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Charles Petkovic, was not a member of the armed forces of Yugoslavia during World War II nor a member of the Communist Party of Yugoslavia during that period, and his opinions with respect to the compulsion exercise upon an officer of the army by the Communist Party is, as the special inquiry officer observed, of little value. He did however corroborate in a good deal of the testimony of the respondent and her husband as to the mixed and irregular character of the Yugoslavian army in 1941 or 1942 and admitted that some Partisans were not Communists and that the "Spomenica," award was not limited to Communists but was given to all those who took part in the Partisan movement in 1941. The witness expressed the opinion that a person could not occupy a personnel position from 1950 to 1954 if under suspicion by the Communists. However, the respondent's personnel hospital work appeared to involve only civilian help of the lowest types, such as cleaning people and nurses aides. While testifying generally that persons who joined the Communist Party in Yugoslavia during World War II believed in Communism, he acknowledged that within military groups the discipline was greater than among the civilian population.
A second government witness, Boris Miletich, who was employed in Yugoslavia variously as a legal referee, law counselor, and a county judge from 1945 to 1956, stated that he had never been a member of the Communist Party and had not served in the Yugoslav army. His information therefore regarding the situation in the Yugoslav army is admittedly hearsay. While testifying that many persons were discharged from the Yugoslav army after 1946 and that females especially were released, he admitted not knowing whether a female officer could have been discharged during that period of time and also conceded that not all persons who fought in the Partisan groups in 1941 and thereafter were Communist. The respondent's husband has testified that the criterion in obtaining release from military service was whether the person's service was essential.
A witness on behalf of the respondent, Fedor Hegenauer, served in the Yugoslavian army in 1945 and again in 1947 but not as an officer. When asked to join the Communist Party in 1947 he temporized although indicating that he could not have refused. He was of the opinion that an officer in the Yugoslavian army would have no choice and could not possibly refuse when asked to join the Communist Party by his battalion commander in January 1944.
The service has contended that the respondent's admission of membership in the Communist Party of Yugoslavia should be accepted at full value but that her testimony as to the involuntary nature of her membership is to be discounted. Inasmuch as no documentary evidence has been submitted, the decision turns largely upon a finding of credibility of the witnesses, and the weight to be attached to their testimony. Viewing the circumstances surrounding the respondent's joining the Yugoslav military forces, the Partisans, the subsequent demand that she join the Communist Party because of her officer rank, the absence of ideological sympathy with the Communist Party and the lack of any political position in the Communist Party, and the corroboration by witnesses, we do not believe that her story has been materially weakened or overcome by the government witnesses. It is concluded that the respondent has established that her membership in the Communist Party, upon the evidence of record, was involuntary within the meaning of section 212(a) (28) (I) (i) of the Immigration and Nationality Act. She was therefore not excludable at the time of entry because of membership in the Communist Party of Yugoslavia and was otherwise admissible. She is therefore automatically the beneficiary of the provisions of section 241(f) of the Act in regard to her misrepresentation regarding her Communist Party membership.
ORDER: It is ordered that the order of the special inquiry officer dated May 31, 1962, terminating the proceedings be and the same is hereby approved.
MATTER OF Box
In DEPORTATION Proceedings
Decided by Board September 5, 1962
(1) Where respondent, a native and citizen of Haiti, who, after having been
denied an immigrant visa, entered the United States in 1957 using an alias; and who, to escape physical persecution upon being returned to Haiti in 1958, assumed a fictitious identity in which he was married, in which he secured a delayed birth certificate with which he obtained a passport and visa for entry to Nassau where, in such assumed identity, he lived for 112 years and made application in 1960 for a visa to come to the United States, his willful misrepresentations as to place and date of birth, parentage, marital status, prior residence, and use of an alias were not material under section 212(a) (19) of the Immigration and Nationality Act because on the true facts a ground of inadmissibility would not have been revealed nor would inquiry have resulted in a proper determination of excludability. cf. Matter of Sarkissian, Int.
Dec. No. 1233. (2) Where in a deportation proceeding a no passport charge under section
212(a) (20) of the Immigration and Nationality Act is linked to a visa charge under section 212(a) (19) of that Act by the common ground of misrepresentation as to identity and the visa is found to have been validly issued despite the existence of misrepresentations as to identity, the passport charge is merged with the visa charge and falls.
Order: Act of 1952—Section 241 (a)(1) [8 U.S.C. 1251 (a) (1)]-Excludable at
entry under section 212(a) (19) of the Act of 1952 as an alien who procured visa by fraud or willful misrepresentation of a material
fact. Lodged: Act of 1952—Section 241 (a) (1) [8 U.S.C. 1251 (a) (1)]-Excludable
at entry under section 212(a) (20) as an alien immigrant not in possession of a valid unexpired passport.
