Matter of S----

• Decision Date: 02 October 1961
• Docket Number: A-11460920,A-10633389.
• Citation: 9 I&N Dec. 436
• Parties: MATTER OF S---- AND B---- C----. In EXCLUSION and DEPORTATION Proceedings.
• Court: U.S. DOJ Board of Immigration Appeals

9 I&N Dec. 436

MATTER OF S---- AND B---- C----.

In EXCLUSION and DEPORTATION Proceedings.

A-11460920

A-10633389.

Board of Immigration Appeals.

Decisions by Board June 2, 1960.

Decided by the Attorney General October 2, 1961.

Misrepresentation — Section 212(a)(19), 1952 act — Criteria for determining materiality.

(1) A misrepresentation under section 212(a)(19) of the Act is material if either (A) the alien is excludable on the true facts, or (B) 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.

(2) The same test for determining materiality is applicable to misrepresentations involving identity, which are no longer to be accorded a special status.

(3) Where it is shown that the alien's misrepresentation choked off a relevant line of inquiry which might have resulted in a proper determination of excludability, the alien has the burden of establishing the true facts and bears the risk that uncertainties resulting from his own obstruction of the inquiry may be resolved against him.

EXCLUDABLE: Act of 1952 — Section 212(a)(19) [8 U.S.C. 1182(a)(19)] — Visa procured by fraud. (S----)

Act of 1952 — Section 212(a)(28)(I)(i) [8 U.S.C. 1182(a)(28)(I)(i)] — Member of Communist Party of foreign country. (S----)

DEPORTABLE: Act of 1952 — Section 241(a)(1) [8 U.S.C. 1251(a)(1)] — Excludable at time of entry as alien who has procured a visa or other documentation by fraud or misrepresentation. (B---- C----)

BEFORE THE BOARD

(June 2, 1960)

In re: Matter of S----

DISCUSSION: The special inquiry officer ruled that the applicant is admissible to the United States. The District Director, Buffalo District, believes that the applicant is inadmissible on the first ground stated above and has filed this appeal. It will be dismissed.

The applicant, a resident of Canada, a 32-year-old male, a native of Yugoslavia, last a citizen of Hungary, now stateless, seeks entry as a visitor. He admits that he was a member of the Communist Party of Hungary from December 1947 to October 1956, but claims that he was not a voluntary member. He did not reveal his membership to the consul when he applied for the nonimmigrant visa which he now has.

The issue is whether the concealment of membership was material.

The special inquiry officer found that the membership was involuntary; he, therefore, held that it did not constitute a ground of inadmissibility. He found that the concealment of membership had been willful, but ruled that the concealment did not constitute a bar to entry because it was not material (it had not hidden a ground of inadmissibility). The District Director agrees that membership is involuntary but has filed this appeal in the belief that the concealment is material, since, in his opinion, the record establishes that the consul would have refused to issue a visa had he known of the membership.¹

The applicant's uncontradicted explanations of the manner in which he became a member of the Communist Party follow: In 1947, when he was about 17 years of age, he was attending school in Hungary. His parents had been taken to Germany as forced laborers and he was alone. The fact that his parents were in the West put him in a class which was regarded with suspicion. He was receiving a government allowance while attending school (p. 2 Exh. 4) and was living in a government dormitory where he also received board. In 1947 the Communist Party took control of the Government and its educational facilities, and he was told that if he desired to stay in the dormitory he would have to join the Communist Party (p. 3, Exh. 4). He was also informed that he would not be permitted to attend college if he were not a member of the Communist Party and that if he wished to get an allowance or be admitted to the dormitory he or someone in his family would have to be a member of the Party. The applicant then joined; he received free food and lodging and was permitted to continue his studies.

