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eral has carefully pointed out that the "theoretical possibilities" of what an investigation made at the time of the application might have uncovered are not sufficient to sustain a charge. The Attorney General stated that the "available facts" must "indicate the existence of a substantial question as to the alien's eligibility to enter the United States” before the impairment of investigative opportunity may operate to bar an alien's entry (Matter of S- and B-C—, supra, at p. 8). In the absence of available facts here indicating the existence of a substantial question as to respondent's eligibility to enter and in view of the failure of the Government to suggest the existence of a ground of exclusion although afforded a reasonable opportunity for adequate investigation, we do not believe it proper to hold that the impairment of investigation here resulted in the obtaining of the visa by fraud.
The examining officer is of the belief that the respondent obtained an advantage to which he would not have been entitled had the true facts been known. We are aware of no barrier to respondent's admission under the immigration laws which was concealed by his misrepresentations.
At oral argument, the Service Representative contended section 402(a) of the Immigration and Nationality Act which amends 18 U.S.C. 1546 should be used as a guide in evaluating the misrepresentation of identity here. Materiality as to the use of a false name must be judged by the standards carefully laid down by the Attorney General rather than by use of a comprehensive penal provision which concerns many unlawful acts and which has not as yet been applied in deportation proceedings to determine whether a misrepresentation is material.
The Service Representative relies upon comment in the footnote on page six of Matter of S- and B-C-, Int. Dec. 1168, which raises the question as to whether a visa issued in the name of another is a valid visa under section 212(a) (20) of the Act. Whatever may be the meaning of this footnote, we do not believe it is applicable to the situation in the instant case since the respondent received the visa in a name which had become his own by use over a substantial period of time. The Service Representative relies upon Matter of S-, Int. Dec. 1190. Matter of s-, did not concern a passport nor did the Attorney General express an opinion there on the issue before us.
The service contends that section 212(a) (19) of the Act must be considered as a separate and distinct count in no way dependent upon the concealment of a ground of deportation and that even if the visa had been valid, the passport charge could still be sustained because it had been issued to a nonexistent person. The Service Representative cities U.S. v. Rodriguez, 182 F. Supp. 479, 484 (S.D. Cal., 1960), aff’d sub nom. Rocha v. U.S., 288 F. 2d 545 (9th Cir. 1961) certiorari denied 366 U.S. 948, and De Lucia v. Flagg, 297 F. 2d 58 (7th Cir. 1961)
certiorari denied 369 U.S. 837, in support of his contention that the passport is invalid.
On this issue, counsel for respondent points out that respondent used his own photograph on the passport and revealed his true identity in that sense, that the passport did show the country of birth and origin, that it is not shown that the passport is invalid for return to Haiti and that presumptive credit should be given to the passport.
As to the passport charge, the special inquiry officer held that the Attorney General had ruled that a misrepresentation as to identity was not necessarily material and since in the instant case the misrepresentation as to identity was not in fact material, it should not make respondent deportable. Otherwise, the special inquiry officer held, identity would always become material although the Attorney General had ruled to the contrary. We agree with the special inquiry officer. A charge based upon possession of a passport in an assumed name may or may not be material. If it is linked to a visa charge and the visa is found to have been validly issued despite the existence of misrepresentations as to identity, then the passport charge should be merged with it and should fall. The essential purpose of the passport is to insure the return of an alien to a foreign country if for some reason he is not admitted on his visa. Since the visa is valid and admission will not be challenged, the existence of a valid passport becomes a matter of lesser importance. (See U.S.es rel. Leibowitz v. Schlofeldt, 94 F. 2d 263 (7th Cir. 1936), Matter of M-R-, Int. Dec. 1203.) In fact, there is nothing in this record to show that the Government of Haiti would not have honored the passport.
The Service Representative contended that Leibowitz no longer applies because of the present existence of specific laws making the procurement of a visa by misrepresentation a matter of fraud (sections 212(a) (19) of the Act and 402 (a) of the Act). The existence of section 212(a) (19) of the Act was considered by the Attorney General, in establishing the standards in misrepresentation cases; criminal provisions similar to those found in section 402 (a) of the Act have been in existence since 1924 (see Act of May 26, 1924, c. 190, sec. 22, 43 Stat. 165).
Rodriguez, cited by the service, is not apposite. It concerned a matter of jurisdiction in a criminal case. De Lucia concerned a person who was inadmissible to the United States under his true identity and who, moreover, had not lived under the name in which the passport was issued. Furthermore, De Lucia made use of the false name to avoid the immigration laws, while respondent adopted false name to escape from physical persecution.
ORDER: It is ordered that the appeal of the examining officer be and the same is hereby dismissed.
