Opinion · United States Board of Immigration Appeals
IN THE MATTER OF G---- G----, 7 IN Dec. 161 (BIA 1956)
MATTER OF G---- G----. In EXCLUSION Proceedings., 7 I. & N. Dec. 161 (Board of Immigration AppealsExecutive Office for Immigration ReviewU.S. Department of Justice 1956)
- Type
- Opinion
- Court
- United States Board of Immigration Appeals
- Jurisdiction
- Federal
- Date
- 1956-04-09
- Topic
- general
IN THE MATTER OF G---- G----, 7 IN Dec. 161 (BIA 1956) MATTER OF G---- G----. In EXCLUSION Proceedings. A-8949107Board of Immigration AppealsExecutive Office for Immigration ReviewU.S. Department of Justice Decided by Board April 9, 1956 Willful misrepresentation — Section 212 (a) (19), Immigration and Nationality Act — Intent to deceive or obtain benefit to which not entitled required. (1) Under section 212 (a) (19) of the act, "fraud" must be defined in its commonly accepted legal sense.
Citator
UpLaw has not yet analyzed IN THE MATTER OF G---- G----, 7 IN Dec. 161 (BIA 1956). The absence of a flag is not a finding that it is good law.
IN THE MATTER OF G---- G----,7 IN Dec. 161(BIA 1956)
MATTER OF G---- G----. In EXCLUSION Proceedings.
A-8949107
Board of Immigration Appeals
Executive Office for Immigration Review
U.S. Department of Justice
Decided by Board April 9, 1956
(1) Under section 212 (a) (19) of the act, "fraud" must be defined in its commonly accepted legal sense. It consists of a false representation of a material fact made with knowledge of its falsity and with intent to deceive the other party. The representation must be believed and acted upon by the party deceived to his disadvantage.
(2) A "willful misrepresentation" under section 212 (a) (19) must be made with knowledge of its falsity and with actual intent to deceive so that an advantage under the immigration laws might be gained to which the alien would not have otherwise been entitled. However, as distinguished from "fraud," proof would not be necessary to show that the person to whom the misrepresentation was made was motivated to action because of the misrepresentation.
(3) A charge under section 212 (a) (19) based on failure to disclose in a visa application the fact of a prior deportation will not be sustained where the record contains confused evidence as to whether a misrepresentation was actually made; where there is no evidence to show that the alien knew he was inadmissible by reason of his deportation, that he believed issuance of a visa would be withheld if the true facts were known, or that he was motivated by a hope of deceiving the United States consul; and where it is not shown that the misrepresentations were made with an actual intent of gaining an advantage to which the alien was not entitled under the immigration laws.
EXCLUDABLE:
Act of 1952 — Section 212 (a) (20) — No valid visa.
Act of 1952 — Section 212 (a) (17) — Previously deported, no permission to reapply.
Act of 1952 — Section 212 (a) (19) — Procured documentation by willfully misrepresenting a material fact.
BEFORE THE BOARD
The appellant is a 24-year-old single male, a native and citizen of Mexico, who applied for admission to the United States for permanentPage 162residence. He is in possession of an immigrant visa. The Service contends that this visa is invalid because it was procured by willful misrepresentation to the effect that the appellant had never been deported from the United States; whereas, in fact, he had been.
The record establishes that the appellant entered the United States illegally about June 1952 and that he was deported in August 1952. He has not obtained permission to reapply after arrest and deportation. The information concerning his deportation does not appear on the alien's visa, although there are questions directed to ascertaining such information on the visa.
A deported alien who has not received permission to reapply for admission after deportation is inadmissible to the United States and is ineligible for the issuance of a visa (sections 212 (a); 212 (a) (17) of the act). At the time the appellant applied for a visa, he was not eligible for its issuance as a matter of law. It follows that the visa he secured was not a valid one. The first two charges set forth above are clearly sustained.
The evidence of record concerning the procurement of the visa by willful misrepresentation in concealing the fact of deportation is conflicting and confusing. It follows.
The appellant applied for admission with his visa on August 31, 1955. A sworn statement was then taken from him by a Service of ficer. This sworn statement reveals that the appellant stated that in July 1952, after having been apprehended by Immigration officials, he departed voluntarily from the United States, obtaining his own transportation; and that he had informed the consulate of this fact when he applied for an immigrant visa. In his statement of August 1955, he said that he had never been deported from the United States.
While awaiting a hearing before the special inquiry officer the appellant appeared before some individual, not an employee of the Service, in the early part of September 1955 and had placed into writing his version of the pertinent facts. From this statement of September 1955, we learn that the appellant had his preliminary application for a visa executed "by one of those scribers by the curb in front of the Post Office in Tijuana." The statement shows that the appellant informed the scriber concerning his illegal residence in the United States and that he had been given voluntary departure in place of deportation. The September statement reveals that it is the appellant's belief that absence from the application for a visa of facts concerning his voluntary departure was due to the error or laziness of the scriber.
On October 24, 1955, the appellant appeared before a special inquiry officer. The testimony is confusing. The appellant testified that he had informed the scriber of the fact of his deportation but that the scriber had failed to record the information properly. WhenPage 163questioned as to whether he had informed the scriber of a deportation or a voluntary departure, he testified that he had informed the scriber that there had been a deportation. When the special inquiry officer pointed out the inconsistency between this testimony and the information contained in the September statement to the effect that appellant had told the scriber there had been a grant of voluntary departure instead of deportation, the appellant testified that he had told the scriber that he had been deported but in the rush of events had not looked at the application after it had been completed. When questioned as to his statement made in September 1955 showing that he had been given voluntary departure, he said it was his belief that he had been given voluntary departure. The appellant finally stated that he had not realized the consequences of denying that he had been deported.
