MATTER OF B—

In SECTION 245 Proceedings
A-11589013
Decided by Regional Commissioner March YS, 1950
Approved by Assistant Commissioner

Adjustment of status—Section 245 of 1952 act—Not available to crewman whose
actions indicate he was not bona fide nonimmigrant at time of admission.
(1) .Section 245 applicant has not met burden of establishing that be was a
bona .fide crewman at time of last admission when the record shows that
he was refused permission for discharge by the master of his vessel; that
be proceeded from New Orleans to New York to become better acquainted
with a United States citizen whom he had met before and to whom be was
actually married three days after his arrival there.
(2) Applicant's testimony regarding
part with his ship or secure a berth

his

intentions at time of entry (to de-

on another vessel) is not accepted when

viewed against his actions before and after arrival and his admitted un-

truthfulness in sworn statement made to the Service.
A-10256335, Int. Dec. No. 990, distinguished.)

(Matter of M—,

BEFORE THE REGIONAL COMMISSIONER
Discussion This case is before me by certification under 8 CFR
103.4. The district director has denied the application on the ground

that the applicant was not a bona fide nonimmigrant at the time of
his last admission into the United States.
The applicant is a native and citizen of Greece, age 28, who was
last admitted to the United States at Galveston, Texas, on February
17, 1959, as a nonimmigrant crewman under section 252(a) (1) of the
Immigrant and Nationality Act solely for the length of time his
vessel was to remain in United States ports (not to exceed twentynine days).
The SS. HELEN H. upon which the applicant arrived proceeded
coastwise from Galveston to New Orleans, Louisiana, arriving there
on February 24, 1959. On March 10, 1959, the SS. HELEN H. sailed
foreign from New Orleans. The applicant• and 6 other crew members
were reported by the master of the vessel as deserters. The applicant
has remained in the United States continuously since his entry at
Galveston on February 17, 1959.
On April 23, 1959, the applicant walked into the New York office
and filed the application which is now before us. At the time of
621

filing, he claimed nonquota status under section 101(a) (27) (A) of
the Immigration and Nationality Act based on his marriage to a
United States citizen. Subsequent to filing, the applicant has been
interviewed under oath on two different occasions.
The record shows the applicant was first interviewed by an immigrant inspector June 11, 1959, at which time he testified -, in essence,
as follows: That he left the SS. HELEN H. on February 24, 1959,
and flew to New York registering at the Hotel Rio. He then made
inquiry at the Ocean Restaurant as to the location of a cousin whom
he intended to visit for 3 days. While at the restaurant he was introduced for the first time to his present wife and on the following day
proposed marriage. He had been informed by acquaintances 4 or 5
th.:,nths before arriving that he could marry a United States citizen
and remain in the United States. His second cousin, owner of the
Ocean Restaurant, whose name he had forgotten, introduced him to
the girl whom he married three clays later. He further testified that
he had no intention o marrying at the time that he left the vessel
on February 24, 1959, and, in fact, intended to return to the ship
scheduled to sail between the end of February and the 5th of March.
In reply to further questioning, he amended this statement to say
that he planned to seek a new ship in New York or would have returned to the SS. HELEN H. if unable to obtain a new berth in
New York. In support of his application, a marriage certificate
was presented showing the marriage of the applicant to C
on February 27, 1959, at New York.
Because of the improbability and contradictions apparent in the

applicant's testimony, arrangements were made for his wife to be
interviewed.
On July 28, 1959, the applicant and his wife were interviewed
under oath by an investigator of this Service. He testified that many
of the statements made in the prior interview were untrue and that
he did not tell the truth because he was upset, nervous and confused.
On this occasion he testified he first met his present wife in November of 1958 and corresponded with her until his return in February
1959. The subject of marriage was a topic of correspondence, and
in order to become better acquainted, he left the ship. on February
24 for a short visit. To support the statements regarding the exchange of correspondence, he presented a radiogram dated November
26, 1958, extending Thanksgiving greetings from "C ", and a
letter in the Greek language dated January 2, 1959, from the applicant to his wife in which he stated the following:
May my letter find you well, and the New Year give you everything you
desire. I received your Christmas cable, and card and letter for the New
Year. I was overjoyed, pleased, and touched by your noble expressions. I
wanted to call you up upon arriving at port but had to wait in the outer

622

harbor until our turn came * * * felt overjoyed at the wonderful words in
your letter and that you are looking forward to meeting each other. I felt
indeed distressed leaving so soon after we first met, even though that meeting
was enough to make me appreciate and like you and I felt I knew you for
many years before. There is nothing left for me to do but bring myself Lear
to you as soon as I leave the ship. I hope you form the right opinion about
me for I am a very worthy person like you are. After unloading and sailing
for America, I'll get you on the wire and talk about my leaving the ship.
Give Mrs. T-- warmest regards.

