MATTER of N—
In DEPORTATION Proceedings
A-11500333
Decided by Board October 27, 1961
Misrepresentation-Materiality-Section 212(a)(19)-Failure to reveal arrest
and pending criminal proceeding.
Respondent's willful nondisclosure in his visa application of an arrest three
days earlier on a criminal charge of embezzlement is held to be a material
misrepresentation within section 212(a) (19) of the Immigration and Nationality Act since the consular officer would not have issued the visa if
the facts were known and would have postponed action on the application
until there had been a final disposition of the pending criminal proceeding.
CHARGES :
Order : Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)1—Excludable
at entry under S U.S.C. 1182(a) (19)—vid. inocuit d by fraud or
misrepresentation.
Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1) ]—Excludable
at entry under 8 U.S.C. 1182(a) (20)—Immigrant visa not valid.
BEFORE THE BOARD
DISCUSSION: This case is before us on appeal from the special
inquiry officer's decision of June 30, 1900, directing the respondent's
deportation.
The respondent is a 39-year-old unmarried male, native and citizen of Ireland, who last entered the United States on August 22,
1958, at which time he was admitted for permanent residence as a
quota immigrant. He had not previously resided in this country
but had been here in 1955 for a visit. He was arrested in England
on July 15, 1958, on a charge of embezzlement. The special inquiry
officer found that the respondent willfully misrepresented to the
consular officer, in his visa application on July 18, 1958, that he had
never been arrested. On that basis, he sustained the two charges
stated above. The only issues are whether the respondent is deportable and, if so, whether voluntary departure should be granted.
We have carefully reviewed the entire record. The respondent tes-
tified that from 1935 (when he was about 13 or 14 years old) until
about July 18, 1958, he had been a member of a religious order
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known as the Brother of St. Francis Xavier. During the last nix
years, he had been Secretary of Clapham College. He stated that
as such he was a civil servant employed by the government. The
college was partly supported by government funds although the
property belonged to the religious order.
The respondent testified that he was hired as Secretary of Clapham College by the local education office of the London County
Council ; that the council had sole jurisdiction over this college and
hired and discharged teachers and secretaries; that he received no
salary from the college; that he was an employee of the London
County Council; and that he received from the London County
Council monthly salary checks which were made out in his own name.
He also stated that this salary belonged to him although it was
pooled in one bank account with the salaries received by other
brothers. During the six years that the respondent was Secretary
of Clapham College, his salary checks which were deposited in this
bank account amounted to about 2,000 pounds. He and Brother
Peter (Mr. Poynton) were authorized to draw checks on the account.
Over a period of about six months prior to July 1958, the respondent withdrew approximately 750 pounds from the account but he returned about 550 pounds. On July 15, 1958, he was arrested on a
charge of embezzling 200 pounds from the college. He stated that
he did not consider that he was guilty of embezzlement because the
funds he withdrew for his own use were really his own money that
he had deposited. He testified that after his arrest representatives
of the London County Council inspected his books and cleared him
of any charge of improper conduct or embezzlement and that Mr.
Poynton, the headmaster, who had made the complaint against the
respondent, stated that he was going to drop the charge. However,
the respondent did not produce confirmation of this from Mr. Poynton or any other person, and Exhibit 7 shows that the criminal
charge against the respondent was still pending in February 1960.
When this case was previously before us on July 2, 1959, we directed that the proceedings be terminated. On November 19, 1959,
the Service filed a motion for reconsideration. The Board addressed a letter to the Department of State on December 31, 1959,
with a view of obtaining certain additional information. Following
receipt of a reply from the. Department of State on March 20, 1960,
we entered an order on April 18, 1960, reopening the hearing, and
it is from the special inquiry officer's subsequent decision adverse to
the alien that this appeal was taken.
The respondent again testified during the reopened hearing. The
principal new testimony was that, in addition to withdrawing funds
from the checking account for his use, it was the practice that he
should also withdraw funds upon the request of the other brothers
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who had money deposited in it; that he recorded all the sums withdrawn in the account books; that the books were examined monthly
by his superior; and that it was due to his having recorded the
amounts he had withdrawn that his superior became aware of these
withdrawals.
With the exception of the respondent's testimony, thi , only additional evidence which was made part of the record during the reopened hearing was Exhibit 7. It includes a copy of the respondent's visa questionnaire which was received by the American Visa
Section on May 27, 1958. This contains the respondent's statement
in Item 30 that he had never been arrested, which statement was correct as of that date.
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Exhibit 7 also contains a memorandum dated February 29, 1960,
by the consular officer (L—L--) who interviewed the respondent on
July 18, 1958, and issued the visa to him. In her memorandum,
L—L-- stated that, inasmuch as police records are not available in
the United Kingdom, applicants for visas are questioned very closely
concerning offenses and that each applicant is asked the following
three questions in this connection : "Have you ever been involved
with the police in any way whatsoever? Have you ever appeared
before a police constable, judge cr other law enforcement officer for
any reason whatsoever? Have you even been charged with even a
minor offense such as parking violation or traveling on the railway
without paying the fare?" L—L— then said that the respondent
must have answered "no?' to all of these questions, because if he had
answered affirmatively to any of them "he would have been required
to supply the Embassy with a court record or related documentation."
