A-4852428
Decided by Central Office July 11, 1949 Decided by Board December 14, 1949
Visa — Invalidity thereof on ground it was procured by fraud or misrepresentation.
An alien, who was arrested and deported in 1928, who had an application for an immigration visa approved in 1941 (subsequent to the passage of the act of March 4, 1929), in which he failed to give the required truthful information regarding his deportation (which was material), is chargeable with fraud and misrepresentation in the procurement of the immigration visa issued to him in February 1941 and which he used to effect entry for permanent residence here 5 days later (although there has been no admission, of the commission of perjury, in the hearing record), and so is deportable under the Immigration Act of 1924 on the warrant charge.
CHARGE:
Warrant: Act of 1924 — Visa procured by fraud or misrepresentation.
BEFORE THE CENTRAL OFFICE
Discussion: This record relates to a 51-year-old married male, of the white race, a native and citizen of Italy. The record discloses that the respondent first entered the United States on February 2, 1927, as a seaman and was deported on June 9, 1928, on the charge that he had remained in the United States for a longer time than permitted. He testified that he returned to the United States in 1938 by presenting a reentry permit of another person. The issuance of this reentry permit could not be verified. The respondent testified that in February of 1941, he departed from the United States for Cuba to obtain an immigration visa. He testified that he had never obtained permission from the proper authorities to reapply for admission into the United States after his arrest and deportation.
The application made by the respondent for an immigration visa was introduced into evidence and identified as relating to him. This application reveals that the respondent did not disclose the fact of his previous arrest and deportation. He testified that this question was not asked him at any time. He stated that if he had been asked such a question he would have told the consul of his previous arrest and deportation. The respondent testified that the examination conducted concerning his visa was conducted in the English language and that he did not have a good command of that language. On February 13, 1941, the respondent was issued a quota immigration visa by the consul at Havana, Cuba, and was admitted into the United States at New York on February 18, 1941, for permanent residence.
On October 21, 1947, a warrant was issued for the arrest of the respondent charging that he was illegally in the United States because the immigration visa which he presented at the time of entry was not valid because secured by fraud or misrepresentation. This warrant of arrest was served upon the respondent on November 19, 1947. Since there was a lapse of 5 years between the entry of the respondent and the issuance and service of the warrant of arrest, he is no longer subject to deportation under the provisions of the act of March 4, 1929, in that, he had entered after having been previously arrested and deported and having failed to secure permission to reapply for admission.
At the hearing, the respondent was given an adequate definition of perjury, but refused to admit that he committed such a crime by failing to divulge his previous arrest and deportation at the time he applied for an immigration visa.
Counsel for the respondent requests that the warrant be canceled and the proceedings closed, contending that the finding of deportability is a circumvention of a charge which is outlawed under the 1929 act by the use of a charge in the Immigration Act of 1924, as to which there is no time limitation. Counsel declares that this is an inappropriate use of the deportation provisions of the Immigration Act of 1924, and he cites the Matter of G----, A-5566137 (Aug. 1, 1946), as authority for his contention.
In Matter of B----, 55850/794 (Oct. 4, 1934) and Matter of K----, 55907/411 (Jan. 24, 1936), the aliens failed to disclose information which would have rendered them inadmissible under the act of February 5, 1917, at the time they applied for immigration visas. Subsequent to their entry and after the expiration of the statute of limitations on the charges under the act of February 5, 1917, deportation proceedings were instituted on the charge that they had procured their visas by means of fraud and misrepresentation. It was held in the cited cases that the primary grounds for deportation were contained in the act of February 5, 1917, and recourse should not be had to the act of 1924, for the purpose of effecting deportation because such deportation could not be effected under the former act because of the lapse of time.
In Matter of L----, A-2606105 (Dec. 29, 1945), the alien also failed to reveal a previous arrest and deportation when applying for an immigration visa. The Board of Immigration Appeals held that a misrepresentation or fraud in obtaining a visa or reentry permit in order to render the visa invalid because of such fraud or misrepresentation, must be a misrepresentation affecting the alien's quota classification. It held that misstatements as to grounds of inadmissibility under oath other than the Immigration Act of 1924, do not render the alien subject to deportation on the ground that his visa was not valid because procured by fraud and misrepresentation. The Board, accordingly, refused to sustain the charge.
In Matter of G----, relied upon by the counsel for the respondent in his contention that the warrant of arrest should be canceled, the rulings in the Matter of B---- and the Matter of K---- were followed. The misrepresentation concerned was a failure to divulge a previous arrest and deportation and it was pointed out that such misrepresentation did not relate to the quota classification of the alien, but his inadmissibility under sections of the act of February 5, 1917, and March 4, 1929.
If the principles enunciated in the previously cited cases were to be still considered effective and controlling counsel's request for cancellation of the warrant of arrest should be granted. However, a line of recently decided cases indicates a limiting of the aforementioned principle, if not a reversal. In cases where the alien failed to divulge a previous arrest and deportation to the American consul while applying for an immigration visa and while under oath and he admitted that he committed perjury by so failing to divulge or denying a previous arrest and deportation, it was held that the misrepresentation was of a matter material enough to sustain the charge of the admission of the crime of perjury. The inconsistency of sustaining this charge and not the charge of procuring a visa by fraud and misrepresentation was pointed out and it was ruled that the charge of obtaining a visa by fraud and misrepresentation should be also sustained ( Matter of C----, A-6035310 (June 5, 1946); Matter of B----, A-5297716 (Mar. 7, 1946); Matter of D---- S----, 55804/92 (Jan. 14, 1947)). In Matter of M----, A-2217004 (May 2, 1947), an analogous situation was presented except that the alien denied the commission of perjury. Nevertheless, it was held that truthful information as to previous deportation, was material to the issuance of an immigration visa and it was concluded that failure to disclose such prior deportation amounted to fraud and misrepresentation in the procurement of an immigration visa. The charge was thereupon sustained.
