Imagini ale paginilor
PDF
ePub

was excludable as one likely to become a public charge? We think not. When respondent applied for a visa he was 22 years of age. He was sound of body and had about ten years of farming experience. He had no specialized training, but had five years of schooling and apparently planned to seek work for which he was qualified. He spoke no English, but this was no handicap for he would work among people who spoke Spanish. He had about $50 in assets. He had a brother gainfully employed in the United States and he had other close relations who were interested in his welfare and who worked to bring him to the United States. The brother was making $85 a week in permanent employment; he was unmarried; he had been sending money to his family in Mexico, and he was interested in helping his brother. Respondent had previous experience in the United States, having spent about three months here as a contract worker. At that time he worked both in the fields and in a cannery. His services appear to have been satisfactory for he was retained here until his contract was completed. Respondent had no criminal record. After admission for permanent residence, he secured employment in the United States which was interrupted only by civil and criminal matters connected with his efforts to come to the United States as a permanent resident.)

The examining officer contends that the likelihood of becoming a public charge is not the only ground which must be considered in determining whether the respondent was ineligible for the issuance of a visa and inadmissible to the United States. The examining officer is of the belief that the respondent would have been excludable from the United States as one who admitted the essential elements of a crime involving moral turpitude, for he had conspired to impair the lawful function of a department of the United States in violation of 18 U.S.C. 371, a crime involving moral turpitude (Matter of E-, Int. Dec. No. 1164).

It may well be that as an original proposition, the test for determining whether a visa has been obtained by fraud could have been made dependent upon whether there had been an obstruction of Gov. ernmental functions; however, this has not been the test which has resulted from the years of adjudications both administrative and judicial. IIistorically, the rule has been stated without reference to the obstruction of the Government functions which exist, of course, in each case where there is a misrepresentation concerning a matter within the lawful functions of the Government. The rule which is applied holds that wilful misstatements of an alien made in attempting to obtain a visa bar him from admission (1) if they were material, in which case he is barred because the visa had been obtained by fraud, or (2) if perjury were committed in the attempt to obtain the visa, in which case he is barred because he had committed a crime involving moral turpitude. Misstatements which did not amount to perjury (although they did impair the lawful function of a department of the United States) would not serve to make an alien inadmissible (37 Op. A.G. 293, 1933). Congress has not questioned the rule.

We shall continue to determine materiality of misrepresentation and the admissibility of an alien who had made a misrepresentation in immigration matters, not by his liability to prosecution for impairing the lawful functions of a department of the Government, but by the standards set down by the Attorney General in Matter of sand B-C-, supra.

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

BEFORE THE BOARD

The special inquiry officer terminated proceedings; appeal by the examining officer was dismissed by the Board on August 7, 1962. The Service believes that both charges are sustained and requests that the Board reconsider its dismissal. The motion will be denied.

Respondent, a 23-year-old single male, a native and citizen of Mexico, was admitted to the United States for permanent residence on May 1, 1961.

Respondent was convicted on January 10, 1962 in the United States District Court for conspiracy to violate 18 U.S.C. 1001 for making false statements or knowingly using false writings (in connection with an application for a visa) and given a five-year sentence to imprisonment; he served 30 days, the remainder of the sentence was suspended. The Service contends that since materiality was an element of the crime for which respondent had been convicted, materiality should be found present in the deportation proceeding in considering the nature of the misrepresentation which had been made in obtaining the visa. We pointed out in our previous order that the test for materiality is different in the criminal case from the test in the deportation case. The test for materiality in deportation cases, insofar as it relates to the instant case, has two elements—first, did the misrepresentation cut off a material line of inquiry; second, if it did, might an inquiry have resulted in a proper determination that the alien was inadmissible to the United States. Both elements must exist before a misrepresentation may be found material (Matter of Sand B-0–, Int. Dec. No. 1168). On the other hand, in a prosecution under 18 U.S.C. 1001, if only the first element of the test in deportation proceedings is present, materiality exists and can support a conviction. Since the second element is not a factor in the criminal case, a finding of materiality there cannot be controlling in the deportation case where the second element is of equal importance with the first in determining materiality.

The motion enumerates the federal laws which could have been violated when respondent made false statements before the consul and points out that had the consul known the true facts, he might have obtained an admission of the commission of crime from respondent who would thereby become inadmissible to the United States. Apart from this, the Service contends, the consul, if in possession of the true facts, would have made at least a temporary refusal of the visa. The test for materiality laid down by the Attorney General in Matter of S-- and B-C, supra, does not concern itself with possible violation of federal laws or the possibility of a temporary refusal. B—C— had made willful misrepresentations when he applied for a visa; he probably violated the same federal laws which are mentioned in the motion. And, it is obvious that had the consul been aware that B-C- made misrepresentations, he would have been justified in making a temporary refusal. Nevertheless, the Attorney General's test as to materiality made no reference to the possible violation of federal laws or to the fact that a temporary refusal was possible. While the Attorney General did not discuss possible violations of federal law or temporary refusals, Matter of S-C-, 7 1. & N. Dec. 76, one of the two precedents relied upon in the Board's order concerning B-C— dealt with possible violations of law (p. 86); and U.S. ex rel. Jankowski v. Shaughnessy, 186 F. 2d 580, 582, 2d Cir. (1951), cited by the Attorney General, indicates the use of a temporary refusal as a test; moreover, the fact that the Attorney General made the existence of materiality dependent upon what an investigation might have shown, would seem to rule out the possibility of using a temporary refusal as a test.

