Interim Decision #2829 

MATTER of NG 

In Exclusion Proceedings 

A-21880232 

Decided by Board August 29, 1980 

(1) A misrepresentation of identity is not a misrepresentation of a material fact under 

section 212(a)(19) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(19), unless 

it tends to shut off a line of inquiry which is relevant to an alien's eligibility for status 

or might have resulted in a proper determination he was excludable. 

(2) Whether alien who fled from the People's Republic of China to Macao where he 

remained for 4 years and then entered Hong Kong by assuming his brother's name and 

identity, made a material misrepresentation when he entered the United States as a 

refugee in the name of his brother, depends on whether the misrepresentation of 

identity concealed firm resettlement in. Macao or other ineligibility for refugee status 

such as participation in proscribed persecution. (See Section 203(1)(2)(4 of the 

Refugee Act of 1980, Pub. L. 96-212,94 Stet. 102, section 243(h)(2) of the Immigration 

and Nationality Act as amended,-8 U.S.C. 1253(h)(2)). 

ExcLunastm 

Order Act of 1952—Sec. 212(a)(19) [8 U.S.C. 1182(a)(19)]—Procured documentation 

through fraud or willful misrepresentation of material fact 

Sec. 212(a)(20) [8 U.S.C. 1182(a)(20)]—Immigrant without a 

valid visa 

ON BEHALF OF APPLICANT. Richard P. Maracina, Esquire 

30 Vesey Street 

New York, New York 10013 

By: MilholLin, Chairman; Maniatis, Appleman, and Maguire, Board Members 

The applicant appeals from the June 19, 1980, decision of an immigration judge finding him excludable under both section 212(a)(19) 

and section 212(a)(20) of the Immigration and Nationality Act, 8 U.S.C. 

1182(a)(19) and 1182(a)(20), respectively. The appeal will be sustained 

and the record remanded for further proceedings. 

The facts of this case are not in question. Only their legal consequence is at issue. The applicant is a native and citizen of the People's 

Republic of China, born in Kwantung on January 5,1947_ In 1985, he 

fled to Macao where he was briefly detained but later released and 

issued a Macao Identification Card bearing his true name (Ex. 5). In 

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1969, he left Maeao for Hong Kong. He was smuggled into Hong Kong 

and presented himself to the authorities there assuming his brother's 

name. The brother had never left mainland China. According to the 

applicant he assumed his brother's name in order to conceal his Macao 

sojourn from the Hong Kong authorities because he feared being 

returned to the People's Republic of China and dreaded returning to 

Magian_ His ruse was successful and he obtained a Hong Kong identity 

card under the name Kam Hung Ng, his younger brother's name (Tr. p. 

21) (Ex. 4). 

In 1976 in Hong Kong, he applied for registration as a refugee under 

section 203(a)(7) of the Act, 8 1153(a)(7) under his assumed 

name (Ex. 3). He had been residing and working in Hong Kong under 

that assumed name. His application was granted on November 16, 

1977, and he was paroled into the United States as a refugee in San 

Francisco on December 4, 1977. On December 11, 1979, his parole was 

revoked when the deception was discovered and the present exclusion 

proceedings were initiated (Ex. 1). • 

The immigration judge ruled that the applicant was excludable 

under section 212(a)(19) of the Act and therefore, his entry document 

was invalid, rendering him excludable under section 212(a)(20) also. 

Consequently, his excludability under section 212(a)(20) was deemed 

entirely dependent upon the 212(a)(19) charge. The immigration judge 

stated in a conclusory fashion "his misrepresentation of identity to the 

Service, in Hong Kong, was a willful misrepresentation of material 

fact ... within the purview of section 212(a)(19) of the Act ... and he 

was not entitled, upon his application, to parole into the United States 

on conditional entry as a refugee." We disagree with the immigration 

judge's apparent conclusion that misrepresentation of identity is a 

misrepresentation of a material fact per se. 

Section 212(a)(19) of the Act bars from entry into the United States 

"any alien who seeks to procure a visa or other documentation . by 

fraud, or by wilfully misrepresenting a material fact." A misrepresentation is material under section 212(a)(19) of the Act if it 

tends to shut off a line of inquiry which is relevant to the alien's 

eligibility, and which might well have resulted in a proper determination that he be excluded. Matter of S— and B—, C—, 9 I&N Dec. 436 

(BIA 1960; A.G. 1961); cf. Suite v. INS, 594 F.2d 972 (3 Cir. 1979). 

In Matter of Gilikevorkian, 14 I&N Dec. 454 (BIA 1973) we ruled that 

an alien's entry as a nonimmigrant under a false identity did not 

constitute a material misrepresentation within the meaning of section 

212(a)(19) -where the false identity was adopted for reasons unrelated 

to obtaining admission into the United States and the name had been 

used for a prolonged time prior to entering this country. That case 

differs from the present case in that the applicant seeks admission as 

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Interim Decision #2829 

an immigrant refugee under section 203(a)(7) of the Act which was 

recently modified by the Refugee Act of 1980, Pub. L. 96-212, 94 Stat. 

102. The Refugee Act precludes the admission into this country under 

refugee status of aliens who participated in racial, nationality, religious, or political persecution. See section 243(h)(2), 8 U.S.C. 

1253(h)(2). Thus, concealment of true identity can be material in the 

cases of aliens who have engaged in persecution. 

Another instance of materiality takes place where the identity 

misrepresentation would conceal the fact that an alien has been firmly 

resettled in a third country where he is not subject to persecution and 

thus, no longer meets the definition of refugee. SeeRosenberg v. Woo, 

402 U.S. 49 (1971); Matter of Chai,12 I&N Dec. 81 (BIA 1967); Matter of 

May, 12 I&N Dec. 121 (BIA 1967); Matter of Hung,12I&N Dec. 1'78 (BIA 

1967). The applicant by misrepresenting his identity concealed the fact 

that he had resided in Macao for four years. If he had firmly resettled 

in Macao, his failure to disclose his true identity would constitute a 

material misrepresentation since it would have concealed his ineligibility for refugee status.' 

Consequently, we will remand the record to the immigration judge 

for further proceedings in order to assess the materiality of the applicant's identity misrepresentation including consideration of participation in proscribed persecution, and the possibility that he was firmly 

resettled in Macao. Further evidence may be addressed as appropriate. 

The applicant retains the burden of establishing admissibility since 

he has never obtained lawful permanent resident status. Matter of 

Moore, 12 I&N Dec. 711 (BIA 1971); cf. Kwong Hai Chew v. Rogers, 257 

F.2d 606 (D.C. Cir. 1958); Matter of Kane,15 I&N Dec. 258 (BIA 1975); 

Matter of Becerra -Miranda, 12 I&N Dec. 358 (BIA 1967). Thus, a 

further hearing on remand is also required on the applicant's eligibility for section 203(a)(7) refugee status even if the misrepresentation 

is determined to be immaterial. The appeal will be sustained and the 

record remanded for further proceedings in accordance with this 

opinion. 

ORDER: The appeal is sustained and the record remanded for 

further proceedings in accordance with this opinion. 

FURTHER ORDER, If the decision on remand is adverse to the 

applicant, the record shall be certified for our review. 

'See appendix to Immigration and Naturalization Service Operations Instruction 

235.12. 

538