B-56152/825. P-56154/758.
Decided by Board June 27, 1946. Ruling by Attorney General December 10, 1947.
Immigration visa — Invalidity thereof if obtained under the name and identity of another — Immigration Act of 1924.
An immigration visa issued under the Immigration Act of 1924 is considered invalid when not obtained under the alien's own name and identity since a fraud was perpetrated upon this Government by his posing as someone else and thereby deceiving the Government as to his identity.
CHARGES:
Warrant: B---- Act of 1924 — Invalid visa because procured by fraud and misrepresentation.
Warrant: P---- Act of 1924 — No immigration visa.
BEFORE THE BOARD
Discussion: These cases involve the validity of immigration documents procured under the name and identity of another or under a fictitious name. The two cases are being considered together because they present different aspects of the same problem.
The respondent B---- testified that he was born in Lovrec, Dalmatia, Yugoslavia, on March 28, 1901, and is a Yugoslavian citizen. He presented his birth certificate showing the birth of A---- B---- at the time and place stated. While his birth certificates does not so indicate, he states that his middle name is I----. He identified as relating to himself a record of the admission on October 1, 1925, at the port of New York of I---- B---- in possession of a quota immigration visa. I---- B---- was his cousin. He testified that his own father objected to his leaving their farm, and fearing that his father would follow him if he obtained documents in his own name he took his cousin's passport. On the basis of this passport and other documents relating to his cousin he obtained the immigration visa with which he entered.
The name I---- as a middle name also does not appear on respondent's marriage certificate or on the birth certificates of any of his children.
The respondent P----, a native and citizen of Mexico, was admitted to the United States for permanent residence in 1924 and resided here until 1927 when he returned to Mexico. He states that when he left the United States he told the immigration officer that he did not intend to return here. Unable to find employment in Mexico, however, he again decided to come to the United States. Fearing that he would not be readmitted under his own name because of his statement to the immigration officer, he obtained an immigration visa as R---- S----, which, so far as the record indicates, was a fictitious name. He was admitted for permanent residence on October 24, 1928, as S----, a person who had never been in the United States before. In December 1939 he went to Mexico for a visit and was readmitted to the United States on January 8, 1940, upon presentation of a certificate of identity issued to R---- S----.
The problem presented by these cases is whether the immigration documents with which they last entered were invalid because not obtained under their own name and identity. Upon reconsideration of the question, we are convinced that under the Immigration Act of 1924 identity is material to the validity of immigration documents and that our decision of June 10, 1944, in the P---- case was ill-advised.
Section 13 (a) of the Immigration Act of 1924 provides that "no immigrant shall be admitted to the United States unless he (1) has an unexpired immigration visa * * *"; and section 14 of that act provides that "any alien who at any time after entering the United States is found to have been at the time of entry not entitled under this act to enter the United States * * * shall be taken into custody and deported * * *." Section 13, then, requires an immigrant to have a visa and if the visa he had was invalid it would be the equivalent of no visa. Accordingly, he would not have been entitled to enter, and under section 14 would be deportable.
To determine whether an immigration visa obtained by impersonation is valid under the 1924 act, one need look no further than section 22 (b) of the act itself, which provides:
Any individual who (1) when applying for an immigration visa or permit, or for admission to the United States personates another or falsely appears in the name of a deceased individual, or evades or attempts to evade the immigration laws by appearing under an assumed or fictitious name, or (2) sells or otherwise dispose of, or offers to sell or otherwise dispose of, or utters, an immigration visa or permit, to any person not authorized by law to receive such document, shall, upon conviction thereof, be fined not more than $10,000, or imprisoned for not more than five years or both. [Italics supplied.]
The offense of impersonation described in section 22 (b) has been held to include the obtaining of documents by the use of a fictitious name. United States v. Mouyas, 42 F. (2d) 743 (S.D.N.Y. 1930). Could it be doubted that Congress intended that an immigration visa obtained by impersonation was invalid when it considered such acts so against the public interest as to constitute a crime? It would be in effect saying that the same course of conduct was under one section of the act legal and under another section illegal.
Aside from the criminal provision, however, the balance of the act, its legislative history, and the judicial authorities on the question clearly indicate the invalidity of a visa obtained under the name and identity of another. Section 7 (a) provides that every person seeking an immigration visa shall make application therefor, and section 7 (b) requires that the application shall state:
the immigrant's full and true name; age, sex and race; the date and place of birth; places of residence for the five years immediately preceding his application; * * * etc. [Italics supplied.]
Section 7 (c) provides that:
The immigrant shall furnish, if available, to the consular officer, with his application, two copies of his "dossier" and prison record and military record, two certified copies of his birth certificate, and two copies of all other available public records concerning him kept by the Government to which he owes allegiance. * * *
The legislative history of the 1924 act shows that in connection with these requirements, the identity of the alien was considered material. It shows further that these provisions were designed to insure that the qualifications of prospective immigrants would be examined abroad. In the majority committee report on the bill it was stated (H. Rept. 350, 68th Cong., 1st sess., p. 10):
Inasmuch as consular officers under the passport act of June 4, 1920, have the right to refuse visas to those believed to hold dangerous political views, it is deemed advisable to extend the authority of consular officers so that certain facts respecting the identity, character, and capacity of the individual immigrant may be ascertained before the immigrant is granted a visa to his passport. [Italics supplied.]
Chairman Johnson of Immigration and Naturalization Committee, speaking in the House stated (65 Cong. Rec., p. 6112):
Your committee in setting up this plan for questionnaire examinations overseas has adopted the form used in the State Department, and inasmuch as provision is made for examination of prospective immigrants on the other side we give the consuls the right to make inquiry after receiving the information, and the right to reject the visa.
