M.ATTER OF S—AND B—C-- 

In EXCLUSION and DEPORTATION Proceedings 

A-11460920 

A-10633389 

Decisions by Board June 2, 1960 

Decided by the Attorney General October 2, 1961 

Miarepresantation- Section 212(a)(19), 1052 act—Criteria for determining materiality. 

(1) A misrepresentation under section 212(a) (19) of the Act is material if 

either (A) the alien is excludable on the true facts, or (B) 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. 

(2) The same test for determining materiality is applicable to misrepresentations Involving identity, wnicn are no longer to be accorded a special 

status. 

(3) Where it is shown that the alien's misrepresentation choked off a relevant 

Inie—OT-iiiquiry which might have resulted in a proper determination of 

excludability, the alien has the burden of establishing the true facts and 

bears the risk that uncertainties resulting from his own obstruction of the 

inquiry may be resolved against him. 

EXCLUDABLE: Act of 1952—Section 212(a) (10) [8 U.S.C. 1182(a) (19)] - Visa 

(3—) procured by fraud. 

Act of 1952—Section 212(a) (28) (I) (1) [8 U.S.C. 1182(a) (28) 

(8—) (I) (i)]—Member of Communist Party of foreign 

country,. 

DEPORTABLE Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1))—Excluda- 

(B—C--) ble at time of entry as alien who has procured 

a visa or other documentation by fraud or 

misrepresentation. 

BEFORE THE BOARD 

(June 2, 1960) 

In re : Matter of S-- 

DISCUSSION: The special inquiry officer ruled that the applicant 

is admissible to the United States. The District Director, Buffalo 

Distriet, believes that the applicant is inadmissible on the first 

ground stated above and has filed this appeal. It will be dismissed. 

436 
The applicant, a resident of Canada, a 32-year-old male, a native 

of Yugoslavia, last a citizen of Hungary, now stateless, seeks entry 

as a visitor. He admits that he was a member of the Communist 

Party of Hungary from December 1947 to October 1956, but claims 

that he was not a voluntary member. He did not reveal his membership to the consul when he applied for the nonimmigrant visa 

which he now has. 

The issue is whether the concealment of membership was material. 

The special inquiry officer found that the membership was involuntary; he, therefore, held that it did not constitute a ground 

of inadmissibility. He found that the concealment of membership 

had been willful, but ruled that the concealment did not constitute 

a bar to entry became it was not material (it had not hidden a 

ground of inadmissibility). The District Director agrees that membership is involuntary but has filed this appeal in the belief that 

the concealment is material, since, in his opinion, the record establishes that the consul would have refused to issue a visa had he 

known of the membership.' 

The applicant's uncontradicted explanations of the manner in 

which he became a member of the Communist Party follow: In 

1947, when he was about 17 years of age, he was attending school 

in Hungary. His parents had been taken to Germany as forced 

laborers arid he was alone. The fact that his parents were in the 

West put him in a class which was regarded with suspicion. He 

was receiving a government allowance while attending school (p. 2, 

The District Director also contended that the special inquiry officer was 

without jurisdiction to determine the voluntariness of the memberShip until a 

United States counsel first ruled on the issue. This. contention and counsel's 

argument in answer to it need not be discussed because the Service has ahandonen this position (Molter 01 V—. 8-554; Matter of P—, 8-502). Review 

of this case had been held in abeyance pending ruling on the jurisdictional iaans. 

At oral argument, the Service representative, using evidence that is not in 

the record, and contrary to the position taken by the District Director in filing the appeal, contended that the applicant's membership was voluntary. This 

issue is not properly before us. When an applicant for admission is ordered 

admitted and the district director takes an appeal, the district director notifies the applicant in writing of the grounds of the appeal and the applicant is 

allt,yed tiro daya to make his representations (8 CFR 236.5(c); District Director's letter of July 1(), 1959). The District Director conceded that the 

membership was involuntary ; his moving papers took no issue with the special inquiry officer's finding that membership was Involuntary. There is an 

orderly piocetlnre prescrihP(i by regulation for bringing issues before the Board. 

These procedures provide due process for the alien. They should be cornplial 

with. (Moreover, it is improper on appeal to take administrative notice of 

debatable matters adverse to an alien. The decision on appeal taken from 

an order authorizing an applicant's admission must ''be rendered solely upon 

the evidence adduced before the special inquiry officer" (section 236(b), Immigration and Nationality Act; 8 U.S.C. 1226(b).) 

