Interim .Decisicin *1474 

Manna or Avarks SAVALA 

In Deportation Proceedings 

4-18228424- 

Decided by B oard March 10, 1965. 

. . 

'Respondent'il• misrepresentations as to marital stated and the existence of 

• minor' Oilmen were material under section 212(0 (19), Immigration and 

Nationality Act, since the facts, including respondent's pending divorce suit, 

his love for his -cousin who also' had it) visa application pending, and his 

)desire to marry .her in the United Sta- , , if revealed to the consul, might 

\have resulted in a finding of excludability under section 21804(18) of the 

Act. [Matter of M—B—, 9 L & N. Dee. 802, and Matter of J—D—D—, 9 L 

& N. Dec. 888, distinguished.] 

.thseasze• 

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

at entry—Visa procured ty misrepresentation of 

material. fact. 

Act of 1952—Section 241(a) (1) '[8 1111(I , 1251(a) (1)1—Excludable 

at entry, :Na valid Vial.- 

' The "Service appeals from the order of the special inquiry officer 

terminating proceedings. The appeal will be sustained. 

Respondent, a 40-year-old married male, a native and citizen of 

Peru, was admitted to the United States on March .16, 1962, upon 

surrender of a non-quota immigrant visa issued -to him on Jan-, 

nary 18, 1962, at Lima, Pin'. The Service charges that the re- 

. spondent obtained his visa by misrepresenting, a material fact, when 

he showed himself to be without wife and children whereas, in fact, 

he was married and had four minor children.- 

Respondent married in Peru on. May 19, 1950. He did not establish a separate home for his, wife; for a time they lived with her 

parents. They separated sometime before 1985, but had marital relations until that year. There are four minors of the union. About 

1959 or 1960, respondent and his cousin Dora. Mercado decided they 

would like to get married. The law did not bar such marriage but 

respondent was unable to obtain. a divorce from his wife because she 

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Interim Decision #1474 

demanded too much money. Dora made up her mind that she could 

not continue living in. Peru near the respondent while he was not 

free to marry. She decided to come to the United States; respondent 

decided he would also come and that he urOuld marry Dora when he 

was free to do so. On October 3, 1961, the respondent filed an action 

for divorce against his wife. (As of October 10, 1963, the divorce 

had not been granted although it appeared to be ready for a decision 

upon the petition of the interested party.) Both respondent and Dora 

• applied for visas in 1962. Respondent stated he represented. himself 

as being single because it was his intention to marry in the United 

States and because he thought the court action would solve the situation. Respondent and Dora left Peru by dilrerea airports primarily 

to prevent her parents from knowing that he was going to the United 

States with her. Upon arrival in the United States they began living together as husband and wife; about 20 days after arrival, upon 

learning that Dora. was pregnant, respondent married her (April 12, 

1962). Two children were born of this union. 

Respondent• alleges that he sends $95.00 a month for the support 

of his children in Peru; his wife has charged him before Peruvian 

officials -with abandonment: The respondent's actions came to light 

after his wife had informed the United States Consul at Lima, Peru 

that respondent had traveled to the United States with a woman 

and might try to marry her here. 

The special inquiry officer held that respondent had made a wilful 

misrepresentation as to his marital Status and the existence of children, but that since the true facts would not have revealed that he 

was within, the excluding provisions of section 212(a) of the Act and 

since in several decisions, the Board has held that similar misrepresentations had not cut off a line of inquiry relevant to an alien's 

eligibility,-;the; proceedings should be terminated.. The special inquiry Officer did not consider 'it a distinguishing factor that the respondent intended marrying his cousin in the United States. 

The Service contends. that the information withheld from the 

consul was material to the issuance of the visa because (1) had the 

consul known of the respondent's dependents, he would not have 

issued 'a visa without having been satisfied that respondent had the 

-ability to•suppoit his family — an ability that the respondent was in 

no position to establish; (2) abandonment of children may involve 

• moral turpitude and since there was the possibility that respondent 

was-abandoning his children, consul could have refused to issue a 

visa; and- (3) had consul known the facts, he would have refused to 

issue a $isa on the grand of one since respondent was coming to the 

United States for an immoral purpose. 

