A-8613142
Decided by Board August 30, 1957
Fraudulent marriage to obtain nonquota visa — Charge based on section 241 (c) of the act of 1952 should not be used in exclusion proceedings — Charge in exclusion proceedings should be under section 212 (a) (19) or under section 212 (a) (20) of the act.
(1) An alien seeking entry as a returning resident in 1957 who had gained admission to the United States in 1954 as a nonquota immigrant based on a marriage contracted solely for the purpose of evading the quota limitations of the 1952 act (which marriage was annulled ab initio on the ground of fraud in 1956) is excludable under section 212 (a) (19) of the act on the ground that he obtained an immigrant visa by fraud.
(2) His marriage having been annulled ab initio on the ground of fraud, he is also excludable under section 212 (a) (20) of the act since he was actually a quota immigrant at the time of his entry in 1954 and was not then entitled to admission with a nonquota immigrant visa.
(3) The contention that this alien is further excludable under section 241 (c) of the act on the theory that if admitted he would immediately become deportable is rejected. In an exclusion proceeding reliance should not be placed on a ground of deportation.
EXCLUDED:
Act of 1952 — Section 212 (a) (19) ( 8 U.S.C. 1182 (a) (19)) — procured visa by fraud.
BEFORE THE BOARD
Discussion: This case is before us on appeal from a decision of a special inquiry officer directing the appellant's exclusion and deportation from the United States.
The appellant is a 31-year-old single male, native and citizen of Spain, who arrived in the United States on March 26, 1957, and applied for readmission as a legally resident alien crewman. Prior to the completion of the exclusion hearing, the appellant was permitted to make an additional voyage as a seaman and he stated on April 22, 1957, that he had returned from this trip on April 17, 1957. He was admitted for permanent residence on January 29, 1954, as a nonquota immigrant based upon his marriage to M---- P----, a United States citizen, on April 9, 1953. Upon an action subsequently instituted by the appellant's wife, an interlocutory judgment annulling the marriage was entered and this judgment became final on May 29, 1956. The appellant worked ashore from January to November 1954, and since that time has been employed as a seaman.
The issues to be determined are whether the appellant is excludable and, if so, whether certain relief requested by counsel should be granted.
The appellant's marriage to M---- P---- was his only marriage. She was born in Cuba on November 14, 1911, and is almost 14 years older than the appellant, but he stated that she appeared about 10 years younger than her actual age at the time of the marriage. She had been married twice before and her 2 children are now 18 and 17 years old. She became a naturalized citizen in March 1950.
The appellant apparently had first become acquainted with M---- P---- about 15 days to 4 weeks prior to the marriage. The marriage occurred on April 9, 1953, and the appellant was then in the United States pursuant to an admission as a seaman on January 26, 1953, and he had been granted until April 17, 1953, within which to depart. He departed on April 12, 1953, and immediately thereafter his wife filed a visa petition on his behalf. Between April 9 and 12, 1953, the appellant and his wife lived together and had sexual intercourse. His next return to the United States was on January 29, 1954, when he was admitted for permanent residence as a nonquota immigrant. Following this return, the appellant and his wife spent approximately 3 weekends together in a hotel in New York City after which they separated and there was no further cohabitation.
The appellant testified that he married his wife because he loved her and that the marriage was not for the purpose of obtaining entry as a nonquota immigrant. His explanation for the discontinuance of the marital relationship in February 1954 was that his wife wanted to continue to live in Wantagh, Long Island, New York, with her brother's family; that this was too far from New York City where he expected to secure employment and her brother's home was too crowded; and that his wife was unwilling to move to an apartment in New York City. He accused her of desiring only abnormal sexual relations. M---- P----'s testimony is to the effect that she was unwilling to continue the original practice of spending the weekends with the appellant in a hotel and that she tried to persuade him either to live with her at her brother's home or to obtain an apartment for them in New York City. There is some corroboration for M---- P----'s testimony because since about 1955 she has been living in an apartment in New York City and she testified that she moved to the apartment because of an expected reconciliation with the appellant.
