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the distance from Los Angeles to Stockton, Salvador asked one Reyes Fragoso, the husband of a cousin, who resided in Oakland, to talk to Miranda. Fragoso did so, and for $350, furnished by Salvador, Miranda sent to the respondent a letter of permanent employment to which Miranda had forged the signature of one Pellegri, a ranchowner. Attached was a note from Miranda advising the respondent not to go to the Pellegri ranch because he already had enough workers. Respondent inferred from the note that the Pellegri letter was only for the record and that he could not expect employment by Pellegri. He thought the letter had been given merely as a favor or accomodation but did not know that it was a forged document.

Subsequently the respondent applied at the United States Consulate at Monterrey for a visa, submitting an affidavit of support, executed by his brother, and the purported Pellegri letter, although he knew that he could not expect to be employed by Pellegri. When asked about his destination in the United States, he gave the address of Pellegri's ranch. The respondent was issued a visa on April 27, 1961, and was admitted to the United States as an immigrant a few days later. At that time he had in his possession from $60 to $70. He went directly to his brother in Los Angeles and never contacted Pellegri. For about a week he stayed with his brother, then obtained work as a cook through another relative.

At about that time Miranda's forgeries were discovered. The respondent, his brother Salvador, his cousin Reyes Fragoso, and Jose Miranda were indicted in the United States District Court for the Northern District of California for conspiracy to violate 18 U.S.C. 1001.2 The indictment contained two counts. The first count charged them with having conspired to make false and fictitious representations, or to make or to use writing or documents, knowing them to contain false, fictitious or fraudulent statements, to the Department of State for the purpose of enabling the respondent to enter the United States as an immigrant. The second count in effect charged the defendants other than Salvador with having caused Miranda to falsify the work offer.

The respondent, his brother and his cousin were tried before the court, a jury having been waived. The court found them guilty on

2

The section reads as follows: Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.

the first count. It held that work offer was "material” because the visa would not have been issued but for it. It acquitted the respondent and his cousin on the second count, finding that a reasonable doubt existed as to the defendants' knowledge that the work offer was not signed by Pellegri. The court stated that they were victims, albeit willing victims, of circumstances and not flagrant or malicious violators of the law. The respondent was given a prison sentence of 5 years, of which all but 30 days was suspended, and placed on probation for 5 years. The others also received 5-year terms which were suspended in their entirety.

The Immigration and Naturalization Service then instituted proceedings to deport the respondent on the grounds described above.

The Service charged that the respondent had obtained his visa by presenting to the United States consul the Pellegri work offer, although he knew that he did not and would not have employment with Pellegri; that he had concealed from the consul the fact that the letter had been obtained from Miranda for $350, and that he withheld those facts because he believed that the consul would not have issued the visa had he been told the truth. The special inquiry officer dismissed the proceedings on the ground that the respondent's misrepresentation was not material and, hence, did not render him excludable under section 212(a) (19) or vitiate the visa for the purposes of section 212(a) (20). In reaching this conclusion, the special inquiry officer applied the tests of materiality laid down in Matter of S- and B-C-, supra, at 448-449, viz.:

First, does the record establish that the alien is excludable on the true facts?

Second, did the misrepresentation tend to shut off a line of inquiry which is relevant to the alien's eligibility (for admission)?

Third, if a relevant line of inquiry has been cut off, might that inquiry have resulted in a proper determination that the alien be excluded ? The special inquiry officer answered the first question in the negative. He took the position that in connection with the determination as to

