A-8664171
Decided by Board March 1, 1957
Visa — Procured by concealment of true facts is invalid where disclosure of truth would have raised serious question as to applicant's eligibility and would have required refusal of visa.
(1) An alien who in his visa application showed his wife to be the woman whom he had married in 1953, and concealed his prior marriage in 1944, which had never been legally terminated, did not obtain a valid visa, since, if the truth had been revealed, he would have made either a valid admission of the commission of bigamy or would have admitted the essential elements thereof. In either event, a serious question would have been raised as to applicant's eligibility for issuance of the visa. (Supersedes rule stated in Matter of G----, 1403-17906, 6, I. N. Dec. 9.)
(2) A material misrepresentation invalidates a visa under section 212 (a) (20) of the act, even though it may not have been made willfully and purposely to obtain a benefit under the act and a charge under section 212 (a) (19) of the act would not be sustained.
CHARGES:
Order: Act of 1952 — Section 241 (a) (1) ( 8 U.S.C. 1251 (a) (1)) — Excludable at time of entry under Act of 1924 — Visa procured by fraud or misrepresentation.
Lodged: Act of 1952 — Section 241 (a) (1) ( 8 U.S.C. 1251 (a) (1)) — Excludable at time of entry under section 212 (a) (20) — No valid immigrant visa, reentry permit, border-crossing identification card or other valid entry document.
BEFORE THE BOARD
Discussion: This is an appeal by the examining officer from the order of the special inquiry officer terminating proceedings. The respondent is a 36-year-old married male, a native and citizen of Mexico, who was admitted to the United States for permanent residence on May 4, 1954, upon surrender of a nonquota immigrant visa issued to him by reason of his birth in Mexico. The respondent last entered the United States about January 10, 1956, as a returning resident.
The Service contends that the visa presented by the respondent had been procured by fraud or willful misrepresentation because in applying for it the respondent had shown himself as married to M---- A---- with whom he had undergone a ceremonial marriage on December 20, 1953, in Texas, although he had previously married M---- V---- in Mexico on September 2, 1944, and that marriage had never been legally terminated. The respondent failed to reveal that he was married to M---- V---- and that he had 6 children with her. The special inquiry officer in a thoughtful and analytical opinion reached the conclusion that Matter of G----, 1403-17906, 6, I. N. Dec. 9, required termination of proceedings.
Insofar as is pertinent to this discussion, Matter of G----, supra, concerned L----, a female who was a native and citizen of Mexico and who had obtained a nonquota visa in 1942 on the basis of her birth in Mexico. In applying for the visa L---- stated she had been married to G----. She had, in fact, undergone a ceremonial marriage with G---- but at the time a legally valid prior marriage to another existed. It was held that L----'s statement in her visa application that her husband was G---- was not a material misrepresentation because she, as a native of Mexico, was entitled to admission as a nonquota immigrant regardless of the identity of her husband and she, therefore, obtained no advantage from this false statement.
After carefully reviewing the matter, we conclude that the rule was not properly stated in Matter of G----, 1403-17906, 6, I. N. Dec. 9.
An alien has the burden of establishing eligibility for the issuance of a visa. Where the true facts would have required a consul to rule that an applicant for a visa had not borne the burden of establishing eligibility, we must hold that concealment of the true facts resulted in the procurement of a visa which was not valid. In the case before us, had the truth been revealed by the respondent, it appears that he would have made either a valid admission of the commission of bigamy or he would have admitted the essential elements of the commission of bigamy. In either event, a serious question would have been raised as to his eligibility for the issuance of a visa. The question raised would have required the refusal of the issuance of the visa which respondent received on April 29, 1954. We, therefore, rule that the visa respondent received was not a valid one ( Matter of G----, A-8247543, 4 IN Dec. 735; Matter of R---- J----, A-8609551, Int. Dec. No. 782; Matter of B----, A-8315659, Int. Dec. No. 844, January 25, 1957). The charge that respondent was not in possession of a valid visa is sustained.
We agree with the special inquiry officer that the record fails to establish that the respondent made the misrepresentation willfully and purposefully to obtain a benefit under the immigration and nationality laws. It, therefore, cannot be held that the charge based on section 212 (a) (19) of the Immigration and Nationality Act is sustained. Respondent's deportation will be ordered only on the basis of the last charge set forth in the caption.
Order: It is ordered that the order of the special inquiry officer terminating the proceedings be and the same is hereby withdrawn.
It is further ordered that the respondent be deported from the United States pursuant to law on the charge based on section 241 (a) (1) and section 212 (a) (20) of the Immigration and Nationality Act.