try nor that it was for any purpose other than to increase the defense capability of his own country. In fact, the captured German documents which were offered in evidence by the Service also indicate that the purpose of the appellant's January 1937 trip to Germany was to secure German assistance in strengthening Rumanian defenses.

Another illustration of a matter which was previously disposed of in favor of the appellant is found on page 44 of the brief of the Service where reference is made to a letter from A-G- to M— (appellant). Although the brief does not indicate this letter had previously been considered, we observe that it is the letter of June 21, 1940, which the Assistant Commissioner set forth in full in his decision of September 26, 1951, and concerning which he reached the conclusion that, after taking into consideration M-'s testimony, this letter was "explained in such a way that it cannot, in and of itself, be held to be adverse to M."

A further illustration is the discussion on pages 81 to 83 of the brief of the Service concerning the Rumanian National Committee. On September 26, 1951, the Assistant Commissioner of the Service discussed the dispute between the two rival Rumanian groups, that is, the Rumanian National Committee and the Association of Free Rumanians in the United States. C and V, who gave testimony adverse to appellant in the Displaced Persons proceeding, were members of the former group while General R- and the appellant belonged to the latter group. Both groups were apparently anti-Communist and were working for the liberation of Rumania. The Assistant Commissioner was of the opinion that this dispute must be considered in evaluating the testimony of the witnesses. However, we are satisfied that there is no justification for the conclusion in the brief of the Service that, since the dispute between the two Rumanian groups may have been advantageous to the Communists and since appellant M was active in one of the

groups, he has given aid to the Communists.

On page 49 of the brief of the Service it was stated that C M—, the appellant's son, had testified that members of the Rumanian Iron Guard had been occupying a fashionable residence opposite the M-house for several months prior to the revolt of January 1941 and that this fact was common knowledge. The brief then continues, "It is interesting to note that M- never mentioned this close presence of the Iron Guard in any of his present testimony or in the Displaced Persons proceeding. We learn of it for the first time in the cross-examination of his son." However, this Board has observed that on July 11, 1951, when the appellant was being questioned in the Displaced Persons proceeding about the invasion of his home by the. Iron Guard in January 1941, he stated

in part, "Across the street from my house, there was a house which belonged to a person of Jewish origin who is now in the United States. At the time, the house was empty so the Iron Guardists occupied that house as one of their headquarters for the revolutionary movement. * * The fact that the Iron Guard had been occupying a house opposite M-'s home was actually an inconsequential matter and, even if M- had not disclosed it, no unfavorable presumption would have arisen.

During the last several paragraphs we have referred to various parts of the Service brief to illustrate why we do not agree with the adverse inferences which the Service has drawn. The basic questions here, as in the Displaced Persons proceeding, are the appellant's relations with the Rumanian Iron Guard, the Nazi Party and the Communist Party. These matters were fully discussed by the Assistant Commissioner on September 26, 1951, and we agree with his conclusion that the appellant was not affiliated with any of these organizations.

About the only matters which the Service asserts occurred subsequent to the Assistant Commissioner's decision of September 26, 1951, are that the appellant obtained a first preference status in connection with his admission for permanent residence in 1953; that he procured a reentry permit in 1954; and that since 1951 he has apparently expended assets equal to or greater than the total assets he listed in 1951. The obtaining of the first preference status and the procuring of the reentry permit are the basis of the second and third grounds of excludability and will be discussed under the next heading.

With respect to the matter of the appellant's assets, the Assistant Commissioner's decision of September 26, 1951, showed that the appellant stated that he had assets in the United States of over $650,000 and that he had a little money in Swiss and French banks. We do not find in the brief any explanation as to how the Service reached the conclusion that since 1951 the appellant has expended assets equal to or greater than the total assets listed in 1951. In any event, since there appears to be no evidence that the appellant has been expending money for illegal purposes, we do not believe it is within the proper province of the Service or of this Board to delve into the question of what the appellant has done with his own money, that is, whether he still has it, whether he spent most or all of it, or whether he gave it away. There was a great deal of evidence favorable to the appellant in the Displaced Persons proceeding and again in the present proceeding. On the basis of all the evidence, it is our considered opinion that the appellant is not excludable under 8 U.S.C. 1182 (a) (27).

III. Excludability under 8 U.S.C. 1182(a)(19) and 1182 (a)(20) (A) General

The second and third grounds of inadmissibility mentioned above, that is, 8 U.S.C. 1182 (a) (19) and 1182 (a) (20), are interdependent upon each other, and we will consider them together as the Service has done in its brief. Principally, they stem from the appellant's admission as a first preference quota immigrant on September 26, 1953. The basic facts relating to that matter are as follows.

In April 1951, the appellant organized Western Tube Corporation for the purpose of manufacturing seamless steel tubes on the West Coast and a considerable sum was expended in furtherance of the undertaking. On January 14, 1953, the corporation filed a visa petition on behalf of the appellant. Thereafter, the district director of the Service concluded that the appellant was entitled to first preference status under 8 U.S.C. 1153 (a) (1) (A) and approved the visa petition. The Service subsequently authorized preexamination and on September 26, 1953, the appellant was admitted for permanent residence. Appropriate financing for Western Tube Corporation could not be obtained and its plant was never built.

