# Interim Decision #1312

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/agency%3Aeoir%3A27ea455d1bc81874

## Record

- **Collection:** Agency decision
- **Document type:** Agency decision

## Text

Interim Decision #1312

MATTER or Matrru∎rse-Lorne

In. DEPORTATION Proceedings
A-12050471

Decided by Board August7,1962
Reconsidered by Board December 20,1962
Decided by Attorney General January 6,1964
As inquiry would not have resulted in a proper determination of inadmissibility,
respondent's willful presentation of a spurious offer of employment in connection with his application for an immigrant visa, even though such misrepresentation resulted in his conviction of conspiracy to violate 18 U.S.C. 1001, is not
a material misrepresentation under section 212(a) (19), immigration and
Nationality Act, and, consequently, does not vitiate the visa for the purposes
of section 212(a) (20).
CHARGES :
Order : Act of 1952—Section 241(a) (1) 18 U.S.C. 1251(a) (1)1—Excludable at
time of entry—procured visa by fraud or by willfully misrepresenting material fact (section 212(a) (19) of the Act).
Act of 1952—Section 241(a) (1) [8 II.S.C. 1251(a) (1) 1—Excludable at
time of entry—immigrant, no valid visa (section 212(a) (20) of the
Act).
BEFORE THE BOARD

This is an appeal by the examining officer from the order of the
special inquiry officer terminating proceedings. The appeal will be
dismissed.
ed.
The respondent, a 23-year-old single male, a native and citizen of
Mexico, was admitted for permanent residence on May 1, 1961, upon
surrender of an immigrant visa. The Service claims that this visa
was invalid since it was obtained by wilful misrepresentation concerning an offerof employment.
When the respondent applied for a visa, he was told to furnish an.
affidavit of support and an offer of employment. He obtained the affidavit of support from his brother, a legal resident of the 'United States,
and through-correspondence with relatives in the United States, obtained a letter offering him employment as a farm hand. However,
409

.Interim Decision #1312
respondent was told by his relatives that the letter for which he had
agreed to pay $350 was one for the record only and that no actual
employment should be expected. The letter was in fact a forgery.
The respondent states he knew he could not expect employment from
the writer of the letter, but did not know it was a. forgery. He thought
the writer had given the letter as a favor. Respondent was convicted
on January 10, 1962, in the United States District Court at Sacramento,
California, for conspiracy to violate 18 U.S.C. 1001, by making false
statements or knowingly using false writings. (He was sentenced to
five years' imprisonment with all but 30 days of the sentence
suspended.)
The special inquiry officer sustained neither charge; he ruled that
although the forged offer of employment cut of inquiry, it did not
relate to a material matter because inquiry would not have resulted in
a proper determination that the alien was one likely to become a public
charge. The Service Representative contends that since materiality
- was an element of the crime for which the respondent was convicted,
the Board should hold that the misrepresentation was material in the
obtaining of the visa. The contention must be dismissed. The Board
is not bound by the decision in the criminal case, for there are different
tests for materiality in the criminal case and the immigration case.
In the immigration. case the test of materiality is whether the matter
concealed concerned a ground of inadmissibility or a probable inadmissibility (Matter of S— and B-C-, Int. Dec. No. 1168). In the

criminal case (in those jurisdictions where materiality is required)
the test is merely whether the false statement "could affect or influence
the exercise of a Governmental function" (United States v. Allen, 193
F. Supp. 954 (S.D. Cal, 1961) ) .
An analogous situation exists in regard to false statements amounting to perjury in visa, and immigration matters. A. person could be
convicted for perjury for making a material false statement under
oath although the same false statement would not necessarily constitute a material misrepresentation in determining whether a visa
had been obtained by fraud (Matter of
7 I. & N. Dec. 76, 90).
Since the standards of materiality in criminal and civil immigration
matters differ, the existence of the conviction here does not preclude
the Board from making its own determination as to the materiality
of the . misrepresentation. (Neither does the letter of the Consul stating that the Vice Consul would testify that the misrepresentation was
material preclude the Board from making its own conclusions in the
matter. See In re Field's Petition, 159 F. Supp. 144,146 (S.D.N.Y.,
1955).)
Would the inquiry which was cut off by the submission of the offer
of employment have resulted in a proper determination that the alien
410

