Interim Decision #2378 

MATTER OF KM KING HUI 

In Deportation Proceedings 

A-20019215 

Decided by Board April 7, 1975 

(As corrected by amendatory order of May 2, 1975) 

The Service appeals from the grant of adjustment of status to that of a lawful permanent 

resident alien, ender section 245 of the Immigration and Nationality Act. The appeal is 

sustained. Respondent gained entry into the United States by using a nonresident alien 

Mexican horder crossing card which he obtained by misrepresenting his identity, date 

and place of birth and nationality. He is therefore excludable under section 212(a)(19) of 

the Act because he obtained his entry document by wilful misrepresentations of material facts, and does not merit the favorable exercise of discretion for adjustment of 

status. 

Order: Act of 1952—Section 241(a)(2) (8 U.S.C. 1251(a)(2)]—Nonimmigrant visitor- 

-remained longer than permitted. 

ON BEHALF OF RESPONDENT: 

Jack Wong Sing, Esquire 

Chow and Sing 

550 Montgomery Street 

San Francisco, California 94111 

ON BEHALF OF SERVICE: 

Irving A. Appleman 

Appellate Trial Attorney 

Stuart Shelby 

Trial Attorney 

This is an appeal by the Service from a decision of an immigration 

judge dated December 12, 1972 granting the respondent's application 

for status as a permanent resident under section 245 of the Immigration 

and Nationality Act. The appeal will be sustained. 

The respondent is a 43-year-old native of China who last entered the 

United States on June 14, 1970 with a nonimmigrant alien Mexican 

border crossing card which had been issued to him in 1967 upon his 

application which was based on a false identity. The respondent had 

entered Mexico in 1948, when he was 18 years of age, with a false 

Mexican passport obtained for him by his father. At the deportation 

hearing, the respondent conceded his alienage and deportabffity as an 

overstayed visitor. 

The respondent's naturalized United States citizen sister petitioned 

to have him classified as a fifth preference alien on August 14, 1970. The 

petition was granted on January 2, 1971. The respondent's application 

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Interim. Decision #2378 

for permanent resident status, however, was denied by the district 

director on the ground that the respondent was excludable from the 

United States under section 212(a)(19) of the Act as an alien who had 

obtained his entry into the United States by fraud or wilful misrepresentation. 

The alien renewed his application for section 245 relief before an 

immigration judge. The immigration judge concluded that the respon 

dent was not inadmissible under section 212(a)(19) of the Act,- and 

granted him adjustment of status pursuant to section 245_ The Service 

has appealed this grant. 

On appeal the Service contends ,(1) that the respondent is excludable 

as one who has procured a visa or other documentation, or entry into the 

United States by wilfully misrepresenting a material fact within the 

meaning of section 212(a)(19) of the: Act; and.(2) that the respondent is 

ineligible to receive a visa and is therefore not statutorily eligible for 

section 245 relief. 

The sole issue before us is whether the respondent's misrepresentations of his identity, date of birth, nationality, and place of birth in 

obtaining a nonresident alien Mexican border crossing card is material 

within section 212(a)(19) of the Act. 

In Matter of8— and B—C—, 9 I. & N. Dec. 486, 448-449 (A.G. 1961), 

the Attorney General, in discussing whether a misrepresentation is 

material, stated: 

The test of materiality which in my judgment will best effectuate the objeCtiVes of the 

Act is the following: A misrepresentation made in connection with an application for visa 

or other documents, or with entry into the United States, is material if either (1) the 

alien is excludable on the true facts, or (2) the misrepresentation tends to shut off a line 

of inquiry which is relevant to the alien's eligibility and which might well haie resulted 

in a proper determination that he be excluded. . . . 

In applying for the nonresident alien Mexican border crossing card 

the respondent certified that his name was Fernando Ghee Acevedo, 

that his date of birth was May 1, 1929, and that he was born in 

Chihuahua, Mexico. The "true" facts are that the respondent's name is 

Kai. Hing Had and that he was born on December 14, 1930in-China. As a 

citizen of China he was ineligible for a nonresident alien Mexican border 

crossing card, use of which is, limited to Mexican nationals (8 CFR 

212.6). 

The immigration judge concluded that intent to deceive was a necessary prerequisite to a finding of deportability under 212(a)(19). He 

asserted that the Attorney General in Matter of S— and supra, 

overruled our decision in Matter of G—G—, 7 I. & N. Dec. 161 (BIA 

1956). We do not agree. The information furnished by the respondent to 

the Service regarding. his identity was not true. The issue of intent with 

which the respondent gave those untrue answers is no longer govern289 
Interim Decision 42878' 

ing. We interpret the Attorney General's decision in Matter of S— and 

B—C--- as one which modified Matter of G—G— so that the intent to 

deceive is no longer required before the wilful misrepresentation charge 

comes into play. 

In the present case, the respondent misrepresented his identity, place 

of birth, nationality, and date of birth. He did so in order to obtain a 

benefit to which he was not otherwise entitled —entry into the United 

States with a. nonresident alien Mexican border crossing card, use of 

which is restricted to citizens of Mexico. The respondent knew that he 

was not Fernando Chee Acevedo and in claiming to be that person he 

was making a claim to gain the border 'crossing card which would not 

have been issued to him on the "true" facts. 

Our review of the record, as well as contentions raised on appeal, 

satisfies us (1) that the respondent procured a visa or other documentation by fraud, or by wilfully misrepresenting a material fact; and (2) that 

the respondent has not established his admissibility. 

After consideration of the evidence of this record, we conclude that 

the respondent obtained his visa by wilful misrepresentation of material 

facts and is ineligible for adjustment of status on the basis of his 

inadmissibility under section 212(a)(19) of the Act. We disagree with the 

immigration judge that the respondent's obtaining the nonresident alien 

Mexican border crossing card in a false identity and nationality is not an 

adverse factor. The respondent has not offered sufficient countervailing 

equities necessary to offset the adverse factors to merit favorable exercise of administrative discretion. In applying the standards established 

in Matter of Arai, 13 I. & N. Dec. 494 (BIA 1970), we conclude that the 

respondent does not merit the favorable exercise of discretion. Accordingly, we shall sustain the Service appeal. The following order will be 

entered. 

ORDER: The Service appeal is sustained. 

Further order: The immigration judge's order of December 12, 1972 is 

withdrawn. 

Further order: In lieu of an order of deportation, the respondent is 

granted voluntary departure within 30 days from the date of this decision, or any extension beyond that date as is granted by the district 

director and under such conditions as he shall direct. 

Further order: If the respondent fails to depart voluntarily when and 

as required, the privilege of voluntary departure shall be withdrawn 

without further notice or proceedings, and the respondent shall be 

deported to Mexico, if that country agrees to accept him, and if Mexico 

refuses to accept him, then the respondent will be deported to the 

Republic of China on Taiwan. 

Irving A. Appleman, Board Member, abstained from consideration of 

this case. 

290