4.37 
Exh. 4) and was living in a government dormitory where he also 

received board. In 1947 the Communist Party took control of the 

Government and its educational facilities, and he was told that if 

he desired to stay in the dormitory he would have to join the Communist Party (p. 3, Exh. 4). He was also informed that he would 

not be permitted to attend college if he were not a member of the 

Communist Party and that if he wished to get an allowance or be 

admitted to the dormitory he or someone in his family would have 

to be a member of the Party. The applicant then joined; he received free food and lodging and was permitted to continue his 

studies. 

The applicant testified he was an inactive member going to meetings only when brought, that he attended meetings about three or 

four times a year, that he had no official position, that he never 

attended indoctrination school of the Communist Party, that he 

never made speeches or gave any lectures with regard to communism, that his only study of the communist political theory of 

government had been when it was given to him at school, and that 

he had never subscribed to any communist publication in Hungary 

or any other country (p. 4, Exh. 4). He stated that he did not 

believe in the communist philosophy and that he had been a member of no other unit or group of the Communist Party other than 

the Communist Party itself. The applicant stated that he saw no 

harm in joining the Party because its true purpose was masked, 

and it had been working with and apparently receiving the approval 

of the Western powers. In the second year of attendance at the 

university, he realized the nature of the Party but continued with 

his membership because he had to in order to fmish his studies 

and protect himself. He stated that at the first available opportunity, he fled the country. He testified that if he had been able 

to continue as a student without joining, he would not have joined 

the Communist Party (pp. 9, 12; p. 3, Exh. 4). In 1953, the applicant finished his school and took a position in a research institute. 

He remained a member of the Party until he fled from Hungary. 

During the Hungarian revolution, the applicant states he was a 

freedom fighter. 

Now we shall consider whether the applicant's failure to reveal 

that he had been a member of the Communist Party made the visa 

he received one obtained by fraud. The rule to be applied is that: 

a misrepresentation is not material, when made during proceedings for admission into the United States, if the alien would not have been denied a visa 

or excluded had he told the truth. [Matter of 0—M, 7-40, Atty. Gen., Apr. 2, 

1950. p. 741 

Because it is disturbing that one who deliberately conceals the 

truth should not be penalized for his act, it should be made clear 

438 
that the administrative rule is not a matter of policy but is one 

based on judicial mandate which does not permit too much leeway. 

Because some confusion has been brought about by recent judicial 

pronouncements, we shall briefly state our understanding of the 

situation. 

Leading the list of the authorities relied upon by the Attorney 

General in making the statement we have quoted is the case of 

United States ex rel. Iorio v. Day, 34 F.2d 920 (C.A. 2, 1929). 

It is the mandate of this case which has been paraphrased by the 

Attorney General. It is a mandate which until recent years was 

not questioned by the courts and while it now has its judicial 

critics, it has not lost its judicial defenders. Iorio entered as 

an alien in 1902. He paid several fines for liquor violations and 

was imprisoned for illegal possession of liquor. In 1926 he went to 

Italy on a visit. There he obtained a visa which in 1927 he used 

to reenter the United States. In procuring the visa, he stated under 

oath that he had never been imprisoned. After his return he regularly engaged in the illicit sale of liquor. The Service attempted 

to deport him on the charge, among others, that he had procured 

his visa by fraud by swearing that he had never been imprisoned. 

The court held the ground of deportation was bad in law, stating 

(at p. 921) that "It is true that the relator was bound to tell the 

truth on his application, but, if what he suppressed was irrelevant 

to his admission, the mere suppression would not debar him. Doubtless it might be made to do so, but we cannot find that it has been. 

So the first question comes down at most to whether the facts, had 

he disclosed them, would have been enough to justify the refusal 

of a visa or exclusion upon entry." The court concluded that since 

the violation for which respondent had been imprisoned did not involve moral turpitude, i.e., was not a ground of inadmissibility, Iorio 

had not suppressed "facts which would have justified him [the vice 

consul; in refusing a visa, had he disclosed them * * *" (p. 921). 

If these are any doubts from the discussion in brio that the 

facts which would have been enough to justify refusal of a visa 

or exclusion upon entry are those which reveal a ground of inadmissibility, United States ex rel. Teper v. Miller, 87 F. Supp. 285 

(S.D. N.Y., 1949), the latest case cited by the Attorney General in 

support. of his rule should lay them at rest. Teper clearly reveals 

that a suppressed fact is material only if the fact suppressed was a 

ground of exclusion under the law. The issue then is not, as the 

District Director sees it, whether a consul would have refused a 

visa; rather, it is whether a proper refusal could have been made (In 

re Field's Petition, 159 F. Supp. 144, 147 (S.D. N.Y., 1958)). 