This finding of materiality was required although the defendants were indicted under a clause of 18 U.S.C. 1001 which does not in haec verba require that the false statement, representation, or document be material, and the indictment did not allege that the work order was a material document. It is, however, established in the Ninth Circuit, in which the case was tried, and probably in the majority of the circuits, that materiality is an element of every violation of 18 U.S.C. 1001, and not only of its first clause, in which it is specifically mentioned. Branlow v. United States, 268 F. 2d 559, 564565 (C.A. 9); Paritem Singh Poonian v. United States, 294 F. 2d 74, 75 (C.A. 9); Freidus v. United States, 223 F. 2d 598, 601-602 (C.A.D.C.); United States v. Zambito, 315 F. 2d 266, 268-269 (C.A. 4), certiorari denied, 373 U.S. 924. The Ninth Circuit has also held that materiality need not be specifically set forth in the indictment, provided the context warrants an inference of materiality. Partiem Singh Poonian v. United States, supra; Dear Wing Jung v. United States, 312 F. 2d 73, 75 (C.A. 9).

417

whether an applicant for an immigration visa is excludable under section 212(a) (15) of the Act, 8 U.S.C. 1182 (a) (15), as an alien likely to become a public charge,4 a work offer is not legally required as an absolute condition for the issuance of the visa, and therefore that the purpose of such a document is merely to assist the consul in his deterinination. Viewed in that context, the record did not establish the respondent's excludability on the true facts Rather, the evidence established that, even in the absence of the work offer, the respondent was not likely to become a public charge.

The special inquiry officer answered the second question in the affirmative; he concluded that the submission of the work offer did cut off further investigation by the consul into the public charge issue. The third question, however, was answered by him in the negative, since nothing had been adduced to suggest that a further investigation might have resulted in a proper determination that the respondent was likely to become a public charge. Accordingly, he held that the respondent's misrepresentation with regard to the spurious Pellegri work offer was not material for the purposes of section 212(a) (19), and similarly did not vitiate the visa for the purpose of section 212(a) (20).

On appeal by the Service, the Board of Immigration Appeals affirmed the ruling of the special inquiry officer. It recognized that, as judicially interpreted, materiality was an element of the offense under 18 U.S.C. 1001 of which the respondent had been convicted. It ruled, however, that the district court's holding that the work offer was a material document was not conclusive in the deportation proceeding. Under 18 U.S.C. 1001 a statement, representation, or document is material if, under the formulation of United States v. Allen, 193 F. Supp. 954 (S.D. Cal.), it "could affect or influence the exercise of a Government function." This has a broader reach than the term “materiality” in section 212(a) (19) of the Immigration Act, as it is defined in Matter of S- and B-C-, supra. The respondent's conviction under 18 U.S.C. 1001 therefore did not necessarily establish that the misrepresentation was material within the meaning of section 212(a) (19). The Board therefore felt itself free to examine the question de novo, and concluded that the respondent's misrepresentations were not material because nothing the consul or the immigration authorities could have discovered, but for the misrepresentation, might have resulted in a proper determination that the respondent was excludable as a person likely to become a public charge. On the Service's motion for reconsideration the Board adhered to its decision.

* Section 212(a) (15) excludes "[a]liens who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission, are likely at any time to become public charges.”

5 The special inquiry officer was careful to stress that his conclusions were limited to the precise facts of the case and that he was not holding that a work offer could never be material.

The Commissioner raises essentially the following points:

1. Whether materiality of the misrepresentation for deportation purposes was established by the respondent's conviction.

2. Whether the Board properly applied the materiality tests established by Matter of S- and B-C-. In this connection the Commissioner also argues that the test in Matter of S- and B-C— is not applicable where the alien's conduct in obtaining a visa constitutes an offense against the United States.

3. Whether a significant misrepresentation, even if it does not amount to a “material” misrepresentation, renders a visa invalid for the purpose of section 212(a) (20).

I

Unquestionably the respondent did make a misrepresentation to the consul. He submitted a document which he knew was not a bona fide work offer. However, the immigration statute, section 212(a) (19), supra, requires that an alien's misrepresentations must be material to the question of his admissibility to the United States under the immigration laws. I agree with the Board that the respondent's conviction of conspiracy to violate 18 U.S.C. 1001, for the purpose of which the same misrepresentation was found to be material, does not conclusively establish its materiality for deportation purposes.

