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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.
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
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), su pra, 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-, 71. & N. Dec. 222, 225; Matter of C-T-P-, 8 1. & 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.
and his immigration was sponsored by a brother who had lived in the United States for several years and was earning approximately $85.00 a week in permanent employment. The special inquiry officer was fully justified in concluding that the respondent was not likely to become a public charge, and, in the light of the judicial interpretation of section 212(a) (15) and the pertinent administrative regulations and instructions, that he was admissible in the absence of an employment offer.
The respondent's misrepresentation, however, did shut off a line of inquiry relevant to his eligibility for a visa. It may be assumed that if the consular officer had known that the work offer was spurious, he would have examined the evidence of support more carefully. It does not appear, however, that this would have resulted in a proper determination that the respondent was excludable. Further investigation of the relationship between the sponsor and the respondent would have shown that the sponsor was a devoted brother who had in the past sent money to his family in Mexico and who was genuinely interested in assisting the respondent; that, indeed, he had assisted him in his his immigration efforts by paying $350 for the work offer. Further examination also would have disclosed that the respondent had other relatives in the United States who were willing to assist him in finding work. There is nothing in this case to suggest that further investigation would have disclosed any reasonable ground for the proper denial of a visa. In view of the particular circumstances of this case, it appears therefore that the respondent's misrepresentation with respect to the work offer was not of a material nature.
The Commissioner seeks to distinguish this case from Matter of Sand B—C—, on the ground that “this record establishes that the respondent was in the very act of participating in one or more crimes against the United States at the very moment he got the visa and unquestionably would not have received the visa if the forgery had been known." The fact that the respondent committed a crime against the United States at the very moment he received his visa is not peculiar to this case. It would seem that virtually every alien who at the time of his visa application makes a misrepresentation "which was calculated to induce action or reliance by an agency of the Government” (Brandow v. United States, supra) violate 18 U.S.C. 1001 at that very moment. Accordingly, this case is not distinguishable from the situations normally covered by Matter of S- and B-C-, supra.
In view of the findings below that the respondent did not know that Miranda had forged the work offer, I am not confronted here with the problem as to whether Matter of s- and B-C— also applies to a situation where a misrepresentation to the consular officer shuts off a line of inquiry into a crime other than the misrepresentation itself or other than a wrongdoing inseparably connected with it. Cf. Matter of L-D-L-R, 9 I. &. N. Dec. 623.
The Commissioner finally urges that the respondent's misstatements not only constituted a material misrepresentation within the meaning of section 212(a) (19) but that they vitiated the visa itself and thus rendered the respondent inadmissible under section 212(a) (20), supra. It has been consistently recognized, however, that the type of misrepresentation which invalidates a visa is substantially identical with that which renders the alien excludable under section 212(a) (19). See Matter of s—C—, 7 I. & N. Dec. 76, 89–90, and the authorities cited therein. This rule appears to be correct and in accord with the general proposition that a representation invalidates a visa only if it is material or amounts to a fraud.
For the foregoing reasons, the decision of the Board of Immigration Appeals is affirmed.
Interim Decision #1313
MATTER OF KOBAYASHI AND Doi
In SECTION 248 Proceedings
Decided by District Director July 3, 1963 Approved by Regional Commissioner August 26, 1963 Approved by Deputy Associate Commissioner December 19, 1963
Since managerial employees charged with the training or instruction and super
vision of entertainers and waiters in a theatre restaurant are not employed in the "responsible capacity” required by 22 CFR 41.41, they are not properly classifiable as nonimmigrant employees of a treaty investor under section 101(a) (15) (E) (ii) of the Immigration and Nationality Act.
Both applicants are natives and citizens of Japan who last entered the United States on August 29, 1961 at which time they were admitted as nonimmigrants of the class described in section 101(a) (15) (H) (i) of the Act. Their last extension of stay expired on June 30, 1963. By their present applications, filed on May 6, 1963, they seek to change their status to that of a nonimmigrant employee of a treaty investor as defined in section 101(a) (15) (E) (ii). The applications were filed while they were continuing to maintain the status under which they were first admitted and their prospective employer, Kiyoshi Sakurai, has invested a substantial amount of capital in a theater restaurant in Honolulu called the Ishii Gardens, Inc. (On July 1, 1963 he was granted a change of his nonimmigrant status from visitor to treaty investor.)
The minimum statutory requirements have been met and the sole issue herein is whether the applicants are properly classifiable as "employees of a treaty investor”.
I find no legal or administrative precedent setting out a clear definition of an "employee of a treaty investor” nor does the legislative history of section 101(a) (15) (E) (ii) throw any light on the question.
The pertinent State Department regulation (22 CFR 41.41) requires merely that an employee be "employed by a treaty investor in a responsible capacity".