In an effort to reconcile decisions in apparent conflict with Iorio, 

we do not read /Uri() and the cases adhering to it as finding ma439 
teriality only where an alien was excludable at the time of entry—

in some cases it is proper to establish that the alien was probably 

excludable. Where the claimed ground of inadmissibility is based 

on defects in the personality—matters which cannot be established 

with scientific certainty—or where Congress made a ground of in 

 dependent upon the "opinion" of a consul, or where 

judgments must be formed as to whether an alien seeks to enter for 

purposes inimical to the welfare of the nation, then it is sufficient 

to establish that grounds for the proper refusal of a visa probably 

existed (United States v. Flores-Rodriguez, 237 F.2d 405 (C.A.. 2, 

1956) ; Matter of C—T—P—, 8-134). 

In 1956 the Service, in the belief that United States ex rel. Jan-

:otoski v. Shaughnessy, 186 F.2d 580 (C.A. 2, 1951), had disapproved lorio, pressed for a rule declaring the materiality of any misrepresentation knowingly made which had a natural tendency to 

impede, hinder, or forestall an investigation into an alien's eligibility for the issuar.2e of a visa. The matter was brought to the 

attention of the Attorney General whose order dated May 8, 1956, 

showed no inclination to depart from the paraphrase of /orio 

found in his order of April 2, 1956 (Matter of G—M—, supra; 

Matter of S—C—, 7-76, 92). Subsequent decisions both in the circuit where Iorio was decided (In re Field's Petition, 159 F. Supp. 144 

(S.D. N.Y., 1958), and other circuits (Cal villo v. Robinson, 271 F.2d 

249 (C.A.. 7, 1959) ; Herrera-Roca v. Barber, 150 F. Supp. 492 (N.D. 

Cal., 1957)), reaffirmed the validity of the Iorio rule. 

We realize that several circuits are not convinced that the Iorio 

rule represents the law today. One court has stated that it believes 

the majority rule to be "that the fact the alien might have obtained 

a visa on the true facts does not vitiate the fraud or misrepresentation" (Viruette Torres v. boy, 269 F.2d 289 (C.A. 9, 1959) ; DuranGarcia v. Neelly, 246 F.2d 287 (C.A. 5, 1957) ; Landon, v. Clarke, 

239 F.2d 631 (C.A. 1, 1956) ; Ablett v. Broumell, 240 F.2d 625 (CA. 

D.C., 1957)). However, the Attorney General's opinion of April 2, 

1956, is binding upon us and requires termination of these proceedings. 

Membership, to be a ground of inadmissibility, must be voluntary 

(Matter of B—, 5-72). The special inquiry officer and District 

Director have found the membership to be involuntary. The matter 

misrepresented was not a ground of inadmissibility ; it cannot be 

held that the visa was obtained by fraud ( United States ex rel. Teprr 

v_ Miller, supra). The special inquiry officer properly found the 

applicant admissible. The appeal of the District Director will he 

dismissed. 
This record reveals that when the applicant applied for an imnigrant visa in Austria after he had fled from Hungary, he revealed the facts concerning his Communist Party membership and 

apparently because of the membership was refused an immigrant 

visa. This situation is analogous to those where an alien has come 

to the United States using a visa which he obtained without revealing all the facts he should have; the alien is placed in expulsion proceedings; the consul states in a letter which is part of the 

record that had he known the true facts he would not have issued 

a visa. Under such circumstances, we have found the rule to be 

that when a case had left the jurisdiction of the Department of 

State, the issue as to whether there had been concealment of grounds 

which made the alien inadmissible and would have been the proper 

basis for the refusal of a visa is one for the authority considering 

the issue (Matter of S—C—, supra, pp. 77-78; Matter of C—T—P—, 

supra, p. 139 ; see In re Field's Petition, supra, p. 146) . 

The Service representative contends that the visa is invalid under 

22 CFR 42.42(b). This section does not invalidate a visa which 

has been issued; it merely provides authority to a consul for refusing 

to issue a visa where certain requirements have not been met or there 

has been a false statement. Neither it nor section 42.44 of 22 CFR, 

which does authorize the revocation of a visa procured by fraud 

or misrepresentation, has, as counsel points out, been used to invalidate the applicant's visa. 

In view of the action we have taken, we have found it unnecessary 

to explore several 'of counsel's contentions. 

ORDER: It is ordered that the appeal of the District Director be 

and the same is hereby dismissed. 

BEFORE THE BOARD 

(June 2, 1560) 

In re: Matter of B—CDISCUSSION: Respondent appealed from the order of the special 

inquiry officer requiring his deportation. On June 3, 1959, we 

found respondent deportable and granted him voluntary departure. 

A motion for reconsideration was filed; it was denied on November 17, 1959. Another petition for reconsideration is now before 115L 

It will be denied. 

