Interim Decision #1247

Interim Decision #1247

MATTER OF Box

In DEPORTATION Proceedings

A.-11068150

Decided by Board September 5,1962

(1)

Where respondent, a native and citiaon of Haiti, who, after having been

denied an immigrant visa, entered the United States in 1957 using an alias

and who, to escape physical persecution upon being returned to Haiti in 1958,

assumed a fictitious identity in which he was married, in which he secured

a delayed birth certificate with which ho obtained a passport and visa for

entry to Nassau where, in such assumed identity, he lived for 11/2 years and

made application in 1960 for a visa to come to the United States, his willful

misrepresentations as to place and date of birth, parentage, marital status,

prior residence, and use of an alias were not material under section 212(a) (19)

of the Immigration and Nationality Act because on the true facts a ground

of inadmissibility would not have been revealed nor would inquiry have resulted

in a proper determination of excludability. cf. Matter of Sarkissian, Int.

Dec. No. 1253.

(2) Where in a deportation proceeding a no passport charge under section

212(a) (20) of the Immigration and Nationality Act is linked to a visa charge

under section 212(a) (19) of that Act by the common ground of misrepresentation as to identity and the visa is found to have been validly issued despite the

existence of misrepresentations as to identity, the passport charge is merged

with the visa charge and falls.

CHARGES :

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

entry under section 212(a) (19) of the Act of 1952 as an alien who

procured visa by fraud or willful misrepresentation of a material

fact.

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

at entry under section 212(a) (20) as an alien immigrant not in

possession of a valid unexpired passport.

The examining officer has filed this appeal from the order of the

special inquiry officer terminating proceedings. The appeal will be

dismissed.

The respondent a 33-year-old married male, a native and citizen of

Haiti, was admitted to the United States for permanent residence on

July 20, 1960, upon surrender of a. nonquota immigrant visa, issued to

him on July 14, 1960, at Nassau, Bahamas. The Service alleges that

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this visa was obtained by fraud because in obtaining it, respondent wilfully failed to furnish truthful information concerning material matters. The Service also contends that the respondent was not in possession of a valid passport when he applied for admission.

Respondent's testimony, which is uncontradicted, and which, as

far as this record shows, was given after he had voluntarily coma to

the Service, reveals the following: The respondent joined the army

in Haiti in 1949; he reached the rank of sergeant. In 1957, one Daniel

Fignole came to power by revolutionary means; within a few months,

he was arrested by the army and sent to exile. At the same time, respondent who was known to be a supporter of Fignole was arrested,

jailed, and discharged from the military service with orders to leave

the city. Respondent then attempted to obtain a visa to come to the

United States for permanent residence but was refused because he

did not have a sponsor. The period of a year and a half following the

attempt, respondent first alleged, had been spent in Haiti hiding;

however, he later, voluntarily informed the Service that he had spent

the time in the United States. He revealed that in September 1957,

using the alias Albert Bethol, he had flown to the United States

ostensibly in transit to Canada, but actually for the purpose of staying

in the United States. Respondent did manage to stay in the United

States until December 1958, when he was apprehended and placed in

the custody of the transportation company for return to Haiti.'

After this return, respondent went into hiding; he decided he must

escape because of the danger he was in. In February 1959, he secured

a delayed certificate of birth showing the birth of one Claude Charles,

a name he made up. Respondent used the birth certificate to secure

a Haitian passport and obtained a visa for entry into Nassau, Bahamas. Before leaving, he married using the name of Charles, and

then went to Nassau where, still using the name Charles, he obtained

employment. His wife joined him in Nassau on a visit. Two children were born of the union. One child is two years old, the other

a few months more than a year. The wife and children live in Haiti

where the wife uses the name Charles.

After a year and a half in Nassau, Bahamas, respondent applied

for a visa to come to the United States for permanent residence.

Application was made in the name of Claud Charles, and information

given about Charles to correspond with that given when respondent

applied for the delayed certificate of birth. Thus, falsely shown were

the city and date of respondent's birth, his parents' names, and the

2 It is assumed that no visa was involved since respondent was turned over to

the transportation company for return instead of being placed under deportation

proceedings (22 F.R. 9783 (1957) (now found in 8 O.F.R. 212.1(e) and 214.2

(e) (1) (1962 Supp.) ).

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fact that his father was living. Furthermore the visa failed to show•

the existence of a wife and a child, residence in the United States, and

the use of an alias. Respondent stated that he assumed the identity

of Claud Charles only to escape from Haiti to Nassau, but that he

used the same name when applying for a visa both because it had

become the name by -which he was known and because he felt that if

he had told the truth he would have had trouble in getting a visa to

come to the United States.

Using the standards as to materiality laid down by the Attorney

General in Matter of B— an B—C—, Int. Dec. 1168 — standards

which place upon the applicant for the visa, the burden of establishing

that he was not excludable and that inquiry would not have resulted

in a proper determination that he was excludable the special inquiry officer held that the respondent had established that there were

no grounds upon which he was excludable and that had consul been

in possession of the actual facts, it did. not appear that a proper

determination of excludability could have been made upon them

or upon the results of any investigation which might have been

completed.

The examining officer maintains that respondent obtained his visa

by concealment of material facts concerning his true name, residence

in the United States and other matters, and by concealment of the fact

that he was excludable under section 212(a) (20) of the Immigration

and Nationality Act as one who was without a valid passport.

At oral argument, counsel for respondent contended that had the

true facts been known, inquiry would not have placed respondent in an

excludable class. Counsel points out that despite the misrepresent&

don on the visa application, true nationality was revealed by respond-•

ent, and that the misrepresentations were made by respondent not to

defraud the United States but to save his life which was threatened

by political persecution. Counsel points out that the name in which

the respondent received his -visa had been one used for over a year.