Interim Decision. #1312
was excludable as one likely to become a public charge? We think
not. When respondent applied for a visa he was 22 years of age. He
was sound of body and had about ten years of farming experience.
He had no specialized training, but had five years of schooling and
apparently planned to seek work for which he was qualified. He
spoke no English, but this was no handicap for he would work among
people who spoke Spanish. He had about $50 in assets. He had a
brother gainfully employed in the United States and he had other
close relations who were interested in his welfare and who worked to
bring him to the United States. The brother was making $85 a week
in permanent employment; he was unmarried; he had been sending
money to his family in Mexico, and he was interested in helping his
brother. Respondent had previous experience in the United States,
having spent about three months here as a contract worker. At that
time he worked both in the fields and in a cannery. His services appear
to have been satisfactory for he was retained here until his contract
was completed. Respondent had no criminal record. (After admission for permanent residence, he secured employment in the United
States which was interrupted only by civil and criminal matters connected with his efforts to come to the United States as a permanent
resident.)
The examining officer contends that the likelihood of becoming a
public charge is not the only ground which must be considered in

determining whether the respondent was ineligible for the issuance
of a visa and inadmissible to the United States. The examining officer
is of the belief that the respondent would have been excludable from
the United States as one who admitted the essential elements of a
crime involving moral turpitude, for he had conspired to impair the
lawful function of a department of the United States in violation of
18 U.S.C. 371, a crime involving moral turpitude (Matter of E

—

,

Int. Dec. No. 1164).
It may well be that as an original proposition, the test for determining whether a visa has been obtained by fraud could have been
made dependent upon whether there had been an obstruction of Governmental functions; however, this has not been the test which has
resulted from the years of adjudications both administrative and
judicial. Historically, the rule has been stated without reference
to the obstruction of the Government functions which exist, of course,
in each case where there is a misrepresentation concerning a matter
within the lawful functions of the Government. The rule which is
applied holds that wilful misstatements of an alien made in attempting to obtain a visa bar him from admission (1) if they were material,
in which case he is barred because the visa had been obtained by fraud,

or (2) if perjury were committed in the attempt to obtain the visa;
411

Interim Decision #1312
in which case he is barred because he had committed a crime involving
moral turpitude. Misstatements which did not amount to perjury
(although they did impair the lawful function of a department of the
United States) would not serve to make an alien inadmissible (37
Op. A.G. 293, 1938). Congress has not questioned the rule.
We shall continue to determine materiality of misrepresentation
and the admissibility of an alien who had made a misrepresentation
in immigration matters, not by his liability to prosecution for impairing the lawful functions of a department of the Government, but by
the standards set down by the Attorney General in Matter of Band B—C—, supra.
ORDER: It is ordered that the appeal of the examining officer be
and the same is hereby dismissed.
BEFORE THE BOARD

The special inquiry officer terminated proceedings; appeal by the
examining officer was dismissed by the Board on August 7, 1962.
The Service believes that both charges are sustained and requests that
the Board reconsider its dismissal. The motion will be denied.
Respondent, a 23-year-old single male, a native and citizen of Mexico, was admitted to the United States for permanent residence on
May 1, 1961.
Respondent was convicted on January 10, 1962 in the United States
District Court for conspiracy to violate 18 U.S.C. 1001 for making
false statements or knowingly using false writings (in connection
with an application for a visa) and given a five-year sentence to imprisonment; he served 30 days, the remainder of the sentence was
suspended. The Service contends that since materiality was an element of the crime for which respondent had been convicted, materiality should be found present in the deportation proceeding in
considering the nature of the misrepresentation which had been made
in obtaining the visa. We pointed out in our previous order that the
test for materiality is different in the criminal case from the test in
the deportation case. The test for materiality in deportation cases,
insofar as it relates to the instant case, has two elements—first, did
the misrepresentation cut off a material line of inquiry Second, if it
did, might an inquiry have resulted in a proper determination that the
alien was inadmissible to the United States. Both elements must
exist before a misrepresentation may be found material (Matter of
B—and B—C—, Int. Dec. No. 1168). On the other hand, in a prosecution under 18 U.S.C. 1001, if only the first element of the test in
deportation proceedings is present, materiality exists and can support

a conviction. Since the second element is not a factor in the criminal
412

Interim Decision #1312
case, a finding of materiality there cannot be controlling in the
deportation case where the second element is of equal importance with
the first in determining materiality.
The motion enumerates the federal laws which could have been
violated when respondent made false statements before the consul
and points out that had the consul lmown the true facts, he might
have obtained an admission of the commission of crime from respondent who would thereby become inadmissible to the United States.
Apart from this, the Service contends, the consul, if in possession of
the true facts, would have made at least a temporary refusal of the
visa. The test for materiality laid down by the Attorney General in
Matter of S— and B—C—, supra, does not concern itself with possible
violation of federal laws or the possibility of a temporary refusal.
B—C— had made willful misrepresentations when he applied for a
visa; he probably violated the same federal laws which are mentioned
in the motion. And, it is obvious, that had the consul been aware that
B—C— made misrepresentations, he would have been justified in
ranking a temporary refusal. Nevertheless, the Attorney General's
test as to materiality made no reference to the possible violation of
federal laws or to the fact that a temporary refusal was possible.

