Interim Decision #2456 

• MATTER OF VELLA.GOMEZ 

In Deportation Proceedings 

A-14193878 

Decided by Board November 25, 1975 

(1) Respondent, a native and citizen of Mexico, was admitted to the United States for 

permanent residence in May 1965. Prior to admission, he told the United States consul 

that he was married to a United States citizen whereas, in fact, that marriage was void 

because of a previous undissolyed marriage. In the absence of clear, convincing and 

unequivocal evidence that the respondent made a willful misrepresentation, he is not 

deportable as an alien excludable at entry under section 212(a)(19) of the Immigration 

and Nationality Act, as amended. 

(2) Inasmuch as respondent's marriage to a 'U.S. citizen was void, respondent was subject 

to the provisions of section 212(a)(14) of the Act. However, in the absence of showing 

that the Secretary of Labor would have affirmatively acted or did act to preclude the 

admission of respondent, he is not deportable as an alien excludable at entry under 

section 212(a)(14) as that section of the statute read at the time of his entry in May of 

1965—prior to its amendment by the Aet of October 2, 1965, which placed direct 

responsibility on the alien to obtain certification from the Secretary of Labor. 

(3) Since respondent received his nonquota immigrant classification as a native of the 

Western Hemisphere, not as the spouse of a U.S. citizen, his misrepresentation to the 

consular officer has no bearing on his deportability as one inadmissible at entry under 

section 212(a)(2C) of the Act. While the misrepresentation arguably was germane to 

respondent's inadmissibility under section 212(a)(14), since that charge has not been 

sustained, it cannot be used to support the "no visa" charge under section 212(a)(20) and 

the "no visa" charge falls. 

CHARGES: 

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

under section 212(a)(20) —no valid inunigraut visa. 

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

under section 212(a)(14)—no labor certification. 

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

under section 212(a)(19)—visa procured by fraud. 

ON BEHALF OF RESPONDENT: John F. Sheffield, Esquire 

523 West Sixth Street 

Los Angeles, California 90014 

In a: decision dated August 8, 1974, an immigration judge found the 

respondent deportable, denied his application for suspension of deporta528 
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tion, and granted him voluntary departure in lieu of deportation. The 

respondent has appealed from that decision. The appeal will be sustained. 

The respondent, a native and citizen of Mexico, was admitted to the 

United States as a lawful permanent resident in May, 1965. F'rior- to his 

admission he told the United States consul that he was married to a 

United States citizen when, in fact, that marriage was void on account of a 

previous undissolved marriage. Deportation proceedings were instituted 

against him based upon the following charges: 

(1) Section 241(a)(1) of the Immigration -and Nationality Act as an alien without a 

valid visa [section 212(aX20) of the Act]; 

(2) Section 241(a)(1) of the Immigration and Nationality Act as an alien without a 

valid labor certification [section 212(a)(14) of the Act]; 

(3) Section 2e41(a)(1) of the Immigration and Nationality Act as an alien who willfully 

misrepresented a material fact in order to procure a visa (section 212(a)(19) of the 

Act]. 

The immigration judge found the respondent deportable on the first two 

charges but conduled that the evidence was insufficient to establish that 

a willful misrepresentation had been made, and he dismissed the third 

charge. 

With respect to the section 212(a)(19) charge, we agree with the 

immigration judge that the Service has failed to establish by clear, 

convincing and unequivocal evidence that the respondent made a willful 

misrepresentation. 

With respect to the section 212(a)(14) charge, we disagree with the 

conclusion of the immigration judge. Section 212(a)(14) in May of 1965 

excluded from admission: 

Aliens seeking to enter the United States for the purpose of performing skilled or 

unskilled labor, if the Secretary of Labor has determined and certified to the Secretary of 

State and to the Attorney General that (A) sufficient workers in the United States who 

are able, willing, and qualified are available at the time (of application fora visa and for 

admission to the United States) end place (to which the alien is destined) to perform such 

skilled or unskilled labor, or (B) the employment of such aliens will adversely affect the 

wages and working conditions of the workers in the United States similarly employed. 8 

U.S.C. section 1182 (1952). 

Certain specified aliens were exempted from this provision, including the 

spouses of United States citizens. Inasmuch as the respondent's marriage 

to a United States citizen was void, the respondent was subject to the 

provisions of section 212(a)(14). This section was radically altered in the 

amendment of the Act of October 3, 1965, which placed direct responsibility on the alien to obtain certification from the Secretary of Labor. 

However, in order to find the respondent deportable as an alien excludable at entry under section 212(a)(14) as the statute read in May of 1965, 

the Service must show by clear, convincing and unequivocal evidence 

that the Secretary of Labor would have affirmatively acted or did act to 

preclude the admission of the respondent. No such showing has been 

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made. As a consequence, the order of deportation is not sustained on the 

section 212(a)(14) charge. 

With respect to the section 212(a)(20) charge, the respondent made a 

misrepresentation to the consular officer concerning his marriage to a 

United States citizen. That misrepresentation has no bearing on deportability under section 212(a)(20) unless the respondent's visa was obtained 

as a result of the misrepresentation. The respondent received his nonquota immigrant classification as a native of the Western Hemisphere, 

not as a spouse of a United States citizen. The misrepresentation arguably was germane to the respondent's admissibility under section 212- 

(a)(14), but inasmuch as the Service has not met its burden of proof on 

that charge, it cannot be used to support the "no visa" charge under 

section 212(a)(20). Consequently, the respondent's deportability on the 

section 212(0(20) charge has not been established. 

The Serv..ce has not shown by clear, convincing and unequivocal 

evidence that the respondent was deportable on any of the three charges 

brought against him. The appeal will therefore be sustained and the 

proceedings against him terminated. 

ORDER: The appeal is sustained, and the deportation proceedings are 

terminated. 

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