Landon v. Clarke

• Decision Date: 09 January 1957
• Docket Number: No. 5113.,5113.
• Parties: Herman R. LANDON, District Director of Immigration and Naturalization, Respondent, Appellant, v. Elsa CLARKE, Petitioner, Appellee.
• Court: U.S. Court of Appeals — First Circuit

239 F.2d 631 (1956)

Herman R. LANDON, District Director of Immigration and Naturalization, Respondent, Appellant, v. Elsa CLARKE, Petitioner, Appellee.

No. 5113.

United States Court of Appeals First Circuit.

December 17, 1956.

Rehearing Denied January 9, 1957.

Andrew A. Caffrey, Asst. U. S. Atty., Boston, Mass., with whom Anthony Julian, U. S. Atty., Boston, Mass., was on brief, for appellant.

Edward O. Gourdin, Boston, Mass., for appellee.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

HARTIGAN, Circuit Judge.

This is an appeal from an order entered February 17, 1956 in the United States District Court for the District of Massachusetts granting appellee's petition for a writ of habeas corpus and discharging appellee from the custody of the appellant.

The appellee Elsa Clarke, was born at Port Lima, Costa Rica, on November 5, 1918. She lived in Costa Rica with her parents for her first eight years and thereafter went with them to Panama. In 1934 she left Panama and went to Jamaica, British West Indies, where in 1943 she married Webster George Clarke, a British subject. Four children were born of this union, the first in 1944, the last in 1950.

In August 1952 the appellee obtained a Costa Rican passport from the Costa Rican Consul in Kingston, British West Indies. Shortly thereafter she left her husband and children, the circumstances surrounding the departure not being too clear from the record, and went to Costa Rica. According to her own admissions, the appellee falsely represented herself as single and gave her maiden name, Elsa Smith Walcott, so that the Costa Rican Consul in Jamaica would issue her a Costa Rican passport, which he would not have issued had he known of her marriage to a British subject, since by such marriage she also became a British subject.

On December 1, 1953 the appellee applied for an American Immigrant Visa at the United States Consulate at San Jose, Costa Rica. There she executed under oath an Application for Immigrant Visa and Alien Registration in which she falsely gave her name as Elsa Walcott Smith; falsely gave her last permanent residence as Costa Rica; falsely gave her marital status as single; and falsely failed to disclose the existence of her spouse and four minor children.

In support of her application for a visa, appellee submitted to the United States Consul criminal investigation reports from the authorities at Kingston, Jamaica and Limon, Costa Rica, certifying that there was no criminal record against Elsa Walcott Smith and Eliza Walcott Walcott, also known as Elsa Smith, these being variations of her maiden name. No police clearances were submitted by appellee showing her true married name, Elsa Clarke.

On December 6, 1953 appellee entered the United States at Miami, Florida and proceeded to Boston. She was interviewed by an Immigration and Naturalization Service Investigator on June 3, 1954. At this interview, appellee, without the benefit of counsel, admitted that she had knowingly misrepresented her identity, marital status and last residence in her application for a visa to the United States, and she, further, admitted that she had committed adultery in Costa Rica. On the basis of information obtained in that interview a warrant of arrest was issued June 3, 1954, under 8 U.S.C.A. § 1251(a) (1) charging that at time of entry appellee was within one or more of the classes of aliens excludable by the law existing at the time of such entry, specifically, aliens who admit committing acts which constitute the elements of a crime involving moral turpitude, under 8 U.S.C.A. § 1182(a) (9).

On June 22, 1954 and April 20, 1955 further hearings were held by a Special Inquiry Officer. With the benefit of counsel appellee in these interviews repeated the admissions of June 3, 1954. The sworn statement of the latter date was received in evidence and made part of the record without objection.

At the June 22, 1954 hearing there was lodged against the appellee an additional charge under 8 U.S.C.A. § 1251(a) (1), specifically, that at the time of entry she was within one or more of the classes of aliens excludable by the law existing at the time of such entry, to wit, aliens who have procured a visa or other documentation by fraud or by willfully misrepresenting a material fact under 8 U.S. C.A. § 1182(a) (19).

The Special Inquiry Officer found appellee deportable under the second charge, 8 U.S.C.A. § 1251(a) (1) and 8 U.S.C.A. § 1182(a) (19),¹ while dismissing the first charge.