While the Attorney General did. not discuss possible violations of
federal law or temporary refusals, Matter of S— C--, 7 L & N. Dec.
76, one of the two precedents relied upon in the Board's order concerning Le— C— dealt with possible violations of law (p. 86) ; and U.S.
reZ. Jankowski v. Shaughnessy, 186 F. 2d 580, 582, 2d Cir. (1951),
cited by the Attorney General, indicates the use of a temporary refusal
as a test; moreover, the fact that the Attorney General made the
existence of materiality dependent upon what an investigation might
have shown, would seem to rule out the possibility of using a temporary refusal as a test.
Examination of Matter of L — D-1,-1?— , Int. Dec. No. 1207, cited
by the Service as support for the proposition that materiality exists
for immigration purposes if there is a reasonable possibility that an
alien would have made admissions concerning participation in crime
which would have made him inadmissible, reveals that the misrepresentation there was material because it involved the concealment of
conviction of a crime involving moral turpitude. The existence of the
conviction made the alien ineligible for the issuance of a visa.
The motion takes issue with our finding that respondent was not
one likely to become a, public charge at the time he applied for admission. Our determination was made upon the state of the record
as it existed when the respondent applied for his visa. After careful
review of the. Service e.ontention we see no reason to change our conclusion. Reference in our order, to events occurring after respond-

413

Interim Decision #1312
east's entry was to meet the Service contention at oral argument that
respondent's work record in the United States demonstrated his inability to find employment.
The motion now raises the contention that respondent's visa was
not valid because he did not furnish full and correct information on
his visa application as required by the Immigration and Nationality
Act and State Department regulations concerning the issuance of a
visa. We do not concur in this conclusion. In B—C—, supra, there
was a failure to furnish full and truthful information; the Attorney
General touched on whether the visa, was a valid one (footnote on
p. 6), but there was no finding that the visa was invalid. To accept
the Service position that any failure to furnish full or correct information regardless of the nature of the information results in an
invalid visa, would in effect make every misrepresentation a material
one; this approach would have made unnecessary the Congressional
provision for the exclusion of a alien for obtaining a visa because of
a material misrepresentation (section 212(a) (19) of the Act; see
Matter of 8— and B-0—, supra, p. 4). It appears best to use the
visa charge in situations where the visa, is actually invalid; for example, where a visa has been issued without specific authority or by
an improper source, or it has been altered, procured by fraud, or
presented after the period of validity has expired. This approach
will give effect to both the provision concerning validity of visas and

the provision concerning procurement of a visa, by fraud. In view of
this conclusion we need not enter into an elaborate analysis of the
Service position other than to mention briefly two matters. Regulations and laws requiring complete and correct information in visa
applications have been in existence since 1924 and have not been utilized as the basis for declaring visas invalid (See, Inn Field's Petition,
159 F. Supp. 144, 146, 3d full para., S.D.N.Y. (1958) ). The fact that

the misrepresentation charge is now a separate charge although prior
to the Immigration and Nationality Act it was coupled with a visa
charge, appears to be irrelevant. It was true before the Act, as it is
true now, that a visa charge could be sustained even though the misrepresentation charge could not. There is, therefore, no significance
to be drawn from the fact that the law now specifically provides for
a misrepresentation charge (See, U.S. ex rel. Fink v. Reimer, 96 F.2d
217 (2d Cir., 1938) ; U.S, ex rel. Perms v. Karma, 28 F. Supp. 597,
W.D.N.Y. (1939) ).
ORDER: It is ordered that the motion be and the same is hereby
denied.
BEFORE THE ATTORNEY GENERAL

The decision of the Board of Immigration Appeals in this case
holding the respondent Saturnino Martinez-Lopez not deportable has

