A-8401009.
Decided by Board December 20, 1955.
Misrepresentation — Concealment of arrest — May bematerial even though crime does not involve moral turpitude.
(1) Concealment of arrest and conviction when applying for an immigrant visa, even though the crime does not involve moral turpitude, may invalidate the visa if such concealment precludes full investigation by the consul which might lead to a determination of inadmissibility on grounds other than criminal.
(2) In the instant case, respondent's suppression of the fact that he had been arrested and convicted in New York State of the offense of disorderly conduct in that he committed a homosexual act did cut off further inquiry the results of which might well have prompted the consul to refuse to issue the visa on medical grounds.
CHARGE:
Warrant: Section 241 (a) (1) — Act of 1952 — Excludable at entry, section 212 (a) (20) — No valid immigrant visa, reentry permit, or border-crossing identification card.
BEFORE THE BOARD
Discussion: The Acting Assistant Commissioner under the provisions of 8 C.F.R. 6.2 moves this Board to reconsider and withdraw an order entered in the above-captioned case on August 30, 1955. Our decision sustained respondent's appeal from an order of deportation entered by the special inquiry officer on March 17, 1955, and terminated the proceedings under the warrant of arrest issued January 14, 1955. Counsel has been served with notice of the motion and has answered with a brief urging that there is no error of law in our decision of August 30, 1955. The Service representative argued the motion before the Board on October 25, 1955.
The record relates to a native and citizen of Cuba who was admitted for permanent residence on November 19, 1952. He last entered in possession of a reentry permit at the port of Miami, Florida, on December 7, 1953. The special inquiry officer found the respondent deportable under the above-stated provision of the 1952 act in that at the time of his last entry on December 7, 1953, and also his original entry on November 19, 1952, respondent was within a class of excludable aliens, to wit: an alien not in possession of a valid immigrant visa, reentry permit, or border-crossing identification card. This finding is based upon respondent's failure to disclose to the American consul who issued his original visa at Havana, Cuba, on November 7, 1952, the fact that he had been arrested and convicted on September 18, 1950, at New York City, for an act of homosexuality. The record affirmatively establishes that respondent had been arrested in the City of New York on September 17, 1950, and charged with a violation of section 722, subdivision 8, of the Penal Law of the State of New York. The respondent was convicted of the charge and sentenced to imprisonment for 30 days, but execution of the sentence was suspended. Following precedent, we held that the aforestated offense does not involve moral turpitude.
Section 722, New York Penal Code. Disorderly Conduct: Any person who with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned, commits any of the following acts shall be deemed to have committed the offense of disorderly conduct: * * *
(8) Frequents or loiters about any public place soliciting men for the purpose of committing a crime against nature or other lewdness.
Matter of G---- R----, A-3561517, 5 IN Dec. 18, and cases cited therein.
Our decision of August 30, 1955, is based upon the rule well established under the Immigration Act of 1924, that although an alien is bound to tell the truth in his application for an immigrant visa, if he withholds information relating to arrest and conviction of a crime which does not involve moral turpitude, the withholding of the facts concerning the arrest and conviction are immaterial to the obtaining of an immigration visa and a charge cannot be sustained. The Immigration Service in its decision in Matter of B----, A-4048121, 3 IN Dec. 278 (C.O., August 13, 1948), relies upon the same rule and found a similar charge laid under the act of 1924 not sustained. The proceedings under the warrant of arrest were terminated.
United States ex rel. Fink v. Reimer, 96 F. (2d) 217, C.C.A. 2 (1938); United States ex rel. Teper v. Miller, 87 F. Supp. 285, D.C.N.Y.; United States ex rel. Iorio v. Day, 34 F. (2d) 920 (C.C.A. 2, 1929).
The Assistant Commissioner without reference to the fact that the Immigration Service applied the aforestated rule in Matter of B----, ( supra), now urges that "it is not correct to say that concealment of an arrest or conviction will never invalidate a visa unless the crime was one which involved moral turpitude." It is the contention of the Assistant Commissioner that the concealment of a matter is material if it is a revelant subject of inquiry and the false statement or misrepresentation precludes full investigation by the consul. The Service motion cites the case of United States ex rel. Jankowski v. Shaughnessy, 186 F. (2d) 580 (C.C.A. 2, 1951), as authority for his position.
During oral argument the Service representative referred to the broad investigatory powers of the consul under section 221 (g) of the Immigration and Nationality Act of 1952 and the State Department regulations implementing this section of the statute (22 C.F.R. 42.30 (f)). The visa in the instant case was issued prior to the effective date of the Immigration and Nationality Act of 1952 (December 24, 1952), and the entry with which we are concerned occurred on November 19, 1952. However, provision in the Immigration Act of 1924 gave the consul comparable investigatory powers (section 2 (f), Immigration Act of 1924) and State Department regulations promulgated under section 2 (f), ( supra), gave the consuls substantially the same authority as set forth in the current regulations (22 C.F.R. 42.317, et seq., in effect prior to December 24, 1952). Under these circumstances, we will consider the motion on the basis of the comparable sections of the Immigration Act of 1924 and regulations promulgated thereunder.
The primary issue before the courts in the cases relied upon by the Assistant Commissioner, by counsel in his brief, and by this Board in our opinion of August 30, 1955, concerned whether the misrepresentation and concealment if known to the consul would have justified the refusal of a visa. In other words, materiality depends upon what further inquiry would have disclosed had the true facts been known. The court in the Jankowski case ( supra) found that a concealment by the alien in his application for a visa of the fact that he had been arrested in England in 1940 and imprisoned there until 1942 was material because "had he disclosed those facts, they would have been enough to justify the refusal of a visa" ( 186 F. (2d) 582). The nature of the offense committed by the alien is not revealed in the opinion of the Circuit Court.