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Interim Decision #1474 

Counsel contends that Board precedents in similar situations require a finding that merely leaving behind children who were later 

supported • did not constitute abandonment (Matter of M –R–, 9 

I. 84 N. Dec. 802). He contends that since there was neither an 

abandonment nor prosecution for abandonment before the respondent left there could have been no question of denying respondent a 

visa because of the possible commission of a crime birdying moral 

turpitude. Counsel contends the record does not establish it was the 

respondent's purpose to bring his cousin to the United States as a 

concubine since the record does establish that he intended to marry 

her as coon as ho was legally free to do so he having already 

started divorce proceedings to free himself: Counsel contends that in 

any event, respondent is not charged with having entered the United 

States for an immoral purpose, and it would have made no difference to his eligibility for the issuance of a visa had the information been known. Matter of S —B— and C—, 9 I. ez .N. Dec. 436, 

and Matter of Martinez -Lopes, Int. Dee. No. 1312, are cited. 

To permit a finding that the misrepresentation was not material, 

the respondent must establish that he was not inadmissible to the 

United States on the true facts and that his misrepresentation did 

not cut off an inquiry which might have properly resulted in a denial 

of the visa (Matter of S —B— and C—, supra, at 448-9). 

Respondent and his present wife testified in% frank and cooperative manner in their pre-hearing statements. • (Counsel refused to 

permit respondent to testify at the hearing (p. 22).) The respondent 

had never been arrested in Peru. There is no reason to doubt respondent's testimony that when he left for the United States with 

his cousin, he did not intend to marry her until his divorce became 

final. 

In• deciding whether inquiry might have revealed a ground of inadmissibility, an absolute defence is not presented by showing that 

the applicant may not have been inadmissible; the important factor 

is how the case would have appeared to the consul had he been in 

possession of all the facts at the time application was made. If 

having been in possession of all the facts, it would have appeared 

probable to the consul that respondent was inadmissible, then the 

concealment of those facts was a material matter (Matter of S —B-- 

and C—, supra, at 449-50). Certainly, with information that the 

respondent, a married man with a family, was leaving the family, 

consul would have- questioned respondent about his plans for his 

family, and could have learned of the respondent's separation from 

his wife, the pendency of the divorce suit and failure to prosecute 

it, respondent's love for his cousin who too had her visa application 

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Interim Decision #1474 

pending and his desire to marry her in the United States. Consul 

could then well have refused to issue a visa on the ground that there 

was reason to believe that the respondent was coming to the United 

States for an immoral purpose; i.e., to enter into a relationship 

which amounted to concubinage (section 212(a) (13) of the Act; 

Hansen v. Half, 291 U.S. 559 (1931) ). 

Natter of M—R—, 9 I. & N. Dec. 602, relied upon by the speCial 

inquiry officer and counsel concerned a widow with three children 

who applied for a visa in her maiden name concealing the fact that 

she had been married. and that she had children; it is distinguishable 

because the element of entering for an immoral purpose was absent. 

Matter of S—B— and C—, ewe, referred to generally by counsel 

is consistent with the position we take. In Matter 'of MartinezLopez It Dec. No. 1232, cited by the special inquiry officer and 

counsel, concerned an alien who in applying for a visa had furnished. 

a forged offer of employment: The misrepresentation was found not 

material because nothing an investigation could have brought to 

light would have revealed the possible grozmd of inadmissibility; in 

the instant case, a possible ground could well have been revealed. 

In Matter of J—D—D--, 9 L & N. Dec. 636, relied upon by the 

special inquiry officer and counsel, the alien indicated she was single 

when in fact she was married and had two children. She was separated from her husband at the time she made application. There 

was no showing that inquiry based upon the true-facts would have 

revealed a possible ground of inadmissibility- There was nothing to 

show she was coming to the United States to live with anyone. 

We find that respondent has failed to bear his burden of establishing that his misrepresentation was not material; the charges 

must be sustained. 

The respondent having failed to establish that his extramarital 

relations do not constitute adultery appears ineligible for voluntary 

departure. His deportation must be ordered. 

ORDER: It is ordered that the appeal of the Service be and the 

same is.lulreby sustained. 

It is farther ordered that respondent be depoited from the :United 

States to Venezuela on the charge contained in the order to show. 

MMES. . 

It is further ordered that if the aforenamed country advises the 

Attorney General that it is unwilling to accept the "respondent into 

its terrinity or fails to advise the Attorney General within three . 

 Months following original inquiry whether it will or will not accept 

the respondent into its territory, respondent shall be deported to 

Peru. 

199