Respondent, a 54-year-old married male, a native and national of 

Mexico, lived in the United States as a permanent resident from 

1927 to 1930. From 1944 to 1946, he worked in the United States 

as a contract laborer. From 1952 to August 30, 1954, he worked 

in the United States as a contract laborer after having gained admission in his nephew's name (E—B—G—). On May 3, 1954, he 

441 
entered as a contract laborer, again using the name of his nephew. 

He was admitted to the United States for permanent residence 

upon surrender of a visa on April 24, 1956. This is also the date of 

his last entry. 

We have found that respondent procured a document by fraud 

when he obtained an agricultural worker's card (Form I-100C) to 

enter as an agricultural laborer on May 3, 1954; that he procured 

another document by fraud when he obtained his visa in 1956; 

and that either of these procurements made him inadmissible to 

the United States when he last entered. 

Counsel contends that respondent procured nothing by fraud 

since he would have been entitled to what he had received had he 

told the truth. In other words, it is counsel's contention that the 

misrepresentation as to identity is not material for it did not conceal 

a ground of inadmissibility. Counsel cites several cases in support 

of his contention. It may be stated that there is nothing_ in this 

record to reveal that respondent could not have qualified for a 

laborer's permit in his own name. For the purpose of this discussion, we shall assume that respondent could have qualified in his 

own name to enter as an agricultural laborer. 

The issue is one which, as far as this Board is concerned, the 

Attorney General settled in Matter of B— and P—, 2 638, when 

he hold that a misrepresentation as to identity i9 material even though 

it did not conceal a ground of inadmissibility. Little can be added to 

what has already been stated in Matter of B— and P—; therefore, 

our discussion of the case involving this difficult problem will be 

brief. As the statutes and decisions have been administratively 

interpreted, there are now two rules existing in misrepresentation 

cases. One rule applies to misrepresenations made as to identity ; 

the other rule applies to all other types of misrepresentations. In 

identity cases, a misrepresentation is always material ; that is, the 

misrepresentation is material whether or not the alien gained any 

substantial benefit by it. In the nonidentity cases, the rule is that 

a misrepresentation is material if by it the alien received a benefit 

he would not otherwise have been eligible for (Matter of B— and 

P— , supnz, Mauer of G-111, 7 10, Atty. Gen.'s Op. pp. 74-75; 

Matter of S—C—, 7-76, Atty. Gen.'s Op. p. 92). Counsel is apparently of the view that there is only one rule in misrepresentation cases, 

and it ic that a misrepresentation is material (even though it pertains 

to identity) only if by it the alien gained something to which he was 

not entitled. The cases cited by counsel in support of his contention 

are United States ex rel. Iorio v. Day, 34 F.2d 920 (C.A. 2, 1929) ; 

United States ex rel. Leibowitz v. Schlotfeldt, 94 F.2d 263 (C.A. 2. 

1938) ; In re Iwanenko, 145 F. Supp. 838 (N.D. Ill., 1956) ; C alvillo 

442 
v. Robineon, 071 F.2d 249 (CA. 7, 1959)3 and Clarke v. Landon, 

139 F. Supp. 113 (D.C. Mass., 1956). 

We do not believe that the cases cited by counsel are authority for 

denying the existence of the separate rule in identity cases. In Iorio, 

the court held that a concealment of the conviction of crime and the 

service of a sentence was not material because it did not conceal a 

ground of inadmissibility. Identity was not involved. Leibowitz, 

as is shown by the analysis in Matter of E— and P—, supra, pp. 

641-642, involved an individual who had assumed a name several 

years before he applied for a visa. By the time he applied for the 

visa he was generally know_ n by the assumed name. The court held 

that the misrepresentation as to name was not material. The distinction is that Leibowitz had applied for the visa in a name which 

had become his own; the alien here was not known by the name 

he assumed. In Iwanenko, the court held that a misrepresentation 

as to place of birth was not material, since the deception had not 

given the alien a right she would have been denied had she told 

the truth. IdealLy was not involved. In Cavillo, the court held 

that a failure to reveal residence in the United States was not 

material. Identity was not involved. The district court decision in 

Clarke v. Landon, cited by counsel, was overruled on appeal (239 

F.2d 631, C.A. 1). The circuit court declared that a misrepresentation as to identity was material, and the case may be added to those 

cited in Matter of B— and P— as holding that an identity misrepresentation is always material. In effect, counsel would have us 

depart from the rules set forth in Matter of B— and P—. We can 

see no reason to do this. In Matter of B— and P— we stated that 

the rule as to identity was founded in the public interest. The rule 

has existed for many years without either judicial or congressional 

criticism. 

