Matter of Bosuego

• Decision Date: 08 July 1980
• Docket Number: A-34162475,Interim Decision Number 2732
• Citation: 17 I&N Dec. 125
• Parties: MATTER OF BOSUEGO In Deportation Proceedings
• Court: U.S. DOJ Board of Immigration Appeals

17 I&N Dec. 125

MATTER OF BOSUEGO

In Deportation Proceedings

Interim Decision Number 2732

A-34162475

Board of Immigration Appeals.

Decided by Board October 5, 1979

Decided by Board July 8, 1980

(1) Inasmuch as an alien who falls within the purview of the first clause of section 212(a)(19) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(19), is permanently ineligible for admission to the United States, she may be found to have been excludable under that section at the time of her latest entry, and to be thereby deportable under section 241(a)(1) of the Act, 8 U.S.C. 1251(a)(1), on the basis of misrepresentations made in connection with an application for a visa for an earlier trip to this country.

(2) The circumstances existing at the time the respondent appeared before the consul control in determining whether her representations on her visa application, admittedly made with knowledge of their falsity, concerned facts material to her eligibility for a visa. Matter of Avalos Zavala, 11 I&N Dec. 196 (BIA 1965).

(3) Under Woodby v. INS, 385 U.S. 276 (1966), the ultimate burden of proving all the facts necessary to sustain a determination of deportability must remain with the Government; the element of materiality is a fact crucial to a finding of deportability bottomed on a section 212(a)(19) charge.

(4) In order to sustain its Woodby-imposed burden in the case of an alien not excludable on the true facts, the Service must show that the alien's misrepresentation is material within the meaning of the definition set out by the Attorney General in Matter of S---- and B---- C----, 9 I&N Dec. 436 (A.G.1961), to wit, it tended to shut off a line of inquiry relevant to the alien's eligibility for a visa which might well have resulted in a proper determination that she be excluded.

(5) The Attorney General assigned the alien the burden of persuasion and proof on the question whether the inquiry cut off by the alien's misrepresentation might have resulted in a proper determination that she be excluded. Matter of S---- and B---- C----, id.

(6) Pursuant to the command of Woodby v. INS, supra, only after the Service has shown that facts possibly justifying denial of a visa or admission to the United States would have likely been uncovered and considered but for the misrepresentation is the alien required under Matter of S---- and B--- C----, supra, to establish that no proper determination of inadmissibility could have been made.

(7) Where the true facts concealed by the respondent, that she was a college graduate with a sister residing in the United States, would not in and of themselves have barred her admission as a nonimmigrant and where the record contains no additional facts which would have influenced the consul one way or another in determining whether she was inadmissible as a mala fide nonimmigrant or on section 212(a)(19) grounds, the Service failed to establish a factual foundation for a finding that further inquiry

might well have resulted in a proper determination of inadmissibility and the burden accordingly never shifted to the respondent to show that no such finding could have properly been made. Woodby v. INS, supra, compels conclusion that the Service's case is insufficient to sustain a determination of deportability for failure to establish the materiality of the respondent's misrepresentations.

CHARGES:

Order: Act of 1952—Sec. 241(a)(1), I&N Act [8 U.S.C. 1251(a)(1))] —Secured visa by fraud or misrepresentation of material fact

Sec. 241(a)(1), I&N Act [8 U.S.C. 1251(a)(1))]—Immigrant without valid visa

ON BEHALF OF RESPONDENT: Lyn I. Goldberg, Esquire, 3067 Fifth Avenue, San Diego, California 92103.

ON BEHALF OF SERVICE: Patrick T. McDermott, Trial Attorney

BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members

BEFORE THE BOARD

(October 5, 1979)

In a decision dated June 16, 1977, an immigration judge found the respondent deportable as charged pursuant to section 241(a)(1) of the Immigration and Nationality Act, 8 U.S.C. 1251(a)(1), as an alien excludable at entry under section 212(a)(19) of the Act, 8 U.S.C. 1182(a)(19), for having procured a visa by willfully misrepresenting material facts.¹ He further found that relief under section 241(f) of the Act, 8 U.S.C. 1251(f), is not available to the respondent. The immigration judge certified his decision to the Board for review pursuant to 8 C.F.R. 3.1(c). The proceedings will be terminated.

