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ber 25, 1957, at which time he was admitted temporarily as a nonimmigrant student under the assumed name of Jirair Parkev Ananian, having obtained a passport in that name from the Republic of Lebanon. The special inquiry officer found that the visa was obtained by fraud or misrepresentation and that the respondent did not have a valid passport, and he concluded that both charges were sustained.

In the notice of appeal, counsel stated that deportability was contested, and that the appeal was also based on denial of applications under sections 244(a) and 243(h) of the Immigration and Nationality Act [8 U.S.C. 1254(a) and 1253 (h)]. No application was submitted under 8 U.S.C. 1254 (a), and the respondent does not meet the requirements of that statutory provision. The issues to be determined are, therefore, whether deportability has been established and whether deportation should be withheld under 8 U.S.C. 1253 (h).

Counsel did not file a brief, but we have carefully considered the statements in the notice of appeal. There is nothing to indicate in what respect counsel claims there was a failure to accord the respondent due process of law, and this contention is dismissed as being without merit.

Insofar as concerns the contention that the two charges are not sustained, the respondent admitted that he obtained a birth certificate in the name of Jirair Ananian; that he represented himself to be this individual in obtaining a passport from the Republic of Lebanon; and that he made a similar representation and claimed to be a Lebanese citizen when he procured his nonimmigrant visa (hearing of February 8, 1960, p. 9). 8 U.S.C. 1101 (a) (30) provides: “The term 'passport means any travel document issued by competent authority showing the bearer's origin, identity, and nationality if any, which is valid for the entry of the bearer into a foreign country.” Since the Lebanese passport did not show the respondent's identity and correct nationality, it was not a valid passport, and we hold that he was excludable at the time of entry under 8 U.S.C. 1182(a) (26). Accordingly, the lodged charge is sustained.

With reference to the charge stated in the order to show cause, the respondent was excludable under 8 U.S.C. 1182(a) (19) if he procured his visa in either of two ways—(A) by fraud or (B) "by willfully misrepresenting a material fact". The special inquiry officer held (decision, p. 5) that the respondent was deportable because his visa had been secured by one method or the other. However, there was no particular discussion of whether he procured the visa by fraud. The respondent obtained a birth certificate and a Lebanese passport by fraud, and we are satisfied that fraud was necessarily inherent in the procurement of the visa.

In connection with the question of whether the respondent procured his visa by willfully misrepresenting a material fact, there were cited Matter of s- and B-07, Int. Dec. 1168 (A.G., 1961), and Matter of LDLR-, Int. Dec. 1207 (1962). The special inquiry officer held that the respondent had not borne the burden of establishing that the misrepresentations did not cut off a line of inquiry which might have resulted in the denial of the visa. Counsel contends that the respondent met this burden of proof.

In Matter of S- and B-C—, supra, the Attorney General stated (p. 7) that the application of the test of materiality would turn on the answers to three questions. The second question was whether the misrepresentation tended to shut off a line of inquiry which was relevant to the alien's eligibility, and it was stated that a misrepresentation as to identity would almost necessarily have shut off a relevant investigation. However, before reaching this second question, the first question stated by the Attorney General must be considered. This is whether the alien was excludable on the true facts. As we have concluded above, this respondent was excludable at the time of entry under 8 U.S.C. 1182(a) (26) because he did not have a valid passport. It was only the respondents willful misrepresentation, identifying himself with the person named in the passport, that enabled him to procure the nonimmigrant visa, and it seems obvious that he would have been excluded under 8 U.S.C. 1182(a) (26) when he applied for admission to the United States if he had disclosed his true name. The Attorney General specifically stated that if the alien was excludable on the true facts, the misrepresentation was material. It is only where the alien is not excludable on the true facts that the second and third questions stated by the Attorney General are to be considered. Hence, although we do not approve all of the special

nquiry officer's reasoning on this matter, we do concur in his conclusion that the respondent was excludable at the time of entry under 8 U.S.C. 1182 (a) (19), and we conclude that he is deportable on the charge stated in the order to show cause.

The remaining issue relates to the respondent's application under 8 U.S.C. 1253(h). The hearing on this application was completed on November 15, 1961. The special inquiry officer stated (Tr. p. 14) that the officer who questioned the respondent concerning this application had not made his recommendation to the Regional Commissioner prior to the amendment of the regulations effective January 22, 1962 (26 F.R. 12110), and counsel contends that the procedure in the respondent's case was defective for that reason. Since there had been no decision by the Regional Commissioner nor even a recommendation to him, we believe the Service followed the proper procedure in reopening the hearing in order that the determination of this application

might be made in accordance with the regulations which had become effective in the meantime. The respondent has not shown that this resulted in any prejudice to his case. Accordingly, this contention is dismissed.

Under 8 CFR 242.17(c), the respondent has the burden of proving that he would be subject to physical persecution if deported to Syria. No evidence whatever was offered to support this application during the reopened hearing on May 16, 1962, and a statement by counsel (Tr. p. 10), requesting that the respondent be permitted to complete his schooling after which the Government could “send him back at that time", seems to contradict the respondent's claim that he fears he would be physically persecuted if deported to Syria. The only evidence in support of the application is Exhibit 3 which consists of the respondent's affidavit of August 22, 1961 and his testimony on September 12 and November 15, 1961.