414

Interim Decision #1312
been certified to me by the Board for review, pursuant to 8 CFR 3.1
(h) (1) upon motion of the Commissioner of Immigration and
Naturalization. The Commissioner has requested review because of
the possible impact of the Board's decision on other cases. The decision raises several problems concerning the application of the criteria
enunciated in my opinion in Matter of AS— and B--C—, 9 L & N. Dec.
136, for determining the materiality of a misrepresentation in cases
involving section 212(a) (19) of the Immigration and Nationality
Act, 8 U.S.C. 1182 (a) (19) .
The respondent's deportation is being sought on the ground that
he was excludable at the time he entered the United States as an
immigrant because he had procured his visa by willfully misrepresenting a material fact (§ 212(a) (19) ) and because he was not hi
possession of a valid unexpired immigrant -visa as required by section
212 (a) (20) of the Immigration and Nationality Act, 8 U.S.C. 1182 (a)
(20) 1 The record shows the following.
In the winter of 1960-61, the respondent planned to immigrate to
the United States. At that time, he was a citizen and resident of
Mexico, in his early twenties and unmarried. He had about 5 years
of schooling and had begun to work on the family farm when he was
12 or 13. He had worked in the United States for. 3 months as a
laborer in 1958. His brother, Salvador Martinez-Lopez, who had
emigrated to the United States, lived in Los Angeles and was employed
by a. furniture company at an annual salary of $4,000. In the past,
Salvador had contributed to .the support of his relatives in Mexico;
the respondent had several other relatives living in the United States.
When the respondent inquired at the United States Consulate it
Monterrey, Mexico, concerning the papers required for an immigration
visa, he was advised that he needed, among other things, an affidavit
of support and an offer of permanent employment in the United States.
Having heard from neighbors that work offers could be obtained
from one Jose C. Miranda of Stockton, California, for $350, the respondent asked his brother Salvador to get one for him. Because of
Section 241(a) (1) of the Act, 8 U.S.C. 1251(a) (1), subjects to deportation
aliens who were excludable, inter alter, under sections 212(a) (19) and (20).
Paragraphs (19) and (20) respectively make excludable:
(19) Any alien who seeks to procure, or has sought to procure, or has pro-

cured a visa or other documentation, or seeks to enter the United States, by
fraud, or by willfully misrepresenting a material fact;
(20) * * * any immigrant who at the time of application for admission is
not in possession of a valid unexpired immigrant visa, reentry permit, border
crossing identification card, or other valid entry document required by this
chapter, and a valid unexpired passport, or other suitable travel document, or
document of identity and nationality, if such document is required unaer the
regulations issued by the Attorney General pursuant to section 211(e).

415

Interim Decision #1812
the distance from Los Angeles to Stockton, Salvador asked one Reyes
Fragoso, the husband of a cousin, who resided in Oakland, to talk to
Miranda. Fragoso did so, and for $350, furnished by Salvador,
Miranda sent to the respondent a letter of permanent employment to
which Miranda had forged the signature of one Pelleg,ri, a ranchowner.
Attached was a note from Miranda advising the respondent not to go
to the Pellegri ranch because he already had enough workers. Respondent inferred from the note that the Pellegri letter was only for
the record and that he could not expect employment by Pellegri. He
thought the letter had been given merely as a favor or accomodation
but did not know that it was a forged documemt.
Subsequently the respondent applied at the United States Consulate
at Monterrey for a visa, submitting an affidavit of support, executed by
his brother, and the purported Pellegri letter, although he knew
that he could not expect to be employed by Pellegri. When asked
about his destination in the United States, he gave the address of
Pellegri's ranch. The respondent was issued a visa on April 27, 1061,
and was admitted to the United States as an immigrant a few days
later. At that time he had in his possession from $60 to $70. He went
directly to his brother in Los Angeles and never contacted Pellegri.
For about a week he stayed with his brother, then obtained work as
a cook through another relative.
At about that time Miranda's forgeries were discovered. The respondent, his brother Salvador, his cousin Reyes Fragoso, and Jose

Miranda were indicted in the United States District Court for the
Northern District of California for conspiracy to violate 18 U.S.C.
1001.2 The indictment contained two counts. The first count charged
them with having conspired to make false and fictitious representations,
or to make or to use writing or documents, knowing them to contain
false, fictitious or fraudulent statements, to the Department of State
for the purpose of enabling the respondent to enter the United States
as an immigrant. The second count in. effect charged the defendants
other than Salvador with having caused Miranda to falsify the work

offer.
The respondent, his brother and his cousin were tried before the
court, a jury having been waived. The court found them guilty on
The section reads as follows :
Whoever, in any matter within the jurisdiction of any department or agency
of the United States knowingly and willfully falsifies, conceals or covers up by
any trick, scheme, or device a material fact, or makes any false, fictitious or
fraudulent statements or representations, or makes or uses any false writing or
document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than
five years, or both.
2