At the time of the above interview, the applicant's spouse was also
questioned under oath regarding the circumstances of her marriage.
She testified that she first met the applicant in November 1958, and
that subsequent thereto corresponded with him; that on February 24,
1959, the applicant telephoned her to advise that he was coming to
New York and wanted to know her better. She stated that when he
arrived in New York that she knew that she loved him because she
had grown to love him by his letters and that when he proposed
marriage, she immediately accepted. She testified that, it. was her
true belief that the marriage was solely for love and that the applicant has been a good husband.
Section 215 under which the applicant is applying for adjustment
of status reads, in part, as follows:
SEC. 245. (a) The status of an alien who was admitted to the United States
as a bona fide nonimmigrant may be adjusted by the Attorney General, in his
discretion and under such regulations as he may prescribe, to that of an alien
lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant
visa and is admissible to the United States for permanent residence, (3) an
immigrant visa was immediately avaiime to him at the time of his application, and (4) an immigrant visa is immediately available to him at the time
his application is approved. * * *

Section 252(a) (1) under which the applicant was admitted as a
nonimmigrant crewman reads as follows:
SEC. 252. (a) No alien crewman shall be permitted to land temporarily in
the United States except as provided in this section, section 212(d) (3), section 212(d) (5), and section 253. If an immigration officer finds upon examination that an alien crewman is a nonimmigrant under paragraph (15) (D)
of section 101(a) and is otherwise admissible and has agreed to accept such
permit, he may, in his discretion, grant the crewman a conditional permit to
land temporarily pursuant to regulations prescribed by the Attorney General,
subject to revocation in subsequent proceedings as provided in subsection (b),
and for a period of time, in any event, not to exceed—
(1) the period of time (not exceeding twenty-nine days) during which the
vessel or aircraft on which he arrived remains in port, if the immigration officer is satisfied that the crewman intends to depart on the vessel or aircraft
on which he arrived. * * *

The definition of a crewman is found in section 101(a) (15) (D),
as follows:
623

SEC. 101. (a) As used in this Act— • • •
(15) The term "immigrant" means every alien except an alien who is within
one of the following classes of nonimmigrant aliens— • • •
(D) an alien crewman serving in good faith as such in any capacity required for normal operation and service on board a vessel (other than a fishing vessel heaving its home port or an operating base in the United States) or
aircraft, who intends to land temporarily and solely in pursuit of his calling
as a crewman and to depart from the United States with the vessel or aircraft
on which he arrived or some other vessel or aircraft. • • •

The wording of section 245 clearly demands an examination of all
applicants for adjustment as to whether they were, in fact, bona, fide
nonimmigrants at the time of their admission to the United States,
particularly in cases of recent arrivals. The burden is upon the
applicant, not the Government, to establish bona fides of nonimmigrant status at the time of admission. This burden is not met solely
by the gratuitous or self-serving statements of the applicant as to
his intent at the time of admission. The Government has the responsibility to weigh all evidential factors present in each case carefully
and considerately. Such factors include the actions of the applicant
prior and subsequent to arrival.
In the instant case, we have carefully weighed the actions of the
applicant in the light of the sworn testimony. He was admittedly
untruthful in his initial testimony before an officer o= this Service
regarding his intentions at the time of his admission to the United
States and as to his reasons for leaving his vessel. In view of this,
considerable doubt is cast upon his amended testimony regarding
his intentions at the time of entry. Here we have an alien who

admittedly planned to depart from his vessel to marry a woman
whom he had met before if she would have him. He, in fact, asked
permission from the master of his vessel to discharge from the vessel
on which he arrived but the permission was refused. He actually
carried out his preconceived plan by departing from his vessel from
New Orleans to New York and married within three days after
arriving there. He would have us believe that he intended to depart
with the vessel on which he arrived or by securing a berth on another vessel. He did neither. He remained in the United States.
Credibility cannot be accorded his testimony in light of his actions

prior to and subsequent to his arrival.
The facts in this case are distinguished from prior cases in which
we have found a crewman to be a bona fide nonimmigrant. In
Matter of M
, A-10256535, Int. Dec. No. 990, for example, the
applicant was last admitted as a crewman in 1948. Clearly his intention at time of entry was to reship foreign. However, because of

unforeseen circumstances he was forced to remain in the United
States a prolonged period of time during which a change occurred
in his intention to resume his calling.
624

The instant case is not that of a crewman who, through unforeseen circumstances beyond his control, such as illness and/or hospitalization, was prevented from departing with his vessel and had to
remain in the United States a prolonged period of time. We must
conclude that the applicant failed to sustain the burden of establishing that he was a bona fide crewman at the time of his last admission. Accordingly, the application will be denied.
Order: It is ordered the application be denied.

