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, 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 determination. 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),3 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 immi

4

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.

6

gration 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. 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

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.s

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, supra 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.

8

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.).

garded as conclusive in proceedings involving the latter, where the term "materiality" has a more restricted scope. Accordingly, I conclude that the Board of Immigration Appeals properly held that the inquiry into the materiality of the respondent's misrepresentation was not foreclosed by his conviction for conspiring to violate 18 U.S.C. 1001.

II

I find no error in the Board's conclusion that the materiality standards of Matter of S- and B-C- were properly applied in this case. As pointed out above, that opinion holds that the issue of materiality for purposes of section 212(a) (19) turns on three questions: First, whether the alien is excludable on the true facts; second, whether the misrepresentation tended to shut off a line of inquiry relevant to the alien's admissibility; and third, whether, if a relevant line of inquiry has been shut off, that inquiry might have resulted in a proper determination that the alien be excluded.

In the context of this case, the initial question is whether the respondent would have been excludable under section 212 (a) (15), supra, footnote 4, as a person likely to become a public charge. Although under the statutory language the question for visa purposes seems to depend entirely on the consular officer's subjective opinion, both the administrative and judicial decisions hold that the question must be reexamined de novo on an objective basis when it arises in deportation proceedings. See Matter of M—, 4 I. & N. Dec. 532, 538; Matter of S—C—, 7 I. & N. Dec. 222, 225; Matter of C-T—P—, 8 I. & N. Dec. 134–135; In re Field's Petition, 159 F. Supp. 144, 146 (S.D. N.Y., 1958). There is no error in the determinations below that the respondent was not excludable on the true facts; that, in other words, the evidence in the deportation proceeding establishes that he would not have been. excludable as a person likely to become a public charge even though he did not have an offer of employment in the United States.

The provision in the immigration laws excluding aliens likely to become public charges had its origin in section 2 of the Immigration Act of 1882, 22 Stat. 214, and has been continued in all subsequent immigration statutes. It has been the subject of extensive judicial interpretation. The general tenor of the holdings is that the statute requires more than a showing of a possibility that the alien will require public support. Some specific circumstance, such as mental or physical disability, advanced age, or other fact reasonably tending to show that the burden of supporting the alien is likely to be cast on the public, must be present. A healthy person in the prime of life cannot ordinarily be considered likely to become a public charge, especially where he has friends or relatives in the United States who have in

dicated their ability and willingness to come to his assistance in case of emergency. See, e.g., Ex parte Mitchell, 256 Fed. 229 (N.D. N.Y.); Ex parte Hosaye Sakaguchi, 277 Fed. 913, 916 (C.A. 9); U.S. ex rel. Mantler v. Commissioner of Immigration, 3 F. 2d 234 (C.A. 2); Ex parte Turner, 10 F. 2d 816, 817 (S.D. Cal.); Ex parte Sturgess, 13 F. 2d 624, 625 (C.A. 6); Gabriel v. Johnson, 29 F. 2d 347, 349 (C.A. 1); U.S. ex rel. Minuto v. Reimer, 83 F. 2d 166, 168 (C.A. 2). While it appears that in appropriate cases consular officers have followed the practice of requiring an alien to submit evidence of support, there is no indication that a guaranty of employment has been a prerequisite. The legislative history of the Immigration and Nationality Act of 1952, which retained the public charge provision as section 212 (a) (15), contains a review of its background and interpretation. See S. Rept. No. 1515, 82d Cong., 2d Sess., pp. 346-348. This review refers to the practice of requiring evidence of support in appropriate cases and to the judicial holdings. Employment offers are not mentioned, and there is nothing to show that Congress intended such offers to be required as an absolute condition for satisfying the public charge provision.

Nor is the administrative practice of the Department of State to the contrary. The Department's regulations provide that a conclusion of ineligibility under section 212 (a) (15) is to be predicated upon circumstances indicating that the alien "will probably become a charge upon the public after entry into the United States;" the disability, however, may be removed by the furnishing of a bond or undertaking. 22 CFR 42.91 (a) (15). The Department's instructions to consular officers on this subject admonish them to be "flexible" and to predicate their decision upon facts relating to the alien's "age, physical condition, vocation, and existing conditions in the United States coupled with their probable effect on the applicant's likelihood of becoming a public charge after admission into the United States." (State Department Visa Handbook, Notes on 22 CFR 42.91 (a) (15), Note 1.1.) While consular officers are authorized to consider "the promise of a job" (Note 3.1), this is not stated as an absolute prerequisite; alternative means of satisfying the statute are provided, viz., the possession of sufficient funds or assurances of support by relatives or friends in the United States (Notes 1.2; 4). The record shows that the respondent was an able-bodied man in his early twenties, without dependents; that he had no physical or mental defects which might affect his earning capacity, and that he had performed agricultural work for nearly 10 years. He had previously worked for 3 months in the United States,

It had been suggested that support bonds be substituted for affidavits of support.