stated in the order to show cause.

The sole issue to be determined is whether the application for nunc pro tunc relief under 8 U.S.C. 1181 (c) should be granted.

We have carefully reviewed the entire record. Apparently the respondent was not excludable on any ground other than that stated in 8 U.S.C. 1181 (a) (3). Under these circumstances and subject to the provisions of subsection (d) of 8 U.S.C. 1181, subsection (c) thereof contains discretionary authority to admit this respondent providing that the Attorney General or his delegated officer is "satisfied that such inadmissibility was not known to and could not have been ascertained by the exercise of reasonable diligence by, such immigrant prior to the departure of the vessel or aircraft from the last port outside the United States ***?? As we have indicated above, the respondent has conceded that his marriage prior to his application for admission to the United States rendered him excludable. The question resolves itself into whether, prior to his departure from Italy, the respondent did not know and could not have ascertained that he would be inadmissible.

The special inquiry officer stated that he was not satisfied that the testimony of the respondent and his witness rebuts the presumption which arises from the requirement of 22 CFR 42.117 (b), citing Matter of G-, Int. Dec. No. 1194 (1962). That decision and the regulation mentioned relate to the application for the immigrant visa in a situation in which that alien failed to disclose that he had been a member of the Communist Party. In the respondent's case, there is no claim that the application for visa contained a false statement or that the respondent failed to disclose any information to the American Consular Officer. Hence, that decision and the regulation are not pertinent.

It was also stated in the special inquiry officer's decision that the respondent's case is governed squarely by this Board's decision in Matter of C-, 8 I. & N. Dec. 665 (1960). Although many of the facts in that case are similar to facts in the respondent's case, we do not think it is entirely accurate to say that the decision governs this respondent's case because the question which must be determined here is whether the particular facts of this case do or do not show that the respondent knew or could have reasonably ascertained that he would be inadmissible if he married. During the oral argument, counsel stated that the special inquiry officer did not find fraud and misrepresentation on the part of this respondent and he contended that Matter of Crelated entirely to fraud and misrepresentation and was, therefore, inapplicable. Actually, the alien in Matter of C- was not charged with procuring his visa by fraud or misrepresentation, and the factual situation resembles that in the respondent's case.

Counsel also cited. Matter of M—, 4 I. & N. Dec. 626 (1952) and Matter of R-,7 I. & N. Dec. 304 (1956). In the former relating to the discretion to grant voluntary departure, we said that aliens whose cases are substantially similar should receive like treatment. That case has no application because the special inquiry officer did not deny relief to the respondent as a matter of discretion but because the respondent did not meet the statutory requirements of 8 U.S.C. 1181 (c). Matter of R, supra, related to a letter of the Department of State dated May 14, 1956, stating that the Italian quota had been entirely utilized and could not be reduced to take care of that alien's case and the same department's subsequent letter indicating that the alien's case could be adjusted. In that case, the special inquiry officer held on April 30, 1956 that the alien was unaware of the fact that his marriage made him inadmissible to the United States and apparently the Service did not contest that finding. For that reason, the question of that alien's knowledge or lack of knowledge concerning the effect of his marriage was not considered by this Board and the facts which led the special inquiry officer to that conclusion are not even stated in the decision. That case is of no assistance to counsel since, as we have previously indicated, the question here is whether, on the particular facts relating to this respondent, it can be said that he was not aware and could not have ascertained that he would be excludable.

Counsel referred to the special inquiry officer's discussion (decision, pp. 5-7) of the respondent's interrogation on June 27, 1962 (Ex. 3) and that officer's conclusion that it indicated that the respondent knew before he left Italy, or had reason to believe, that his visa would be invalid if he married prior to coming to the United States. Insofar as is pertinent to this question, Exhibit 3 contains the respondent's testimony that the American Consular Officer did not inform him that the visa would be invalid if he married but that other people did advise him after he received the visa. There is a statement that these were persons who were also getting their visas to come to the United States which would indicate that the respondent received this information prior to his departure from Italy. The respondent's testimony at the hearing (Tr. pp. 29-32) indicates that a few days after the examination of June 27, 1962 he appeared at the office of the Service as requested for the purpose of signing the transcript; that the statement was then translated to him; and that he refused to sign it on the advice of counsel because two matters allegedly were incorrectly stated. He testified (Tr. pp. 8, 10, 32) that no one in Italy told him that the visa would be invalid if he married and that he first learned of the invalidity of his visa when he filed his visa petition on behalf of his wife after his arrival in the United States. The special inquiry officer stated that the questions and answers in Exhibit 3 indicated

to him that the respondent knew or had reason to believe before he left Italy that his visa would be invalid if he married prior to coming to the United States. We do not consider it necessary to rely on this challenged testimony of the respondent in Exhibit 3 nor to determine whether it would have been incumbent upon him to accept statements from unofficial sources as to what would invalidate the visa issued by the American Consular Officer.