€25


Interim Decision #2344

MATTER OF NGUYEN

In Bond Cancellation Proceedings
A-20040417
Decided by Regional Commissioner January 28, 1975

Under 8 CFR 103.6(b)(2), a maintenance of status and departure bond will be canceled if
the alien files an application for permanent residence while still in lawful nonimmigrant
status, and that application is approved. However, that will not be the case where the

permanent residence application is filed after the period of authorized admission as a

nonimmigrant has expired. In this ease applicant filed an application for permanent
residence 27 days after her period of authorized admission as a nonimmigrant had

terminated. These 27 days of presence in the United States without Service authorization constituted a substantial violation under the terms of the bond and the decision by
the district director to declare it breached, was proper.
ON Bu.NA.Ln. OP OBLIGOR: Allen R. Jackson, Esquire
680 Washington Street
San Francisco, California 94111

This is an appeal from the district director's notice of March 11, 1974,
informing the obligor that the conditions of the $2,500 bond posted by
him on DeceMber 17, 1971 had been violated on January 26, 1973, when
the alien failed to depart the United States within the period she had
been authorized to remain: In his notice of breach, the district director
stated:
The alien was admitted to the United States as a temporary visitor at Honolulu, Hawaii,
on January 27, 1972 to July 6; 1972. She was then granted an extension of stay to
' January 5, KW at San Francisco, California. She was then denied a further extension
and was accorded to January 25, 1973 in which to voluntarily depart the United States.
The subject Jailed to depart, and on February 22, 1973 filed Application for Status as
Permanent Resident, Form 1-485, as a nonpreference alien.
The alien violated her status, and thus breached the bond, by remaining in the United
States without permission from this Service after January 25, 1973.

The facts are not in dispute. The record substantiates that there was a
lapse of 27 days between the expiration of the alien's authorized temporary stay and the date on which she made application for adjustment of
status pursuant to Section 245 of the Immigration and Nationality Act.
The bond was posted in her behalf on December 17, 1971, at the request
of the United States Consular Officer in Saigon, Vietnam, with the
conditions of this bond in part as follows:
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Interim Decision #2344
In consideration of the granting of the application of the above alien for permission to
enter or remain temporarily in the United States as a nonimmigrant under section
101(a)(15) of the Immigration and Nationality Act, provided there is furnished a suitable
bond, the obligor hereby furnishes such bond with the following conditions: If said alien
is admitted to the United States for a temporary period as a nonimmigrant, or is
granted an extension of temporary admission, or is granted a change in nonimmigrant
classification, and if said alien shall comply with all the conditions of each specific
nonimmigrant status which he is accorded while classified in suchstatus, including the
condition that unauthorized employment shall not be accepted, and actually depart from
the United States without expense thereto on or before date to which admitted or
extended or such subsequent date as may be authorized, in extension of his lawful
temporary stay beyond such date, without notice to the obligor, then this obligation
shall be void; otherwise it shall become due and payable immediately in the sum of Two
Thousand Five Hundred — dollars ($2,500.00) for each alien as to whom there have
been a failure to comply with any of the foregoing conditions; provided that in no event
shall the liability of the obligor exceed the total sum of Two Thousand Five Hundred
—dollars
($2,500.00); and provided further, that no adjustment of the immigration status
of said alien shall be construed to impair or diminish this obligation.
On appeal, counsel contends that the period the alien was not in lawful

temporary status, from January 25, 1973 until February 22, 1973, does
not constitute a "substantial violation" of the terms of the bond within
the meaning of 8 CFR 103.6(e), He further contends that the alien has
substantially complied with the terms of the bond and that the bond
should be canceled.
Counsel quotes liberally from 8 CFR' 103.6. The dispute appears to be
in the interpretation of "substantial perfoilmance" and "substantial violation". 8 CFR 103.6(c)(3) proVides that an obligor shall be released from
liability where there has been "substantial performance" of all conditions imposed by the terms of the, bond. 8 CFR 103.6(e) provides that a
bond is breached when there has been a "substantial violation of the
stipulated conditions (of the bond)". '
The rule of strict performance is relaxed only on substantial performance which is of benefit to the government.
Performance as a condition Precedent to cancelation of a maintenance
of status and departure bond must be strict perforniance in acCordance
with the terms and cOnditiond thereto.'However, this rul4 continues to
be relaxed in delivery bomb where there has been a substantial performance which is of benefit to the government, i.e.: where the alien his
departed the United States at no eXpense to *the government.
Substantial performance exists where there has been no willful departure from the terms or conditions of the bond, where the Conditions have
been honestly and faithfully complied with and the only variance from
their strict and literal performance consists of technical'or unimportant
occurrences. Substantial violations would be those acts which would
constitute a willful departure from the terms or conditions of the bond or
the failure to comply or adhere to the essential elements of those terms
or conditions.
177

Interim Decision #2344
Under the conditions of the instant bond, the alien undertook the
obligation to depart from the United States on or before a certain date

without expanse to the government. One of the responsibilities of the
obligor was to see that she did. It was his obligation to keep apprised of
the alien's whereabouts and his failure to do so does not relieve him of
his responsibilities.
Counsel quotes from Ahmed v. United States, 480 F.2d 531 (C.A. 2,
1973), where the court held that:
... where condition of maintenance of status and departure bond plaintiff was required
to post for person admitted as a nonimmigrant student was that such student would not
accept employment without prior approval of Immigration Service and such student
married an American citizen who filed on his behalf a petition to have him classified as an
immediate relative of a Unitpd States citizen and suck student went to work upon the
filing of petition but before its approval and without prior permission, a material

condition of bold was violated authorizing forfeiture thereof.
Counsel also cites, as does Ahmed (supra):