The respondent is a 41-year-old female alien, a native and citizen of the Philippines. The record reflects that she entered the United States in December of 1967 in possession of a C-1 nonimmigrant transit visa. She remained longer than authorized. At a deportation hearing held in March of 1970, an immigration judge found the respondent deportable as an overstay pursuant to section 241(a)(2) of the Act, 8 U.S.C 1251(a)(2), but granted her 30 days within which to voluntarily depart the United States in lieu of deportation. She apparently left this country within the allotted time.

In January of 1972, the respondent was married in the Philippines to a United States citizen who is a native and resident of the Philippines. She was thereafter issued an immigrant visa predicated upon her status as an immediate relative of a United States citizen and she entered the United States with that visa in late December 1972.

At these deportation proceedings, conducted in May of 1977, the Service introduced into evidence sworn statements of the respondent, executed on November 24, 1969, and on August 23, 1976, in which she admitted that she had misrepresented certain facts to United States consular officials on two separate occasions. According to her affidavits, the respondent informed the consul at the time she applied for her nonimmigrant transit visa in 1967 that she had no close family ties in the United States and that she had not yet completed her college education when she in fact had a sister residing in this country and had already received her college degree. When she applied for her immigrant visa in 1972, she deliberately concealed her prior residence in this country from 1967 to 1970. The respondent testified at the hearing to the truth and accuracy of those statements (Tr. pp. 10, 12). The Government thereupon rested its case as to deportability (Tr. p. 13).

The immigration judge found that the respondent's misrepresentations in applying for her immigrant visa in 1972 were not material and therefore could not serve as the basis of a finding of deportability. However, he found that the respondent was excludable under section 212(a)(19) at the time of her entry as an immigrant in 1972, and is thereby deportable under section 241(a)(1) of the Act, on the basis of her 1967 statements to the consul.² The question before us, then, is whether the Government has established by the requisite standard of proof that the respondent's statements in connection with her 1967 nonimmigrant visa application, admittedly made with knowledge of their falsity, concerned facts material to her eligibility for a visa. We conclude that the Government has not sustained its burden.

The materiality requirement of section 212(a)(19) is satisfied if either (1) the alien is excludable on the true facts or (2) the misrepresentation tends to shut off a line of inquiry which is relevant to the alien's eligibility and which might well have resulted in a proper determination that he be excluded. Matter of S---- and B---- C----, 9 I&N Dec. 436 (BIA 1960; A.G.1961). The circumstances existing at the time the alien appeared before the consul are controlling.

[T]he important factor is how the case would have appeared to the consul had he been in possession of all the facts at the time application was made. If having been in possession of all the facts, it would have appeared probable to the consul that respondent was inadmissible, then concealment of those facts was a material matter. Matter of Avalos Zavala, 11 I&N Dec. 196, 199 (BIA 1965).

Had the respondent in the instant case been truthful when she applied for her nonimmigrant transit visa in 1967, the consul would have known that she was then a college graduate who had a sister residing in the United States. The likelihood that knowledge of those facts would have led to a finding that the respondent was inadmissible as a mala fide nonimmigrant or on section 212(a)(19) grounds³ is, however, undeterminable from the record before us. The record contains no reference whatever to other pertinent factors, such as the presence or absence of family and community ties in the Philippines at the time of application, which would have influenced the consul's determination with respect to the respondent's bona fides as a nonimmigrant. See Vol. 9, Foreign Affairs Manual, Part II, 22 C.F.R. 41.25, note 2. No attempt was made by the Service to develop the relevant facts in existence when the respondent presented herself before the consul and, absent any such development, we are unable to evaluate the effect of her misrepresentations upon the consul's decision to issue her nonimmigrant visa.

We obviously do not condone the respondent's repeated, deliberate deceptions in her dealings with officials of the United States Government. However, the burden is on the Government in deportation proceedings to prove each element of the ground of deportability charged by clear, unequivocal, and convincing evidence. Woodby v. INS, 385 U.S. 276 (1966). In light of our conclusion that the Service has failed to establish the materiality of the respondent's misrepresentations, a showing crucial to a finding of excludability under both section 212(a)(19) and section 212(a)(20) in this case, we have no alternative but to terminate the proceedings. We accordingly need not reach the issue of the respondent's eligibility for relief under section 241(f) of the Act.

ORDER: The deportation proceedings are terminated.

ON BEHALF OF RESP...