416

Interim Decision #1312
the first count. It held that work offer was "material" because the
visa would not have been issued but for it. 3 It acquitted the respondent and his cousin on the second count, finding that a reasonable doubt
existed as to the defendants' knowledge that the work offer was not
signed by Pellegri. The court stated that they were victims, albeit
willing victim% of circumstances and not flagrant or malicious violators of the law. The respondent MS given a prison sentence of
5 years, of which all but 30 days was suspended, and placed on probation for 5 years. The others also received 5-year terms which were
suspended in their entirety.
The Immigration and Naturalization Service then instituted proceedings to deport the respondent on the grounds described above.
The Service charged that the respondent had obtained his visa by
presenting to the United States consul the Pellegri work offer, although he knew that he did not and would not have employment with
Pellegri; that he had concealed from the consul the fact that the
letter had been obtained. from Miranda for $350, and that he withheld
those facts because he believed that the consul would not have issued
the visa had he been told the truth. The special inquiry officer dismissed the proceedings on the ground that the respondent's misrepresentation was not material and, hence, did not render him
excludable under section 212(a) (19) or vitiate the visa for the pur'rums of maim 212(a) (20). In reaching Ills conclusion, the special
inquiry officer applied the teas of materiality laid down in Matter of
S— and B—C—, supra, at 448-449, via. :
First, does the record establish that the alien is excludable on the true facts?
Second, did the misrepresentation tend to shut off a line of inquiry which is
relevant to the alien's eligibility [for admission] ?
Third, if a relevant line of inquiry has been cut off, might that inquiry have
resulted in a proper determination that the alien be excluded?

The special inquiry officer answered the first question in the negative.
He took the position that in connection with the determination as to
This finding of materiality was required although the defendants were indicted under a clause of 18 U.S.C. 1001 which does not in lute° verbs require that
the false statement, representation, or document be material, and the indictment
did not allege that the work order was a material document. It is, however,
established in the Ninth Circuit, in which the case was tried, and probably in
the majority of the circuits, that materiality is an element of every violation of
18 U.S.C. 1001, and not only of its first clause, in which it is specifically mentioned.
Branlow v. United States, 268 F. 2d 559, 564-565 (CA. 9) ; Fa,-item. Single
Poonian v. United States, 294 F. 2d 74, 75 (C.A. 9) ; Freidue v. United States,
223 F. 2d 598, 601-602 (C.A.D.C.) ; United States v. Zambito, 315 F. 2d 266,
268-269 (C.A. 4), certiorari denied, 373 U.S. 924. The Ninth Circuit has also
held that materiality need not be specifically set forth in the indictment, provided
the context warrants an inference of materiality. Partiem Singh. Poonian v.
United States, supra; Dear Wing Jung v. United States, 312 F. 2d 73, 75 (C.A. 9).

417
743S-4 Otif---13;ii-28

Interim Decision #1312
whether an applicant for an immigration visa is excludable under
section 212 (a) (15) of the Act, 8 U.S.C. 1182 (a). (15), as an alien likely
to become a public charge,' a work offer is not legally required as an
absolute condition for the issuance of the visa, and therefore that the
purpose of such a document is merely to assist the consul in his determination. Viewed in that context, the record did not establish the
respondent's excludability on the true facts Rather, the evidence
established that, even in the absence of the work offer, the respondent
was not likely to become a public charge.
The special inquiry officer answered the second question in the
affirmative; he concluded that the submission of the work offer did
cut off further investigation by the consul into the public charge issue.
The third question, however, was answered by him in the negative,
since nothing had been adduced to suggest that a further investigation
might have resulted in a proper determination that the respondent
was likely to become a public charge. Accordingly, he held that the
respondent's misrepresentation with regard to the spurious Pellegri
work offer was not material for the purposes of section 212(a) (19), 5
andsimlryotvehisafrpuoectin
212(a) (20).
On appeal by the Service, the Board of Immigration Appeals affirmed the ruling of the special inquiry officer. It recognized that,
as judicially interpreted, materiality was an element of the offense

under 18 U.S.C. 1001 of which the respondent had been convicted.
It ruled, however, that the district 'court's holding that the work offer
was a material document was not conclusive in the deportation proceeding. Under .18 U.S.C. 1001 a statement, representation, or document is material if under the formulation of United States v. Allen,
193 F. Supp. 954 (S.D. Cal.), it "could affect or influence the exercise
of a Government function." This has a broader reach than the term
"materiality" in section 212 (a) (19) of the Immigration Act, as it is

defined in Matter of S

—

and B C--, supra. The respondent's con—

viotion under 18 U.S.C. 1001 therefore did not nenesSarily establish

that the misrepresentation was material within the meaning of section 212(a) (19). The Board therefore felt itself free to examine
the question de nova, and concluded that the respondent's misrepresentations were not material because nothing the consul or the immi4 Section 212(a) (15) excludes "[a]liens who, in the opinion of the consular
officer at the time of application for a visa, or in the opinion of the Attorney
General at the time of application for admission, are likely at any time to become
public charges."
The special inquiry officer was careful to stress that bis conclusions were

limited Lc; the precise facts Of the case and that be was not holding that a work
offer could never be material.