Earle v. Unitec:States, 254 F.2d 384 (C.A. 2), cert. denied, 358 U.S. 822, 79 S. Ct. 35, 3
L.Ed.2d 63 (1958); Wcitzek v. United States, 134 F. Supp. 605 (S.U.N.Y. 1955);
Kavounas v. United States, 89 F. Supp. 689, 116 Ct. CL 406 (1950). In each of these

cases the Bond was 'forfeited because the alien

accepted unauthorized employment.

Counsel coiitends that these citations establish that maintenance of
status and departure bonds are breached only on the alien accepting
unauthorized employment. Such is not the case. Rather, they establish

the strict constructipn placed on maintenance of status and departure
bonds. Like any civil bond, an immigration .bond is to he strictly construed. Crane v. Buckley, 203,U.S. 441, 27 S.Ct. 56, 51 L.Ed. 260.
Counsel cites the Matter of Wong, 13 I. & N. Dec. 383,, stating the
bond had not been breached. This is in. error. In Wong, the bond was
breached for the same reasons as the cases cited above.
In his brief; counsel arrives at the conclusion that a substantial violation occurs in maintenance of status and departure bonds only when an

alien accepts unauthorized employment in the United States or remains
beyond his authorized stay for a: "leTitliy" ppriod of time. Counsel

purposely evades .defining what would constitute a "lengthy" period of
time and states that a lapse of 27 dayS clearly falls short of that standard. After a diligent search of the cited cases, the applicable law and
regulations, fam unable to identify'such a standard.
The regulations contained in 8 CFR 103.6(b)(2) appear clear and
unequivocal:.,
•
,

when the status of a nonimmigrant who has violated the conditions of his admission has
been adjusted as a result of administrative or legislative action to that of a permanent
resident retroactively to a date prior to the violation, any outstanding maintenance of
status and departure bond shall he panceled. Han application for adjustment of status is
made by a nonimmigrant while he is in lawful temporary status, the bond shall be
178

Interim Decision #2344
canceled if his status is adjusted to that of a lawful permanent resident or if he
voluntarily departs within any period granted to him. As used in this subparagraph, the
term lawful temporary status" means that there must not have been a violation of any
of the conditions of the alien's nonimmigrant classification by acceptance of unauthorized
employment or otherwise during the time he has been accorded such classification, and
that from the date of admission to the date of departure or adjustment of status he must
have had uninterrupted Service approval of his presence in the United States in the
form of regular extensions of May or dates set by which departure is to occur, or a
combination of both. (Underscoring supplied.)

Maintenance of status and departure bonds are breached only when
overstays the
period for which he has been authorized to remain in the United States.
To determine that failure to timely depart the United States or remain
in the United States without authorization is a technical violation would
in effect defeat the purpose of the bond and the regulations. The fact
that the Service exercises discretion in excusing an "overstay" in other
areas in no way altei's the stipulations present in a maintenance of status
and departure bond. There being only the two aforementioned ways to
breach a bond, it would be incredible to diminish one to the extent it
would no longer have meaning.
the terms of admission have been violated or if the alien

By the terms of the bond in question the alien was required to comply with two specific
conditions: that he depart from the 'United States on or before the date to which
admitted or the date to which his stay was extended and that he accept no employment
while in the United States. Upon failure of the alien to comply with either or both of
these conditions, the bond became due and payable immediately. Mutter of the Stovesant Insurance Company, 13 I. & N. Dee. 555.

Whether the lapse is 27 minutes, 27 days, or 27 months, the fact is the
obligor has failed to comply or adhere to an essential element of the
conditions of the bond, therefore, a substantial violation. The alien
simply failed to depart within the time she was authorized to remain.
There was a period of 27 days in which she did not have uninterrupted
Service approval of her presence in the United States. The surety
cannot question his responsibility under the bond, if it is established
that a violation occurred. United States v. Olsen, 42 F.2d 1070 (1931).
The liability which has arisen on the part of the obligor cannot be
waived. United States v. Rosenfeld, 109 F.2d 908.
In view of the foregoing, it has been determined there has been a
substantial violation of the terms and conditions of the bond and the
action of the district director in declaring the bond breached as proper.
The appeal will be dismissed.
ORDER: IT IS ORDERED that the appeal be dismissed.

179


Interim Decision #1287

Maornn om Wowa
In VISA PETITION Proceedings
A 19644180

Decided by Board May 8, 1963

(1) Acknowledgment by the natural father (domiciled in California) of a child
born out of wedlock in China in 1946, without bringing the child into his family,
is insufficient to effect legitimation under section 230 of the California Civil
Code.