Interim Decision #1248
MATTER OF ARCHER
In VISA PETITION Proceedings
Decided by Board September 12, 1962
A petition for the issuance of an immigrant visa seeking to have the beneficiary
classified as the petitioner's "child” is denied because the beneficiary, who was born out of wedlock in Port of Spain, Trinidad, British West Indies, on March 17, 1948, does not come within the definition of "child" set forth in section 101(b) (1) (C) of the Immigration and Nationality Act, since under the law of her residence or domicile (Chap. 5, No. 13 (1940) Revised Ordinances, Trinidad and Tobago) and under the law of her father's residence or domicile (sec. 24, Domestic Relations Law of New York) her legitimation may be accomplished only through the marriage of her natural parents.
This is an appeal from the order dated July 10, 1962, of the District Director, New York District, denying the visa petition filed by the petitioner to have the beneficiary classified as his "child” for the issuance of an immigrant visa. The District Director ruled that the petitioner had failed to establish that the beneficiary is his "child" as that term is defined in the immigration laws.
The petitioner, a native of Carriacou Grenada, British West Indies, a 36-year-old male, is a naturalized citizen of the United States. The beneficiary was born out of wedlock in Port of Spain, Trinidad, British West Indies, on March 17, 1948. Petitioner has apparently had the responsibility of raising the child since the child was one month of age. The beneficiary apparently resides with petitioner's mother in Trinidad. Petitioner alleges he was married once but no information is furnished as to the name of his wife.
In order to qualify for nonquota or preference quota status as a child or daughter of the petitioner, the beneficiary must fall within the definition of “child” as set forth in section 101(b) (1) of the Immigration and Nationality Act. The only category applicable to the case of the beneficiary is section 101(b)(1)(C) which refers to a child legitimated under the law of the child's residence or domicile, or under the law of the father's residence or domicile, whether in or outside the United States, if such legitimation takes place before the child reaches the age of 18 years and the child is in the legal custody of the legitimating parents at the time of such legitimation.
Under the law both of Trinidad and New York the natural parents must marry in order to legitimate the child. There is no showing that the beneficiary has been legitimated. The beneficiary cannot be classified for immigration purposes as the child of the petitioner. The appeal will be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby dismissed.
'Chapter 5, No. 13 (1940) Revised Ordinances, Trinidad and Tobago (1950) (Vol. 1), contains the following pertinent sections concerning legitimation:
3. (1) Subject to the provisions of this section, where the parents of an illegitimate person marry or have married one another, whether before or after the commencement of this Ordinance, the marriage shall, if the father of the illegitimate person was or is at the date of the marriage domiciled in the Colony, render that person, if living, legitimate from the commencement of this Ordinance, or from the date of the marriage, whichever last happens.
(2) Nothing in this Ordinance shall operate to legitimate a person whose father or mother was married to a third person when the illegitimate person was born.
(4) The provisions contained in the Schedule to this Ordinance shall have effect with respect to the re-registration of the births of legitimated persons.
10. (1) Where the parents of an illegitimate person marry or have married one another, whether before or after the commencement of this Ordinance, and the father of the illegitimate person was or is, at the time of the marriage, domiciled in a country, other than this Colony, by the law of which the illegitimate person became legitimated by virtue of such subsequent marriage, that persou, if living, shall in this Colony be recognized as having been so legitimated from the commencement of this Ordinance or from the date of the marriage, whichever last appe notwithstanding that his father w not at the time of the birth of such person domiciled in a country in which legitimation by subsequent marriage was permitted by law. (Law of New York is found in section 24, Domestic Relations Law, McKinney's Consolidated Laws of New York.)
MATTER OF CAVLOV
In DEPORTATION Proceedings
Decided by Board September 27, 1962
(1) Since respondent, a native and citizen of Yugoslavia, apparently had ful
filled his military obligations when he left Yugoslavia without permission; there is nothing in the record to indicate that he engaged in any activity inimical to the Communist Party in Yugoslavia or in any political activity whatever; and there appears to be no basis for assuming that the amnesty granted by Yugoslavia to about 150,000 persons outside the country, including persons who fled that country illegally after World War II, is inapplicable to a person deported to Yugoslavia, respondent has not established that he would be subject to physicial persecution under section 243(h) of the Immigration and
Nationality Act. (2) While respondent is apparently a refugee under the mandate of the United
Nations High Commissioner for Refugees, this in itself does not establish that he would be subject to physical persecution under section 243(h) if deported to Yugoslavia because a person could be classified as a refugee for reasons other than fear of persecution.
remained longer than permitted.
This case is before us on appeal from a decision of a special inquiry officer granting voluntary departure and directing that the respondent be deported if he fails to depart voluntarily.
The respondent is a 33-year-old unmarried male, native and citizen of Yugoslavia, who last entered the United States on May 28, 1959 at which time he was admitted as a nonimmigrant crewman authorized to remain in the United States during the time his vessel remained in port but not exceeding 29 days. He has remained in the United States without authority. In the event of failure to depart, the special inquiry officer directed deportation to Australia, the country designated by the respondent, with alternative orders of deportation to Yugoslavia and Italy. That officer denied the respondent's application under 8 U.S.C. 1253(h) for withholding of deportation to Yugoslavia. The