A reexamination of the judicial authorities on the question convinces us that the courts have sought results consistent with the apparent purpose of Congress in this connection. In McCandless v. United States ex rel. Murphy, 47 F. (2d) 1072 (C.C.A. 3rd, 1931), reversing 40 F. (2d) 643 (E.D. Pa. 1930), it was held that an alien who had entered with an immigration visa obtained in the name of her sister had not been legally admitted was therefore subject to deportation, although, as the court stated, "had she made application in accordance with the requirements of the law, no obstacle to her admission here would have arisen, so far as now appears." This ruling was followed in United States ex rel. DiCostanzo v. Uhl, 6 F. Supp. 391 (S.D.N.Y. 1934), where the subject had obtained an immigration visa in Italy in the name of another upon presentation of the birth certificate and other documents belonging to the other person. The subject was admitted with these documents and after living here for 5 years obtained a reentry permit so he might visit abroad. It was held that the original entry with a visa obtained under the name and identity of another was unlawful, and, therefore, the reentry permit was invalid because obtained on the false representation of a lawful entry. United States ex rel. Leibowitz v. Schlotfeldt, 94 F. (2d) 263 (C.C.A. 2d, 1938) and United States ex rel. Fink v. Reimer, 96 F. (2d) 217 (C.C.A. 2d, 1938), cert. den. 305 U.S. 618, have sometimes been cited as establishing a different rule from that of the Murphy case, namely, that an entry with a visa obtained in the name of another will render a person deportable only if it appears that the subject would have been inadmissible under his own name and identity or by the impersonation have gained some advantage to which he would not have otherwise been entitled by law. As the court in the Leibowitz case stated, however, the facts there were readily distinguishable from those in the Murphy case. Years before applying for an immigration visa Leibowitz had assumed his brother's first name to avoid military service in Latvia. The court pointed out that in the Murphy case "the impersonation was assumed for the express purpose of entering the country, while in the present case the visa obtained by appellee was under a name and identity long before established." In the Fink case the subject entered with a passport and visa issued under the name and identity of another and was held to be deportable under the Immigration Act of 1924. Since the deportability of the alien was upheld, the case cannot be regarded as contrary to the Murphy decision. While the court emphasized that the fraudulent impersonation was essential to success since the subject himself was not entitled to the preference quota status of the individual he impersonated, the rationale of the opinion rests not on a concept of punishing aliens for getting more than they are entitled to but on the public interest in the correct identity of immigrants. The court stated:
The question, as we have pointed out, is whether impersonation will invalidate documents under the Immigration Act of 1924, thus rendering an entry illegal. It may be noted, however, that cases involving violations of the Passport Act of 1918 (title 22, USC, Secs. 223-226) where the individual entered by using the passport issued under the name and identity of another are in accord with those based on the Immigration Act of 1924, i.e., such entries are held to be unlawful. Felich v. Meier, 23 F. (2d) 185 (C.C.A. 8th, 1927); United States ex. rel. Faneco v. Corsi, 57 F. (2d) 868 (S.D.N.Y. 1932).
* * * and while it is true that the statute does not expressly exclude those who get their papers by fraud, fraud thwarts their very purpose. They are the means of identifying the bearer by name and otherwise, so that the propriety of his admission may be scrutinized, and he can be followed if admitted; if they described him as someone else, he makes that scrutiny impossible.
What is the fraud which vitiates an immigration document? It is deceiving this Government by posing as someone else. Suppose upon examination in this country, the individual appears to have been eligible for the same document under his own name, but for some personal reason or misconception of the law found it expedient to obtain the documents in the name of another, has the Government been deceived to its detriment? It has, because the Government has been deprived of its right prescribed by statute to examine his qualifications for admission abroad at the time and place he applies for the visa. There the evidence he submits to establish his admissibility may be verified. His statements concerning his activities and background may be checked against local records. It is particularly unsound to attempt to determine in a deportation proceeding that all the evidence available abroad, 5, 10, or 15 years before, would have shown that the subject was as eligible for an immigration document as the individual he impersonated.
In the Leibowitz case, supra, the alien had been using his brother's name for a considerable time before applying for an immigration visa. Consequently, any inquiry by the consul into the activities of the person of that name would have brought to light what he himself had done. Where an alien had been using the assumed name to such an extent that it has come to be his own, under the Leibowitz holding, he is not subject to deportation because of the use of such an assumed name when obtaining an immigration visa and entering the United States on the basis thereof. On the other hand, the respondent B---- had never used his cousin's name until he decided to come to America. Consequently, his certificate of good conduct, character, and morals, the employment record and other documents upon which the immigration visa was issued all related to and revealed the activities not of respondent but of his cousin. The use by the respondent P---- of a fictitious name cut off all inquiry into the activities of P---- both in Mexico and while he had been here previously.
As the court in the Fink case stated, the basis for the materiality of alien's name and identity is twofold. We have seen how the impersonation in the cases before us rendered proper scrutiny of the aliens' admissibility impossible. It also renders proper observation of an alien's conduct after arrival difficult, if not impossible. The respondent P---- stated that he never used the name of R---- S---- for other than immigration purposes. In the absence of information indicating that P---- and S---- were the same person, to observe the activities of the alien admitted as R---- S----, the Government naturally would not check the record of R---- P----.
The materiality of name and identity to a legal admission has been clearly recognized by the courts in naturalization proceedings. In re Zycholc, 43 F. (2d) 438 (E.D. Mich. 1930), involved a woman who married the day before she left Poland to come to the United States and had omitted to have the name on her passport and visa changed. She entered under her maiden name as a single woman and several years later made a declaration of intention to become a citizen on the same allegations. Before applying for her final citizenship papers she sought to have her declaration of intention and certificate of admission amended to show the true facts. The court denied her petition, holding that she had not been legally admitted. The court stated:
This leaves us with a petition for citizenship based upon a certificate of entry which is untrue as to two material things, name and marriage, and a declaration of intention false as to the same two material facts. These two documents represented necessary steps in the road to citizenship. Both are false in two material respects. * * *
The rules and regulations of the Immigration Department very clearly and properly require aliens to state their names, so that we can find out who they are and what they are, and require them to tell whether or not they are married, so that we may know who, if any one, is tied to them by a matrimonial tow-line. The representatives of our Immigration Department have the right and duty to ask these questions. It is the duty of aliens seeking our shores to give correct answers. This petitioner entered our open door with a falsehood on her tongue. She deceived our officials, and, as a result, she received a certificate which was, and is, false. It is no answer to say that she would have been admitted even though she had told the truth. It could not be a defense for the pick-pocket to prove that the victim happened to be a generous man and would in fact have given him the money voluntarily upon a true statement of his great needs.
