Interim Decision #1277 

IfitsTra or Cason 

In DEPORTATION Proceedings 

A-12561979 

Decided by Board April .10, 1603 

The discretionary authority contained in section 211(e) of the Immigration and 

Nationality Act will not be exercised in behalf of respondent, a 29.-year-old 

Italian national, who was married the day following issuance of his nonquota 

visa and the signing of State Department form, in English and Italian, attached to the visa which placed him on notice that marriage prior to entry 

would divest him of his nonquota status and render him subject to exclusion, 

since he has not established, as required by the statute, that his inadmissibility 

was not known to him and could not have been ascertained by the exercise 

of reasonable diligence prior to his departure for the United States. 

CHARGE : 

Order: Act of 1952—Section 241 (a) (1) [8 U.S.O. 1251 (a) (1)1—Excludable at 

entry under 8 U.S.O. 1181(a) (3)—Not nonquota as specified in 

immigrant visa. 

This case is before us on appeal from a decision of a special inquiry 

officer denying relief under 8 U.S.C. 1181 (c), granting voluntary departure and directing that the respondent be deported if he fails to 

depart voluntarily. 

The respondent is a 29-year-old married male, native and citizen of 

Italy, whose only entry into the United States occurred on December 

7, 1961 at which time he was admitted as a nonquota immigrant. He 

secured nonquota status under section 25 (a) of the Act of September 

26, 1961 1 as the unmarried son of an alien lawfully admitted to the 

United States for permanent residence The visa was issued to him on 

October 31, 1961 and he was married in Italy to Ippolita Fortino on 

November 1, 1961. Since he was not the unmarried son of a legally 

resident alien at the time he applied for admission on December 7, 

1961, he was inadmissible to the 'United States under 8 U.S.C. 1181 (a) 

(3). The respondent has conceded that he is deportable on the charge 

'Public Law 57-301; 75 Stat. 657; Note at page 165 following 8 U.S.O. 1153, 

1958 Ed., Supp. 

236 
Interim Decision #1277 

stated in the order to show cause. The sole issue to be determined is 

whether the application for nusne pro tune relief under 8 U.S.C. 1181 

(c) should bogranted. 

We have carefully reviewed the entire record. Apparently the 

respondent was not excludable on any ground other than that stated 

in 8 U.S.C. 1181(a) (3). Under these circumstances and subject to 

the provisions of subsection (d) of 8 U.S.C. 1181, subsection (c) 

thereof contains discretionary authority to admit this respondent providing that the Attorney General or his delegated officer is "satisfied 

that such inadmissibility was not known to and could not have been 

ascertained by the exercise of reasonable diligence by, such immigrant 

prior to the departure of the vessel or aircraft from the last port outside the United States * * *." As we have indicated above, the respondent has conceded that his marriage prior to his application for 

admission to the United States rendered him excludable. The question resolves itself into whether, prior to his departure from Italy, 

the respondent did not know and could not have ascertained that he 

would be inadmissible. 

The special inquiry officer stated that he was not satisfied that the 

testimony of the respondent and his witness rebuts the presumption 

which arises from the requirement of 22 CPR 42.117 (b), citing Matter 

of Int. Dec. No. 1194 (1962). That decision and the regulation 

mentioned relate to the application for the immigrant visa in a situation in which that alien failed to disclose that he had been a member of the Communist Party. In the respondent's case, there is no 

claim that the application for visa contained a false statement or that 

the respondent failed to disclose any information to the American 

Consular Officer. Hence, that decision and the regulation are not 

pertinent. 

It was also stated in the special inquiry officer's decision that the 

respondent's case is governed squarely by this Board's decision in 

Matter of C—, 8 I. & N. Dec. 665 (1960). Although many. of the facts 

in that case are similar to facts in the respondent's case, we do not 

*hint- it is entirely accurate to say that the decision governs this 

respondent's case because the question which must be determined here 

is whether the particular facts of this case do or do not show that the 

respondent knew or could have reasonably ascertained that he would be 

inadmissible if he married. During the oral argument, counsel stated 

that the special inquiry officer did not find fraud and misrepresentation 

on the part of this respondent and he contended that Matter of C—

related entirely to fraud and misrepresentation and was, therefore, 

inapplicable. Actually, the alien in Matter of C— was not charged 

with procuring his visa by fraud or misrepresentation, and the factual 

situation resembles that in the respondent's case. 