M---- P---- testified in the annulment proceeding that she intended a bona fide marriage; that the appellant had asserted his love for her prior to the marriage; and that about 3 weeks after his return to the United States he stated that he did not love her, that she was too old for him, and that he only married her in order to be able to come to the United States. C---- D---- testified in the annulment proceeding that she was a friend of M---- P----; that she met the appellant on 3 occasions; that the first occasion was prior to the marriage when he had asserted his love for M---- P----; that the second was a chance meeting in March 1954 at which time he stated that he no longer loved M---- P---- and had married her only to come to the United States; and the third meeting was in June 1955 when the appellant made a similar statement at the time she served him with the summons in the annulment proceeding.
The third witness in the annulment proceeding was the attorney who was M---- P----'s counsel in that action. He testified that he had prepared the visa petition on behalf of the appellant and that about March or April 1954 the appellant came to his office at which time it developed that he was not living with his wife. The attorney testified that, when he inquired as to the reason why they were not living together, the appellant said, "Well, you know what the racket is, the Spanish seamen all know they have to marry American citizens to emigrate into the United States."
The appellant's testimony in the exclusion proceeding was heard by a special inquiry officer at Boston, Massachusetts. In order that the appellant's counsel might have the opportunity of cross-examining the 3 witnesses who had testified in the annulment proceeding, they were required to appear before another special inquiry officer in New York City where these witnesses reside. Counsel contended that the special inquiry officer, who rendered the decision excluding the appellant, treated the testimony of the New York City witnesses as though he had personally heard them. In accordance with Matter of B----, A-4284259, Int. Dec. No. 785 (Atty. Gen., 1956), this Board is authorized to determine issues of fact. We have considered the testimony at the annulment proceeding and the testimony before the special inquiry officer in New York City and we find nothing in the latter testimony which would cause us to doubt the testimony they had given in the annulment proceeding.
Counsel argued that the testimony of C---- D---- L---- was not credible. She testified that she and M---- P---- shared an apartment together and that the appellant never lived with M---- P---- after his return for permanent residence. Counsel asserted that M---- P---- testified that she and the appellant lived at this apartment for 3 or 4 weekends immediately after the appellant's arrival on January 29, 1954, and that the testimony of C---- L---- to the contrary is, therefore, not credible. Actually, M---- P---- did not testify that the appellant lived with her at this apartment, and both she and the appellant testified that during January and February 1954 they spent a few days or weekends at a hotel in New York City (exh. 3, p. 3; exh. 4, pp. 3-4). As late as September 24, 1954, the appellant testified that M---- P---- was still living with her father in Wantagh, Long Island, and on April 22, 1957, M---- P---- indicated that she had only been living at the apartment for 2 years (exh. 3, p. 2; exh. 11, p. 27). M---- P---- and C---- L---- shared the apartment for 8 months and this was long after the short period or periods when M---- P---- and the appellant cohabited in January and February 1954. Hence, we do not believe that C---- L----'s testimony is discredited.
In the caption of the special inquiry officer's opinion there is a reference to section 241 (c) of the Immigration and Nationality Act ( 8 U.S.C. 1251 (c)), and on page 5 of the opinion the special inquiry officer stated that he preferred to place his decision on the second paragraph of 8 U.S.C. 1251 (c) and that before the appellant could be found excludable there must be established the 2 elements in that statutory provision, that is, that the marital agreement was made for the purpose of procuring entry as an immigrant and that the appellant failed or refused to fulfill the marital agreement. However, the special inquiry officer properly based his conclusion of law as to excludability not on 8 U.S.C. 1251 (c) but on 8 U.S.C. 1182 (a) (19).
During the oral argument, it was urged by the Service representative that reliance on 8 U.S.C. 1251 (c) was permissible in accordance with Matter of V----, 56096/451, 1 IN Dec. 293 (1942). That alien had been convicted of a narcotic violation and was applying for admission to the United States. If he had been in this country he would have been amenable to deportation under the Act of 1909, as amended, because of the conviction, and we held that he was excludable under section 3 of the Immigration Act of 1917, although the latter statutory provision did not specifically state that a narcotic conviction should be a ground of exclusion. Since the Immigration and Nationality Act sets forth separately the grounds for exclusion and the grounds for deportation, we do not believe that, in an exclusion proceeding, reliance can be placed on 8 U.S.C. 1251 (c) which is a ground of deportation.
