Matter of Martinez-Lopez
| Decision Date | 07 August 1962 |
| Docket Number | Interim Decision Number 1312,A-12650471 |
| Citation | 10 I&N Dec. 409 |
| Parties | MATTER OF MARTINEZ-LOPEZ In DEPORTATION Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
This is an appeal by the examining officer from the order of the special inquiry officer terminating proceedings. The appeal will be dismissed.
The respondent, a 23-year-old single male, a native and citizen of Mexico, was admitted for permanent residence on May 1, 1961, upon surrender of an immigrant visa. The Service claims that this visa was invalid since it was obtained by wilful misrepresentation concerning an offer of employment.
When the respondent applied for a visa, he was told to furnish an affidavit of support and an offer of employment. He obtained the affidavit of support from his brother, a legal resident of the United States, and through correspondence with relatives in the United States, obtained a letter offering him employment as a farm hand. However respondent was told by his relatives that the letter for which he had agreed to pay $350 was one for the record only and that no actual employment should be expected. The letter was in fact a forgery. The respondent states he knew he could not expect employment from the writer of the letter, but did not know it was a forgery. He thought the writer had given the letter as a favor. Respondent was convicted on January 10, 1962, in the United States District Court at Sacramento, California, for conspiracy to violate 18 U.S.C. 1001, by making false statements or knowingly using false writings. (He was sentenced to five years' imprisonment with all but 30 days of the sentence suspended.)
The special inquiry officer sustained neither charge; he ruled that although the forged offer of employment cut off inquiry, it did not relate to a material matter because inquiry would not have resulted in a proper determination that the alien was one likely to become a public charge. The Service Representative contends that since materiality was an element of the crime for which the respondent was convicted, the Board should hold that the misrepresentation was material in the obtaining of the visa. The contention must be dismissed. The Board is not bound by the decision in the criminal case, for there are different tests for materiality in the criminal case and the immigration case. In the immigration case the test of materiality is whether the matter concealed concerned a ground of inadmissibility or a probable inadmissibility (Matter of S---- and B---- C----, Int. Dec. No. 1168). In the criminal case (in those jurisdictions where materiality is required) the test is merely whether the false statement "could affect or influence the exercise of a Governmental function" (United States v. Allen, 193 F. Supp. 954 (S.D. Cal., 1961)).
An analogous situation exists in regard to false statements amounting to perjury in visa and immigration matters. A person could be convicted for perjury for making a material false statement under oath although the same false statement would not necessarily constitute a material misrepresentation in determining whether a visa had been obtained by fraud (Matter of S---- C----, 7 I. & N. Dec. 76, 90). Since the standards of materiality in criminal and civil immigration matters differ, the existence of the conviction here does not preclude the Board from making its own determination as to the materiality of the misrepresentation.
Would the inquiry which was cut off by the submission of the offer of employment have resulted in a proper determination that the alien was excludable as one likely to become a public charge? We think not. When respondent applied for a visa he was 22 years of age. He was sound of body and had about ten years of farming experience. He had no specialized training, but had five years of schooling and apparently planned to seek work for which he was qualified. He spoke no English, but this was no handicap for he would work among people who spoke Spanish. He had about $50 in assets. He had a brother gainfully employed in the United States and he had other close relations who were interested in his welfare and who worked to bring him to the United States. The brother was making $85 a week in permanent employment; he was unmarried; he had been sending money to his family in Mexico, and he was interested in helping his brother. Respondent had previous experience in the United States, having spent about three months here as a contract worker. At that time he worked both in the fields and in a cannery. His services appear to have been satisfactory for he was retained here until his contract was completed. Respondent had no criminal record. (After admission for permanent residence, he secured employment in the United States which was interrupted only by civil and criminal matters connected with his efforts to come to the United States as a permanent resident.)
The examining officer contends that the likelihood of becoming a public charge is not the only ground which must be considered in determining whether the respondent was ineligible for the issuance of a visa and inadmissible to the United States. The examining officer is of the belief that the respondent would have been excludable from the United States as one who admitted the essential elements of a crime involving moral turpitude, for he had conspired to impair the lawful function of a department of the United States in violation of 18 U.S.C. 371, a crime involving moral turpitude (Matter of E----, Int. Dec. No. 1164).
It may well be that as an original proposition, the test for determining whether a visa has been obtained by fraud could have been made dependent upon whether there had been an obstruction of Governmental functions; however, this has not been the test which has resulted from the years of adjudications both administrative and judicial. Historically, the rule has been stated without reference to the obstruction of the Government functions which exist, of course, in each case where there is a misrepresentation concerning a matter within the lawful functions of the Government. The rule which is applied holds that wilful misstatements of an alien made in attempting to obtain a visa bar him from admission (1) if they were material, in which case he is barred because the visa had been obtained by fraud, or (2) if perjury were committed in the attempt to obtain the visa in which case he is barred because he had committed a crime involving moral turpitude. Misstatements which did not amount to perjury (although they did impair the lawful function of a department of the United States) would not serve to make an alien inadmissible (37 Op. A.G. 293, 1933). Congress has not questioned the rule.
We shall continue to determine materiality of misrepresentation and the admissibility of an alien who had made a misrepresentation in immigration matters, not by his liability to prosecution for impairing the lawful functions of a department of the Government, but by the standards set down by the Attorney General in Matter of S---- and B---- C----, supra.
ORDER: It is ordered that the appeal of the examining officer be and the same is hereby dismissed.
The special inquiry officer terminated proceedings; appeal by the examining officer was dismissed by the Board on August 7, 1962. The Service believes that both charges are sustained and requests that the Board reconsider its dismissal. The motion will be denied.
Respondent, a 23-year-old single male, a native and citizen of Mexico, was admitted to the United States for permanent residence on May 1, 1961.
Respondent was convicted on January 10, 1962 in the United States District Court for conspiracy to violate 18 U.S.C. 1001 for making false statements or knowingly using false writings (in connection with an application for a visa) and given a five-year sentence to imprisonment; he served 30 days, the remainder of the sentence was suspended. The Service contends that since materiality was an element of the crime for which respondent had been convicted, materiality should be found present in the deportation proceeding in considering the nature of the misrepresentation which had been made in obtaining the visa. We pointed out in our previous order that the test for materiality is different in the criminal case from the test in the deportation case. The test for materiality in deportation cases, insofar as it relates to the instant case, has two elements—first, did the misrepresentation cut off a material line of inquiry; second, if it did, might an inquiry have resulted in a proper determination that the alien was inadmissible to the United States. Both elements must exist before a misrepresentation may be found material (Matter of S---- and B---- C----, Int....
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