(2) Likewise, legitimation has not been effected under Article 1065 of the Civil
Code of the Republic of China of 1931, since the earliest declaration of acknowl-
edgement occurred in January 1961, more than 5 years after the birth of the
child (Article 1067), and there is no evidence of support or maintenance of
thy uid by the pulalive Latex priex to that date.

The case comes forward on appeal from the order of the District
Director, San Francisco District, dated March 28, 1963, denying the
‘visa, petition for the reason that the beneficiary is the petitivuer’s ile-
gitimate child and is not a “child” as defined in section 101(b) (1) of
the Immigration and Nationality Act she has not been legitimated
under section 280 of the Civil Code of the State of California. in that.

, the beneficiary has not been received into the petitioner's home in San
Francisco, California or Hong Kong with the petitioner’s legal wife,
Chew Lim Wong.

‘The petitioner, a native of China, 43 years old, male, and a natural-
ized citizen of the United States, seeks nonquota status on behalf of
the beneficiary a native and citizen of China, born April 26, 1946.
‘The petitioner was married to Chew Lim Wong, who 1s presently ce-
siding in the United States and who is a naturalized citizen. The
beneficiary is the iegitimate issue of the petitioner’s relationship with
one Kwok Kwai Fong, a9 io another child, Wong Sui Kuen, wha was
born in Hong Kong on September 23, 1961. In an affidavit dated
June 5, 1962, the petitioner stated that he had been a resident in the
State of California for more than 20 years past; that he has at all
times treated the beneficiary as his legitimate daughter; that he has
just returned from Hong Kong where he resided with the beneficiary
asa family group. In the brief accompanying the appeal it is stated
that the petitioner visited Hong Kong for the specific purpose of

288
Interim Decision #1287

visiting the beneficiary and his concubine from the latter part of 1960
to the early part of 1961.

The petitioner's wife, Chew Lim Wong, executed an affidavit on
June 5, 1962, in which she states that she is the petitioner’s wife; that
she and her husband, the petitioner, have consistently, from the time
of birth of the beneficiary, acknowledged the beneficiary as the true
and lawful daughter of the politioner ; that the said boneficiaxy has boon,
received into their family ; that the said beneficiary is presently resid-
ing in Hong Kong; that the husband resided with the beneficiary in
Hong Kong recently for a periad of approximately six months; and
that the beneficiary is and has been treated by the affiant and her
husband as the legitimated child of the affiant’s husband. The mother
of the beneficiary executed a statutory declaration on January 6, 1961,
that the beneficiary is the natural daughter of the petitioner and that
he is now responsible for her custody, maintenance and support.

The petitioner, through counsel, seeks nonquota status on behalf of
the beneficiary as his legitimated child either undor Article 1065 of the
Civil Code of the Republic of China of 1931 or under section 230 of
the Civil Code of the State of California, Article 1065 of the Chinese
Civil Coda provides that. a child horn out of wedlock who has been
acknowledged by the natural father is deemed to be legitimate; where
he has been maintained by the natural father, acknowledgement is
deemed to have been established. Article 1067 of the Chinese Civil
Code provides that a mother or other statutory agent of a child born
out of wedlock may claim acknowledgement from his natural father
in certain cases, including where there is the fact that the natural
father and mother cohabited during the period of conception and
where paternity can be proven from documents by the natural father
but states that the right of claim provided in this paragraph is extin-
gnished if not exercised within five years from the time of the birth
of the child. The child in the present case was born April 26, 1946,
but the earliest declaration of acknowledgement by the putative father
is dated January 6, 1961. There is no evidence of support or main-
tenance of the child prior thereto. “Lhe burden is upon the petitioner
to establish the claimed relationship and upon the record he has failed
to do so.

Legitimation is also claimed undor scction 230 of tho California
Civil Code which provides for the legitimation of an illegitimate child
by a statute entitled “Adoption of an Illegitimate Child,” which has
heen construed asa statute of legitimation. This section provides that
the father of an illegitimate child, by publicly acknowledging it as his
son, receiving it as such with the consent of his wife, if he is married,
into his family adopts as such; such child is thereupon deemed for all
purposes legitimate from the time of its birth. “Lhe California courts

289
168-456—05-—20 .
Interim Decision #41987

have held that there are four essential elements needed to accomplish
legitimation under section 230: (1) that the man shall be the child’s
natural father; (2) that the man shall have publicly acknowledged
himself to be the child’s father; (3) that the man shall have received
the child into his family; and (4) that the man shall have otherwise
treated the child as his legitimate child.

Tt has been beld Uhat wchuvwledguent. without bringing the child
into the family is not sufficient for legitimation. The evidence in the
instant case establishes that the domicile of the father is and has been
tha Stata of Celifarnia. ‘Tha father’s homa ic in thet stata and thara
is no evidence that the daughter has ‘been received into the home in
California. At most there is merely an offer to receive the beneficiary
into the petitioner’s family. This is not sufficient compliance with
the statute? It is concluded that the evidence fails to establish that
the beneficiary has been legitimated under section 230 of the California
Civil Code. The appeal will be dismissed.