Examination of Matter of L-D--L-R-, Int. Dec. No. 1207, cited by the Service as support for the proposition that materiality exists for immigration purposes if there is a reasonable possibility that an alien would have made admissions concerning participation in crime which would have made him inadmissible, reveals that the misrepresentation there was material because it involved the concealment of conviction of a crime involving moral turpitude. The existence of the conviction made the alien ineligible for the issuance of a visa.

The motion takes issue with our finding that respondent was not one likely to become a public charge at the time he applied for admission. Our determination was made upon the state of the record as it existed when the respondent applied for his visa. After careful review of the Service contention we see no reason to change our conclusion. Reference in our order, to events occurring after respondent's entry was to meet the Service contention at oral argument that respondent's work record in the United States demonstrated his inability to find employment.

The motion now raises the contention that respondent's visa was not valid because he did not furnish full and correct information on his visa application as required by the Immigration and Nationality Act and State Department regulations concerning the issuance of a visa. We do not concur in this conclusion. In B-C-, supra, there was a failure to furnish full and truthful information; the Attorney General touched on whether the visa was a valid one (footnote on p. 6), but there was no finding that the visa was invalid. To accept the Service position that any failure to furnish full or correct information regardless of the nature of the information results in an invalid visa, would in effect make every misrepresentation a material one; this approach would have made unnecessary the Congressional provision for the exclusion of a alien for obtaining a visa because of a material misrepresentation (section 212(a) (19) of the Act; see Matter of s- and B-C, supra, p. 4). It appears best to use the visa charge in situations where the visa is actually invalid; for example, where a visa has been issued without specific authority or by an improper source, or it has been altered, procured by fraud, or presented after the period of validity has expired. This approach will give effect to both the provision concerning validity of visas and the provision concerning procurement of a visa by fraud. In view of this conclusion we need not enter into an elaborate analysis of the Service position other than to mention briefly two matters. Regulations and laws requiring complete and correct information in visa applications have been in existence since 1924 and have not been utilized as the basis for declaring visas invalid (See, In re Field's Petition, 159 F. Supp. 144, 146, 3d full para., S.D.N.Y. (1958)). The fact that the misrepresentation charge is now a separate charge although prior to the Immigration and Nationality Act it was coupled with a visa charge, appears to be irrelevant. It was true before the Act, as it is true now, that a visa charge could be sustained even though the misrepresentation charge could not. There is, therefore, no significance to be drawn from the fact that the law now specifically provides for a misrepresentation charge (See, U.S. ex rel. Fink v. Reimer, 96 F.2d 217 (2d Cir., 1938); U.S. ex rel. Percas v. Karnuth, 28 F. Supp. 597, W.D.N.Y. (1939)).

ORDER: It is ordered that the motion be and the same is hereby denied.

BEFORE THE ATTORNEY GENERAL The decision of the Board of Immigration Appeals in this case holding the respondent Saturnino Martinez-Lopez not deportable has

[ocr errors]

been certified to me by the Board for review, pursuant to 8 CFR 3.1 (h) (1) (iii), upon motion of the Commissioner of Immigration and Naturalization. The Commissioner has requested review because of the possible impact of the Board's decision on other cases. The decision raises several problems concerning the application of the criteria enunciated in my opinion in Matter of S- and B-C—, 9 I. & N. Dec. 136, for determining the materiality of a misrepresentation in cases involving section 212(a) (19) of the Immigration and Nationality Act, 8 U.S.C. 1182(a) (19).

The respondent's deportation is being sought on the ground that he was excludable at the time he entered the United States as an immigrant because he had procured his visa by willfully misrepresenting a material fact ($ 212(a) (19)) and because he was not in possession of a valid unexpired immigrant visa as required by section 212(a) (20) of the Immigration and Nationality Act, 8 U.S.C. 1182 (a) (20). The record shows the following.

In the winter of 1960–61, the respondent planned to immigrate to the United States. At that time, he was a citizen and resident of Mexico, in his early twenties and unmarried. He had about 5 years of schooling and had begun to work on the family farm when he was 12 or 13. He had worked in the United States for 3 months as a laborer in 1958. His brother, Salvador Martinez-Lopez, who had emigrated to the United States, lived in Los Angeles and was employed by a furniture company at an annual salary of $4,000. In the past, Salvador had contributed to the support of his relatives in Mexico; the respondent had several other relatives living in the United States. When the respondent inquired at the United States Consulate at Monterrey, Mexico, concerning the papers required for an immigration visa, he was advised that he needed, among other things, an affidavit of support and an offer of permanent employment in the United States.

Having heard from neighbors that work offers could be obtained from one Jose C. Miranda of Stockton, California, for $350, the respondent asked his brother Salvador to get one for him. Because of

1

Section 241 (a) (1) of the Act, 8 U.S.C. 1251 (a) (1), subjects to deportation aliens who were excludable, inter alia, under sections 212(a) (19) and (20). Paragraphs (19) and (20) respectively make excludable:

(19) Any alien who seeks to procure, or has sought to procure, or has procured a visa or other documentation, or seeks to enter the United States, by fraud, or by willfully misrepresenting a material fact;

(20) any immigrant who at the time of application for admission is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document required by this chapter, and a valid unexpired passport, or other suitable travel document, or document of identity and nationality, if such document is required under the regulations issued by the Attorney General pursuant to section 211(e).

« ÎnapoiContinuați »