It is believed that the last-cited case represents the correct principle. The question of a previous deportation has a definite bearing on whether an immigration visa will be issued. Concealment of such a deportation and of the fact that no permission to reapply for admission has been granted, therefore, constitutes a material misrepresentation and a visa secured by means of such misrepresentation is invalid for that reason. While the record does not disclose that the respondent orally denied a previous arrest and deportation, the application for a visa signed by him contains a statement that he had not been previously so arrested and deported. The respondent in signing this application, adopted this statement and his failure to divulge the true fact of a previous deportation was a concealment of a material fact which constituted misrepresentation. The charge in the warrant of arrest will, therefore, be sustained.
The record discloses that the respondent has resided continuously in the United States since his entry on February 18, 1941, and he, therefore, may be eligible for suspension of deportation under the provisions of section 19 (c) (2) (a) (b) of the Immigration Act of 1917, as amended. The record as it now stands does not contain sufficient evidence so as to determine his eligibility for such relief. Accordingly, the hearing will be reopened to afford the respondent an opportunity to apply for suspension of deportation and to furnish the necessary evidence in support of his application.
Recommendation: It is recommended that the hearing be reopened in compliance with the foregoing and for any further appropriate evidence as may appear.
So ordered.
Discussion: This record is before us on appeal from an order entered by the Acting Assistant Commissioner on July 11, 1949, which provides for a reopening of the hearing to enable the respondent to apply for suspension of deportation under the provisions of section 19 (c) (2) (a) (b) of the Immigration Act of 1917, as amended. Counsel on appeal excepts to the Commissioner's finding of deportability and in support of his position relies upon a series of decisions by this Board and the Commissioner which hold in effect that where a 1917 act charge, which might be otherwise applicable, cannot be sustained, by reason of the statute of limitations, it is not proper to seek recourse to a 1924 act charge to circumvent the statute of limitations and effect the deportation of an alien. Counsel urges the cancellation of the warrant of arrest and termination of the proceedings on the above-stated ground.
Matter of G----, 5566137; Commissioner's opinion, August 1946, citing Matter of B----, 55860/794 (Oct. 4, 1934). Matter of K----, 55907/411 (Jan. 24, 1936), Matter of L----, 2606105 (B.I.A. opinion, Dec. 29, 1945).
The facts of the case are fully stated in the Commissioner's opinion. Briefly, they relate to a native and citizen of Italy, male, 51 years of age, married, who originally entered the United States on February 2, 1927, as a seaman and deserted. He was deported on June 9, 1928, on the charge that he had remained for a longer time than permitted under the 1924 act. The respondent testified that he returned to the United States in 1938 and was admitted upon the presentation of a reentry permit issued to another person. He departed from the United States during February 1941 and was issued a quota immigration visa by the consul at Havana, Cuba, on February 13, 1941. The respondent was last admitted to the United States at the port of New York on February 18, 1941, for permanent residence.
The warrant of arrest in these proceedings was issued on October 21, 1947. Since there was a lapse of 5 years between the last entry of the respondent and the issuance and service of the warrant of arrest, he is no longer subject to deportation under the provisions of the act of March 4, 1929, in that he entered after having been previously arrested and deported and having failed to secure permission to reapply for admission. Although the offense of perjury was explained to the respondent, he steadfastly maintained that he never knowingly told anything but the truth to the vice consul at Havana, Cuba, and that he was never interrogated by the consul concerning his previous deportation when the application for a visa was prepared for him.
The Assistant Commissioner in sustaining the warrant charge relies upon a series of cases which have been decided subsequent to an opinion by this Board in Matter of C----, 6036310 (June 5, 1946). In Matter of C----, supra, it was determined that the false statements which were made in the visa application supported an admission of perjury and the alien was deportable on the applicable criminal charge laid under the 1917 act. We reasoned that in dealing with the offenses of perjury and fraud we must consider the same false statements in the same application for a visa. If the statements were material to support an admission of perjury, then they were material to support fraud which would vitiate the visa under the 1924 act.
Matter of M----, 2217004 (May 2, 1947); Matter of D---- S----, 55804/92 (Jan. 14, 1947).
The respondent's deportation occurred on June 9, 1928. Approval of the application for an immigration visa prior to March 4, 1929, would have removed the obstacle concerning readmission after deportation created by the 1929 act. In the instant case, however, the visa application was approved on February 13, 1941, subsequent to the passage of the act of March 4, 1929, and truthful information concerning the respondent's deportation was material to the issuance of the visa which he presented on the occasion of his last arrival on February 18, 1941. Although there has been no admission of perjury in the record before us, it is concluded that failure to disclose the prior deportation amounts to fraud and misrepresentation in the procurement of the immigration visa and, accordingly, the charge laid under the Immigration Act of 1924 is sustained. The appeal will be dismissed.
Order: It is directed that the appeal be and the same is hereby dismissed.