Later naturalization decisions are in accord with the rule set forth in the Zycholc case. United States v. Goldstein, 30 F. Supp. 771 (E.D.N.Y. 1939); United States v. Shapiro, 43 F. Supp. 927 (S.D. Calif., 1942). If we were to hold that an entry with documents in the name and identity of another was legal for immigration purposes, we should be confronted with the dilemma either of holding the same entry illegal for naturalization purposes, or of adopting a rule in naturalization cases contrary to judicial authorities.
As a result of discussions by this Board with members of the Immigration and Naturalization Service, an operations instruction (Immigration and Naturalization Service Operations Instructions, SEC. 500.1, p. 3600) was drafted for transmission to the field, involving the problem of records of entry containing an erroneous name or other errors. It provides:
1. We know from experience that the records of entry of many aliens into the United States contain assumed or incorrect names and other errors. The question of whether such an entry was lawful arises when the alien later submits some formal application to the Service or is the subject of investigation. The legality for all purposes of entries so recorded will be determined by the following rules:
2. Any alien claiming admission to the United States under a name as set forth below shall be regarded as having been lawfully admitted regardless of the date of entry, provided that he meets the burden which shall be on him of proving that the record of the claimed admission relates to him; provided further, where entry occurred on or after May 22, 1918, that it is not affirmatively shown that he gained rights under the immigration laws to which he would not have been entitled had he disclosed his true name; and provided further, where entry occurred on or after July 1, 1924, that he affirmatively shows he did not gain any rights under the immigration laws to which he would not have been entitled had he disclosed his true name and that he did not assume the name solely to gain entry, or for a fraudulent purpose, or to conceal his true identity.
(1) A fictitious name; (2) the name of another person; (3) the true name in a misspelled form; (4) the surname of the stepfather instead of the natural father; (5) the surname of a putative father in the case of an illegitimate child; (6) a nickname; (7) the name used because of foreign custom, such as the given name of the father (with or without prefix or suffix) for the surname, the name of the farm, or some other name formulated by foreign custom; (8) the maiden name instead of the married name; (9) the maiden name of the mother instead of the father's surname.
3. An alien whose claimed entry record contains errors in recording sex, names of relatives, or names of foreign places of birth or residence shall be regarded as having been lawfully admitted under the conditions set forth in paragraph 2 of this instruction.
A holding on the validity of immigration documents in this connection must also affect proceedings to determine the admissibility of aliens seeking to enter the United States. If we were to hold identity immaterial to the validity of immigration documents here, we should logically be obliged to follow this rule in a case where an alien applying for admission is found by an immigrant inspector or a board of special inquiry not to be the person represented in his documents. Adopting a rule which would require us to admit such a person would clearly be unwise. On the other hand, if we hold such documents invalid, we are not obliged, upon a belated discovery of the fraud, permanently to expel aliens who have lived here for years and proven themselves otherwise desirable residents. Sustaining documentary charges such as those before us does not prevent us from granting an alien discretionary relief from deportation.
That an alien entered with an immigration visa procured by fraud and misrepresentation is not one of the grounds of deportation contained in section 19 (d) of the Immigration Act of 1917, barring aliens from voluntary departure or suspension of deportation provided for in section 19 (c) of that act.
Confusion may result from a failure to distinguish from the specific problem with which we are here confronted in those cases involving a misstatement or concealment in an alien's application for a visa or other immigration document not of his name and identity but of some other fact concerning himself. There the sound view and that sustained by the judicial authorities is that a false statement in an application will not invalidate an immigration visa or other immigration document if it appears that the person would have been equally entitled to what he obtained had he told the truth. In other words, only a material false statement will invalidate the document, thereby rendering the person deportable. It would be indeed harsh to hold a woman deportable because she had coyly stated her age to be 39 instead of 44 when applying for an immigration visa. But to return to the issue before us, identity is always material.
This discussion is confined to what will and what will not vitiate immigration documents issued pursuant to the Immigration Act of 1924. These are cases involving misstatements and concealments by aliens of certain facts concerning themselves when they were examined by immigration inspectors. Where the charge is based upon the provision of the Immigration Act of 1917 rendering deportable aliens who entered without inspection, the question is whether the "false and misleading statements" were such as to defeat completely the inspection required by the 1917 act. We have taken the view that only where a person falsely claims United States citizenship, so that he is not inspected as an alien will we sustain a charge that he entered by false and misleading statements, thereby entering without inspection. Matter of C---- V----, 56131/567 (January 12, 1943).
United States ex rel. Iorio v. Day, 34 F. (2d) 920 (C.C.A. 2d, 1929) (alien held not deportable for concealing on visa application a conviction for a crime which did not involve moral turpitude); United States ex rel. Lamp v. Corsi, 61 F. (2d) 964 (C.C.A. 2d, 1932) (alien held deportable for alleging in application for a reentry permit that his last entry was lawful when in fact he had last entered on a false claim to citizenship); Heizaburo Hirose v. Berkshire, 73 F. (2d) 86 (C.C.A. 9th, 1934) (alien held deportable where he had falsely claimed to be a minister of religion, thereby obtaining a nonquota visa); Daskaloff v. Zurbrick, 103 F. (2d) 579 (C.C.A. 6th, 1939) (alien held deportable where she used her maiden name and concealed prior deportation for prostitution which rendered her inadmissible).