The examining officer has filed this appeal from the order of the special inquiry officer terminating proceedings. The appeal will be dismissed.
The respondent a 33-year-old married male, a native and citizen of Haiti, was admitted to the United States for permanent residence on July 20, 1960, upon surrender of a nonquota immigrant visa issued to him on July 14, 1960, at Nassau, Bahamas. The Service alleges that this visa was obtained by fraud because in obtaining it, respondent wilfully failed to furnish truthful information concerning material matters. The Service also contends that the respondent was not in possession of a valid passport when he applied for admission.
Respondent's testimony, which is uncontradicted, and which, as far as this record shows, was given after he had voluntarily come to the Service, reveals the following: The respondent joined the army in Haiti in 1949; he reached the rank of sergeant. In 1957, one Daniel Fignole came to power by revolutionary means; within a few months, he was arrested by the army and sent to exile. At the same time, respondent who was known to be a supporter of Fignole was arrested, jailed, and discharged from the military service with orders to leave the city. Respondent then attempted to obtain a visa to come to the United States for permanent residence but was refused because he did not have a sponsor. The period of a year and a half following the attempt, respondent first alleged, had been spent in Haiti hiding; however, he later voluntarily informed the Service that he had spent the time in the United States. He revealed that in September 1957, using the alias Albert Bethol, he had flown to the United States ostensibly in transit to Canada, but actually for the purpose of staying in the United States. Respondent did manage to stay in the United States until December 1958, when he was apprehended and placed in the custody of the transportation company for return to Haiti."
After this return, respondent went into hiding; he decided he must escape because of the danger he was in. In February 1959, he secured a delayed certificate of birth showing the birth of one Claude Charles, a name he made up. Respondent used the birth certificate to secure a Haitian passport and obtained a visa for entry into Nassau, Bahamas. Before leaving, he married using the name of Charles, and then went to Nassau where, still using the name Charles, he obtained employment. His wife joined him in Nassau on a visit. Two children were born of the union. One child is two years old, the other a few months more than a year. The wife and children live in Haiti where the wife uses the name Charles.
After a year and a half in Nassau, Bahamas, respondent applied for a visa to come to the United States for permanent residence. Application was made in the name of Claud Charles, and information given about Charles to correspond with that given when respondent applied for the delayed certificate of birth. Thus, falsely shown were the city and date of respondent's birth, his parents' names, and the fact that his father was living. Furthermore the visa failed to show the existence of a wife and a child, residence in the United States, and the use of an alias. Respondent stated that he assumed the identity of Claud Charles only to escape from Haiti to Nassau, but that he used the same name when applying for a visa both because it had become the name by which he was known and because he felt that if he had told the truth he would have had trouble in getting a visa to come to the United States.
* It is assumed that no visa was involved since respondent was turned over to the transportation company for return instead of being placed under deportation proceedings (22 F.R. 9783 (1957) (now found in 8 C.F.R. 212.1(e) and 214.2 (c) (1) (1962 Supp.)).
Using the standards as to materiality laid down by the Attorney General in Matter of S- and B-C-Int. Dec. 1168 - standards which place upon the applicant for the visa the burden of establishing that he was not excludable and that inquiry would not have resulted in a proper determination that he was excludable — the special inquiry officer held that the respondent had established that there were no grounds upon which he was excludable and that had consul been in possession of the actual facts, it did not appear that a proper determination of excludability could have been made upon them or upon the results of any investigation which might have been completed.
The examining officer maintains that respondent obtained his visa by concealment of material facts concerning his true name, residence in the United States and other matters, and by concealment of the fact that he was excludable under section 212(a) (20) of the Immigration and Nationality Act as one who was without a valid passport.
At oral argument, counsel for respondent contended that had the true facts been known, inquiry would not have placed respondent in an excludable class. Counsel points out that despite the misrepresentation on the visa application, true nationality was revealed by respondent, and that the misrepresentations were made by respondent not to defraud the United States but to save his life which was threatened by political persecution. Counsel points out that the name in which the respondent received his visa had been one used for over a year. Counsel cites Chaunt v. U.S., 364 U.S. 350, 355; U.S. ex rel. Leibowitz v. Schlotfeldt, 94 F. 2d 263 (7th Cir. 1938); and Matter of M-R-, Int. Dec. 1203.
We believe the special inquiry officer correctly disposed of this case. If both the visa and the passport had reflected the truth concerning respondent's place of birth, date of birth, parentage, prior residence, and uses of aliases, there would have been no ground of inadmissibility revealed nor would inquiry on the basis of the true facts have resulted in a proper determination of excludability.
The examining officer contends that had an investigation been conducted, information might have been forthcoming which would have raised a question as to respondent's admissibility. The Attorney Gen