At the outset it should be noted that, although ordinarily a court decision may be res judicata or operate as a collateral estoppel in a later administrative proceeding, there is some basis for doubt as to whether this rule applies in cases where, as here, Congress has vested primary responsibility for enforcing a statute in an administrative agency and not in the courts. See Title v. Immigration & Naturalization Service, 322 F.2d 21 (C.A. 9); Davis, Administrative Law Treatise, sec. 18.11 (Vol. II, pp. 619-623).” Section 242(b) of the

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The Board rejected the Service's contention that had the respondent told the truth he would have been excludable under section 212(a) (9) of the Act, 8 U.S.C. 1182 (a) (9), as one who had admitted the essential elements of a crime involving moral turpitude, viz., a conspiracy to violate 18 U.S.C. 1001, in connection with his visa application. Relying on 37 Op. Atty. Gen. 293, it held that historically misrepresentations to a consul rendered an alien excludable under section 212(a) (9) only if they amounted to perjury.

+ Thus the National Labor Relations Board has held that even if a court has decreed specific performance of a contract, it may set aside the contract in a proceeding under the Labor-Management Relations Act. Professor Davis states

Footnote continued on following page.

Immigration and Nationality Act, 8 U.S.C. 1252(b), provides that “[d]etermination of deportability in any case shall be made only upon a record made in a proceeding before a special inquiry officer," and that “[t]he procedure so described shall be the sole and exclusive procedure for determining the deportability of an alien * * *.” There is, therefore, a basis for the argument that in the instant case the judicial finding of materiality could not, as a matter of law, relieve the special inquiry officer from his duty of making an independent determination of materiality.

Assuming, however, that the doctrine of collateral estoppel is applicable in cases of this kind, I agree with the Board's view that on the question of materiality there was no true identity of issues in the criminal case and the deportation proceeding. Even if statutes use the same language, a determination under one is not necessarily binding in a proceeding under another since the purposes of the statutes may differ and the contexts in which the language is used may not be the same. See Title, su pra at 25, fn. 11. The determination in the criminal case to the effect that the work offer was "material" might be considered to be binding in the deportation proceedings only if the word “material” has the same meaning in prosecutions under 18 U.S.C. 1001 as in deportation proceedings involving section 212(a) (19) of the Immigration and Nationality Act. Cf. Hines v. Welch, 23 F. 2d 979 (C.A.D.C.); Thompson v. Flemming, 188 F. Supp. 123 (D. Ore.). This, however, is not the case.

The issue of materiality under 18 U.S.C. 1001 is merely whether the misrepresentation was "calculated to induce action or reliance by an agency of the United States.” Brandow v. United States, 268 F. 2d 559, 565; United States v. Allen, 193 F. Supp. 954, 957, supra. In contrast, the opinion in Matter of S- and B-C—, supra, rejects the notion that an alien becomes deportable for every false statement “calculated to induce action or reliance” by a consul; a false statement is not material unless the alien would have been excludable on the true facts, or unless the misrepresentation has shut off a line of inquiry which might have resulted in a proper determination of excludability. The term "material" does not have the same meaning in 18 U.S.C. 1001 and in section 212(a) (19) of the Act, and a determination under the former that the work offer was material is therefore not to be re

Footnote continued. that this is proper not only because of the difference in parties "but also because of the congressional intent that primary responsibility for enforcing policies of the Act shall be in the Board and not in the courts.” Davis, op. cit., p. 619.

$ In this connection, cf. National Labor Relations Board v. Pacific Intermountain Express Co., 228 F.2d 170, 176 (C.A. 8), certiorari denied, 351 U.S. 952; Lane v. Railroad Retirement Board, 185 F.2d 819, 822 (C.A. 6); Carpenter v. Flemming, 178 F. Supp. 791, 793 (N.D. W.Va.).

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