We have so held in the past. Matter of T----, 56130/813 (February 29, 1944).
To hold otherwise would mean that it is unimportant that our Government know the persons whom it is permitting to become residents and eventually citizens. It would place a premium on deception, encouraging aliens to obtain documents as some one else in the hope that their impersonation would never be discovered, or, upon discovery, they could successfully maintain they would have been entitled to the same documents under their own name and identity. Thousands of people have been killed in concentration camps in Europe. Their passports and other documents have fallen into the hands of their captors. We would be paving the way for unscrupulous and undesirable aliens to pose as these victims of persecutions, and we would be tying our own hands, rendering difficult if not impossible the deportation of these impostors if and when the impersonation was discovered.
As to A---- B----.
Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That the respondent is an alien, a native and citizen of Yugoslavia;
(2) That the respondent last entered the United States on October 1, 1925, at the port of New York;
(3) That the respondent entered with an immigration visa obtained under the name and identity of his cousin;
(4) That the respondent entered for permanent residence.Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under sections 13 and 14 of the Immigration Act of 1924, the respondent is subject to deportation on the ground that at the time of entry he was not entitled under said act to enter the united States for the reason that the Immigration visa was not valid because procured by fraud and misrepresentation;
(2) That under section 20 of the Immigration Act of 1917, the respondent is deportable to Yugoslavia at Government expense.Factors Relating to Suspension of Deportation: The respondent was married on May 6, 1933, to a native citizen of the United States. They have three children, aged 12, 9, and 2 years, all born in this country. Respondent is employed as a laborer earning $40 per week. His wife and children are wholly dependent upon him for support. His deportation would therefore result in serious economic detriment to them.
Respondent testified that he has never been arrested on a criminal charge in the United States or abroad. A check of his fingerprints with those on file with the Federal Bureau of Investigation revealed no criminal record. An immigrant inspector interviewed respondent's neighbors and employers and all reported very favorably on his moral character. We believe, therefore, that a finding that the respondent has been a person of good moral character for the past 5 years is warranted.
The ground upon which the respondent is subject to deportation is not one of those contained in section 19 (d) of the Immigration Act of 1917, nor is there any evidence that respondent is subject to deportation on any other ground contained in that section.
As to R---- P----.
Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That the respondent is an alien, a native and citizen of Mexico;
(2) That the respondent procured an immigration visa in Mexico under the name of R---- S----, whereas his true name is R---- P----;
(3) That the respondent was admitted to the United States at Laredo, Tex., on August 24, 1928, upon presentation of said visa;
(4) That the respondent last entered the United States at Laredo, Tex., on January 8, 1940, at which time he presented an identification card issued in the name of R---- S----, and was admitted as a returning resident.Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 13 (b) of the Immigration Act of 1924, the respondent was not eligible to be admitted as a returning resident, his prior entry not constituting a legal admission because his visa had been obtained by fraud and misrepresentation;
(2) That under sections 13 and 14 of the Immigration Act of 1924, the respondent is subject to deportation on the ground that at the time of his last entry he was an immigrant not in possession of a valid immigration visa and not exempted from the presentation thereof by said act or regulations made thereunder;
(3) That under section 20 of the Immigration Act of 1917, the respondent is deportable to Mexico at Government expense.Other Factors: The respondent testified that he is regularly employed, and has never been arrested in the United States or abroad. He was inducted into the United States armed forces in September 1942 but was given an honorable discharge for the convenience of the Government. He has no close relatives in the United States. Since it appears that he has been a person of good moral character for the past 5 years, we believe that his application for voluntary departure in lieu of deportation should be granted. It is not customary to authorize preexamination in the case of Mexicans since usually they can more easily adjust their status by crossing the border to Mexico to obtain immigration visas. The respondent, who resides in New York City, however, apparently prefers to go to Canada to procure a visa. In view of the generally favorable record regarding his character and activities in the United States, we are prepared to authorize preexamination. Order (regarding A---- B----): It is ordered that deportation of the alien be suspended under the provisions of section 19 (c) (2) of the Immigration Act of 1917, as amended.
It is further ordered, That if Congress takes no action adverse to the order granting suspension of deportation, and when the required fee is paid, proceedings be canceled.
Order (regarding R---- P----): It is directed that an order of deportation not be entered at this time, but that the alien be required to depart from the United States, without expense to the Government, to any country of his choice, within 6 months after notification of decision, conditioned upon arrangements being made with the local immigration office for verification of departure.
It is further ordered, That preexamination be authorized.
The decision and order of the majority of the Board of Immigration Appeals, dated June 27, 1946, are hereby approved.
Discussion: I do not agree with the conclusion of the majority that these aliens are subject to deportation. My disagreement is with the majority's position that falsification of one's name always renders an alien deportable.
The majority states that the problem is whether a visa is invalid because not obtained under an alien's own name and identity, and that name and identity are to be distinguished from other facts required to be stated in a visa application, and that identity is always material.
Respondent B---- desired to leave Yugoslavia over his father's objections and without his knowledge. He therefore presented a passport and supporting documents in the name of his cousin to the consul at Antwerp, Belgium, on September 18, 1925. He was issued a quota visa chargeable to Yugoslavia bearing his own photograph whereon he signed the name I---- B----, the name of his cousin. The respondent's name is A---- I---- B----. With the visa thus issued the respondent was admitted for permanent residence to the United States on October 1, 1925. He has since married and is the father of three minor citizen children. His record in the United States establishes that he is a person of good moral character and that he has at all times been law-abiding. He is charged in this proceeding, initiated on July 26, 1943, with having entered in violation of the Immigration Act of 1924 on the ground "that the visa which he presented was not valid because procured by fraud or misrepresentation." The Presiding Inspector found that:
The record does not indicate, and the respondent does not admit, any attempt to conceal a material matter from the American Consul of such nature as would have caused him to be denied a visa had the true facts been known. * * * The respondent and his cousin were both Jugoslavians and the Jugoslavian quota was open. * * * The charge contained in the warrant of arrest is not sustained.
