MATTER OF MARTINEZ-LOPEZ
A-12650471
Board of Immigration Appeals
Decided by Board August 7, 1962; Reconsidered by Board December 20, 1962; Decided by Attorney General January 6, 1964
Interim Decision #1312; 10 I. & N. Dec. 409
CHARGES:
Order: Act of 1952—Section 241(a)(1) [8 U.S.C. 1251(a)(1)]—Excludable at time of entry—procured visa by fraud or by willfully misrepresenting material fact (section 212(a)(19) of the Act).
Act of 1952—Section 241(a)(1) [8 U.S.C. 1251(a)(1)]—Excludable at time of entry—immigrant, no valid visa (section 212(a)(20) of the Act).
BEFORE THE BOARD
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,
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—, 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. (Neither does the letter of the Consul stating that the Vice Consul would testify that the misrepresentation was material preclude the Board from making its own conclusions in the matter. See In re Field‘s Petition, 159 F. Supp. 144, 146 (S.D.N.Y., 1958).)
Would the inquiry which was cut off by the submission of the offer of employment have resulted in a proper determination that the alien
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
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;
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.
BEFORE THE BOARD
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
The motion enumerates the federal laws which could have been violated when respondent made false statements before the consul and points out that had the consul known the true facts, he might have obtained an admission of the commission of crime from respondent who would thereby become inadmissible to the United States. Apart from this, the Service contends, the consul, if in possession of the true facts, would have made at least a temporary refusal of the visa. The test for materiality laid down by the Attorney General in Matter of S— and B—C—, supra, does not concern itself with possible violation of federal laws or the possibility of a temporary refusal. B—C— had made willful misrepresentations when he applied for a visa; he probably violated the same federal laws which are mentioned in the motion. And, it is obvious, that had the consul been aware that B—C— made misrepresentations, he would have been justified in making a temporary refusal. Nevertheless, the Attorney General‘s test as to materiality made no reference to the possible violation of federal laws or to the fact that a temporary refusal was possible. While the Attorney General did not discuss possible violations of federal law or temporary refusals, Matter of S—C—, 7 I. & N. Dec. 76, one of the two precedents relied upon in the Board‘s order concerning B—C— dealt with possible violations of law (p. 86); and U.S. ex rel. Jankowski v. Shaughnessy, 186 F. 2d 580, 582, 2d Cir. (1951), cited by the Attorney General, indicates the use of a temporary refusal as a test; moreover, the fact that the Attorney General made the existence of materiality dependent upon what an investigation might have shown, would seem to rule out the possibility of using a temporary refusal as a test.
Examination of Matter of L—D—L—R—, Int. Dec. No. 1207, cited by the Service as support for the proposition that materiality exists for immigration purposes if there is a reasonable possibility that an alien would have made admissions concerning participation in crime which would have made him inadmissible, reveals that the misrepresentation there was material because it involved the concealment of conviction of a crime involving moral turpitude. The existence of the conviction made the alien ineligible for the issuance of a visa.
The motion takes issue with our finding that respondent was not one likely to become a public charge at the time he applied for admission. Our determination was made upon the state of the record as it existed when the respondent applied for his visa. After careful review of the Service contention we see no reason to change our conclusion. Reference in our order, to events occurring after respond-
The motion now raises the contention that respondent‘s visa was not valid because he did not furnish full and correct information on his visa application as required by the
ORDER: It is ordered that the motion be and the same is hereby denied.
BEFORE THE ATTORNEY GENERAL
The decision of the Board of Immigration Appeals in this case holding the respondent Saturnino Martinez-Lopez not deportable has
The respondent‘s deportation is being sought on the ground that he was excludable at the time he entered the United States as an immigrant because he had procured his visa by willfully misrepresenting a material fact (§ 212(a)(19)) and because he was not in possession of a valid unexpired immigrant visa as required by
In the winter of 1960-61, the respondent planned to immigrate to the United States. At that time, he was a citizen and resident of Mexico, in his early twenties and unmarried. He had about 5 years of schooling and had begun to work on the family farm when he was 12 or 13. He had worked in the United States for 3 months as a laborer in 1958. His brother, Salvador Martinez-Lopez, who had emigrated to the United States, lived in Los Angeles and was employed by a furniture company at an annual salary of $4,000. In the past, Salvador had contributed to the support of his relatives in Mexico; the respondent had several other relatives living in the United States. When the respondent inquired at the United States Consulate at Monterrey, Mexico, concerning the papers required for an immigration visa, he was advised that he needed, among other things, an affidavit of support and an offer of permanent employment in the United States.
Having heard from neighbors that work offers could be obtained from one Jose C. Miranda of Stockton, California, for $350, the respondent asked his brother Salvador to get one for him. Because of
Subsequently the respondent applied at the United States Consulate at Monterrey for a visa, submitting an affidavit of support, executed by his brother, and the purported Pellegri letter, although he knew that he could not expect to be employed by Pellegri. When asked about his destination in the United States, he gave the address of Pellegri‘s ranch. The respondent was issued a visa on April 27, 1961, and was admitted to the United States as an immigrant a few days later. At that time he had in his possession from $60 to $70. He went directly to his brother in Los Angeles and never contacted Pellegri. For about a week he stayed with his brother, then obtained work as a cook through another relative.