The Board of Immigration Appeals dismissed an appeal to it, brought by the present appellee, and denied a petition for reconsideration of its finding. A petition for a writ of habeas corpus was filed February 8, 1956, and a hearing was held on February 15, 1956. This appeal results from the granting of the writ and the discharging of the appellee from appellant's custody by the order of the district court entered on February 17, 1956.

Since applicable sections of the Immigration and Nationality Act of 1952, 8 U.S.C.A. §§ 1251(a) (1), 1182(a) (19), conjunctly provide that aliens procuring visas or other documentation by fraud or by willfully misrepresenting a material fact are excludable from entry and deportable even after entry, the main issue in this case is the materiality of false representations made by appellee concerning marital status and identity in her Application for Immigrant Visa and Alien Registration.

The appellee's contention, adopted by the district court, is that a misrepresentation made in procuring immigration papers becomes material only when inquiry resulting from the true facts would have been enough to justify the refusal of a visa or exclusion upon entry. Accordingly, appellee argues that since she would have been entitled to a visa under the true facts, that is, as a married woman, her misrepresentations were not material so as to justify deportation.

To sustain this principle the appellee relies heavily on United States ex rel. Leibowitz v. Schlotfeldt, 7 Cir., 1938, 94 F.2d 263. We believe that a close scrutiny of the facts of that case reveals such reliance is unwarranted.

In the Schlotfeldt case, "Leo" Leibowitz, while in Latvia and for the purpose of evading the Latvian draft, adopted the name of his older brother "Feive" Leibowitz some four years before applying for an American immigration visa and some seven years before the visa was granted. Moreover, he used the assumed name so widely in those years that he had in practical effect adopted "Feive" as a trade or business name.

That the Seventh Circuit, in holding that the misrepresentations complained of were irrelevant and did not constitute grounds for deportation, placed great significance on the fact that the original misrepresentation had not been made with the intent to perpetrate a fraud on this Government, is clear from the statement of the court at pages 265, 266 where it said:

"* * * under the circumstances presented, * * * no fraud was intended, and, as a matter of fact, none was perpetrated on this government by appellee in obtaining his immigration visa. Whether the use of such name and age enabled him to escape military service in some other country, we are not directly concerned. * * * Therefore, the misrepresentations complained of were irrelevant and do not constitute grounds for deportation."

The appellee in the instant case misrepresented herself for the first time for the purpose of obtaining a Costa Rican passport which was an essential first step toward the acquisition of an American visa some fifteen months later. Indeed the appellee admitted that her misrepresentations were made for the express purpose of entering this country.² Where misrepresentations concerning identity were made solely for the purpose of entering the United States they have been held material so as to warrant deportation. McCandless, Commissioner of Immigration v. United States ex rel. Murphy, 3 Cir., 1931, 47 F.2d 1072. Cf. United States ex rel. Fink v. Reimer, 2 Cir., 1938, 96 F.2d 217, certiorari denied 1938, 305 U.S. 618, 59 S.Ct. 78, 83 L.Ed. 395.

Although the Reimer case reasserts the rule of the Schlotfeldt opinion in stating that a misrepresentation is not material to the alien's entry, unless it is one which, if known, would have justified a refusal to issue a visa, realistic appraisal of the facts reveals immigrant Fink did have an unexpired visa of his own and therefore might have acquired the necessary papers in his own right. The misrepresentations were made to gain the advantage of a preference quota visa. Likewise, in the case at bar the appellee's misrepresentations were made to gain the advantage of acquiring a visa without an appropriate police investigation of most of her adult life as provided by 8 U.S.C.A. § 1202(b). That she might have obtained a visa on the true facts does not vitiate the fraud. United States ex rel. Jankowski v. Shaughnessy, 2 Cir., 1951, 186 F.2d 580; United States ex rel. Volpe v. Smith, 7 Cir., 1933, 62 F.2d 808, 1933, 289 U.S. 422, 53 S.Ct. 665, 77 L.Ed. 1298 (affirmed without mention of this point.)

But, notwithstanding the difficulty we have in applying the announced principle of the court to the facts of the Reimer case, it can be reasonably concluded from that opinion that the court considered a misstatement concerning identity a material misrepresentation, and, further, that the court considered the Government's right to investigate an incoming alien upon entry as vital to the immigration process. The court in the Reimer case, in this connection, stated in 96 F.2d at page 218:

"* * * They the

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