The special inquiry officer specifically found that the appellant failed and refused to fulfill his marital agreement, and we concur in this finding of fact. This would be a determining factor if this were a deportation proceeding under 8 U.S.C. 1251 (c) but, since that statutory provision is not involved, the crucial factual issue is actually whether the appellant procured his immigrant visa by fraud or by willfully misrepresenting a material fact. In other words, was there fraud or misrepresentation by the appellant on January 13, 1954, when he secured the immigrant visa? Of course, the fact that he failed to fulfill his marital agreement is an element to be considered in determining whether there was fraud on January 13, 1954.
Under 8 U.S.C. 1361 the burden of proof is on the appellant to establish that he is not subject to exclusion. After careful review of the record, it is our considered opinion that on April 9, 1953, the appellant contracted marriage fraudulently with M---- P---- for the sole purpose of evading the quota restrictions of the Immigration and Nationality Act; that he had no intention of entering into a bona fide marital relationship; that this fraudulent intention continued to exist at the time he procured his immigrant visa on January 13, 1954; and that he, therefore, procured that visa by fraud.
Counsel cited Matter of G---- G----, A-8949107, Int. Dec. No. 784 (1956). That decision is not in point since it deals with what constitutes "willfully misrepresenting a material fact" whereas the special inquiry officer and this Board have found the appellant inadmissible on the ground that he procured his visa by fraud.
During the oral argument, the Service representative urged that the appellant should also be found inadmissible under 8 U.S.C. 1182 (a) (20) as an immigrant who is not in possession of a valid unexpired immigrant visa or other entry document. Since the appellant is not classifiable as a nonimmigrant, it is clear that he is an immigrant in accordance with 8 U.S.C. 1101 (a) (15). He claims exemption from the requirement of an immigrant visa by virtue of his admission for permanent residence on January 29, 1954. The Service, relying on In re Moncrief's Will, 235 N.Y. 390, 139 N.E. 550 (1923), contends that the annulment of the marriage on the ground of fraud rendered the marriage void ab initio; that the appellant was, therefore, never the husband of a United States citizen; that he was actually a quota immigrant instead of a nonquota immigrant on January 29, 1954; and that he was not lawfully admitted to the United States at that time.
In Matter of M----, A-3697183, 3 IN Dec. 25 (1947), and Matter of B----, A-3170648, 3, I. . N. Dec. 102 (1947), we refused to hold nonquota visas invalid where the marriages had been annulled in New York since we found that the aliens involved were not guilty of fraud in contracting the marriages. We have concluded that the appellant contracted his marriage with M---- P---- fraudulently for the purpose of procuring entry as an immigrant. Under these circumstances, we conclude that the appellant's marriage was annulled ab initio; that he was not entitled to admission as a nonquota immigrant on January 29, 1954; and that he is inadmissible under 8 U.S.C. 1182 (a) (20).
Counsel stated that if the appellant's admission could not be authorized, voluntary departure was requested with a provision for readmission to the United States when in possession of an immigrant visa. However, since the appellant has been found inadmissible under 8 U.S.C. 1182 (a) (19) as an alien who procured a visa by fraud, it would seem that he would again be excludable under that statutory provision if he reapplied for admission in the future. With respect to counsel's request that the appellant be permitted to enter temporarily in the future as an alien crewman in pursuit of his calling, our action in this case will not preclude the alien from applying for exercise of the discretionary authority contained in 8 U.S.C. 1182 (d) (3). As a further alternative, counsel requested that the hearing be reopened in order that he might take action with a view of having the annulment decree set aside. We do not believe that counsel has set forth any valid basis which would warrant reopening of the hearing.
In view of the foregoing, the appeal will be dismissed. The special inquiry officer concluded that the appellant was inadmissible under 8 U.S.C. 1182 (a) (19) and we have concluded above that he is also inadmissible under 8 U.S.C. 1182 (a) (20). However, the appellant's exclusion will not be ordered on the latter ground since it was not considered by the special inquiry officer.
Order: It is ordered that the following finding of fact of this Board be substituted in lieu of the special inquiry officer's finding numbered 6:
(6) That the appellant fraudulently entered into the marriage for the purpose of procuring his entry into the United States as an immigrant without any intention of engaging in a bona fide marital relationship, and that such fraudulent intention continued up to the time he procured his immigrant visa on January 13, 1954.It is further ordered that the alien's appeal be dismissed and that the special inquiry officer's order of exclusion be affirmed.