At about that time Miranda‘s forgeries were discovered. The respondent, his brother Salvador, his cousin Reyes Fragoso, and Jose Miranda were indicted in the United States District Court for the Northern District of California for conspiracy to violate
The respondent, his brother and his cousin were tried before the court, a jury having been waived. The court found them guilty on
The Immigration and Naturalization Service then instituted proceedings to deport the respondent on the grounds described above. The Service charged that the respondent had obtained his visa by presenting to the United States consul the Pellegri work offer, although he knew that he did not and would not have employment with Pellegri; that he had concealed from the consul the fact that the letter had been obtained from Miranda for $350, and that he withheld those facts because he believed that the consul would not have issued the visa had he been told the truth. The special inquiry officer dismissed the proceedings on the ground that the respondent‘s misrepresentation was not material and, hence, did not render him excludable under
First, does the record establish that the alien is excludable on the true facts?
Second, did the misrepresentation tend to shut off a line of inquiry which is relevant to the alien‘s eligibility [for admission]?
Third, if a relevant line of inquiry has been cut off, might that inquiry have resulted in a proper determination that the alien be excluded?
The special inquiry officer answered the first question in the negative. He took the position that in connection with the determination as to
The special inquiry officer answered the second question in the affirmative; he concluded that the submission of the work offer did cut off further investigation by the consul into the public charge issue. The third question, however, was answered by him in the negative, since nothing had been adduced to suggest that a further investigation might have resulted in a proper determination that the respondent was likely to become a public charge. Accordingly, he held that the respondent‘s misrepresentation with regard to the spurious Pellegri work offer was not material for the purposes of
On appeal by the Service, the Board of Immigration Appeals affirmed the ruling of the special inquiry officer. It recognized that, as judicially interpreted, materiality was an element of the offense under
The Commissioner raises essentially the following points:
1. Whether materiality of the misrepresentation for deportation purposes was established by the respondent‘s conviction.
2. Whether the Board properly applied the materiality tests established by Matter of S— and B—C—. In this connection the Commissioner also argues that the test in Matter of S— and B—C— is not applicable where the alien‘s conduct in obtaining a visa constitutes an offense against the United States.
3. Whether a significant misrepresentation, even if it does not amount to a “material” misrepresentation, renders a visa invalid for the purpose of
I
Unquestionably the respondent did make a misrepresentation to the consul. He submitted a document which he knew was not a bona fide work offer. However, the immigration statute,
At the outset it should be noted that, although ordinarily a court decision may be res judicata or operate as a collateral estoppel in a later administrative proceeding, there is some basis for doubt as to whether this rule applies in cases where, as here, Congress has vested primary responsibility for enforcing a statute in an administrative agency and not in the courts. See Title v. Immigration & Naturalization Service, 322 F. 2d 21 (C.A. 9); Davis, Administrative Law Treatise, sec. 18.11 (Vol. II, pp. 619-623).7
Assuming, however, that the doctrine of collateral estoppel is applicable in cases of this kind, I agree with the Board‘s view that on the question of materiality there was no true identity of issues in the criminal case and the deportation proceeding. Even if statutes use the same language, a determination under one is not necessarily binding in a proceeding under another since the purposes of the statutes may differ and the contexts in which the language is used may not be the same. See Title, supra at 25, fn. 11. The determination in the criminal case to the effect that the work offer was “material” might be considered to be binding in the deportation proceedings only if the word “material” has the same meaning in prosecutions under
The issue of materiality under
II
I find no error in the Board‘s conclusion that the materiality standards of Matter of S— and B—C— were properly applied in this case. As pointed out above, that opinion holds that the issue of materiality for purposes of
In the context of this case, the initial question is whether the respondent would have been excludable under
The provision in the immigration laws excluding aliens likely to become public charges had its origin in section 2 of the
The legislative history of the
Nor is the administrative practice of the Department of State to the contrary. The Department‘s regulations provide that a conclusion of ineligibility under
The respondent‘s misrepresentation, however, did shut off a line of inquiry relevant to his eligibility for a visa. It may be assumed that if the consular officer had known that the work offer was spurious, he would have examined the evidence of support more carefully. It does not appear, however, that this would have resulted in a proper determination that the respondent was excludable. Further investigation of the relationship between the sponsor and the respondent would have shown that the sponsor was a devoted brother who had in the past sent money to his family in Mexico and who was genuinely interested in assisting the respondent; that, indeed, he had assisted him in his immigration efforts by paying $350 for the work offer. Further examination also would have disclosed that the respondent had other relatives in the United States who were willing to assist him in finding work. There is nothing in this case to suggest that further investigation would have disclosed any reasonable ground for the proper denial of a visa. In view of the particular circumstances of this case, it appears therefore that the respondent‘s misrepresentation with respect to the work offer was not of a material nature.
The Commissioner seeks to distinguish this case from Matter of S— and B—C—, on the ground that “this record establishes that the respondent was in the very act of participating in one or more crimes against the United States at the very moment he got the visa and unquestionably would not have received the visa if the forgery had been known.” The fact that the respondent committed a crime against the United States at the very moment he received his visa is not peculiar to this case. It would seem that virtually every alien who at the time of his visa application makes a misrepresentation “which was calculated to induce action or reliance by an agency of the Government” (Brandow v. United States, supra) violate
In view of the findings below that the respondent did not know that Miranda had forged the work offer, I am not confronted here with the problem as to whether Matter of S— and B—C— also applies to a situation where a misrepresentation to the consular officer shuts off a
III
The Commissioner finally urges that the respondent‘s misstatements not only constituted a material misrepresentation within the meaning of
For the foregoing reasons, the decision of the Board of Immigration Appeals is affirmed.
Notes
(19) Any alien who seeks to procure, or has sought to procure, or has procured a visa or other documentation, or seeks to enter the United States, by fraud, or by willfully misrepresenting a material fact;
(20) * * * any immigrant who at the time of application for admission is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document required by this chapter, and a valid unexpired passport, or other suitable travel document, or document of identity and nationality, if such document is required under the regulations issued by the Attorney General pursuant to section 211(e).
Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.