418

Interim Decision #1312
gration authorities could have discovered, but for the misrepresentation, might have resulted in a proper determination that the respondent
was excludable as a person likely to become a public charge. 6 On the
Service's motion for reconsideration the Board adhered to its decision.
The Commissioner raises essentially the following points :
1. Whether materiality of the misrepresentation for deportation
purposes was established by the respondent's conviction.
2. Whether the Board properly applied the materiality tests established by Matter of lc— and B— C— . In this connection the Commissioner also argues that the test in Matter of S— and B-0— is not
applicable where the alien's conduct in obtaining a visa constitutes an
offense against the United States.

3. Whether a significant misrepresentation, even if it does not
amount to a "material" misrepresentation, renders a visa invalid for
the purpose of section 212 (a) (20).
I
Unquestionably the respondent did make a misrepresentation to the
consul. He submitted a. document which he knew was not a bona fide

work offer. However, the immigration statute, section 212(a) (19),
supra, requires that an alien's misrepresentations must be material
to the question of his admissibility to the United States under the
immigration laws. I agree with the Board that the respondent's conviction of conspiracy to violate 18 U.S.C. 1001, for the purpose of
which the same misrepresentation was found to be material, does not
conclusively establish its materiality for deportation purposes.
At the outset it should be noted that, although ordinarily a court
decision may be res judicata or operate as a collateral estoppel in a
later administrative proceeding, there is some basis for doubt as to
whether this rule applies in cases where, as here, Congress has vested
primary responsibility for enforcing a statute in an administrative
agency and not in-the courts. See Title v. Imanlgration ct Naturalization Service, 322 F.2d 21 (C.A. 9) ; Davis, iidministrative Law
Treatise, sec. 18.11 (Vol. II, pp. 619-623)? Section 242(b) of the
The Board rejected the SerTices contention that had the respondent told
the truth he would have been excludable under section 212(a) (9) of the Aet,
8 U.S.C. 1182(a) (9), as one who had admitted the essential elements of a crime
involving moral turpitude, vie., a conspiracy to violate 18 U.B.C. 1001, in connection with his visa application. Belying on 37 Op. Atty. Gen. 293, it held
that historically misrepresentations to a consul rendered an alien excludable
under section 212 (a) (9) only if they amounted to perjury.
Thus the National Labor Relations Board has held that even if a court has
decreed specifie performance of a contract, it may set aside the contract in a
proceeding under the Labor-Management Relations Act. Professor Davis states
.

Footnote continued on following page.

419

Interim Decision #1312
Immigration and Nationality Act, 8 U.S.C. 1252(b), provides that
"Metermination of deportability in any case 001 be made only upon
a record made in a proceeding before a special inquiry officer," and
that "[t]he procedure so described shall be the sole and exclusive procedure for determining the deportability of an alien. * "." There is,
therefore, a. basis for the argument that in the instant case the judicial
finding of materiality could not, as a matter of law, relieve the special
inquiry officer from his duty of making an independent determination
of materiality.8
Assuming, however, that the doctrine of collateral estoppel is applicable in cases of this kind, I agree with the Board's view that on
the question of materiality there was no true identity of issues in
the criminal case and the deportation proceeding. Even if statutes
use the same language, a determination under one is not necessarily
binding in a proceeding under another since the purposes of the statutes
may differ and the contexts in which the language is used may not be
the same. See Title, supra at 25, fn. 11. The determination in the
criminal case to the effect that the work offer was "material" might
be considered to be binding in the deportation proceedings only if the

word "material" has the same meaning in prosecutions under 18 U.S.C.
1001 as in deportation proceedings involving section 212(a) (19) of
the Immigration and Nationality Act. Cf. Hines v. Welch, 23 F. 2d
979 (C.A.D.C.) ; Thompson v. Flemmin g , 188 F. Supp. 123 (D. Ore.).
This, however, is not the case.
The issue of materiality under 18 U.S.C. 1001 is merely whether
the misrepresentation was "calculated to induce action or reliance by
an. agency of the United States." Brandow v. United States, 268 F.
2d 559, 565; United States v. Allen,193 F. Supp. 954, 957, supra. In
contrast, the opinion in Matter of B— and B—C—, supra, rejects the
notion that an alien. becomes deportable for every false statement "calculated to induce action or reliance" by a. consul; a false statement
is not material unless the alien would have been excludable on the true
facts, or unless the misrepresentation has shut off a line of inqUiry
which might have resulted in a. proper determination of excludability.
The term "material" does not have the same meaning in 18 U.S.C.
1001 . and in section 212(a) (19) of the Ant, and a determination under
the former that the work offer was material is therefore not to be reFootnote continued.