The District Director recommended:
Charge in warrant of arrest not sustained. Alien admitted on an immigration visa issued to him in his cousin's name. Record of hearing does not show any fraudulent purpose on alien's part in securing this visa. Under O.I. 500.1, this entry is regarded as a lawful admission for permanent residence.
Respondent P----, a native of Mexico, first entered the United States in 1924 and resided here until 1927. He returned in 1928 under a fictitious name assumed because he had previously advised the immigration officials that he did not intend to return to the United States. He obtained a visa in this fictitious name and was again admitted for permanent residence. In 1939 he visited Mexico and was readmitted under his assumed name. He was inducted into the Army in 1942 under his correct name and his discharge indicates that his character was excellent. The Presiding Inspector and the District Director found him deportable on the charge that he entered in 1940 without a visa but recommended discretionary relief. Since his last entry in 1940 was as a returning resident, the question presented is whether his entry in 1924 with a visa under an assumed name was legal.
On June 10, 1944, this Board ruled:
So far as the record shows, he was entitled to a visa under his own name, had he applied for the same. * * *
In this record there is nothing to indicate that the respondent assumed the identity of another, only that he used a name other than his own. He was entitled to a visa under his own name. The case is, therefore, distinguishable from McCandless v. U.S. ex rel. Murphy, 47 F. (2d) 1072 (C.C.A. 3d, 1931) and controlled by U.S. ex rel. Leibowitz v. Schlotfeldt, 94 F. (2d) 263 (C.C.A. 7th, 1938). We hold therefore, that the charge in the warrant of arrest is not sustained.
The P---- case was returned to us by the Immigration and Naturalization Service for reconsideration with a memorandum of the Acting General Counsel which points out that neither McCandless v. Murphy, 47 F. (2d) 1072, nor Leibowitz v. Schlotfeldt, 94 F. (2d) 263, rested upon sections 7 or 28 of the Immigration Act of 1924 (8 U.S.C. 207, 228). The memorandum states:
* * * it seems that the only sound test is whether the inaccuracy or misrepresentation results in the immigrant obtaining rights under the immigration laws which he would not have obtained if he had given his full and true name, or would defeat the provisions of those laws. Hence, there appears no point to the fact that fraud was intended. * * *
In the instant case the purpose of the immigrant to evade exclusion because on a previous departure from the country he had said he did not intend to return to the country was imaginary and erroneous, as he was admissible and was admitted as a native of Mexico under section 4 (a) of the Immigration Act of 1924, a provision in which previous admission to the United States and intention to return thereto are not elements.
For these reasons I am of the opinion that the instruction is correct in requiring that the immigrant who entered on or after July 1, 1924, under a fictitious name shall be regarded as having been lawfully admitted, provided "* * * he affirmatively shows he did not gain any rights under the immigration laws to which he would not have been entitled had he disclosed his true name." I am of the further opinion that the language next thereafter in the instruction "and that he did not assume the name solely to gain entry, or for a fraudulent purpose, or to conceal his true identity," apparently added in view of the court's language in the Leibowitz case and other cases, is not sound, as it introduces elements not expressed or clearly implied in the statute. I suggest that sounder language that could be substituted for that quoted in the sentence next above, would be "and that in connection with the use of the name there was no other misrepresentation or circumstance that substantially tended to conceal his true identity."
On August 21, 1945, this Board replied to the Acting General Counsel's memorandum by a memorandum to the Commissioner which stated:
We have considered Mr. Reitzel's memorandum to us. We find it difficult to harmonize judicial decisions with the reasons advanced by him in the last two paragraphs of page 4 of his memorandum. Considering the pertinent judicial decisions, McCandless v. U.S. ex rel. Murphy, 47 F. (2d) 1072 (C.C.A. 3rd 1931), U.S. ex rel. Leibowitz v. Schlotfeldt, 94 F. (2d) 263 (C.C.A. 7th, 1938), and U.S. ex rel. Fink v. Reimer, 96 F. (2d) 217 (C.C.A. 2d, 1938), we think the correct rule to apply is that the use of a name other than one's own in an application for an immigration visa makes an alien deportable under section 14 of the Immigration Act of 1924, if by so doing he acquired any advantage under the immigration laws which would not have accrued to him by the use of his true name. For example, an advantage on a quota waiting list by the use of a name of another although the alien did not technically acquire a quota preference status, we think would render the visa invalid. U.S. ex rel. Iorio v. Day, 34 F. (2d) 920 (C.C.A. 2d, 1929) supports this theory generally although that case did not involve the precise question before us.
The position of the majority now appears to be that name and identity are always material and that any misrepresentations as to either invalidates a visa. In support of its position it cites several authorities including Felich v. Meier, 23 F. (2d) 185 (C.C.A. 8th, 1927); U.S. ex rel. Faneco v. Corsi, 57 F. (2d) 868 (S.D.N.Y. 1932) and United States v. Shapiro, 43 F. Supp. 927 (S.D. Calif. 1942) which relate to cases of fraudulent impersonation where aliens entered the United States with documents issued to others. The distinction between fraudulent impersonation of this character and misrepresentation by a person to whom a passport or visa was issued in an assumed name was noted in U.S. ex rel. Fink v. Reimer, 96 F. (2d) 217 (C.C.A. 2d, 1938) where the court stated:
Footnote 2 of majority opinion.
P. 644 of majority opinion.
* * * both passport and visa were in fact issued to him, that is to the man who appeared before the officials, though under the name Apfelroth. It is hardly true, therefore, to say that the documents were "no" passport and "no" visa; they were not, for instance, like passports issued to another person whom the bearer pretends to be. Moreover, a fact suppressed or misstated is not material to the alien's entry unless it is one which, if known, would have justified a refusal to issue the visa.