We have carefully considered these statements of the respondent but we believe they fall far short of establishing that the respondent would be subject to physical persecution. In the affidavit of August 22, 1961, he stated that he is a Christian and an Armenian; that his father is an active member of the political party that is “strongly against the Communists"; that he received a letter from his brother stating that many Armenians belonging to this party had been tortured and thrown in jail; that he desired to obtain affidavits from experts and letters and statements from relatives in Syria to support his application; and that it would require until about September 15, 1961 to obtain this evidence. At the hearing on September 12, 1961, a continuance was granted at the request of the respondent and he was instructed to bring with him to the next hearing all of his witnesses and evidence. On November 15, 1961 he was questioned fully by the special inquiry officer. When he was asked why he believed he would be subject to physical persecution, he made a vague statement but finally said, “I can be tortured, I can be thrown in jail, anything” (Ex. 3, p. 17). He admitted that his family in Syria, who are also Christians, had not been persecuted. Apparently his only basis for assuming that some action may be taken against him is the fact that he had succeeded in coming to the United States by using a Lebanese passport. The respondent's testimony that he would be subject to physical persecution is unconvincing. At the conclusion of the hearing, he was asked whether he had any evidence or witnesses to present and answered in the negative. It is our conclusion that the respondent has not proved that he would be subject to physical persecution if deported to Syria. In view of the foregoing, the appeal will be dismissed.

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

MATTER OF VARA-RODRIGUEZ

In DEPORTATION Proceedings

A-15685290

Decided by Board November 15, 1962

An alien who entered the United States as a crewman is not statutorily ineligible

for voluntary departure under section 244 (f) of the Immigration and

Nationality Act (as amended by Act of Oct. 24, 1962; PL 87-885). CHARGE: Order: Act of 1952—Section 241 (a) (2) [8 U.S.C. 1251 (a) (2)]-Nonimmigrant

remained longer than permitted.

The special inquiry officer directed the respondent's deportation and the case is before us on certification.

The respondent is a 44-year-old married male, native and citizen of Spain, who last entered the United States on or about September 29, 1960, at which time he was admitted as a nonimmigrant crewman for the period during which his vessel remained in port but not exceeding 29 days. He remained beyond that time without authority and has conceded his deportability on the charge stated in the order to show cause.

The issues to be determined are (1) whether a crewman is statutorily ineligible for voluntary departure under section 244. of the Immigration and Nationality Act (8 U.S.C. 1254) as amended on October 24, 1962 (76 Stat. 1247-1249; Public Law 87-885, 87th Congress) and (2) whether that relief should be granted in the exercise of discretion. The special inquiry officer concluded that the respondent was statutorily eligible for voluntary departure but exercised his discretion by denying that relief. The Service indicated that it did not wish to express an opinion on the question of whether the amendatory act does or does not preclude the granting of voluntary departure to a crewman, preferring to have this Board rule on the matter.

The statutory provision involved is section 4 of the Act of October 24, 1962, which amended section 244 of the Immigration and National

113

ity Act. As originally enacted and as amended, subsections (a), (b), (c) and (d) have reference to suspension of deportation and subsection (e) to voluntary departure. Several changes were made in the subsections relating to suspension of deportation. As a result, reference in subsection (e) to paragraph (4) or (5) of subsection (a) was necessarily changed to paragraph (2) of subsection (a). With that exception, amended subsection (e) is identical with subsection (e) as it was originally enacted. In substance, subsection (e) authorizes the Attorney General, in his discretion, to “permit any alien under deportation proceedings *** to depart voluntarily from the United States at his own expense in lieu of deportation” if he establishes good moral character for five years. This is limited by the language excluding certain aliens within the provisions of enumerated paragraphs of section 241 (a) but even such aliens may be granted voluntary departure if they are eligible for suspension of deportation. Insofar as concerns subsection (e) itself, which is the only subsection dealing with voluntary departure, that relief may be granted to any alien under deportation proceedings with the one limited exception we have mentioned.

There was added to section 244 by the Act of October 24, 1962 a new subsection (f) reading as follows:

(f) No provision of this section shall be applicable to an alien who (1) entered the United States as a crewman; or (2) was admitted to the United States pursuant to section 101 (a) (15) (J) or has acquired such status after admission to the United States; or (3) is a native of any country contiguous to the United States or of any adjacent island named in section 101(b) (5): Provided, That the Attorney General may in his discretion agree to the granting of suspension of deportation to an alien specified in clause (3) of this subsection if such alien establishes to the satisfaction of the Attorney General that he is ineligible to obtain a nonquota immigrant visa.

A literal reading of subsection (f) would indicate that it applies, not only to the subsections dealing with suspension of deportation, but to subsection (e) which relates to voluntary departure. There may have been cogent reasons why Congress prohibited the granting of suspension of deportation to aliens who entered the United States as crewmen, or who were admitted under section 101(a)(15) (J) or who are natives of countries contiguous to the United States or adjacent islands. With regard to a crewman there was a possibility under prior law that such an alien, who had gained entry to the United States by the device of deserting his ship, could eventually obtain suspension of deportation and thus adjust his immigration status to that of a legal permanent resident. Such a possibility added incentive for other crewmen to desert their ships and remain illegally in the United States. On the other hand, voluntary departure confers no right to remain in this country permanently and is ordinarily advantageous to the Government because the alien must pay the expenses

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