At the hearing, the appellant was asked why his statement of August 1955 reveals he had informed the Service officer that he had been given voluntary departure when in fact he had been deported. The appellant replied that in connection with his deportation proceeding he had paid $8 for transportation to the Mexican border and that he, therefore, believed that he had been given voluntary departure. He also testified that he had informed the Service officer that the departure had been a voluntary one instead of a deportation because it was not known to him what the visa showed concerning the matter.
The hopeless inconsistencies existing in this case cause one to conclude that the appellant is a person of limited intelligence and understanding, or that he was testifying under undue nervous tension, or that he is completely incredible. Perhaps there is an element of each of these factors present. The appellant's willingness to answer in whatever manner is indicated by the questioning, together with the fact that he was unaware of what was contained in his visa concerning his immigration experience in the United States and his constant return to the theme that he was of the belief that he had been granted voluntary departure, causes us to lean to the first two hypotheses rather than the last, although it too must be given some consideration. We are particularly impressed by the fact that if it is assumed that a misrepresentation was knowingly made,there is nevertheless noevidence that the misrepresentation was made with the intent ofdeceiving the United States Government officials or in the beliefthat it would enable him to receive a benefit to which he was nototherwise entitled.
The factual situation having been explored as completely as this record will permit, we come now to the issue of the procurement of the visa by willful misrepresentation of a material fact. We have already found that the appellant's visa was not valid. The present issue concerns not so much the validity of the visa as the question ofPage 164whether there existed a willful misrepresentation of a material fact under section 212 (a) (19) of the act. This is of importance, because if we find such to be the case the appellant would thereafter be ineligible to obtain an immigrant visa or to enter the United States even temporarily (except in limited circumstances in the latter case).
Section 212 (a) (19) of the act prohibits the issuance of visas to, or the entry of, 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.
We do not believe that there has been a willful misrepresentation of a material fact, because we fail to find that the misrepresentation was made for the purpose of inducing the consul to issue a visa. This element — the making of a false statement to induce the consular official to act — is, we believe, an element which must be found to exist before a charge that a visa has been obtained by a willful misrepresentation or fraud under section 212 (a) (19) of the act can be supported.
The term "fraud" is not defined by the Immigration and Nationality Act. We believe it should be used in the commonly accepted legal sense, that is, as consisting of false representations of a material fact made with knowledge of its falsity and with intent to deceive the other party. The representation must be believed and acted upon by the party deceived to his disadvantage. (SeeDavisv.Commissioner ofInternal Revenue,184 F. (2d) 86(C.A. 10, 1950);PacificRoyalty Companyv.Williams,227 F. (2d) 49, 55 (C.A. 10, 1955);Haymanv.United States,51 F. (2d) 800,802(D.C., E.D. Texas, 1931);Imperial Assur. Co.v.Joseph SupornickSon,184 F. (2d) 930(C.A. 8, 1950)).
Since the penalty is the same for actions accomplished by either fraud or willful misrepresentation, we believe the use of the word "fraud" and use of the term "willful misrepresentation" present two alternatives that are not substantially dissimilar. Therefore, the phrase concerning willful misrepresentation should be read as requiring the misrepresentation to be of the same quality as does fraud. This result can be readily reached if it is required that the misrepresentation be made with knowledge of its falsity and with actual intent to deceive so that an advantage under the immigration laws might be gained to which the alien would not have otherwise been entitled. In this way, the misrepresentation would be differentiated from an act committed in fraud only in that proof would not be necessary that the person to whom the misrepresentation was made was motivated to action because of the misrepresentation (seeMatter of S----N----,A-6323194,6 IN Dec. 73; H.R. 2096, 82d Cong., 2d sess.;22 CFR 42.42(a) (19)).Page 165
Our belief that fraud and misrepresentation-the actions prohibited-both relate to substantially similar acts finds reinforcement in the severity of the penalty visited upon one who violates section 212 (a) (19) of the act.The violator ispermanently barred from entry.Once he comes within the confines of this section, he may not thereafter, except in limited cases, legally enter the United States. The severity of the penalty is a good indication that the section was intended to cover a situation more serious than one where an alien merely secured a document to which he was not entitled, for the alien who secured a document to which he was not legally entitled is barred by another section of law (section 212 (a) (20) of the act) and the bar is not accompanied by the penalty of permanent banishment. The severity of the penalty, the fact that specific provision was made to protect the interests of this Government where an alien presented a document to which he was not legally entitled, and the fact that "fraud" has a commonly accepted meaning cause us to conclude that Congress intended to impose perpetual banishment upon those making a willful misrepresentation only where there has been a knowing misrepresentation made with the intention of gaining an advantage to which the alien was not entitled under the immigration laws.
In the instant case, the record contains confused evidence as to whether a misrepresentation was made; there is acompleteabsence of evidencethat the appellant knew he was inadmissible by reason of his deportation; that he believed the issuance of a visa would be withheld, if the true facts were known; or that, if the misrepresentations were made, that he was motivated by a hope that the United States consul would be induced to act by reason of the misrepresentation. There is no evidence that misrepresentations were made with an actual intent of gaining an advantage to which the alien was not entitled under the immigration laws. We would not inflict the penalty of permanent banishment from the United States on the basis of such a record. Exclusion shall be ordered, therefore, only upon the first and second grounds set forth above.Order:It is ordered that the appeal be and the same is hereby dismissed, but that exclusion be ordered only on the first and second grounds set forth above.Page 166