We shall now attempt to apply the rules to the situation before 

us. One who obtained an immigration document by fraud is ineligible to enter the United States whenever he attempts to enter (Matter of G—G—, 7-161, 164-165). Respondent is charged with 

having obtained an agricultural worker's card (Form I-100C) 

by misrepresentation. If respondent obtained such a card under a 

false identity, or if he concealed a ground of inadmissibility when 

he applied for the card, his misrepresentation was material and the 

document he obtained was procured by misrepresentation. Respondent applied for the issuance of an agricultural laborer's card which 

authorized him to enter for work in the United States. He obtained 

such a permit by voluntarily using a false identity. It was not an 

identity by which respondent was known generally before he entered the United States. Under these circumstances, whether or not 

respondent would have been admissible had he applied for the docu443 
mentation in his own name, his misrepresentation was material and 

he obtained documentation by misrepresentation (Matter of P—F—, 

6-164). This alone is sufficient to support the charge. Moreover, 

respondent created another ground of inadmissibility when he obtained a second document (the visa) by concealing the fact that he 

was inadmissible. When he applied for a visa, he the both 

his use of an alias and the fact that he had been in the United States 

illegally. These facts would have shown the consul that respondent 

was inadmissible as a person who had procured a document by fraud 

and, therefore, that he was ineligible for the issuance of a visa. 

ORDER: It is ordered that the motion be and the same is hereby 

denied. 

BEFORE THE ATTORNEY GENER41, 

(October 2, 1961) 

In re: Matter of 8— and B—CDISCUSSION : These cases present different aspects of the quesLion 

whether misrepresentation by an alien in connection with the procurement of a visa or other documentation necessarily excludes 

him from admission to the United States under section 212(a) (19) 

of the Immigration and Nationality Act of 1952, and renders him 

subject to deportation under section 241(a).(1) of that Act as one 

who was excludable at the time of entry. S U.S.C. 1152(a) (19), 

1251(a) (1). Because the numerous decisions on this question by 

the Board of Immigration Appeals, the Attorney General and the 

courts have not been wholly clear or consistent, a re-examination 

of the principles which should govern the disposition of such cases 

by the Executive Branch is appropriate. Accordingly, I have had 

the cases referred to me under 8 CFR 3.1(h) (1) (i). 

Section 212(a) enumerates various classes of aliens who shall be 

ineligible to receive visas and excluded from admission into the 

United States. One such class is: 

(19) Any alien who seeks to procure, or has sought to procure, or has 

procured a visa or other documentation, or seeks to enter the . United States, 

by fraud, or by willfully misrepresenting a material fact. 

As a statutory ground of exclusion this provision is new in the 1952 

Act. However, decisions under earlier immigration acts have held 

that a willful misrepresentation of material fact subjected the alien 

to exclusion or deportation on various groundo, ouch as that the 

misrepresentation defeated inspection, United States ex rel. Volpe v. 

Smith, 62 F.2d 808, 811 (CA. 7, 1933), or that a visa procured by 

misrepresentation is no visa, Ablett v. RrfrumR11, 240 F.2d 625 (CA. 

D.C., 1957). In general, the judicial and administrative decisions 

have applied the same tests of materiality, regardless of whether the 

444 
ses arise under the 1952 Act or prior laws, and have in effect 

eated section 212(a) (19) of the 1952 Act as declaratory of pre-

.ously existing law. 

In the cases before me, the Board of Immigration Appeals, proprly regarding itself as controlled by prior administrative decisions 

7hich had been affirmed by my predecessors, applied two different 

eats of materiality to the misstatements. In the case of S--, the 

ilien, a Hungarian, failed to disclose in his application for a nonmmigrant visa issued by the U.S. Consul at Toronto, Canada, and 

in a subsequent entry interview the fact that he had been a member 

of the Communist Party in Hungary from December 1947 to October 195G. Before the special inquiry officer, he admitted his Communist Party membership and explained it in a manner which 

persuaded the officer that it was involuntary within the meaning 

of section 212(a) (28) (I) of the Act, and hence not a ground of 

exclusion. The Board, considering that involuntariness had been 

conceded by the District Director, treated the alien's membership as 

involuntary. Applying the rule stated by the Attorney General in 

Matter of G—M—, 7-40, 74 (1956), that "a misrepresentation is not. 

material . . . if the alien would not have been denied a visa or 

excluded had he told the truth," the Board held the alien should be 

admitted. 

