ALATTER OF J—D—D-- 

In DEPORTATION Proceedings 

A-10554745 

Decided by Board April 13, 1962 

lisrepresentation—Section 212(a)(19)—Materiality. 

Willful misrepresentations as to name, marital status, and existence of minor 

children held not material in this case: connection between the possible 

line of inquiry the misrepresentations cut off and raqpnnripnt's P1Igihll ity 

for admission is so remote, tenuous, and fanciful as not to satisfy the test 

of materiality. (Compare Matter of 9-602.) 

CHAaox: 

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

at time of last entry: procured visa by fraud or willfully misrepresenting a material fact. 

BEFORE THE BOARD 

DISCUSSION: On June 2, 1961, the special officer found the respondent to be subject to deportation on the charge set forth 

above. On appeal, the Board by order dated October 23, 1961, 

remanded the case to the special inquiry officer for consideration 

in the light of the Attorney General's ruling in the Matter of Sand B—Cf—, 9-436 (Oct. 2, 1961), and further directed that the 

decision of the special inquiry officer be certified to the Board. By 

order dated December 29, 1961, the special inquiry officer again found 

the charge sustained and granted the respondent the privilege of 

voluntary departure in lieu of deportation. This decision has been 

certified to the Board. 

The respondent was admitted to the United States at El Paso, 

Texas, on August 3, 1956, as a nonquota immigrant upon surrendering a nonquota immigrant visa which had been issued to her by 

the American Consulate at Juarez, Mexico, on August 3, 1956. This 

visa had been issued on the basis of an application for a visa which 

she had executed on August 3, 1956, before the American viceconsul, in which the respondent stated in Item 1 that her family 

name was "J—Ii—G--"; and replied "None" to Item 3 which called 

for other names by which she had been known; in Item 18 she 

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indicated :Mc war ;Jingle and in Item '27 , which requested the namec - 

and residence of spouse and minor child, she stated "I have never 

been married and have no children. Nunca he lido casada ni tengo 

hijos," In truth and in fact, respondent at that time had been 

married to one A—D—S— in Juarez, Mexico, on May 20, 1954, by 

civil ceremony; and had two children by this marriage, one of 

whom was born April 7, 1954, and the second of whom was born 

on March 7, 1955, both in Mexico. The respondent testified that 

she had been separated from her husband for about 5 years and 

that since being separated she had not talked with him-but that 

she had seen him two times from a distance in Juarez, Mexico. 

The respondent explained that she was separated from her husband at the time she made her application and she stated that she 

was single on the visa application because she was not asked if 

she was married but only if she was single. She further explained 

that she was of the Catholic faith and, as she had married D—

only by a civil ceremony, she did not believe that she was actually 

married to him and for this reason she was not accustomed to 

using his surname. She testified that she had never denied having 

children and said that she was never asked, but if she had been 

asked, she would have admitted that she had the children. The 

respondent also testified that she did not intend to deliberately lie 

to the consul in making her visa application. 

A sworn statement was taken from the respondent by an immigration officer on February 15, liP.G1, in which she stated that she answered Item . 27 in the way she did because she was separated and 

thought it would be easier to arrange a visa if she said that she 

was alone and admitted that she knew that she was not telling the 

truth when she made the visa application. A birth certificate of the 

second child shows that the respondent personally appeared to register the birth of the child and stated the child was the second child 

of her marriage to the father, She explained that she 

registered the.child in this way so that he would not be shown as 

illegitimate. 

The special inquiry officer has found not credible the respondent's present testimony that she did not consider herself as married 

because she was of the Catholic faith and the marriage ceremony 

was a. civil one only, and that she was not accustomed to using the 

surname "D—" for this reason and that she was single because she 

was separated from her husband. He puts more credence in her 

earlier statement that she was never married and had no children 

because she was separated and thought it would be easier to arrange 

a visa by showing she was single at which time she knew she was 

not telling the truth. 

