• Interim Decision #1431 

MATFER OF GAFO-GATO 

In Deportation Proceedings 

A-11010261 

Decided by Board February 23, 1905 

A conviction under 18 U.S.C. 871 of conspiracy to violate 18 U.S.C. ,A546 

(false statements in immigrant visa) is not tantamount to a conviction under 

18 U.S.C. 1546 within the purvieW of section 241(a) (5), Immigration and 

Nationality Act. 

Cs/inane; 

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

at entry—Not nonquota immigrant. 

Act of 1952—Section 241(a) (5) [8 U.S.C. 1201(a) (5)1—Convicted 

under Title 18, U.S.C., section 1546. 

Respondent appeals from the order of the special inquiry officer 

finding him deportable on. the first charge set forth above. The 

trial attorney appeals from the order of the special inquiry officer 

finding that the respondent was not deportable upon the second 

charge set forth above. Both appeals will be dismissed. 

Respondent, a 82-year-old married male, a native and citizen of 

Spain, entered the United States on March 31, 1956 in. transit to 

,Spain; but failed to depart. On June 16, 1956 he married Milagros 

Rivera. He was apprehended by the Service on December 19, 1936 

and on December 22 was returned to Spain. His wife filed a visa 

petition for him in January 1958; the petition was approved; the 

respondent entered the United States on March 16, 1958 with a nonquota, visa. issued to him as the husband of an American citizen. 

The Service claims that the marriage was one entered into with 

the understanding by both parties that it would be one in name 

only, that it would not be consummated, and that it would be 

terminated when it had served its purpose of securing respondent's 

admission for permanent residence. Respondent contends that he 

married for love, that the marriage was consummated, that he lived 

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Interim Decision *1481 

with his wife, and that he left her only when he found that she had 

been unfaithful to him. The special inquiry officer found the parties 

had not entered into a one fide marriage relation: 

The Service case is based on the testimony of Milagros Rivera and 

prehearing admissions against interest made by respondent. Counsel 

attacks Rivera as a person who was untruthful, of questionable 

character and whose testimony was induced by fear that she might 

otherwise be prosecuted for perjury since her unfavorable testimony 

was in conflict with a prehearing statement she had made. - He antends that her testimony, contradicted as it is by that of respondent, 

a stable person, who has proven a good husband and provider. (he 

remarried), is not credible. The conflicting testimony of Rivera 

has been set forth by the special inquiry officer and need not be repeated. We find as did the special inquiry officer that Rivera's. 

testimony is corroborated by prehearing admissions against interest 

made by the respondent. We find that respondent's admissions were 

neither made under duress nor made to conform with testimony of 

Rivera. The information he furnished goes far beyond hers. We 

believe that the record adequately supports the first .cliarge. The 

respondent's appeal will be dismissed. 

Counsel contends the special inquiry officer was unduly influenced 

by the fact that the respondent was convicted on a criminal charge 

in connection with his marriage. The special inquiry officer stated 

that the criminal proceedings were such that the doctrine of collateral 

estoppel could not apply to the charge in question. There is no 

evidence that he was improperly influenced by the court decision; 

the reasons for his findings are fully set forth. There is:no reliance • 

upon the criminal proceeding. - 

The Service appeal will now be 'considered. On March 6, 1962, 

respondent, along with two others, was Indicted for conspiracy to • 

violate the immigration laws of the United States. The indictment 

contained four counts. Respondent was convicted and! sentenced on 

count one. The count laid under 18 U.S.C. 871 charges that from 

about May 1956 to May 1959, the respondent and two others conspired to•violate 18.U.S.C. 1001 (false statements) and 1546 (false 

statements in immigration visa) and to defraud the Government is 

the exercise of its governmental function of administering the immigration: laws. In Pursuance of the'conspiracy five overt acts relating 

to the respondent's marriage to Rivera, his obtaining a visa, and his 

entry with a nonquota visa are set forth. 

Respondent's deportation is sought under the ;underlined portion 

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Interim Decision *1431 

of section 241(a) (5) of the Act (8 U.S.C. 1251(a) (5)) ; the section 

provides for the deportation of an alien who— 

boa failed to comply with tho provisions of section 285 unless he establishes 

to the satisfaction of the Attorney General that such failure was reasonably 

excusable or was not willful, or has been convicted under section 266(c) of 

this title, or under section 36(c) of the Allen Registration Act, 1940, or has 

been convicted of violating' or conspiracy to violate any provision of the Act 

entitled "An Act to require the registration of certain persons employed by 

agencies to disseininate propaganda in the 'United States, and for other 

purposes"; approved June 8, 1938, as amended, or has been convicted under 

section 4546 of title 18 of the United States Code; (Emphasis supplied.) 

