Matter of Hui, Interim Decision Number 2378
| Citation | 15 I&N Dec. 288 |
| Decision Date | 07 April 1975 |
| Docket Number | Interim Decision Number 2378,A-20019215 |
| Parties | MATTER OF KAI HING HUI In Deportation Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
The Service appeals from the grant of adjustment of status to that of a lawful permanent resident alien, under section 245 of the Immigration and Nationality Act. The appeal is sustained. Respondent gained entry into the United States by using a nonresident alien Mexican border crossing card which he obtained by misrepresenting his identity, date and place of birth and nationality. He is therefore excludable under section 212(a)(19) of the Act because he obtained his entry document by wilful misrepresentations of material facts, and does not merit the favorable exercise of discretion for adjustment of status.
CHARGE:
Order: Act of 1952 — Section 241(a)(2) [8 U.S.C. 1251(a)(2)] — Nonimmigrant visitor — remained longer than permitted.
ON BEHALF OF RESPONDENT: Jack Wong Sing, Esquire Chow and Sing 550 Montgomery Street San Francisco, California 94111.
ON BEHALF OF SERVICE: Irving A. Appleman Appellate Trial Attorney Stuart Shelby Trial Attorney.
This is an appeal by the Service from a decision of an immigration judge dated December 12, 1972 granting the respondent's application for status as a permanent resident under section 245 of the Immigration and Nationality Act. The appeal will be sustained.
The respondent is a 43-year-old native of China who last entered the United States on June 14, 1970 with a nonimmigrant alien Mexican border crossing card which had been issued to him in 1967 upon his application which was based on a false identity. The respondent had entered Mexico in 1948, when he was 18 years of age, with a false Mexican passport obtained for him by his father. At the deportation hearing, the respondent conceded his alienage and deportability as an overstayed visitor.
The respondent's naturalized United States citizen sister petitioned to have him classified as a fifth preference alien on August 14, 1970. The petition was granted on January 2, 1971. The respondent's application for permanent resident status, however, was denied by the district director on the ground that the respondent was excludable from the United States under section 212(a)(19) of the Act as an alien who had obtained his entry into the United States by fraud or wilful misrepresentation.
The alien renewed his application for section 245 relief before an immigration judge. The immigration judge concluded that the respondent was not inadmissible under section 212(a)(19) of the Act, and granted him adjustment of status pursuant to section 245. The Service has appealed this grant.
On appeal the Service contends (1) that the respondent is excludable as one who has procured a visa or other documentation, or entry into the United States by wilfully misrepresenting a material fact within the meaning of section 212(a)(19) of the Act; and (2) that the respondent is ineligible to receive a visa and is therefore not statutorily eligible for section 245 relief.
The sole issue before us is whether the respondent's misrepresentations of his identity, date of birth, nationality, and place of birth in obtaining a nonresident alien Mexican border crossing card is material within section 212(a)(19) of the Act.
In Matter of S---- and B---- C----, 9 I. & N. Dec. 436, 448-449 (A.G.1961), the Attorney General, in discussing whether a misrepresentation is material, stated:
The test of materiality which in my judgment will best effectuate the objectives of the Act is the following: A misrepresentation made in connection with an application for visa or other documents, or with entry into the United States, is material 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....
In applying for the nonresident alien Mexican border crossing card the respondent certified that his name was Fernando Chee Acevedo, that his date of birth was May 1, 1929, and that he was born in Chihuahua, Mexico. The "true" facts are that the respondent's name is Kai Hing Hui and that he was born on December 14, 1930 in China. As a citizen of China he was ineligible for a nonresident alien Mexican border crossing card, use of which is limited to Mexican nationals (8 CFR 212.6).
The immigration judge...
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