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 I. & 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 respond

ent'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

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. 436, 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).

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. 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, 564-565 (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