We believe this case can properly be disposed of on the basis of the form reading, "STATEMENT OF MARRIAGEABLE AGE APPLICANT" which is attached to the respondent's immigrant visa. The form contains a notice to the visa applicant in English and Italian, the English version of which is as follows: "I, the undersigned, fully understand that I shall lose my nonquota, quota preference status or right to be charged to the quota of my accompanying parent if I marry prior to my application for admission at a port of entry into the United States and that I would then be subject to exclusion therefrom." This form is dated October 30, 1961, the date on which the visa application was executed before the American Consular Officer. The respondent testified (Ex. 3, pp. 2-3; Tr. pp. 9, 11-12) that the two signatures on this form are his; that he had not read the information on the form when he signed it; that he can read and write Italian; and that he had attended school in Italy to the fifth or eighth grade. We do not believe the respondent's statement that he signed this form without reading the information appearing in Italian immediately above his signature. However, even if that were the case, he could have ascertained his inadmissibility by merely reading the statement in Italian and his neglect to do that would constitute a failure. to exercise reasonable diligence. Accordingly, we are not satisfied that the respondent's inadmissibility was not known to him and could not have been ascertained by him through the exercise of reasonable diligence prior to his departure from Italy. It follows that the applicant does not meet this statutory requirement of 8 U.S.C. 1181(c) and his appeal from the denial of that relief will be dismissed.

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

MATTER OF SS. RYNDAM

In FINE Proceedings

NYC-10/52.146

Decided by Board April 12, 1962

Decided by Attorney General April 16, 1963

In a fine proceeding under section 273, Immigration and Nationality Act, the carrier is not precluded from offering evidence on the question of due diligence simply because that evidence might tend to impeach the correctness of the order excluding the alien.

IN RE: SS. RYNDAM, which arrived at the port of New York from foreign on February 20, 1961; Alien passenger involved: HERMANUS C. BRONS. BASIS FOR FINE: Act of 1952-Section 273 [8 U.S.C. 1323].

BEFORE THE BOARD

In connection with the arrival of the alien passenger mentioned above, the District Director at New York imposed an administrative penalty of $1,000 against Holland-America Line. We withdrew the District Director's order on November 20, 1961 and remanded the case to him in order that the carrier might have the opportunity of submitting additional pertinent evidence. On February 12, 1962 we denied a motion of the Service for reconsideration. The matter is now before us pursuant to the request of the Service on March 6, 1962 that the case be referred to the Attorney General for review under 8 CFR 3.1 (h) (iii).

Hermanus C. Brons, the alien passenger involved, was admitted to the United States for permanent residence as an immigrant on December 3, 1956. At the time of the arrival involved here (February 20, 1961), he was in possession of a valid Dutch passport and an Alien Registration Receipt Card (Form I-151) No. 10443369. Under 8 CFR 211.1, the Form I-151 would have relieved this alien from the requirement of a visa if he was returning to an unrelinquished lawful permanent residence after a temporary absence abroad not exceeding one year. At the exclusion hearing, the alien testified (p. 5) that he had received a card from his local draft board in Columbus, Ohio

regarding a physical examination, and that he was planning to go there directly for the purpose of being inducted as soon as possible. He also testified that, when he left the United States about November 1959, it was for the purpose of marrying his fiancee and with the intention of returning to the United States with his wife after the marriage. The special inquiry officer held that the alien had been abroad for more than one year and that he had abandoned his status as a lawful permanent resident. That officer directed that the alien be excluded and he was returned to the vessel on the same day for deportation. A letter dated September 12, 1961 from the Holland-America Line contains the statement that, at the time the alien booked passage on February 6, 1961, he had presented a letter indicating that he lived in the United States until February 15, 1960.

In attempting to state the issue in this case, the memorandum of the Service dated March 6, 1962 shows that it believes that the carrier is making an "unwarranted collateral attack on a duly-entered final order of exclusion." However, the actual issue here is simply whether or not the carrier is entitled to present its defense in full. That this question must be answered in the affirmative seemed so clear to us that we did not deem it necessary to answer in detail the arguments in the Service motion of December 13, 1961. Since the Service memorandum of March 6, 1962 complains that we did not answer any of the points it had raised, we believe that some further clarification of the matter is appropriate.

Subsection (a) of § 273 of the Immigration and Nationality Act [8 U.S.C. 1323(a)] makes it unlawful to bring to the United States "any alien who does not have an unexpired visa, if a visa was required under this Act or regulations issued thereunder" (emphasis supplied); subsection (b) provides that, if the Attorney General is satisfied that there has been a violation, a fine of $1,000 shall be imposed; and subsection (c) prohibits remitting or refunding the fine unless it appears to the satisfaction of the Attorney General that the carrier "did not know, and could not have ascertained by the exercise of reasonable diligence, that the individual transported was an alien and that a visa was required." The carrier is seeking to present evidence on two points: (1) that this particular alien did not require a visa and (2) that, even if a visa was required, the fine should be remitted under § 273 (c).

It was not until March 31, 1961, about a month after the alien's deportation from the United States, that the carrier was notified by the District Director concerning his intention of imposing a fine under $273. In the carrier's protest to the imposition of fine, submitted on May 18, 1961, a request was made for a transcript of the exclusion. proceeding and an opportunity to cross-examine the alien. A letter

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