The distinction is one generally recognized in other branches of the law. Thus, the use of an assumed name is not generally a ground for invalidating a negotiable note or contract. False representation as to name is not necessarily a false impersonation. At common law and in the absence of statutory limitation, an individual may lawfully assume another name without resort to legal proceedings, if not done for a fraudulent purpose, and the name thus assumed will constitute his legal name for all purposes as though given at birth. By statute in some states it is unlawful to assume a name without registering it but negotiations in the assumed name will not generally be invalidated for failure to register.
22 American Jurisprudence, Sec. 41; 35 C.J.S., Sec. 3; See: 5 Williston and Thompson, Sec. 1517; 2 Williston Sales, Sec. 635 (1924); and Britton, Bills and Notes, Sec. 151.
Christianson v. King County, 196 Fed. 791 (W.D. Wash. 1912); United States v. McKay, 2 F. (2d) 257 (D.C. Nev. 1924).
6 Williston and Thompson, op. cit.
Fraud consists in the false representations of a material fact made with knowledge of its falsity and with intent to deceive the other party, which representation must be believed and acted upon by the party deceived to his damage. Generally, to be actionable both in criminal law and in civil law it is necessary that the party deceived acted to his damage. Mere deceit even in dealings with the Government is insufficient. Where the Government has issued a visa based upon a misrepresentation and if it would have issued the visa had the true facts been known, actionable fraud has not been perpetrated.
Cahill v. Curtiss Wright Corp., 57 F. Supp. 614 (W.D. Ky., 1944).
United States v. Cohn, 270 U.S. 339 (1925); Cahill v. Curtiss Wright Corporation, supra.
In United States ex. rel. Leibowitz v. Schlotfeldt, 94 F. (2d) 263 (C.C.A. 7), the alien assumed the name of his brother Feive Leibovitsch, together with his brother's birth date in 1919 in order to escape military service in the Russian Army. He used his brother's name from 1919 to 1927. Previously he had used his own name, Leib Leibovitsch. After the alien entered the United States in 1927 he used his own name, Leib Leibovitsch, with one exception. On January 16, 1928, he secured a reentry permit on an application in which he claimed his name was Leibe Feive Leibovitsch, and in which he gave his brother's birth date. The visa issued to the alien by which he effected his original entry on September 16, 1927, and the reentry permit by which he expected reentry after absence on October 5, 1928, were both obtained on his representations that he was Feive Leibovitsch born May 18, 1891, which facts related to his brother. The alien could not have secured a Latvian passport without presenting a birth certificate in the name of Feive which he had assumed. He could not have given the American Consul a birth certificate, police dossier, and military service record demanded by 8 U.S.C. 207-c unless he secured them as Feive Leibovitsch.
Finding of fact by Judge Holly in naturalization proceeding of Leib Leibowitz in the Northern District of Illinois. File No. 55867/708.
Brief of Leibowitz, p. 10, in Circuit Court of Appeals.
Every argument advanced by the majority of the Board could have been advanced in the Leibowitz case to render him deportable and to prevent his naturalization. As a matter of fact, every argument of the majority of this Board was made in that case and overruled.
See: Letter of Solicitor of Labor to the Attorney General dated November 16, 1936, and Government's brief in the Circuit Court of Appeals.
The District Court discharged Leibowitz in habeas corpus proceedings on the theory that had he used his true and correct name instead of his brother's, when applying for an immigration visa, he would have obtained one and that therefore the misrepresentation resulting from using his brother's name was not as to a material fact in the case. The Circuit Court of Appeals took the same view. It stated:
Letter of Solicitor of Labor to the Attorney General, op. cit.
The record discloses no reason why appellee would not have been entitled to a quota visa if his correct name and age had been stated. * * *
In distinguishing Popa v. Zurbrick, 45 F. (2d) 583 (C.C.A. 6, 1930); U.S. ex rel. Thomas v. Day, 29 F. (2d) 485 (C.C.A. 2d, 1928), and Heizaburo Hirose v. Berkshire, 73 F. (2d) 86 (C.C.A. 9th, 1934) it declared:
Such authorities carry very little, if any, weight in support of appellants' contention here, in view of the fact that the visa could have been obtained just as readily if the truth had been stated.
Of the cases relied upon by appellee that of United States ex. rel. Iorio v. Day, 34 F. (2d) 920, is perhaps the most nearly in point.
* * * * * * *
Other cases might be cited where the distinction has been made between misrepresentation which enable the immigrant to obtain admission and where such right was not thus dependent.
The court concluded its opinion by stating:
He was within the quota provision, could have obtained his visa by stating his correct name and age, and otherwise met the prescribed requirements to enable him to effect a legal entry. Therefore, the misrepresentations complained of were irrelevant and do not constitute grounds for deportation.
Both the Solicitor of Labor and the Solicitor General of the Department of Justice determined not to seek certiorari to the Supreme Court.
Subsequently the government objected to Leibowitz's naturalization on the theory of United States v. Goldstein, 30 F. Supp. 771 which was called to the attention of the Naturalization Court. By order of Judge Holly of the Northern District of Illinois, dated March 15, 1943, Leibowitz's petition for naturalization was granted nevertheless.
In the face of the Leibowitz decision, how can the broad statements of the majority be upheld?
The Leibowitz opinion relied upon United States ex rel. Iorio v. Day, 34 F. (2d) 920 (C.C.A. 2d, 1929) where the alien falsely stated that he had never been imprisoned. The warrant of deportation charged that he entered by means of false statements and without inspection. The alien had been in prison for a crime which did not involve moral turpitude and accordingly the charge was not upheld by the court. Judge Learned Hand said with reference to it that:
Strictly, the first ground of deportation as it reads is bad in law. The statute does not make it a ground for deportation that the alien has made a false oath upon his application for a visa or used it to get in. It is wrong to say that in such a case that he came in without inspection, or in violation of law. 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. [Italics supplied.]