With respect to the question of inadmissibility under 8 U.S.C. 1182(a) (19), the special inquiry officer's discussion is limited to the first paragraph on page 13 of his decision. He stated that he based his findings of inadmissibility on the failure of the appellant to sustain the burden of proof (by reason of the appellant's "silence") and then made the following statement: "In examining the record as it now stands, without the necessity of rejecting the testimony of M-, his family, and the documents offered by him, I am led to a different conclusion. I cannot determine fully whether the statements made by H- and C can properly be charged to M―." The effect of this is that the special inquiry officer says that he cannot, apart from the appellant's "silence," reach a conclusion that he procured a visa or documentation by fraud or misrepresentation. We have already indicated that the special inquiry officer was not warranted in drawing an adverse inference from the appellant's insistence that he would submit to cross-examination by the special inquiry officer and would not submit to cross-examination by the examining officer.

In determining that the appellant was excluable under 8 U.S.C. 1182 (a) (20), the special inquiry officer's discussion shows that he concluded that the appellant was not lawfully admitted to the United States on September 26, 1953, on the ground that he was not then entitled to admission as a first preference immigrant, and that the reentry permit presented at the time of the present application for admission was invalid since it was predicated on the 1953 entry which he had held was illegal. The conclusion of the special inquiry officer was

not based on the proposition that the 1953 immigrant visa was procured by fraud or misrepresentation. Instead, he proceeded on the theory that Western Tube Corporation had not actually begun manufacturing operations; that the appellant was the sole owner of this corporation; and that, for these reasons, the District Director of the Service had acted erroneously when he approved the visa petition.

In the notice of charges, which was served upon the appellant pursuant to the court's directive, it was stated that the appellant may be excludable:

Under 8 U.S.C. 1182 (a) (19) "in that the applicant filed a petition for the admission of himself as beneficiary, under section 204 (b) (8 U.S.C. 1154(b)) and further in that in his said application for a visa, the applicant failed to disclose that prior thereto, he had been arrested and/or imprisoned."

Under 8 U.S.C. 1182 (a) (20) "in that the reentry permit presented by the applicant was based upon a visa issued erroneously, and/or invalidly, since section 204 (b) of the act (8 U.S.C. 1154(b)) does not contemplate that an alien shall petition in his own behalf for an immigrant visa."

There was no validity to the charge that the appellant had failed to disclose an arrest in his application for a visa, and the special inquiry officer stated that the charge would not be sustained. It is apparent from the brief of the Service that it does not consider itself bound by the remaining specific matters contained in the notice of charges nor by the limited scope of the special inquiry officer's decision. In addition to urging that the immigrant visa and the reentry permit were invalid because they were founded on the District Director's erroneous approval of the visa petition, the Service also contends that the appellant procured approval of the visa petition through fraud and misrepresentation; that this necessitates a conclusion that the immigrant visa and reentry permit were so obtained; that the reentry permit "was independently obtained by fraud and/or willful misrepresentation"; and that the appellant now seeks to enter the United States by fraud and misrepresentation. In connection with the contention that there was independent fraud on the part of the appellant in obtaining the reentry permit, the Service asserts that he stated in his application for the permit executed on December 2, 1954, that he was then employed by Western Tube Corporation; that, in fact, he was not then so employed; and that, by that time, there was no longer any possibility that Western Tube Corporation would become a going concern. The Service further contends that the appellant's inclusion of this information in his application for reentry permit could have had no other purpose than to cut off inquiry into the facts concerning the appellant's last arrival in the United States, and that the appellant attempted to avoid investigation of his prior entry "by falsely stating that he was then and there employed by the Western Tube Corpora

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tion." Counsel stated during the oral argument that he prepared the reentry permit application and interpreted the question to mean the name and address of M's employer at the time he entered the United States for permanent residence.

The application for reentry permit is on Service Form I-131 which has 5 numbered subdivisions. Subdivision 3 reads, "Data as to Arrival in United States for Permanent Residence or as a Treaty Merchant." Under that there are 9 questions, including port and date of arrival, names of parents, name and address of person to whom destined, and name and address of employer. The last is the question which the Service says relates, not to the date of arrival for permanent residence, but to the date of applying for the reentry permit. Subdivision 4 reads, "Data as to Last Arrival in United States" and subdivision 5, "Data as to Departure."

From the context in which the question concerning name and address of employer appears, we think it is obvious that it refers to the name and address of the employer at the time of admission for permanent residence. In the appellant's case the date of admission for permanent residence was September 26, 1953. That the question as to the name and address of employer does not relate to the employer at the time of the application for the reentry permit is further borne out by question 1(b) (2) which is, "My present occupation and business activities and name of my employer are as follows." This question was not answered by the appellant since it was not applicable to his case but related only to treaty merchants. In view of what we have said, we reject the contention of the Service that this statement of the appellant was false.

The contention that the appellant now seeks to enter the United States by fraud and misrepresentation is based entirely upon inferences which we do not believe are warranted. This contention does not merit specific discussion with the exception of a reference on page 134 of the brief to the appellant's alleged false testimony in this proceeding concerning the expenditure of hundreds of thousands of dollars on behalf of Western Tube Corporation. That matter will be adverted to later herein.

Counsel contends that the Government is precluded from asserting the invalidity of the reentry permit because of the decision in United States ex rel. Malaxa v. Savoretti, supra. In that case, one of the findings of the court (139 F. Supp. at p. 148) was the following: "On December 16, 1955, the petitioner (this appellant) arrived at Miami, Florida, in possession of valid travel documents, including a valid reentry permit, which he presented to the immigration authorities." Although res judicata apparently is not involved, the doctrine of collateral estoppel by judgment, as discussed in Matter of HA-6420754, A-6726086-8, 7 I. & N. Dec. 407 (1957), may apply.

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