that this is proper not only because of the difference in parties "but also because
of the congressional intent that primary responsibility for enforcing policies of
the Act shall be in the Board and not in the courts." Davis, op. cit., p. 619.
* In this connection, cf. National Labor Relations Board v. Pacific Intermountain Express Co., 228 F.2d 170, 176 (C.A. 8), certiorari denied, 351 U.S. 952;
Lane v. Itauroaa Retirement Deere; 185 F.2d 819, 822 (C.A. 6) ; Carpenter v_
Plemming,178 F. Supp. 791, 793 (N.D. W.Va.).

420

Interim Decision #1312
garded as conclusive in proceedings involving the latter, where the
term "materiality" has a more restricted scope. Accordingly, I conclude that the Board of Immigration Appeals properly held that the
inquiry into the materiality of the respondent's misrepresentation was
not foreclosed by his conviction for conspiring to violate 18 II.S.C.
1001.

II
I find no error in the Board's conclusion that the materiality standards of Matter of 5— ernd B—C— were properly applied in this
case. As pointed out above, that opinion holds that the issue of materiality for purposes of section 212(a) (19) turns on three questions:
First, whether the alien is excludable on the true facts; second, whether
the misrepresentation tended to shut off a line of inquiry relevant to
the alien's admissibility; and third, whether, if a relevant line of inquiry has been shut off, that inquiry might have resulted in a proper
determination that the alien be excluded.
In the context of this case, the initial question is whether the respondent would have been excludable under section 212 (a) (15), supra,
footnote 4, as a person likely to become a public charge. Although
under the statutory language the question for -visa purposes seems to
depend entirely on the consular officer's subjective opinion, both the
administrative and judicial decisions hold that the question must be
reexamined de novo on an objective basis when it arises in deportation
proceedings. See Matter of M—, 4 I. & N. Dec. 532, 538; Matter of
8—C—, 7 I. & N. Dec. 222, 225; Matter of C—T--P—, 8 I. & N. Dec.
134-135 ; In re Field's Petition,159F. Supp. 144, 146 (S.D. N.Y., 1958) .
There is no error in the determinations below that the respondent was
not excludable on the true facts; that, in other words, the evidence
in the deportation proceeding establishes that he would not have been
excludable as a person likely to become a public charge even though
he did not have an offer of employment in the United States.
The provision in the immigration lavve excluding aliens likely to
become public charges had its origin in section 2 of the Immigration
Act of 1882, 22 Stat. 214, and has been continued in all subsequent immigration statutes. It has been the subject of extensive judicial interpretation. The general tenor of the holdings is that the statute
requires more than a. showing of a possibility that the alien will require public support. Some specific circumstance, such as mental or
physical disability, advanced age, or other fact reasonably tending to
show that the burden of supporting the alien is likely to be cast on the
public, must be present. A healthy person in the prime of life cannot
ordinarily be considered likely to become a public charge, especially
where he has friends or relatives in the United States who have in491