In a deportation proceeding, the burden of proof is on the Government except that under 8 U.S.C. 1361 the burden of proof is on this
respondent to show the time, place and manner of his entry. These
facts are established by the respondent's immigrant visa. Under
8 U.S.C. 1252(b) (4), no decision of deportability shall be valid unless it is based upon reasonable, substantial and probative evidence.
8 U.S.C. 1182(a) (19) provides for the exclusion of an alien "who
* * * has procured a visa * * * by willfully misrepresenting a material fact." Hence, in order to sustain the first charge stated above,
the Government must establish by reasonable, substantial and probative evidence that the respondent (1) made a misrepresentation,
(2) that it was mado willfully, and (3) that it related to a material
fact.
Counsel asserts that it was error to admit L—L—'s memorandum
in evidence. However, it is well settled judicially that the strict
rules of evidence need not be followed in immigration hearings.
United States ex rel. Ali v. Tod, 264 U.S. 131, 133 (1924) ; United
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8tates ex rel. Impastato v. O'Rourke, 211 F.2d 609 (C.A. 8, 1954),
cert. den. 348 U.S. 827. Accordingly, we hold that there was no
error in the admission of this memorandum.
Counsel also contends that there are certain deficiencies in
L—L 's memorandum and that it has no probative value. It is
true, as counsel asserts, that L—L--'s memorandum was not under
oath ; that it was not signed by her; that she did not state the source
of her information; and that the memorandum is dated over one
and one-half years after the respondent appeared before her for interview. While these technical objections are present, and although
counsel objected to the admission into evidence of L L 's memorandum and the other papers comprising Exhibit 7, he made no
request at the hearing nor in his brief that her testimony be taken
—
—
by deposition or interrogatory. We conclude that this memorandum
constitutes probative evidence that L—L— did ask this respondent
the three questions mentioned above and that he answered in the
negative.
The respondent admitted that his signature appears on the application for immigrant visa, and that this document was executed
by him on July 18, 1958, before the American Vice-Consul at London, England. He also admitted that he was sworn by the consular
officer, but apparently his claim is that he did not know that he
was swearing relative to the truth of the contents of the visa application. The respondent testified that he did not read the visa application; that it was not read to him; that he did not know its contents; and that he was not asked on July 18, 1958, whether he had
ever been arrested. As counsel has asserted, L—L— made no statement in her memorandum as to whether the respondent read the visa
application nor whether it was read to him. However, we had made
no specific request for this information in our letter to the Secretary
of State on December 21,1959 (part of Exh. 7)_
A regulation of the Department of State [22 CFR 42.117 (b)] provides that the applicant shall be required to read the application
for an immigrant visa when it is completed, or that it shall be read
to him in his language or that he shall otherwise be apprised of its
full contents. The prior regulation [22 CFR 42.30(f)] was similar.
There is a rebuttable presumption of official regularity which, under
22 CFR 42.117(14, raises the presumption that the consular officer
informed the respondent as to the contents of the visa application,
including the item concerning arrests. Considering the respondent's
testimony and L—L--'s memorandum in the light of the presumption
mentioned, we hold that the Government has established by reasonable, substantial and probative evidence that the respondent was
sworn to his application for immigrant visa and that he was then
aware that it contained the false statement that he had never been
arrested.
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The respondent knew that he had stated in the visa questionnaire
that he had not been arrested. He does not say that when he subsequently appeared before the consular officer on July 18, 1958, he had
forgotten the arrest which occurred only three days before that, but
he claims only that he did not realize that the consular officer would
he interested in the arrest. We are not persuaded by the respondent's claim and we conclude that the Government has established that
the misrepresentation was made willfully.
The remaining question is whether the misrepresentation related
to a material fact, and we have considered this case in the light of
the Attorney General's decision of October 2, 1961, in Matter of Sand B—C—, 9--436. As we have indicated above, L—L—'s memorandum is to the effect that if the respondent had revealed his arrest,
he would have been required to supply pertinent information from the
court. We believe it is obvious that the consular officer would not
have issued a visa to the respondent if she had known that a criminal
charge of embezzlement was pending against him and that she would
have postponed action on the application until there had been a final
disposition of the criminal proceeding Under these circumstances,
we hold that the respondent's arrest was a "material fact" within the
purview of 8 U.S.C. 1182(a) (19) and we conclude that the first charge
is sustained.