237 
Interim Decision #1277 

Counsel also cited Matter of M—, 4 I. & N. Dec. 626 (1952) and 

Matter of R—,71. & N. Dec. 304 (1956) . In the former relating to the 

discretion to grant voluntary departure, we said that aliens whose 

cases are substantially similar should receive like treatment. That 

case has no application because the special inquiry officer did not 

deny relief to the respondent as a matter of discretion but because the 

respondent did not meet the statutory requirements of 8 U.S.C. 

1181(o). Matter of R, supra, related to a letter of the Department of 

State dated May 14, 1956, stating that the Italian quota had been 

entirely utilized and could not be reduced to take care of that alien's 

case and the same department's subsequent letter indicating that the 

alien's case could be adjusted. In that case, the special inquiry officer 

held on April 30, 1956 that the alien was unaware of the fact that his 

marriage made him inadmissible to the United States and apparently 

the Service did not contest that finding. For that reason, the question 

of that alien's knowledge or lack of knowledge concerning the effect 

of his marriage was not considered. by this Board and the facts which 

led the special inquiry officer to that conclusion are not even stated 

in the decision. That case is of no assistance to counsel since, as we 

have previously indicated, the question here is whether, on the particular facts relating to this respondent, it can be said that he was not 

aware and could not have ascertained that he would be excludable. 

Counsel referred to the special inquiry officer's discussion (decision, 

pp. 5-7) of the respondent's interrogation on June 27, 1962 (Ex. 3) 

and that officer's conclusion that it indicated that the respondent knew 

before he left Italy, or had reason to believe, that his visa would be 

invalid if he married prior to coming to the United States. Insofar 

as is pertinent to this question, Exhibit 3 contains the respondent's 

testimony that the American Consular Officer did not inform him that 

the visa would be invalid if he married but that other people did 

advise him after he received the visa. There is a statement that these 

were persons who were also getting their visas to come to the United 

States which would indicate that the respondent received this information prior to his departure from Italy. The respondent's testimony 

at the hearing (Tr. pp. 29-82) indicates that a few days after the 

examination of June 27, 1962 he appeared at the office of the Service 

as requested for the purpose of signing the transcript; that the 

statement was then translated to him; and that he refused to sign it 

on the advice of counsel because two matters allegedly were incorrectly 

stated. He testified (Tr. pp. 8, 10, 32) that no one in Italy told him 

that the visa would be invalid if he married and that he first learned 

of the invalidity of his visa when he filed his visa petition on behalf of 

his wife after his arrival in the United States. The special inquiry 

officer stated that the questions and answers in Exhibit 3 indicated 

238 
Interim Decision #1277 

to him that the respondent knew or had reason to believe before he 

left Italy that his visa would be invalid if he married prior to coming 

to the United States. We do not consider it necessary to rely on this 

challenged testimony of the respondent in Exhibit 3 nor to determine 

whether it would have been incumbent upon him to accept statements 

from unofficial sources as to what would invalidate the visa issued 

by the American Consular Officer. 

We believe this case can properly be disposed of on the basis of the 

form reading, "STATEMENT OF MARRIAGEABLE AGE APPLICANT" which is attached to the respondent's immigrant visa. 

The form contains a notice to the visa applicant in English and Italian, 

the English version of which is as follows : "I, - the undersigned, 

fully understand that I shall lose my nonquota, quota preference 

status or right to be charged to the quota of my accompanying parent 

if I marry prior to my application for admission at a port of entry 

into the United States and that I would then be subject to exclusion 

therefrom." This form is dated October 30, 1961, the date on which 

the visa application was executed before the American Consular Officer. The respondent testified (Ex. 3, pp. 2-3; Tr. pp. 9, 11-12) that 

the two signatures on this form are his; that he had not read the information on the form when he signed it; that he can read and write 

Italian; and that he had attended school in Italy to the fifth or eighth 

grade. We do not believe the respondent's statement that he signed 

this form without reading the information appearing in Italian immediately above his signature. However, even if that were the case, he 

could have ascertained his inadmissibility by merely reading the statement in Italian and his neglect to do that would constitute a failure 

to exercise reasonable diligence. Accordingly, we are not satisfied 

that the respondent's inadmissibility was not known to him and could 

not have been ascertained by him through the exercise of reasonable 

diligence prior to his departure from Italy. It follows that the applicant does not meet this statutory requirement of 8 U.S.C. 1181 (c) and 

his appeal from the denial of that relief will be dismissed. 

ORDER: It is ordered that the appeal be and the same is hereby 

dismissed. 

239