The special inquiry officer has found that the respondent made 

a willful misrepresentation to the American vice-consul regarding 

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her marital status, concealed the fact that she had two children 

and concealed her married name from the consul, all of which she 

did for the purpose of facilitating the issuance of the immigrant 

visa to her. He has concluded that the misrepresentations were 

material because her action tended to shut of a line of inquiry 

which was relevant to her eligibility for a visa and 'which well 

might have resulted in a determination that the visa should not 

be issued to her; that the consul would have had an opportunity 

to make an investigation and that the disposition of the respondent's visa application might well have hinged upon her establishing 

to the satisfaction of the consul what arrangements she was making 

for the care and support of her two children. 

The test of materiality under section 212(a) (19) of the 'miniation and Nationality Act has been formulated by the Attorney 

General in Matter of S— and B—C—, supra, which holds that a 

misrepresentation made in connection with an application for a 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 have resulted in a 

proper determination that he be excluded. This test should also be 

applied to misrepresentations relating to identity. The fact that 

the 1952 Act provides for exclusion of aliens who "procure" documents by misrepresentation suggests an intent that the misrepresentation must have had at least some tendency to achieve a result 

which would not have been achieved without it. 

The application of the test set forth will turn on the answer to 

three questions: 

First, does the record establish that the alien is excludable on 

the true facts? If it does, then the misrepresentation 

was material. If it does not, then the second and third 

questions must be considered. 

Second, did the misrepresentation tend to shut off a line of inquiry which is relevant to the alien's eligibility? It 

should be emphasized that a remote, tenuous or fanciful 

connection between a misrepresentation and a line of 

inquiry which is relevant to the alien's eligibility is 

insufficient to satisfy this aspect of the test of materiality.' 

Third, if a relevant line of inquiry has been cut off, might that 

inquiry have resulted in a proper determination that 

the alien be excluded? On this aspect of the question 

the alien bears the burden of persuasion and proof. 

Having made a willful misrepresentation which tends 

to cut off a relevant line of investigation, he cannot now 

try out his eligibility as if nothing had happened. 

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in the case of 13--C in 9 d50 there ex isted two sets of misrepresentations by the alien: (a) misrepresentations of his and his wife's 

identity in obtaining agricultural worker's permits in 1952 and 1954, 

and (b) failure in his 1956 visa application to disclose his prior 

residence in the United States and use of an alias in connection with 

those entries in 1952 and 1954. While conceding that the use of a 

false name in '1952 and 1954 shut off investigation at that time, the 

Attorney General held there was nothing in the record to indicate 

that if he had used the true name of himself and his wife the resultant 

investigation would have revealed a ground of exclusion and held the 

misrepresentation as to name not material. As to the 1956 misrepresentation the Attorney General stated that in view of his holding 

as to the 1952 and 1954 misrepresentations, the Board's reasoning that 

such misrepresentation concealed a ground of exclusion could not 

stand. 

The special inquiry officer has found that the respondent's action 

in concealing her marital status and the fact that she had two 

children tended to shut off a line of inquiry which was relevant 

to her eligibility for a visa ; that had the consul been correctly 

informed by the respondent that she had been married and separated 

from her husband and that she had two children, the disposition 

of the' respondent's visa application might well have hinged upon 

her establishing to the satisfaction of the consul what arrangements 

she was making for the care and support of her two children. 

However, it has not been shown how such a line of inquiry would 

be relevant to the alien's eligibility as contrasted to her failure to 

reveal that she was married but separated, and her failure to disclose her married name which, the special inquiry officer has conceded, would not under section 212(a) of the Act have caused her to 

be found to be excludable from the United States. Upon full consideration of the nature and circumstances of the misrepresentations, 

we find that the connection between the misrepresentations and the 

possible line of inquiry which an investigation might have developed 

presented so remote, tenuous, or fanciful a connection to her eligibility for admission under the immigration laws as to be insufficient 

to satisfy the second question as to materiality set forth by the 

Attorney General in Matter of S— and B—C—, euprcz. The appeal 

will he sustained and the proceedings terminated. 

ORDER: It is ordered that the appeal be sustained and the proceedings terminated. 

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