The second charge is that the respondent was excluchble at. entry
because his visa was invalid. Since we have held that the visa was
procured by a willful misrepresentation of a material fact, it follows that the respondent was not in possession of a valid unexpired
immigrant visa as required by 8 U.S.C. 1182(a) (20) and we hold
that the second charge is sustained. The Service apparently contended that any incorrect statement in an application for immigrant
visa renders the visa invalid. In view of the conclusion which we
have reached, it is unnecessary to consider this contention of the
Service and we decline to express any opinion on that point.
The Service insisted during the oral argument that it had not requested a reopening of the hearing and that we did not grant or deny
the motion for reconsideration. Actually, on April 18, 1960, we
specifically ordered that the motion of the Service he granted insofar as it requested reconsideration. Furthermore, the Service had
stated in its motion of November 19, 1959, as well as during the last
oral argument, that we acted prematurely in finding that the Government had not established that there was a willful misrepresentation inasmuch as the special inquiry officer had sustained counsel's
objection to the Government's offer of a telegram dated August 29,
1958, from the American Embassy at London, England. Hence, we
considered it necessary to reopen the hearing for the purpose of
affording the Government an opportunity to again offer this evidence
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and also to incorporate into the record the information which had
been obtained from the Department of State.
In his brief on appeal, counsel stated that certain aspects of the
case had been covered in his two prior briefs and during the hearing.
In accordance with his request, we have taken these into consideration. Although counsel asserts that the statute provides that decisions upon review are to be based solely upon the evidence adduced
at the hearing before the special inquiry officer, he neglected to
furnish any reference to the section on which he relies. "While
8 U.S.C, 1226(a) is to that effect, it relates only to exclusion proceedings whereas the respondent's case is a deportation proceeding.
As to such proceedings, there is no similar statutory provision. In
addition, the new evidence (Exh. 7) and the further testimony of
the respondent were made part of the record in the reopened hearing
before the special inquiry officer who then considered this evidence
and rendered a new decision. Accordingly, we believe that the
procedure followed was proper and this contention of counsel is
dismissed.
Counsel urges that it is the rule in the courts that newly discovered
evidence may be introduced only when it could not have been obtained by reasonable diligence before the order or judgment. Whatever the rule may be in the courts, 8 CFR 3.8 requires only that
motions to reopen shall be supported by affidavits as to the new
facts to he proved, and there is nothing therein which would limit.
it to such facts as could not have been adduced at the original
hearing.
Counsel contends that no statutory authority exists for the Board
to reopen a deportation hearing. 3 U.S.C. 1103(a) provides that the
Attorney General "shall establish such regulations * * as he deems
necessary for carrying out his authority under the provisions of
this chapter." in accordance therewith, .8 CFR 3.1(d) (1) provides
that, with certain exceptions, this Board "shall exercise such discretion and authority conferred upon the Attorney General by law as
is appropriate and necessary for the disposition of the case * * *."
8 CFR 3.2 provides, in part, "The Board may on its own motion
reopen or reconsider any case in which it has rendered a decision,"
and 8 CFR 3.8 sets forth the procedure where a motion to reopen or
to reconsider is filed on behalf of the alien or on behalf of the Service. Accordingly, we reject this contention of counsel.
It is also asserted by counsel that we should not have written to
the Department of State and that, in doing no, we performed an in
vestigative function. We do not regard the writing of a letter to
the Department of State as the performance of an investigative function. In our order of April 18, 1960, we stated that, upon consideration of the motion of the Service dated November 19, 1959, we were
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of the opinion that certain additional information from the Department of State was required. We believe it is apparent from our
letter of December 31, 1959 (a copy of which is part of Exh. 7),
that the information requested had a direct bearing on the issue in
the respondent's case and that it did not .constitute an attempt to
obtain merely information adverse to the respondent. Some of the
information received was advantageous to him For example, the
questionnaire corroborated his testimony that he had submitted this
form prior to his arrest, and that the affidavit of support dated
May 5, 1958, indicates that the consular officer must have been aware
that his immigration to the United States was not being sponsored
by his religious order. 8 CFR 3.1(d) (2) provides that the Board
may return a case to the Service for further action without entering
a final decision on the merits and 8 CFR 3.1(d) (1) confers upon
the Board such authority of the Attorney General as is appropriate
and necessary for the disposition of a case. Under these circumstances, we could have remanded the case to the Service to obtain
the required information from the Department of State, and we
fail to perceive any manner in which the respondent was prejudiced
because the Board instead communicated with that Department.
Hence, we dismiss this contention of counsel. His remaining contentions concerning the issue of deportability are without merit and
do not require specific discussion.
The second issue in this case is whether voluntary departure
should be granted. 8 U.S.C. 1254(e) permits the granting of that
relief if the alien establishes gOod moral character for at least five
years preceding his application. Since we have found that the respondent made a willful misrepresentation of a material fact to the
consular officer on July 18, 1958, we hold that he fails to meet the
good moral character requirement for that reason, and he is not
eligible for voluntary departure. Accordingly, that application will
be denied.
ORDER : It is ordered that the application for voluntary departure
be denied.
It is further ordered that the appeal be and the same is hereby
dismissed
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