The ;pedal inquiry officer dismissed the charge.based on section 

241(a) (5) of the Act, finding that the section. required a conviction 

under 18 U.S.C. 1546 whereas the conviction in the instant case had 

been under 18 U.S.C. NU. The special inquiry officer felt that had 

Congress who made conviction for a violation of 18 U.S.C. 1546 a 

ground of deportability intended to also make conviction for a conspiracy to violate 18 17.S.C. 1546 a ground of deportation, they 

would have provided as they had elsewhere in section 241(a) (5) of 

the Act for the deportation of an alien "convicted of violating or 

conspiracy to violate" the law in question. The special inquiry 

officer also pointed out that in other sections relating to the deportation of aliens, Congress specified that it was both the conviction of 

the law and the conviction of a conspiracy to violate that law. that 

would subject the alien to liability to deportation. (sections 241(a) 

(11) and (1'0, of the Act). • 

The Service representative contends that Congress intended by 

means of section 241(a) (5) of the Act to deport persons guilty of 

fraud and misuse of visas and that since reference to•the overt acts 

listed in the conspiracy- count reveals that respondent's conviction 

was for acts of fraud and misuse of a visa, respondent should be held 

deportable under section 241(a) (5) of the Act. No authority is 

cited for the contention that it was the intent of Congress` to make 

liable to deportation by means of section 241(a) (5) of the Act any 

person who committed acts of fraud or misused a visa but had not 

been convicted under 18 1546. The contention must be rejected. The contention is made in face of the fact that by other 

provisions of the Act Congress, without requiring a conviction, provided for the deportation of an alien who was guilty of fraud or 

misuse of a visa (sections 212(a) (19), 241(a) (1), 241(c) of the Act) ; 

reliance upon 241(a) (5) of the Act is, therefore, unnecessary to 

deport an alien guilty of acts of .fraud of the nature present in the 

instant case. 'Furthermore, the contention is made in face of the fact 
Interim Decision *1431 

that Congress made deportability under section 241(a) (5). dependent 

upon the existence of a conviction under 18 U.S.C. 1546 and a conviction is not present in the instant case. 

The Service representative contends that Congressional failure to 

provide that conviction for conspiracy to violate 18 U.S.C. 1546, as 

well as conviction under the section itself, would make an alien deportable may well have been due. to the fact that Congress, realizing 

that in the normal situation the conspirators would be outside the 

United States, did not think that a conspiracy charge would be used. 

No historical basis for the Service belief is given. If it is a. fact that 

Congress considered making conviction for a conspiracy a ground of 

deportability and decided not to it is not our function to remedy the 

omission; it is a matter for Congress. Moreover, the Service contention appears to be without any foundation. The predecessor of 

18 U.S.C. 1546 had been the basis of conspiracy prosecutions (U.S. v. 

Rubenstein, 151 F.2d 915 (C.A. 2, 1945) ; U.S. v. Birnbaum, 55 F. 

Supp. 356 (S.D.N.Y. 1944) • Sh.imi Mao v. U.S., 57 F.2d 491 (CA. 

9, 1932)). In section 241(a) (17) of the Act Congress provided for 

the deportation of aliens convicted of conspiracy to violate certain 

laws which, as much as 18 U.S.C. 1546, can involve actions by persons 

abroad. Also, Congress was well aware that the conspiracy section 

of the Penal Code "can fiequently be utilized effectively concerning 

conspiracies to violate various provisions of the immigration laws" 

S. Rep. No. 1515, Slat °mg., 2d Sass, 649 (1950). 

Finally, the Service contends that a. conviction of a conspiracy to 

violate 18 U.S.C. 1546 is actually a conviction wader 18 U.S.C. 1546. 

It is the Service contention that by use in section 241(a) (5) of the 

word "under" when referring to a conviction where conspiracy is 

-not specified, and use of the word "of" when referring to a conviction • 

where a conspiracy is specified, Congress intended to give these words 

separate meanings : "of" relating to the source of the conviction, and 

"under"' to that which is encompassed within the range or bounds of 

the specific law. The simple answer appears to be that if Congress 

intended to attach the deportation liability to a person convicted of 

a conspiracy ;to violate a statute when they referred to a conviction 

"under" that statute, there would have been no need to specify in that 

very section in reference to another law that a conviction of that law 

and a conviction of a conspiracy to violate that law would carry the 

same penalty. Before this fact contentions based on ambiguous 

grammatical constructions must fall (Matter of Marinho, Int. Dec. 

No. 1273). 

The Service representative cited several cases as authority for the 

utilization of the overt facts set forth in the conspiracy count to de49 
Interirim Decision *1481 , 

• 

termine what acts the respondent had actually committed. Inasmuch 

as the -alien's deportation on the charge in question must be based 

upon a conviction and not upon the nature of his acts, the point made 

is immaterial and the cases cited are not applicable. The fact that 

the acts could presumably have been the basis for a conviction under 

18 II.S.0 1516, is also immaterial. 

ORDER: It is ordered that the appeals be and the same are hereby 

dismissed. 

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