MATTER of N—
A-11500333
Decided by Board October 27, 1961
October 27, 1961
9 I. & N. Dec. 506
In DEPORTATION Proceedings
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) [
Act of 1952—Section 241(a) (1) [
BEFORE THE BOARD
DISCUSSION: This case is before us on appeal from the special inquiry officer‘s decision of June 30, 1960, 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 testified 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
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
With the exception of the respondent‘s testimony, the 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.
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 or 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
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. Bilokumsky v. Tod, 264 U.S. 131, 133 (1924);
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 31, 1959 (part of Exh. 7).
A regulation of the Department of State [
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 S- and B-C-, 9 I. & N. Dec. 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
The second charge is that the respondent was excludable 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
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 be 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
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
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,
Counsel contends that no statutory authority exists for the Board to reopen a deportation hearing.
It is also asserted by counsel that we should not have written to the Department of State and that, in doing so, we performed an investigative 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
The second issue in this case is whether voluntary departure should be granted.
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.