Interim Decision #2233 

MATTER OF GILIKEVORKIAN 

In Deportation Proceedingb 

A-19220757 

Decided by Board September 17, 1973 

An alien's entry into the United States as a nonimmigrant under a false iden. 

tity did not constitute a material misrepresentation within the meaning of 

section 212(aX19) of the Immigration and Nationality Act where he had adopted 

the false identity fora legitimate reason (to obtain employment) and had used it 

for a prolonged period of time prior to his entry into this country. 

CHARGE: 

Order: Act of 1952— Section 241(a)(2) I8 U.S.O. 1251(o.X3)1 Nonimmigrant 

visitor for pleasure—remained longer than permitted. 

ON BEHALF OF RESPONDENT: 

Andrew W. Ansara, Rep. 

Board of Higher Education 

Div. of Immigration and 

Americanization 

477 Essex Street 

Lawrence, Massachusetts 01840 

ON BEHALF OF SERVICE: 

Ralph J. Smith 

Trial Attorney 

This case involves cross appeals. The immigration judge found 

the respondent deportable and entered an order of deportation, in 

which he denied the respondent's application for adjustment of 

status pursuant to section 246, and granted the respondent's 

application for voluntary departure. The respondent appeals from 

the denial of his application for adjustment of status. The Service 

appeals from the grant of voluntary departure_ We shall sustain 

the respondent's appeal and grant the respondent adjustment of 

status. This decision by us moots the Service's appeal. 

The record relates to a single male alien, 40 years of age, a 

native and citizen of Syria, who entered the United States as a 

nonimmigrant visitor for pleasure on October 24, 1970, authorized 

to remain until March 15, 1971. He has remained thereafter 

without authority. Deportability is conceded. 

The respondent is the beneficiary of an approved visa petition 

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according him classification as the brother of a citizen of the 

United States, pursuant to section 203(aX5) Of the Immigration 

and Nationality Act. The immigration judge denied adjustment of 

status for the reason that the respondent entered the United 

States in the identity of another and therefore is excludable as an 

alien who entered by fraud or material misrepresentation, section 

212(a)(19), relying on Matter of Sarlcieeian, 10 I. & N. Dec. 109 (BIA 

1962). The immigration judge found the misrepresentation material because, if disclosed, it would have revealed the respondent's 

excludability as one not in possession of a valid passport and visa, 

pursuant to section 212(a)(26). • 

The cases have distinguished between a false identity used to 

facilitate entry into the United States and one used for other 

reasons. In Matter of Sarkissian, supra, on which the immigration 

judge relied, there was no indication that the alien used the false 

identity for any purpose other than to obtain a visa to enter the 

United States. Where a person uses a false identity long before, 

and for reasons Unrelated to, obtaining admission to the United 

States, and over a long period of time, misrepresentation as to 

identity made when applying to enter the United States has been 

held not to be material, U.S. ex rel. Leibowitz v. Sehlotfeldt, 94 F.2d 

263 (C.A. 7, 1938). This respondent adopted the false identity so 

that he could obtain employment after he moved from Syria to 

Lebanon during 1959, for Syrians found it difficult to obtain 

employment in Lebanon. Evidence in the record shows that he 

was using the false identity in 1964; he testified that he used it 

since 1959. Thus he used it long before his entry into the United 

States. 

The Attorney General has established the test that a misrepresentation is material if (1) the alien is excludable on the true facts, 

or (2) the misrepresentation tends to shut off a line of inquiry 

which might have resulted in a decision to exclude the alien, 

Matter of S— and B—C—, 9 I. & N. Dec. 436 (BIA 1961). Inasmuch 

as the respondent's use of the false identity was for a legitimate 

reason and was for a prolonged period prior to entry, a line of 

relevant inquiry was not cut off. Inquiry would have revealed no 

information damaging to the respondent so far as this record 

indicates. No ground of excludability would have been uncovered. 

The immigration judge reasoned that the respondent was excludable on the true facts, pursuant to section 212(a)(26), because 

his visa and passport, being in false names, were invalid and that 

therefore the misrepresentation of his identity was material. The 

visa and passport were not necessarily invalid, Matter of Box, 10 I. 

& N. Dec. 87 (BIA 1902). They were issued to the respondent in a 

name which had become his by continued use. The applications for 

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a passport and visa in the false name were all part of his use of the 

assumed identity. If both the visa and passport had reflected the 

true facts, no ground for inadmissibility would have been revealed 

nor would inquiry on the basis of the true facts have resulted in a 

proper determination of excludability. If all aliens who misrepresent their identity in entry documents are deemed excludable on 

the gound of not possessing a valid passport or visa, all identity 

misrepresentation would have to be considered material. Such a 

conclusion would be contrary to the Attorney General's ruling that 

not all misrepresentations as to identity are material, Matter of 

S— and B—C—, supra. The decision of the Attorney General is 

controlling. 

The respondent is not excludable pursuant to section 212(a)(19). 

His misrepresentation of his identity when he entered as a 

nonimmigrant visitor was not material. Had the true facts been 

known, no ground of excludability would have been revealed. 

The respondent is eligible for adjustment of status pursuant to 

section 245 of the Act. We shall direct that his application for it be 

granted. . 

ORI1F.R2 The respondent's appeal is sustained; his application 

for adjustment of status under section 245 of the Immigration and 

Nationality Act, as amended, is hereby granted, and his status is 

adjusted to that of lawful permanent resident, pursuant to section 

245 of the Immigration and Nationality Act. 

Further order: The Service's appeal is dismissed. 

456