In the case of B—C—, the alien, a Mexican, had lived in the 

United States as a permanent resident from 1927 to 1930, and had 

worked as a contract laborer in the United States from 1944 to 

1946, and from 1952 to August 1954. He was again admitted as a 

permanent resident on April 24, 1956. In 1952 and in May 1954, 

he entered the United States on agricultural laborer's cards issued 

in the name of his nephew. In connection with these entries he 

also misstated his wife's name. In his visa application in 1956 

he gave the correct names of himself and his wife, but failed to 

disclose, several of his prior residences in the United States, including those which followed his entries using his nephew's name, and 

failed to disclose his use of an alias. The Board of Immigration 

Appeals pointed out that "there is nothing in this record to reveal 

that that respondent could not have qualified for a laborer's permit 

in his own name." However, applying the rule which it regarded as 

settled by the Attorney General's affirmance of its decision in Matter 

of B— and P—, 2-638 (1947), that a misrepresentation ac to identity 

"is always material," the Board ordered the alien deported. 

In both cases the sole issue is materiality. There is no doubt 

that the misrepresentations were willful, hi the sense that they were 

deliberately made with knowledge of their falsity. 

445 
Since the issue as to materiality of a false statement under section 212(a) (19) arises in both administrative and judicial proceedings, it is appropriate to give substantial weight to the decisions of 

the federal courts on the question. However, the various district 

and circuit courts have differed as to the test to be applied, and 

these differences have not heen resolved by the Supreme Court. 

Accordingly, in the exercise of my statutory responsibilities under 

section 103 for the administration and enforcement of the immigration and naturalization laws and for making determinations on 

questions of law arising under these laws which will be controlling 

within the Executive Branch, it is appropriate for me to adopt 

such interpretation of section 212(a) (19) as -I believe will be most 

consonant with the purposes and policies of the Immigration and 

Nationality Act. 

The Conference Report on the 1952 Act reflects a concern, in the 

administration of. section 212(a) (19), both with "fair humanitarian 

standards" and with the need to "prevent the evasion of law by 

fraud" (House Report No. 2096, 82d Congress, 2d Session, p. 128). 

False statements to the United States, under oath, should not lightly 

be condoned, particularly, as the Report indicates, if they serve to 

cut off the investigation which Congress provided for. As one 

court has observed, to allow an alien to Take a false statement 

which chokes off investigation into A substantial question of eligibility for a visa, and then, when the falsity is discovered, "try out 

his eligibility just as if nothing had happened," is "an invitation 

to false swearing." Ganduxe y Marino v. Murff, 183 F. Supp. 565, 

567 (S.D., N.Y., 1959), affirmed sub nom. Ganduxe y Marino v. 

Esperdy, 278 F.2d 330 (C.A. 2, 1960), cert. den. 364 U.S. 824 (1960). 

Moreover, a rule that false statements are material only if on the 

true facts the alien was excludable would deny subsection (19) any 

effect as an independent ground of exclusion, since in every case 

the alien would be excludable because of the existence of other 

grounds of exclusion and the fact that he had made false statements would add nothing I am unwilling to approve an interpretation which would deny any practical significance to subsection 

(19), in the face of the clear congressional intent by that section 

to create a separate and independent ground of exclusion. 

On the other hand, it is important to remember that— 

Shutting off the opportunity to come to the United States actually Is a 

crushing deprivation to many prligripMIVP immigrants. Very often It destroys 

the hopes and aspirations of a lifetime, and it frequently operates not only 

against the individual immediately but also bears heavily upon his family in 

and out of the United States. (Report of the President's Commission on 

Immigration and Naturalization, Jan. 1, 1953, o. 177.) 

An alien ought not be excluded from entry or subjected to deportation, because of a misrepresentation made at some time in the 

446 
remote past in connection with an entry into the United States, 

unless the misrepresentation had at least some tendency to enable 

the alien to obtain documents or entry which he might not have 

obtained without it. As the Report of the President's Commission 

subsequently emphasized, not every past mistake should operate as 

a permanent exclusion. 

In Matter of G—M—, supra, the test that a misrepresentation _ is. 

not material unless the alien isTetild -have been excludable on the 

true facts was said to be consistently applied by the courts, citing 

one decision of the seventh circuit and four decisions within the 

second circuit. Although recently reaffirmed by the seventh circuit, 

Calvillo v. Robinson, 271 F.2d 249, 253 (C.C.A. 7, 1959), that test 

has now been definitely rejected by the second circuit, United States 

ex rel. Jankowski v. Shaughnessy, 186 F.2d 580, 582 (C.A. 2, 1951) ; 

Gentli/xe v Marlin() v. Murff, supra; In re Field's Petition, 159 F_ 

Supp. 144, 147 (S.1). N.Y., 1958) ; cf. United States v. Flores-Rodriguez, 237 F.2d 405, 412 (C.A. 2, 1956), and by every other circuit 

that has passed on the question. Lando7iv: Clarke,239 - F.2d 631, 

634-6 (C.A. 1, 1956) ; Abibit v. Brownell, 240 F.2d 625, 630 (C.A. 