It will be noted that the decision of Judge Hand concerns a case where the warrant charged that the alien entered by means of false statements and without inspection, whereas in our cases the charge is that the aliens entered as immigrants without possessing immigration visas. However; the parallel reasoning holds true, viz: that although the immigrant is bound to tell the truth in his application for a visa, the true question is whether the facts, if not suppressed, would have been enough to justify deportation. Section 207 — B title 8, U.S. Code, provides for information regarding whether the applicant was ever in a prison as well as for giving the true name and place of birth. If the fact that the alien gave false information regarding imprisonment was considered irrelevant to his admission, so should false information regarding his name and age.
The law does not distinguish as the majority seek to do between misrepresentation as to the name and misrepresentation as to other facts required in a visa application. In both types of cases the test is whether the person would have been equally entitled to what he obtained had he told the truth. This is recognized by the Acting General Counsel of the Immigration and Naturalization Service.
The leading judicial opinions on assumed names are collected in the Monthly Review of the Immigration and Naturalization Service for July, 1944. As stated there, McCandless v. U.S. ex rel. Murphy, 47 F. (2d) 1072 (C.C.A. 3d, 1931) may be explained as follows:
By assuming her sister Delia's name and using her passport, Maggie Agnes Murphy avoided having to wait for a place under the quota which would have been inevitable had she applied for an immigration visa in her own name after it was decided she was to emigrate instead of her sister. She may not have been aware of it, but she thereby gained a right to which under the Immigration Act of 1924 and the regulations issued for its enforcement, she was not entitled.
In passing, it may be noted that McCandless v. U.S. ex rel. Murphy, was not argued before the appellate court. A compromise was worked out to permit Miss Murphy to adjust her immigration status. (See letter of Assistant United States Attorney for the Eastern District of Pennsylvania, dated March 5, 1931, and memorandum of Inspector Zimmerman, dated March 6, 1931, File No. 55666/393.)
In Fink v. Reimer, 96 F. (2d) 217 (C.C.A. 2d, 1938), the alien also received an advantage to which he was not entitled under the law. He secured preference instead of nonpreference status. The court said:
A fact suppressed or misstated is not material to the alien's entry unless it is one which, if known, would have justified a refusal to issue a visa.United States ex rel. Leibowitz v. Schlotfeldt, supra, recognizes the same principle.
In Ex parte Guest, 287 F. 884, 891, (D.R.I., 1923) the court said:
In the course of naturalization proceedings many cases have been brought to my attention where, for personal reasons, the applicants had shipped to this country and had entered under fictious names. Unless this fact is coupled with other evidence attempting to show concealment of some material matter, it hardly can be held a cause sufficient to justify deportation.
Other cases have followed this rule of materiality and it has seldom been disregarded.
In United States ex rel. Percas v. Karnuth, 28 F. Supp. 598 (W.D.N.Y. 1938) the court recognized the principle that upon an application for a visa an alien is obliged to "suppress nothing that was material to the application." In U.S. ex. rel Lamp v. Corsi, 61 F. (2d) 964 (C.C.A. 2d, 1932) the alien falsely represented himself to be an American citizen at the time of entry. Judge Chase said "it was not the concealment of irrelevant matter as in U.S. ex. rel. Iorio v. Day (C.C.A. 34 F. (2d) 920)." In U.S. ex. rel. Volpe v. Smith, 62 F. (2d) 808, 813 (C.C.A. 7th, 1933), affirmed 289 U.S. 422 (1932), Judge Evans said: "The character of the deception which is here under consideration is significant. It was not one that went to matter of detail — an incident in the officer's examination of the applicant. It was not merely a case of the applicant's falsifying."
In re Zycholc, 43 F. (2d) 438 (E.D. Mich. 1930) appears to be contrary to the generally applied rule. I believe the case was incorrectly decided. See: Note 20, infra.
The majority state that the use of an assumed or fictitious name by P---- and B---- cut off all inquiry into their activities in their native lands. Far from it. If any inquiry had been made at all, it would have revealed that P---- had used a fictitious name and that B---- had not used his own documents. The assertion that thousands of alien enemies abroad have secured the documents of people they subjugated or killed is not borne out by any evidence on reports before us. As these alien enemies are now under the supervision of our armies of occupation it may be assumed that few, if any, will be able to retain their captured documents if such documents ever fell into their hands.
The majority point to the criminal provisions of the Immigration Act of 1924, which provide a penalty for impersonation in applying for a visa. Obviously, the majority do not contend that violation of 8 U.S.C. section 220 is per se a ground for deportation. In the Leibowitz case the criminal provisions were called to the attention of the court, but it nevertheless ruled that the alien was not deportable, nor were these criminal provisions made the bases for decision in McCandless v. U.S. ex. rel. Murphy, supra; Fink v. Reimer, supra; or Iorio v. Day, supra. If Congress intended that every violation of the 8 U.S.C. 220 was to be a deportable offense it could have stated so by the use of appropriate language. It has not done so.
See brief in Circuit Court of Appeals and Court's Opinion.
The legislative history of our immigration laws does not support the position of the majority. As a matter of fact it points to a contrary conclusion. In 1929 there was pending in Congress a bill to amend the immigration laws to define deportable aliens to include an alien who "obtains entry into the United States by a willfully false or misleading representation or the wilful concealment of a material fact." This would have for the first time made such ground a cause for deportation. Nevertheless this language was stricken out in conference between both Houses of Congress, and notwithstanding frequent amendments of the immigration laws, it has never been included in our laws. In contrast, it may be noted that the Philippine Immigration Act of 1940 specifically provides that entry by means of false and misleading statements is a deportable offense. Congress could not have been unmindful of this omission in our laws, nor of the cases holding that mere falsifying is not a deportable offense. This action by Congress would persuasively indicate that it was willing to leave the statute therein as these cases had interpreted it.