ORDER: Ii is ordered that the appeal be and the same is hereby

2 Hetate of Gird, 157 Cal. 642; Hatate of Jones, 166 Cal. 108; Baird's Hatate,
182 Cal. 888; state of Flood, 217 Cal. 763; Wong v. Wonghingyong, 80 Cal.
App. 24 453,

* Louie Wah You v. Nagle, 27 F. 24 573 (Oth Cir. 1928) ; Gormer v. Judd, 6 Cal.
Unreported Cases 675, 64 P. 1076.

290


Interim Decision #2589

MATTER OF WERK
In Deportation Proceedings
A 11674985
-

Decided by Board May 26, 1977
(1) Deportation proceedings were brought against respondent under section 241(a)(11) of
the Immigration and Nationality Act for conviction of a violation of section 161.30(12)(a)
of the Wisconsin State Statutes. This conviction was subsequently vacated nunc pro
tune as of the date of conviction and the respondent was discharged and the proceedings
against him were dismissed under 384 Wisconsin Statutes Section 161.30(12)(D, Laws of
1969.
(2) 384 Wisconsin Statutes Section 161.30(12)(i), Laws of 1969 was repealed and replaced
by Wis. Stat. Section 161.47(1) which then became the Wisconsin provision for first
offenders. It is similar to section 407 of the Uniform Controlled Substances Act, and is
considered by the Service to be a State counterpart of 21 U.S.C. 844(b)(1),(3) A conviction which has been expunged under the first offender provisions of 21 U.S.C.
844(b)(1) may not be used as a basis for deportability under section 241(a)(11) of the Act.
A conviction which has been expunged under a state law which in the counterpart of 21
U.S.C. 844 (b)(1) may not be used as a basis for deportability under section 241(a)(11).
In fairness to respondent, his conviction will be considered to have been expunged
under the new first-offender statute and the proceedings will be terminated as improvidently begun.

CHARGE:
Order: Act of 1952 —Section 241(a)(11) [8 U.S.C. 1251(a)(11)1 —After entry convicted of
a violation of any law or regulation relating to the illicit possession of, or traffic in, narcotic drugs or marihuana, to wit: illicit

possession of marihuana, in violation of Section 161.30(12)(a) of
the Wisconsin State Statutes
ON BEHALF OF RESPONDENT: Todd J. Mitchell, Esquire
Mitchell & Noonan S.C.
2631 North Downer Avenue
Milwaukee, Wisconsin 53211
BY: Milhollan, Chairman; Wilson, Maniatis, Appleman, and Maguire, Board Members

This is an appeal from the January 5, 1976, decision of the immigration
judge, made after the proceedings were reopened, pursuant to our
()rider of December 27, 1973, so that the immigration judge could consider the new evidence that the respondent's conviction of posaeszion of

marihuana had been vacated under Wisconsin law. The immigration
234

Interim Decision #2589
judge once again found that the respondent was deportable as charged,
and ordered his deportation to Germany. The appeal will be sustained
and the proceedings terminated.
The alien respondent, a native and, citizen of Germany, was born on
May 1, 1954. He was admitted to the United States as a lawful permanent resident on July 21, 1960, at the age of six, and has lived here since
that time. He was convicted under Wisconsin law for possession of
marijuana on October 27, 1972, when he was 18 years old_ He was
subsequently held in deportation proceedings and found deportable
under section 241(a)(11) of the Immigration and Nationality Act. His
conviction was thereafter vacated nuns pro tune as of the date of
conviction; the respondent was discharged, and the proceedings against
him were dismissed under 384 Wisconsin Statutes Section 161.30(12)(1) r
Lawsof196.SeApndix
The question raised by this case is whether, after discharge and
dismissal under the above state statute, the respondent can be considered to have been convicted of an offense for which he may be
deported under section 241(a)(11) of the Act.
We have requested comment from the Immigration and Naturalization Service on its position. A Service memorandum, responding to our
request, is set out below.
•

•

•

Under present case law, the only expungements of narcotics and marihuana convictions
which will relieve an alien from deportation are those obtained under the Federal Youth
Corrections Act (18 U.S. C. 5010, et seq.) and its state counterparts. Matter of Andrade,
I.D. 2276 (BIA 1974); Matter of Berker, I.D. 2511 (BIA 1976).
21 U.S.C. 844(b)(1) is for first offenders the equivalent of the Federal Youth Corrections Act. The legislative history indicates that discharge and dismissal under that
section shall not be deemed conviction of a crime. H.R. Rep. No. 91-1444, 91st Cong.,
2d bess., 1270 U.S. Code Cong. & Admin. News 4565, at 4616. It is the position of the

Service that an alien processed under 21 U.S.C. 844(b)(1) is not subject to deportation.
The Service is also of the view that an alien convicted under a state counterpart to 21
U.S.C. 844(b)(1) is not subject to deportation. The question presented by this ease is
whether the state statute under which the respondent was treated is such a counterpart.

