry officer also pointed out that in other sections relating to the deportation of aliens, Congress specified that it was both the conviction of the law and the conviction of a conspiracy to violate that law that would subject the alien to liability to deportation (sections 241(a) (11) and (17) of the Act).

The Service representative contends that Congress intended by means of section 241 (a) (5) of the Act to deport persons guilty of fraud and misuse of visas and that since reference to the overt acts listed in the conspiracy count reveals that respondent's conviction was for acts of fraud and misuse of a visa, respondent should be held deportable under section 241 (a) (5) of the Act. No authority is cited for the contention that it was the intent of Congress to make liable to deportation by means of section 241 (a) (5) of the Act any person who committed acts of fraud or misused a visa but had not been convicted under 18 U.S.C. 1546. The contention must be rejected. The contention is made in face of the fact that by other provisions of the Act Congress, without requiring a conviction, provided for the deportation of an alien who was guilty of fraud or misuse of a visa (sections 212 (a) (19), 241 (a) (1), 241 (c) of the Act); reliance upon 241 (a) (5) of the Act is, therefore, unnecessary to deport an alien guilty of acts of fraud of the nature present in the instant case. Furthermore, the contention is made in face of the fact