D.C., 1957); Duran-Garcia v. Neelly, 246 F.2d 287, 291 (CA. 5, 

1957) ; Viruette Torres v. Hoy, 269 F.2d. 289, 291 (C.A. 9, 1959); 

and see McCandless v. United States ex rel. Murphy, 47 F.2d 1072 

(C.A. 3, 1901) ; Daskaloff v. Zurbrielc, 103 F.2d 579 (CA. 6, 1939). 

On the related question whether naturalization should be revoked 

as having been procured "by concealment of a material fact or by 

willful -misrepresentation," the Supreme Court has recently indicated that the facts concealed are material if either "they would 

have warranted denial of citizenship" or "their disclosure might 

have been useful in an investigation possibly leading to the discovery of other facts warranting denial of citizenship." Ch.aunt v. 

United States, 364 U.S. 350, 355 (1960) ; see Costello v. United 

States, 365 fl S. 965, 969-970 (1961) 

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 hne 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 is generally consistent with 

the prevailing judicial authorities, cited above. 

This test should he applied also to misrepresentations relating to 

identity. In Landon v. Clarke, supra, the first circuit stated that a 

misrepresentation as to identity which resulted in entry without 

proper statutory investipation "is always material, . . no matter 

447 
what the outcome of the investigation would have been if it had 

been made," 239 F.2d at page 634. See also McCandless v. Murphy, 

supra (CA. 3) ; Duran-Garcia v. Neelly, supra, at page 291 (C.A. 

5). Other circuits, however, have applied the rule that a misrepresentation as to identity, like other misrepresentations, is material 

only if the alien gained through it some advantage to which lie 

would not have been entitled under the true facts. United states 

ex rel. Fink v. Reimer, 98 F.2d 217, 218 (C.A. 2, 1938), cert. den. 

305 U.S. 618; United States ex rel. Leibowitz v. Schlotfeldt, 94 

F.2d 263 (C.A. 7, 1938). On principle, I see no valid basis for 

distinguishing between different types of misrepresentations and for 

applying a special rule to cases involving identity. While a misrepresentation as to identity will generally have the effect of shutting 

off an investigation, so also will misrepresentations as to place of 

residence, prior exclusion or deportation from the United States, 

criminal record, Communist Party membership, etc. No good 

reason appears for saying that in one type of case the mere shutting 

off of an investigation is enough, regardless of what its results 

would have been, while in all the others consideration must also be 

given to what the investigation might have shown. The 1952 Act 

makes no such distinction; indeed, the fact that it 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 in this opinion will turn on 

the answers 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 he considered. 

Second, did the misrepresentation tend to shut off a line of inquiry 

which is relevant to the alien's eligibility? A misrepresentation as 

to identity or place of past residence, for example, would almost 

necessarily have shut off an opportunity to investigate part or all 

of the alien's past history, and thus have shut off a relevant investigation. In other situations, the tendency of the misrepresentation to shut off a relevant line of iiiiiebtigation may depend on the 

particular facts. It should be emphasized that, as the Chaunt decision indicates, a remote, tenuous, or fanciful connection between a 

* Where the visa or other document presented by the alien as the basis for 

entry into the United States is issued in the name. of another, a question 

may be presented as to whether the alien satisfies the requirement of section 

212(a) (20) that he possess a "valid" visa or other document. Cf. United 

States ex rd.' Fink v. Reimer, supra; Matter of B— and P— , supra, at pages 

030-40. No such question is presented in the case of B—C— since the alien's 

last entry was on a visa issued hi his own name. 

448 
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. 

7'hird, 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. 

Ganduxe y Marino v. Murff, supra. The law recognizes numerous 

situations in which one who, by his intentional and wrongful act, 

has prevented or restricted an inquiry into relevant facts bears the 

burden of establishing the true facts and the risk that any uncertainties resulting from his own obstruction of the inquiry may be 

resolved against him. Compare, e.g., The Idaho, 93 U.S. 575, 585-6 

(1876) ; Holland v. United States, 348 U.S. 121, 130-32 (1954); 

II Wigmore, Evidence §§ 278, 291. 

Frequently the alien will attempt to meet this burden by evidence 

that on the true facts he is eligible for admission to the United 

States. The weight to be given such evidence will depend in large 

part on whether the government authorities have had adequate 

opportunity, once the misrepresentation became known; to conduct 

the kind of investigation which would have been conducted had 

there been no misrepresentation. Where the opportunity for adequate investigation has been lessened because of the alien's misconduct in making a deliberate misrepresentation, either because of the 

passage of time or for other reasons, the alien's evidence of his 

eligibility may be unpersuasive, for the same reasons that have led 

courts to strike or to place little or no weight on evidence with 

respect to which the opposing party, through no fault of his own, 

was denied adequate opportunity for cross-examination. Compare 

C 0714,71Valti5t Party v. Subversive Activities Control Board, 351 U.S. 