The present Wisconsin provision for first offenders is Wis. Stat. Section 161.47(1), which
became effective October 1, 1972. This section is similar to section 407 of the Uniform
Controlled Substances Act and is considered by the Service to be a state counterpart
of 21 U.S.C. S44(b)(1).

The respondent, however, had his conviction expunged under a prior enactment, Wis.
Stat. section 161.20(12)(i) (1969), which has since been repealed. It is not clear whether
this enactment can be considered a state counterpart of 21 U.S. C. 844(b)(1), since unlike
the federal and present Wisconsin provisions, it does not expressly preclude application
of the more severe penalties for repeat offenders. A search of the Wisconsin case law
sheds no light on the question of whether persons treated under section 161.30(12)0 are
subject to repeat offender treatment.
Nevertheless, It is the Service position that Lather than lay to determine the niceties of
the prior Wisconsin law, the Service should, in order to be fair, give this respondent the
235

Interim Decision #2589
same treatment as an alien whose conviction was expunged under the present version of
the Wisconsin first offender statute. In arriving at this position, the Service is mindful
that the respondent has been a lawful permanent resident of the United States since he
was six years old. Therefore, in view of the circumstances of this case, the Service
moves that deportation proceedings against the respondent be terminated as improvidently begun. The record of Proceedings is returned herewith.

We agree with the Immigration and Naturalization Service's analysis
of the legal issues involved. Hence, we hold that a conviction which has
been expunged under the first offender provisions of 21 U.S. C. 844(b)(1)
(see Appendix B) may not be used as a basis for deportability under
section 241(a)(11) of the Act. Similarly, a conviction which has been
expunged under a state law which is the counterpart of 21 U.S.C.
84-4(b)(1) may not be used as a basis for deportability under section
241(a)(11).
Moreover, in light of the Service's position with respect to this case,
we shall grant its motion to terminate the proceedings against the
respondent as improvidently begun.
ORDER: The immigration judge's decision of January 5, 1976, is
vacated, and the proceedings are terminated.

APPENDIX A
Wisconsin State Statutes Section 161.20(12)(i) (1969) (repealed).
Whenever any person who has not previously been convicted of any offense under this
chapter or under any statute of the United States or of any other state relating to
dangerous drugs or narcotics, pleads guilty to or is found guilty of possession or use or
gift of marijuana under this section the court may, without entering judgment and with
the consent of such person, defer further proceedings and place him on probation under
ch. 57. Upon violation of a term or condition, the court may enter an adjudication of guilt
amd proceed to sentence the defendant. Upon fulfillment of the terms and conditions, the
court shall discharge such person and dismiss the proceedings against him. Discharge
mod dismissal under this subsection shall be without court adjudication of guilt and shall
not be deemed a conviction for purposes of disqualifications or disabilities imposed by
law upon conviction of a felony or misdemeanor. Discharge and dismissal under this
subsection may occur only once with respect to any person.

APPENDIX B

21 -United States Code 844(b)(1).'
If any person who has not previously been convicted of violating subsection (a) of this
section, any other provision of this subchapter or subchapter II of this chapter, or any
other law of the United States relating to narcotic drugs, marihuana, or depressant or
stimulant substances, is found guilty of a violation of subsection (a) of this section after
trial or upon a plea of guilty, the court may, without entering a judgment of guilty and
W5th the consent of such person, defer further proceedings and place him on probation

.

236

Interim Decision #2589—Appendix
upon such reasonable conditions as it may require and fcir such period, not to exceed one
year, as the court may prescribe. Upon violation of a condition of the probation, the
court may enter an adjudication of guilt and proceed as otherwise provided. The court
may, in its discretion, dismiss the proceedings against such person and discharge him
from probation before the expiration of the maximum period prescribed for such
person's probation. If during the period of his probation such person does not violate
any of the conditions of the probation, then upon expiration of such period the court
shall discharge such person and dismiss the proceedings against him. Discharge and
dismissal under this subsection shall be without court adjudication of guilt, but a
nonpublic record thereof shall be retained by the Department of Justice solely for the
purpose of use by the courts in determining whether or not, in subsequent proceedings,
such person qualifies under this subsection. Such discharge or dismissal shall not be
deemed a conviction for purposes of disqualifications or disabilities imposed by law upon
conviction of a crime (including the penalties prescribed under this part for second or
subsequent convictions) or for any other purpose. Discharge and dismissal under this
section may occur only once with respect to any person.

237


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
procured by fraud.
(3 )
Act of 1952—Section 212(a) (28) (I) (1) [8 U.S.C. 1182(a) (28)
(I) (i)]—Member of Communist Party of foreign
(8—)
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).

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 maIt

439

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—C-

DISCUSSION: 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 appar—

-

-

ently 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

(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
v. Robineon, 071 F.2d 249

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, hethe 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—C-

DISCUSSION : 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.
.