Counsel cites Mama v. U.S., 364 U.S. 350, 355;

ex rel. Leibowitz

v. Sehlotfeldt, 94 F. 2d 263 (7th Cir. 1938) ; and Matter of M-1?—,

Int. Dec. 1203.

We believe the special inquiry officer correctly disposed of this case.

If both the visa and the passport had reflected the truth concerning

respondent's place of birth, date of birth, parentage, prior residence,

and uses of aliases, there would have been no ground of inadmissibility

revealed nor would inquiry on the basis of the true facts have resulted

in a proper determination of excludability.

The examining officer contends that had an investigation been conducted, information might have been forthcoming which would have

raised a question as to respondent's admissibility. The Attorney Gen89

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eral his carefully pointed out that the "theoretical possibilities" of

what an investigation made at the time of the application might have

uncovered are not sufficient to sustain a charge. The Attorney General

stated that the "available facts" must "indicate the existence of a substantial question as to the alien's eligibility to enter the United States"

before the impairment of investigative opportunity may operate to bar

an alien's entry (Matter of 8— and B—C—, supra, at p. 8). In the

absence of available facts here indicating the existence of a. substantial

question as to respondent's eligibility to enter and in view of the failure

of the Government to suggest the existence of a ground of exclusion

although afforded a reasonable opportunity for adequate investigation,

we do not believe it proper to hold that the impairment of investigation

here resulted in the obtaining of the visa by fraud.

The examining officer is of the belief that the respondent obtained

an advantage to which he would not have been entitled had the true

facts been lmown. We are aware of no bather to respondent's admission under the immigration laws which was concealed by his misrepresentations.

At oral argument, the Service Representative contended section

402 (a) of the Immigration and Nationality Act which amends 18

U.S.C. 1546 should be used as a guide in evaluating the misrepresentation of identity here. Materiality as to the use of a. false name must be

judged by the standards carefully laid down by the Attorney General

rather than by use of a comprehensive penal provision which concerns

many unlawful acts and which has not as yet been applied in deportation proceedings to determine whether a misrepresentation is material.

The Service Representative relies upon comment in the footnote on

page six of Matter of 5— and B—C—, Lit. Dec. 1168, which raises the

question as to whether a visa. issued in the name of another is a valid

visa under section 212 (a)(20) of the Act. Whatever may be the

meaning of this footnote, we do not believe it is applicable to the situation in. the instant Can since the respondent received the visa in a name

which had become his own by use over a substantial period of time.

The Service Representative relies upon Matter of 8—, Int. Dec. 1190.

Matter of 8—, did not concern a passport nor did the Attorney General

express an oninion there on the issue before us.

The service contends that section 212(a) (19) of the Act must be

considered as a separate and distinct count in no way dependent upon

the concealment of a ground of deportation and that even if the visa

had been valid, the passport charge could still be sustained because it

had been issued to a nonexistent person. The Service Representative

cities U.S. v. Rodriguez, 182 F. Supp. 479, 484 (S.D. Cal., 1960), aff'd

sal, num. Roc7107. U.S., 288 F. 2d 545 (9th Cir. 1961) certiorari denied

366 U.S. 948, and De Lucia v. Flagg, 297 F. 2d 58 (7th Cir. 1961)

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certiorari denied 369 U.S. 837, in support of his contention that the

passport is invalid.

On this issue, counsel for respondent points out that respondent used

his own photograph on the passport and revealed his true identity

in that sense, that the passport did show the country of birth and

origin, that it is not shown that the passport is invalid for return to

Haiti and that presumptive credit should be given to the passport.

As to the passport charge, the special inquiry officer held that the

Attorney General had ruled that a misrepresentation as to identity was

not necessarily material and since in the instant case the misrepresentation as to identity was not in fact material, it should not make respondent deportable. Otherwise, the special inquiry officer held, identity

would always become material although the Attorney General had

ruled to the contrary. We agree with the special inquiry officer. A

charge based upon. possession of a passport in an assumed name may

or may not be material. If it is linked to a visa charge and the visa

is found to have been validly issued despite the existence of misrepresentations as to identity, then the passport charge should be merged

with it and should fall. The essential purpose of the passport is to

insure the return of an alien to a foreign country if for some reason

he is not admitted on his visa. Since the visa is valid and admission

will not be challenged, the existence of a valid passport becomes a

matter of lesser importance. (See U.S. ere rel. Leibowitz v. Schlof &Lt.,

94 F. 2d 263 (7th Cir. 1936), Matter of 31—R—, Int. Dec. 1203.) In.

fact, there is nothing in this record to show that the Government of

Haiti would not have honored the passport.

The Service Representative contended that Leibowitz no long r

applies because of the present existence of specific laws making °the

procurement of a visa by misrepresentation a matter of fraud (sections 212 (a) (19) of the Act and 402(a) of the Act). The existence

of section 212 (a) (19) of the Act was considered by the Attorney

General, in establishing the standards in misrepresentation cases; criminal provisions similar to those found in section 402(a) of the Act

have been in existence since 1924 (see Act of May 26, 1924, c. 190, sec.

22, 43 Stat. 165).

Rodriguez, cited by the service, is not apposite. It concerned a

matter of jurisdiction in a criminal case. De Lucia concerned a person who was inadmissible to the United States under his true identity

and who, moreover, had not lived under the name in which the passport was issued. Furthermore, De Lucia made use of the false name

to avoid the immigration laws, while respondent adopted false name

to escape from physical persecution.

ORDER: It is ordered that the appeal of the examining officer be

and the same is hereby dismissed.

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