United States ex rel. Jankowski v. Shaughnessy, 186 F. (2d) 580 (C.C.A. 2, 1951).
United States ex rel. Iorio v. Day and United States ex rel. Fink v. Reimer ( supra, footnote 3).
United States ex rel. Iorio v. Day ( supra, footnote 3).
The same Circuit Court in United States ex rel. Fink v. Reimer, ( supra), said at page 218, "* * * 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 court found that the alien under the identity he assumed could get a preference visa whereas he could not under his true identity. The misrepresentation was found to be material because "those who get their papers by fraud" make the "scrutiny" required of the consul by statute "impossible."
The Second Circuit again in the case of United States ex rel. Iorio v. Day ( supra, footnote 3) held that the failure of an alien to reveal an arrest and conviction for illegal possession of liquor was not material because had he disclosed the true facts the consul would not have been justified in refusing a visa. The court said at page 921 "if what he suppressed was irrelevant (emphasis supplied) to his admission, the mere suppression would not debar him * * * the question * * * at most (is) whether the facts, had he disclosed them, would have been enough to justify the refusal of a visa or exclusion upon entry."
The key to the decisions referred to above is the relevancy of the facts withheld to the issuance of an immigration visa by the consul and the alien's admissibility under the immigration laws. The Immigration Service in Matter of B----, ( supra), took the position that the withholding of information by an alien of the fact that he had been arrested and convicted in France for passing worthless checks was "immaterial to his obtaining an immigration visa and immaterial to his inadmissibility to the United States." We took a similar position in our opinion of August 30, 1955. Both decisions are based upon the premise that further inquiry by the consul was not cut off by the omission because what the alien suppressed was not relevant to either the issuance of the visa or his admissibility under the immigration laws insofar as membership in an excludable class, to wit: criminal, is concerned. We did not say as is inferred in the Assistant Commissioner's motion, nor does Matter of B----, ( supra), the Service opinion, stand for the proposition "that concealment of an arrest or conviction will never invalidate a visa unless the crime was one which involved moral turpitude." There are circumstances where the facts of an arrest and conviction for an offense which does not involve moral turpitude would be relevant to the refusal by the consul of an immigration visa and, therefore, material to the validity of said visa because there are grounds other than criminal which render an alien inadmissible. The precedent cases referred to above which are the basis of the general rule followed administratively for many years recognize this factor ( supra, footnotes 4, 5, 6).
Accordingly, we will reconsider our opinion of August 30, 1955, to determine whether the respondent's arrest and conviction in 1950 for violation of section 722, subparagraph 8, of the Penal Law of New York (footnote),fn1 is relevant to an excludable class of aliens other than criminal. If we find that it is, did the suppression of this fact cut off further inquiry, the results of which might have prompted the consul to refuse to issue the visa because of a prima facie showing that the alien was excludable on grounds other than criminal? The foregoing questions were before the Second Circuit Court of Appeals in all of the cases cited as precedent both by the Immigration Service, opposing counsel, and this Board in its opinion of August 30, 1955. When the evidence before the court dictated affirmative answers, then the misrepresentation and concealment were held to be material as in the Jankowski and Fink cases ( supra). When it did not, the court, within the framework of the general rule, so succinctly stated in the case of United States ex rel. Fink v. Reimer ( supra, at p. 218), held, as it did in the case of United States ex rel. Iorio v. Day, ( supra), that the misrepresentation and concealment were not material.
The Assistant Commissioner in his motion maintains that respondent "by reason of his false representation, induced the consular officer to conclude he had `no reason to believe' the (respondent) was excludable on medical grounds, although a full disclosure would have justified a belief to the contrary." The offense of which the respondent was arrested and convicted in New York State on September 18, 1950, does not render him inadmissible as a criminal alien but it is relevant to a class of aliens excludable at the time of entry on grounds other than criminal, namely, the aliens enumerated in section 3 of the Immigration Act of 1917, as constitutional psychopaths, or those medically debarred. If the respondent had revealed in his visa application that he had been arrested and convicted of the offense here under consideration, the consul undoubtedly would have been put on notice to make further inquiry to determine respondent's admissibility on medical grounds as, for example, a person of constitutional psychopathic inferiority by reason of a sexual deviation. A fortiori, this leads to the conclusion that in the instant case the suppression of the fact that respondent had been arrested and convicted in New York State of the offense of disorderly conduct in that he committed a homosexual act did cut off further inquiry, the results of which might well have prompted the consul to refuse to issue the visa on grounds other than criminal. The misrepresentation and concealment under the cir cumstances presented in this case were material. The respondent's immigration visa presented when he entered at the port of Key West, Florida, on November 19, 1952, was invalid because procured by fraud or misrepresentation of a material fact. An appropriate order will be entered.
Section 2 (f), Immigration Act of 1924 and State Department regulations promulgated thereunder — 22 C.F.R. 42.317, et seq.
This conclusion is supported by exhibit 8, an affidavit from the consul who issued the visa.
Order: It is ordered that the order entered by this Board in the above-captioned case on August 30, 1955, be and the same is hereby withdrawn.
It is further ordered that the alien's appeal from the order entered by the special inquiry officer on March 17, 1955, be and the same is hereby dismissed.