C
Section 211 (c) and (d) waiver will not be exercised in favor of 20-year-old Italian girl who was married a few days before departing for United States after having signed statement in Italian and English (attached to her third preference quota visa) placing her on notice that marriage prior to entering the United States would invalidate the visa.
CHARGE:
Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)]—Excludable at entry as not of proper status under quota specified in immigrant visa under section 211(a) (4).
BEFORE THE BOARD
Discussion: Respondent is 20 years old, married, female, a native and citizen of Italy. Her only entry into the United States was at New York on April 20, 1959, at which time she was admitted for permanent residence upon presentation of a third preference quota immigrant visa issued to her by the United States Consulate, Naples, Italy, as the unmarried minor child of a permanent resident alien. The special inquiry officer found respondent to be deportable on the charge stated in the order to show cause and granted her voluntary departure with an automatic order of deportation in the event she fails to depart. Respondent appeals to this Board.
The record shows that at the time respondent filed her application for an immigrant visa at the American Consulate, and at the time it was issued to her on February 5, 1959, she was the unmarried daughter of a legally resident alien. At that time she was entitled to a third preference visa under
There are two issues in this case: (1) Is respondent deportable on the charge stated? (2) Is respondent eligible for the discretionary relief provided in section 211(c) and (d) of the act? We find, first, that respondent is deportable on the charge stated in the order to show cause.
The definition section of the
Counsel contends that there is no provision in section 241 for deporting an alien in respondent‘s position.
The briefs of counsel have gone extensively into the matter of respondent‘s good faith, whether or not the marriage was consummated, and whether or not the record establishes that respondent was on notice that marriage prior to entry would disqualify her from using her third preference visa. The Board has taken the view consistently in these cases that even if the holder of such a visa does not know that marriage invalidates his visa, and practices no fraud or concealment, he is deportable. He is not of the “proper status under the quota specified in the immigrant visa,” as required by
The only reported decision of this Board concerning a marriage
Counsel quotes from United States ex rel. Leibowitz v. Schlotfeldt, 94 F.2d 263 (C.A. 7, 1938), in support of his application. The court in that case repeatedly stated that the “appellee would have been entitled to a quota visa if his correct name and age had been stated,” and he “was within the quota provisions and otherwise met the prescribed requirements to enable him to effect a legal entry.” The case cited is not applicable to the instant proceeding. Respondent became ineligible for the status claimed in the visa issued to her.
The matter of good faith does go to the question of whether the Board will act favorably on respondent‘s petition for favorable exercise of the discretion under
Counsel submits that the “Marriage Declaration” is not prescribed or authorized by the immigration act and is of no binding force. The device of the marriage declaration has no legal significance, of course, except that it is additional evidence that notice was given
The marriage declaration is intended to emphasize the statement set forth in the visa, paragraph 30, “I claim to be a third preference quota immigrant and my claim is based on the following facts: Minor unmarried daughter of an alien lawfully admitted to the United States for permanent residence.” Paragraph 31 lists the documents required by the
Counsel ridicules the suggestion that the “immigrant examines, scrutinizes and remembers” the documents he is asked to sign, and states that the immigrant signs all papers requested and, evidently, never looks at them again. The travel documents were in the hands of respondent for more than 2 months prior to her marriage. Counsel criticizes the wording of the “Marital Declaration.” Certainly it must be admitted that it is awkwardly phrased. The fact remains that it should be enough of a warning to have put a literate person on notice that marriage following the issuance of the visa, but prior to her entry into the United States, would in some way seriously affect her immigrant status, even if the other statements and declarations in her visa regarding her unmarried status had made no impression upon her.
The facts of the case are not as they would be if the documents had been signed by respondent and returned to a Government official, so that she did not see them from the time she signed them until the time she applied for admission into the United States. She stated at her hearing that she signed all the documents without stopping to read them. However, in her preliminary statement (Ex. 6, p. 3) she said that she thinks she read the document but cannot remember; she only remembers signing it.
We fail to see where counsel derives comfort from Clarke v. Landon, 139 F. Supp. 113 (D. Mass., 1956), or from Landon v. Clarke, 239 F.2d 631 (C.A. 1, 1956). The instant case falls under the rule that if the misrepresentation had been known at the time of respondent‘s entry into the United States, she would have been denied use of the visa in her possession.
We find that this is not an appropriate case for the favorable exercise of the discretion provided in section 211(c). Respondent has not established to our satisfaction, as required by the statute, that her inadmissibility under the preference visa issued to her “was not known to and could not have been ascertained by the exercise of reasonable diligence by” her, prior to the departure of her vessel from Italy for the United States. On the contrary, it is our opinion that she is a person who is able to comprehend the meaning and effect of the documents placed before her. The special inquiry officer has granted respondent voluntary departure, and that is the maximum relief available to her on this record.
Order: It is ordered that the appeal be and is hereby dismissed.