Interim Decision #1312
dicated their ability and willingness to come to his assistance in case
of emergency. See, e.g., Ex parte Mitchell, 256 Fed. 229 (N.D. N.Y.) ;
Ex parte Hosaye Sakaguohi, 277 Fed. 913, 916 (C.A. 9) ; U.S. ex rel.
Manlier v. Commissioner of Immigration, 3 F. 2d 234 (CA. 2) ; Ex
parte Turner, 10 F. 2c1 816, 817 (S.D. Cal.) ; Ex parts Sturgess,13 F.
2d 624, 625 (CA. 6) ; Gabriel v. Johnson., 29 F. 2d 347, 349 (CA. 1) ;
U.S. ex rel. Mimeo v. Reimer, 83 F. 2d 166, 168 (CA. 2). While it
appears that in appropriate cases consular officers have followed the
practice of requiring an alien to submit evidence of support, there is
no indication that a guaranty of employment has been a prerequisite.
The legislative history of the Immigration and Nationality Act of
1952, which retained the public charge provision as section 212 (a)
(15), contains a review of its background and interpretation. See
S. Rept. No. 1515, 82d Cong., 2c1 Sass., pp. 346-348. This review refers
to the practice of requiring evidence of support in appropriate cases
and to the judicial holdings.' Employment offers are not mentioned,
and there is nothing to show that Congress intended such offers to be
required as an absolute condition for satisfying the public charge
provision.
Nor is the administrative practice of the Department of State to the
contrary. The Department's regulations provide that a conclusion
of ineligibility under section 212 (a) (15) is to be predicated upon
circumstances indicating that the alien "will probably beenme a charge
upon the public after entry into the United States ;" the disability,
however, may be removed by the furnishing of a bond or undertaking.
22 CFR 42.91(a) (15). The Department's instructions to consular
officers on this subject admonish them to be "flexible"- and to predicate
their decision upon facts relating to the alien's "age, physical condition,
vocation, and existing conditions in the United States coupled with
their probable effect on the applicant's likelihood of becoming a publio
charge after admission into the United States." (State Department
Visa Handbook, Notes on 22 CFR 42.91 (a) (15), Note 1.1.) While
consular officers are authorized to consider "the promise of a job" (Note
3.1), this is not stated as an absolute prerequisite; alternative means
of satisfying the statute are provided, viz., the possession of sufficient
funds or assurances of support by relatives or friends in the United
States (Notes 1.2; 4). The record shows that the respondent was an
able-bodied man in. his early twenties, without dependents; that he
had no physical or mental defects which might affect his earning capacity, and that he had performed agricultural work for nearly 10
years. He had previously worked for 3 months in the United States,
'It naa been suggested that support bonds be substituted For afltlivella of

gamest
422

Interim Decision #1312
and his immigration was sponsored by a brother who had lived in the
United States for several years and was earning approximately $85.00
a. week in permanent employment. The special inquiry officer was
fully justified in concluding that the respondent was not likely to become a public charge, and, in the light of the judicial interpretation
of section 212(a) (15) and the pertinent administrative regulations
and instructions, that he was admissible in the absence of an employment offer.
The respondent's misrepresentation, however, did shut off a line of
inquiry relevant to his eligibility for a visa. It may be assumed that
if the consular officer had known that the work offer was spurious, he
would have examined the evidence of support more carefully. It does
not appear, however, that this would have resulted in a proper determination that the respondent was excludable. Further investigation
of the relationship between the sponsor and the respondent would
have shown that the sponsor was a devoted brother who had in the past
sent money to his family in Mexico and who was genuinely interested
in assisting the respondent; that, indeed, he had assisted him in his
his immigration efforts by paying $350 for the work offer. Further
examination also would have disclosed that the respondent had other
relatives in the United States who were willing to assist him in finding
work. There is nothing in this case to suggest that further investigation would have disclosed any reasonable ground for the proper
denial of a visa. In view of the particular circumstances of this case,
it appears therefore that the respondent's misrepresentation with
respect to the work offer was not of a material nature.
The Commissioner seeks to distinguish this case from Matter of Sand B—C—, on the ground that "this record establishes that the respondent was in the very act of participating in one or more crimes
against the United States at the very moment he got the visa and unquestionably would not have received the visa if the forgery had been
known." The fact that the respondent committed a crime against the
United States at the very moment he received his visa is not peculiar
to this case. It would seem that virtually every alien who at the time
of his visa application makes a misrepresentation "which was calculated to induce action or reliance by an agency of the Government"
(Brant:low v. United States, supra) violate 18 U.S.C. 1001 at that
very moment. Accordingly, this case is not distinguishable from the

situations normally covered by Matter of S— and B—C—, supra.
In view of the findings below that the respondent did not know that
Miranda had forged the work offer, I am not confronted here with the
problem as to whether Matter of S— and R---C— also applies to a
situation where a misrepresentation to the consular officer shuts off a
423

Interim Decision #1312
line of inquiry into a crime other than the misrepresentation itself or
other than a wrongdoing inseparably connected with it. Cf. Matter
of L—D—L—R, 91. &. N. Dec. 623.

III
The Commissioner finally urges that the respondent's misstatements
not only constituted a material misrepresentation within the meaning
of section 212(a) (19) but that they vitiated the visa itself and thus
rendered the respondent inadmissible under section 212(a) (20), supra.
It has been consistently recognized, however, that the type of misrepresentation which invalidates a visa is substantially identical
with that which renders the alien excludable under section 212(a)
(19). See Matter of S`—C—, 71. & N. Dec. 76,89-90, and the authorities cited therein. This rule appears to be correct and in accord with
the general proposition that a representation invalidates a visa only
if it is material or amounts to a fraud.
For the foregoing reasons, the decision of the Board of Immigration
Appeals is affirmed.

424

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Aeoir%3A27ea455d1bc81874. Public record. Not legal advice.