115. On the other hand, where the government officials have made 

an adequate investigation after the misrepresentation became known, 

or have had reasonable opportunity to do so, an unrefuted showing 

of eligibility by the alien may be highly persuasive that the misrepresentation was not material. 

In a sense, of course, any misrepresentation which delays an investigation could be said to have impaired the opportunity for 

investigation. One can always speculate that a witness might have 

become unavailable or less cooperative, or a document have been 

mislaid, or sonic oilier investigative opportunity loot, by the passage 

of time. Where a reasonably adequate investigation fails to suggest 

the existence of a ground of exclusion, however, such theoretical 

possibilities are not a sufficient basis for denying valuable rights 

449 

054377-58 30 
to the alien. On the other hand, where the available facts indicate 

the existence of a substantial question as to the alien's eligibility 

to enter the United States, the possibility of such an impairment 

of investigative opportunity may in some cases be sufficient to warrant a holding that the alien's misrepresentation was material. In 

close cafes the government ought not be required to spmulate as to 

what would hav3 been the results of an investigation which the 

alien has prevented. 

The two cases before me well illustrate some of the variations 

that can occur. In the S— case it is obvious that disclosure of the 

alien's Communist Party membership in connection with his visa 

application would have raised a serious question as to the alien's 

admissibility, and would have been likely to lead to further investigation of the question whether his membership was voluntary or 

involuntary. It is quite possible that investigation by the State 

Department, either into the alien's own activities or into the correctness of his statements as to conditions existing in Hungary 

during the period of his Communist Party membership, would have 

led to a proper denial of a visa. Indeed it appears that on an 

earlier application to the consul in Vienna in which the alien disclosed his Communist Party membership, the visa was denied, for 

reasons which do not appear in this record. ' Even on the alien's 

own testimony it is at least a very close question, whi ch I am not 

required to and do not decide, whether his Communist Party membership was "necessary" to enable him to obtain employment, food 

rations, or other essentials of living, or merely convenient in the 

sense that it facilitated his obtaining an education, and bettering 

his status in life. It would not be necessary to question the alien's 

credibility or sincerity in order to determine that the investigation, 

which would have been made had the alien stated the true facts in 

his application for visa, might well have produced independent evidence sufficient to tip the scales of decision in the opposite direction. 

On the present record I find that the alien's failure to disclose his 

Communist Party membership was a material misrepresentation 

which renders him excludable under section 212(a) (19). 

In the case of B—C—, the Board's decision rested on two sets of 

misrepresentations by the alien : (1) misrepresentations of his and 

his wife's identity in obtaining agricultural worker's permits in 

1952 and 1954, and (2) failure in his 1956 visa application to disclose his prior residence in the United Statca following the 1953 

and 1954 entries, and his use of an alias in connection with those 

entries. As to the first, there is no doubt that the alien's use of his 

nephew's- name in obtaining agricultural worker's cards in 1952 and 

1954 shut off investigation at that time. But there is nothing in the 

record to indicate that if he had used the true name of himself and 

450 
his wife the resultant investigation would have revealed a ground 

of exclusion. Indeed, the fact that the alien was allowed, presumably after appropriate investigation, to enter the United States under his correct name, both before and after the two entries in *question, is persuasive that his use of his nephew's name had no tendency 

to procure a result which he might not have procured under his own 

name. On the record before me, I do not find that the alien's misrepresentation, in obiaiiting agricultural worker's enrds in 1952 and 

1954, of his and his wife's names was material. 

As to the 1956 misrepresentations, the Board treated them as 

material because they concealed the 1952 and 1954 entries; since the 

Board regarded the misrepresentations made in connection with the 

earlier entries as making the alien excludable under section 212(a) 

(19), it considered that the 1956 misrepresentations concealed a 

ground of exclusion and for that reason were material. In view 

of any holding as to the 1952 and 1954 misrepresentations, this 

ground of decision cannot stand. On remand, the Board should 

reconsider the materiality of the 1956 misrepresentations in the 

light of this decision. 

This decision applies a test of materiality different from those 

heretofore applied by the Board. In order not to foreclose any 

party from presenting any new evidence or contentions which may 

have become relevant in the light of this decision, and which such 

party was not under any obligation to present earlier, the cases will 

be remanded to the Board of Immigration Appeals for such further proceedings, consistent with this opinion, as it deems appropriate. 

451