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

As

RrfrumR11, 240 F.2d 625 (CA.
D.C., 1957). In general, the judicial and administrative decisions
misrepresentation is no visa, Ablett v.

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
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.)
crushing deprivation to many prligripMIVP immigrants.

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, wh i 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 t he 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


Interim Decision #1983

MATTER OF PATEL

Application for Classification as Refugee
A-13788674
Decided by Regional Commissioner October14,

1968

A native of Kenya who lived in that country with her parents until her nonimmigrant entry into the United States in 1964, and who asserts unwillingness to return to that country because of fear of persecution because
of race, is denied refugee classification under section 208(a) (7) of the Immigration and Nationality Act, as amended, since Kenya is not a country
within the "general area of the Middle East" as that term is defined in
section 203 (a) (7), supra; further, there is no indication, nor has it been
asserted, that Kenya was a Communist or Communist-dominated country.
ON BEHALF OP APPLICANT: Herman Schaier, Esquire
8 West 40th Street
New York, New York 10018

This application is before the Regional Commissioner for
review on certification of the District Director's denial of the application for refugee classification under section 203(a) (7) of the
Immigration and Nationality Act, as amended.
The District Director denied the application on the basis that
the applicant had failed to establish at the time she came to the
United States that she was fleeing from Kenya because she or her
parents had been subject to persecution on account of race, religion, or political convictions; or, that Kenya is a country or area
that is Communist-dominated or that. it is within the general area
of the Middle East as contemplated by the statute.
In an interview with an officer of this Service at New York on
July 22, 1968 the applicant stated that she was born in Nairobi,
Kenya on June 7, 1946; that she lived in Kenya with her parents
until she arrived hi the United States on December 19, 1964 as a

nonimmigrant student to pursue a course at the Lowell Business
School in Binghamton, New York; that 'when she arrived in the
United States it was her intention to return to Kenya at the completion of her studies; that after 1966 the situation changed in

113

Interim Decision #1933
Kenya becoming such that she would be subject to persecution because of her race if she returned thereto and, as a consequence,
she has decided to apply for refugee status. She further stated
that her parents have remained in Kenya where her father owns
and operates a business and that her parents have obtained Kenyan citizenship while she is a British citizen.
The applicant now seeks to be classfied as a refugee under the
provisio of section 203 (a) (7) of the Act in connection with an
application for adjustment of status under section 245 of the Act.,
The attorney for the applicant has forwarded a brief in connection with the certification of the case to the Regional Commissioner. He submits that the statute does not require the showing
of actual persectuion but that the applicant must show inability
or unwillingness to return because of "persecution" or "fear of

persectuion"; that the intent of the law is to grant refugee status
fault of her own finds herself without a
country to which she can return without being subjected to persecution and discrimination; that the applicant must be considered
as having constructively rather than physically fled Kenya; and
that section 203 (a) (7) clearly circumscribes the geographical
area coming within its scope since Kenya lies in the general area
of the Middle East as defined by the statute.
Section 203 (a) (7) of the Immigration and Nationality Act, as
amended, reads in relevant part as follows:
to one who through no

Conditional entry shall next be made available . . . to aliens who satisfy
the Immigration and Naturalization Service officer at an examination in any
non-Communist or non-Communist-dominated country, (A) that (i) because
of persecution or fear of persecution on account of race, religion, or political
opinion they have fled (I) from any Communist or Communist-dominated
country or area, or (II) from any country within the general area of the

Middle East ... For the purpose of the foregoing the term "general area of
the Middle East" means the area between and including (1) Libya on the
west; (2) Turkey on the north; (3) Pakistan on the east; and (4) Saudi
Arabia and Ethiopia on the south. . . (Emphasis supplied.)

There is no indication, nor has it been asserted, that Kenya
was a Communist or Communist-dominated country or area. Instead, counsel contends that Kenya lies in the general area of the
Middle East as defined by the statute. In determining the meaning of the term "general area of the Middle East" the statutory
definition, supra, reveals that it is the area between and including
those countries named therein. The southern geographical boundary is listed as Saudi Arabia and Ethiopia. In consulting the
Rand McNally Cosmopolitan World Atlas, 1962 Edition, on page
3 thereof Kenya clearly is shown to be south of Saudi Arabia and

114

Interim Decision 4#1933
Ethiopia and therefore not within the statutory definition of the
term "general area of the Middle East." As a consequence thereof
the applicant has failed to qualify for consideration under section
203 (a) (7) of the Act since the statute clearly indicates that the
individual must have fled from a Communist or Communist-dominated country or area or from a country within the "general area

of the Middle East" which is specifically defined geographically.
Kenya does not fall within this definition. As a consequence, no

purpose would be served in considering whether the applicant fled
from Kenya because of persecution of fear of persecution on account of race, religion, or political opinion.
For the reasons set out above the application for refugee classification is denied and the decision of the District Director is affirmed.
It is ordered that the decision of the District Director be and

the same is hereby affirmed.

115