S. 5094, 70th Congress, 2nd Sess. The quoted provisions were entirely stricken from the bill as finally enacted March 4, 1929 (8 U.S.C. 180 (a)).
See: Ex parte Guest, 287 F. 884 (D.C.R.I., 1923); Ex parte Lalime, 244 F. 279 (D.C. Mass., 1917); United States v. Southro, 8 F. (2d) 1023 (C.C.A. 6th, 1925); and U.S. ex rel. Volpe v. Smith, 62 F. (2d) 808 (C.C.A. 7th, 1933) affirmed 289 U.S. 422 (1932).
Finally, if precedents of this Board are to be given any passing reflection, I desire to call attention to our almost consistent and numerous holdings that misrepresentation as to name is immaterial where an alien would have been admissible had his true name and identity been revealed. In Matter of B----, 56155/760, (July 22, 1944) we said:
The use of the assumed name was immaterial to the issuance of the visa.Matter of S----, 56032/695, (August 4, 1944) applied this rule to cancel the proceeding:
The fact that an alien applied for a visa under an assumed name does not make such entry illegal.
In Matter of H----, 56042/983, (December 12, 1944) we said:
Respondent testified that he used his own photograph for the visa, and there is nothing in the record to indicate that he was not entitled to a quota visa had he used his correct name and age. A fact suppressed or misstated is not material to the alien's entry unless it is one which if known would have justified a refusal to issue the visa.Matter of Arroyo, C.F. 56378 (January 25, 1945) follows our previous holdings. We stated:
This alien was within the quota provisions and could have obtained his visa by stating his correct name and otherwise meeting the prescribed requirements to enable him to effect a legal entry. He has proved that the record of the admission of L---- C---- on March 29, 1927, is in fact a record of his last entry into this country. Therefore, the misrepresentations complained of were irrelevant and do not constitute a ground for deportation. (Par. 1, Sec. 500.1, Operations Instructions) ( U.S. ex rel. Leibowitz v. Schlotfeldt, 94 F. (2d) 263).Matter of D----, 2792819, (July 11, 1945) again applied the rule. We said:
Inasmuch as he was entitled to such a visa, as well as the reentry permit previously obtained, upon the basis of his original entry, whatever misrepresentation was made in applying for either of the aforesaid documents as to his name, date, and place of birth, family and kindred matters of identity become immaterial.
In Matter of F----, 56123/19, (September 21, 1945) we said again:
* * * remembering that the respondent was entitled to and could have obtained a section 4 (c) visa in her true name, we cannot find that the visa she did present at the time of her entry was obtained by fraud or misrepresentation. U.S. ex rel. Leibowitz v. Schlotfeldt, 94 F. (2d) 263 (C.C.A. 7th, 1938).
On November 9, 1945, we said in Matter of D---- L---- R----:
There is nothing to indicate that if she had given the true facts she would have been denied a visa. Therefore, her representations must be regarded as not material. In the case of U.S. ex rel. Leibowitz v. Schlotfeldt, C.C.A. 7th, (January 19, 1930), 94 F. (2d) 263, the court stated: He (Leibowitz) * * * could have obtained his visa by stating his correct name and age, and otherwise met the prescribed requirements to enable him to seek a legal entry. Therefore the misrepresentations here complained of were irrelevant and do not constitute grounds for deportation. This view is strengthened in the case of Fink v. Reimer, C.C.A. 2nd (April 4, 1938), 96 F. (2d) 217, where the court stated: A fact suppressed or misstated is not material to the alien's entry unless it is one which if known would have justified a refusal to issue the visa. Upon the authority of these decisions we hold that the visa presented by the female respondent was not invalid because procured by fraud and misrepresentation.
And as recently as April 10, 1946, in Matter of G----, 56153/962, we reaffirmed the rule of the foregoing cases.
This rule represented, until this day, our considered judgment of the law. We followed this rule because of the express language employed in judicial opinions where the issue of the cases before us was adjudicated.
We reached the conclusion in all of the administrative decisions above mentioned that the charge under the visa provision of the 1924 act should not be sustained. We cannot pass over these administrative decisions merely by saying, as the majority does with reference to the P---- case, that they were ill-advised. On the contrary, I am persuaded that the conclusions reached were not only warranted but that they were required by the language employed by the Circuit Court of Appeals for the Seventh and Second Circuits in U.S. ex rel. Leibowitz v. Schlofeldt and U.S. ex rel. Fink v. Reimer, as well as Iorio v. Day. The force of these cases can not be minimized by two or three District Court cases which are apparently in conflict.
See U.S. ex rel. DiConstanzo v. Uhl, 6 F. Supp. 791, (S.D.N.Y. 1934) which was decided in the Second Circuit and is certainly controlled by these Circuit Court of Appeals decisions. In re Zycholc, 43 F. (2d) 438 (E.D. Mich. 1930) is a district court opinion decided before the Leibowitz and Fink cases. United States v. Goldstein, 30 F. Supp. 771 (E.D.N.Y. 1939) is likewise controlled by the decisions rendered by the Circuit Court. Significantly, these district court cases did not consider these circuit court opinions either because they were not yet decided or because they were not called to the district court's attention. None of these cases arose in deportation proceedings.
Attorney General Clark stated in Matter of E----, 56107/653, on July 11, 1945:
I feel, however, that this Department in making administrative decisions on questions of law should be guided by the decisions of the appellate courts on any point that has been judicially determined.
Heretofore we have been guided by the decisions of the Circuit Court of Appeals for the Seventh and Second Circuits. Now this Board would depart therefrom. For the reasons mentioned, I am unable to follow this departure.
The Board certifies the attached cases to the Attorney General for review of its decision, in accordance with the provisions of title 8, Code of Federal Regulations, section 90.12, because a question of difficulty is involved and because of a dissent filed by one member of the Board.