In DEPORTATION Proceedings

MATTER OF C

S

L

In DEPORTATION Proceedings

A-11132697

Decided by Board ehIll-e 15, 1959

Misrepresentation—By nonimmigrant student as to finances is within section

212(a)(19) of 1952 act.

A nonimmigrant student who represented in his visa application that he had

sufficient funds to finance his education in the United States when in fact

he had only his passage money was clearly not qualified for student status

at the time he applied for his nonimmigrant visa. Hence, h is misrepresentation was a violation of section 212(a) (19) of the act and he is deportable

under section 241(a) (1). (Cf. Matter of S C , 7 I. & N. Dec. 76,

and Matter of C—T

P

, A-10344385, Int. Dec. No. 953.)

CHARGE:

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

at entry as an alien who obtained a visa by fraud or willfully misrepresenting a ins terial fact, contrary to section 212(a) i19) 1.8

U.S.C. 1182 ( a ) (19)].

BEFORE THE BOARD

Discussion: This case is before us on appeal from a decision of

the special inquiry officer, dated March 24, 1959, holding the alien

deportable and denying voluntary departure. Respondent, a 31-yearold native and citizen of China, last entered the United States at.

Seattle, Washington, on June 16, 1957, as a nonimmigrant student,

for a period of one year. At that time he presented a nonquota

immigrant visa issued by the American Consulate at Taipelt, Taiwan

(Formosa).

The charge arose as a result of certain false statements concerning

respondent's financial responsibility, made in connection with his

visa application. Respondent described himself as "self-financed"

and on the back of Certificate of Acceptance by the University of

Michigan, it was stated that he had $3200 on deposit in banks in

the United States. This information was supported by written statements to the same effect from four American banks.

Respondent later stated that he "borrowed" the sums of money

from four friends in the United States, although promptly after the

record of deposits were made he indorsed withdrawal slips back to

the "lenders." As an actual fact, respondent had only money to

cover his transportation to the United States and upon arrival im

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mediately began working to pay his first semester's tuition. Thereafter, on November 4, 1957, respondent received Immigration Service

permission to work a maximum of 20 hours per week and has since

maintained himself.

The special inquiry officer held that since sufficient fends to finance

a student in the United States is a requirement for the issuance of

a nonquota immigrant student's visa (22 CFR 41.81(a) (4)) and

respondent gave false information that he was self sustaining, respondent's statements constituted a willful misrepresentation of his

assets, citing Matter of G—G--, 7 I. & N. Dec. 161 (B.I.A.,

1956). As to whether these statements were material, the special

inquiry officer stated:

* * * The State Department regulation is clear cut and emphatic in its

-

language requiring a showing of assets sufficient to defray the costs of a

temporary stay in the United States while pursuing an education. To construe this requirement as satisfied by someone in respondent's circumstances

would obfuscate, if not extirpate, the true meaning and purpose of the regulation. Hence, it is found that the respondent's misrepresentation concealed

facts which "might well have prompted a final refusal of the visa" (_flatter of

C T P , A-10344385, Int. Dec. No. 953). It is concluded that he is

subject to deportation as charged in the order to show cause by reason of his

willful misrepresentation of a material fact in the procurement of his nonimmigrant student visa.

Concerning respondent's request for voluntary departure, the special inquiry officer felt that although there was no question of respondent's earnestness in seeking a higher education in the United

States, "the means respondent used to effectuate his purpose cannot

be condoned" in the light of the deceit practiced upon the American

consul. The special inquiry officer also felt that respondent in his

various statements to the Immigration Service spoke in half truths

and equivocation. For these reasons, the special inquiry officer concluded that respondent lacked the good moral character required

and was, consequently, statutorily ineligible for discretionary relief

in the form of voluntary departure. However, even if considered

eligible for this relief, the special inquiry officer concluded that the

same reasons were "sufficiently derogatory to justify denial."

Counsel contends that the record fails to establish that a ground

of inadmissibility probably existed (rather than a mere possibility

of such inadmissibility) at the time respondent made the false statements in connection with his visa application, citing Matter of C

, A-10344385, Int. Dec. No. 953 (B.I.A., 1958). AlP

supro., is pertinent in a general

Matter

of C

though

way to the problem at hand, we feel that Matter of S—C—, 7

I. N. Dec. 76 (Atty. Gen., 1956), is more responsive to the question before us.

On the other hand, the Immigrant Service contends that respondent was not an eligible nonimmigrant student [section 101(a) (15)

,

395

(F), (26)] at the time he applied for a nonimmigrant visa, in the

light of the requirements of 22 CFR 41.81(a) (4), requiring that

he have sufficient funds in his possession to cover his expenses while

in the United States as a student or that other appropriate arrangements have been made to provide for these expenses, and, therefore,

respondent's concealment was fatal as a violation of section 212(a)

(19).

While counsel for respondent also attempts to advance the theory

that respondent was actually not requested to submit the financial

information by the American consul and that the proof submitted

was based on information received from other official sources, we

feel that the record does not support this claim and that it - is tangential to the main issue in this case.

In the Matter of S

C

, supra, the Board, in considering the

problem of misrepresentations and section 212(a) (19), commented

as follows:

* * * the rule is that a misrepresentation which cuts off all inquiry will

invalidate a visa even though the alien could have secured a visa had he

given his true identity, but that a misrepresentation which cuts off some inquiry will not invalidate the visa unless it concealed a ground of inadmissibility to the United States.

Hence, the question turns on whether respondent was entitled by

law to enter the United States as a nonimmigrant student had the

true facts been revealed. According to 22 CFR 41.81 (Burden of

proof and evidence of student status), An alien applying for a

visa as a nonimmigrant under the provisions of section 101(a) (15)

(F) of the act shall not only have the burden of establishing that

he is entitled to classification as a student within the meaning of

that section of the act, but also that he is not ineligible to receive

a visa as a nonimmigrant" and is specifically required to establish,

among other things, that "he is in possession of sufficient funds to

cover his expenses" [(a) (4)].

Since respondent was not in possession of cash, neither in the hand

nor in the bank, sufficient to cover his expenses while in this country

and other arrangements not having been made, he was clearly unqualified for student status at the time he applied for his nonimmigrant visa. Hence, respondent's false representation of the facts

" relevant to his right to obtain a visa constituted misrepresentation

of a material fact and a violation of section 21:2(a) (10).

Because respondent's counsel has not contested the special inquiry

officer's conclusion of ineligibility for voluntary departure and denial

of this relief, we will affirm this conclusion in the light of all the

surrounding facts. Deportability is supported and the appeal must

be dismissed.

Order: It is hereby directed that the appeal be. dismissed.

396