The applicant testified he was an inactive member going to meetings only when brought, that he attended meetings about three or four times a year, that he had no official position, that he never attended indoctrination school of the Communist Party, that he never made speeches or gave any lectures with regard to communism, that his only study of the communist political theory of government had been when it was given to him at school, and that he had never subscribed to any communist publication in Hungary or any other country (p. 4, Exh. 4). He stated that he did not believe in the communist philosophy and that he had been a member of no other unit or group of the Communist Party other than the Communist Party itself. The applicant stated that he saw no harm in joining the Party because its true purpose was masked, and it had been working with and apparently receiving the approval of the Western powers. In the second year of attendance at the university, he realized the nature of the Party but continued with his membership because he had to in order to finish his studies and protect himself. He stated that at the first available opportunity, he fled the country. He testified that if he had been able to continue as a student without joining, he would not have joined the Communist Party (pp. 9, 12; p. 3, Exh. 4). In 1953, the applicant finished his school and took a position in a research institute. He remained a member of the Party until he fled from Hungary. During the Hungarian revolution, the applicant states he was a freedom fighter.

Now we shall consider whether the applicant's failure to reveal that he had been a member of the Communist Party made the visa he received one obtained by fraud. The rule to be applied is that:

a misrepresentation is not material, when made during proceedings for admission into the United States, if the alien would not have been denied a visa or excluded had he told the truth. [Matter of G----M, 7-40, Atty.Gen., Apr. 2, 1956, p. 74]

Because it is disturbing that one who deliberately conceals the truth should not be penalized for his act, it should be made clear that the administrative rule is not a matter of policy but is one based on judicial mandate which does not permit too much leeway. Because some confusion has been brought about by recent judicial pronouncements, we shall briefly state our understanding of the situation.

Leading the list of the authorities relied upon by the Attorney General in making the statement we have quoted is the case of United States ex rel. Iorio v. Day, 34 F.2d 920 (C.A. 2, 1929). It is the mandate of this case which has been paraphrased by the Attorney General. It is a mandate which until recent years was not questioned by the courts and while it now has its judicial critics, it has not lost its judicial defenders. Iorio entered as an alien in 1902. He paid several fines for liquor violations and was imprisoned for illegal possession of liquor. In 1926 he went to Italy on a visit. There he obtained a visa which in 1927 he used to reenter the United States. In procuring the visa, he stated under oath that he had never been imprisoned. After his return he regularly engaged in the illicit sale of liquor. The Service attempted to deport him on the charge, among others, that he had procured his visa by fraud by swearing that he had never been imprisoned. The court held the ground of deportation was bad in law, stating (at p. 921) that "It is true that the relator was bound to tell the truth on his application, but, if what he suppressed was irrelevant to his admission, the mere suppression would not debar him. Doubtless it might be made to do so, but we cannot find that it has been. So the first question comes down at most to whether the facts, had he disclosed them, would have been enough to justify the refusal of a visa or exclusion upon entry." The court concluded that since the violation for which respondent had been imprisoned did not involve moral turpitude, i.e., was not a ground of inadmissibility, Iorio had not suppressed "facts which would have justified him [the vice consul] in refusing a visa, had he disclosed them ***" (p. 921).

If there are any doubts from the discussion in Iorio that the facts which would have been enough to justify refusal of a visa or exclusion upon entry are those which reveal a ground of inadmissibility, United States ex rel. Teper v. Miller, 87 F.Supp. 285 (S.D.N.Y., 1949), the latest case cited by the Attorney General in support of his rule should lay them at rest. Teper clearly reveals that a suppressed fact is material only if the fact suppressed was a ground of exclusion under the law. The issue then is not, as the District Director sees it, whether a consul would have refused a visa; rather, it is whether a proper refusal could have been made (In re Field's Petition, 159 F.Supp. 144, 147 (S.D.N.Y., 1958)).

In an effort to reconcile decisions in apparent conflict with Iorio, we do not read Iorio and the cases adhering to it as finding materiality only where an alien was excludable at the time of entry — in some cases it is proper to establish that the alien was probably excludable. Where the claimed ground of inadmissibility is based on defects in the personality — matters which cannot be established with scientific certainty — or where Congress made a ground of inadmissibility dependent upon the "opinion" of a consul, or where judgments must be formed as to whether an alien seeks to enter for purposes inimical to the welfare of the nation, then it is sufficient to establish that grounds for the proper refusal of a visa probably existed (United States v. Flores-Rodriguez, 237 F.2d 405 (C.A. 2, 1956); Matter of C---- T---- P----, 8-134).

In 1956 the Service, in the belief that United States ex rel. Jankowski v. Shaughnessy, 186 F.2d 580 (C.A. 2, 1951), had disapproved Iorio, pressed for a rule declaring the...