S- AND B-C
(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.
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 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,
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
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 ma
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 materiality of any misrepresentation knowingly made which had a natural tendency to impede, hinder, or forestall an investigation into an alien‘s eligibility for the issuance of a visa. The matter was brought to the attention of the Attorney General whose order dated May 8, 1956, showed no inclination to depart from the paraphrase of Iorio found in his order of April 2, 1956 (Matter of G—M—, supra; Matter of S—C—, 7-76, 92). Subsequent decisions both in the circuit where Iorio was decided (In re Field‘s Petition, 159 F. Supp. 144 (S.D. N.Y., 1958)), and other circuits (Calvillo v. Robinson, 271 F.2d 249 (C.A. 7, 1959); Herrera-Roca v. Barber, 150 F. Supp. 492 (N.D. Cal., 1957)), reaffirmed the validity of the Iorio rule.
We realize that several circuits are not convinced that the Iorio rule represents the law today. One court has stated that it believes the majority rule to be “that the fact the alien might have obtained a visa on the true facts does not vitiate the fraud or misrepresentation” (Viruette Torres v. Hoy, 269 F.2d 289 (C.A. 9, 1959); Duran-Garcia v. Neelly, 246 F.2d 287 (C.A. 5, 1957); Landon v. Clarke, 239 F.2d 631 (C.A. 1, 1956); Ablett v. Brownell, 240 F.2d 625 (CA. D.C., 1957)). However, the Attorney General‘s opinion of April 2, 1956, is binding upon us and requires termination of these proceedings.
Membership, to be a ground of inadmissibility, must be voluntary (Matter of B—, 5-72). The special inquiry officer and District Director have found the membership to be involuntary. The matter misrepresented was not a ground of inadmissibility; it cannot be held that the visa was obtained by fraud (United States ex rel. Teper v. Miller, supra). The special inquiry officer properly found the applicant admissible. The appeal of the District Director will be dismissed.
The Service representative contends that the visa is invalid under
In view of the action we have taken, we have found it unnecessary to explore several of counsel‘s contentions.
ORDER: It is ordered that the appeal of the District Director be and the same is hereby dismissed.
BEFORE THE BOARD
(June 2, 1960)
In re: Matter of B—C—
DISCUSSION: Respondent appealed from the order of the special inquiry officer requiring his deportation. On June 3, 1959, we found respondent deportable and granted him voluntary departure. A motion for reconsideration was filed; it was denied on November 17, 1959. Another petition for reconsideration is now before us. It will be denied.
Respondent, a 54-year-old married male, a native and national of Mexico, lived in the United States as a permanent resident from 1927 to 1930. From 1944 to 1946, he worked in the United States as a contract laborer. From 1952 to August 30, 1954, he worked in the United States as a contract laborer after having gained admission in his nephew‘s name (E—B—G—). On May 3, 1954, he
We have found that respondent procured a document by fraud when he obtained an agricultural worker‘s card (Form I-100C) to enter as an agricultural laborer on May 3, 1954; that he procured another document by fraud when he obtained his visa in 1956; and that either of these procurements made him inadmissible to the United States when he last entered.
Counsel contends that respondent procured nothing by fraud since he would have been entitled to what he had received had he told the truth. In other words, it is counsel‘s contention that the misrepresentation as to identity is not material for it did not conceal a ground of inadmissibility. Counsel cites several cases in support of his contention. It may be stated that there is nothing in this record to reveal that respondent could not have qualified for a laborer‘s permit in his own name. For the purpose of this discussion, we shall assume that respondent could have qualified in his own name to enter as an agricultural laborer.
The issue is one which, as far as this Board is concerned, the Attorney General settled in Matter of B— and P—, 2 638, when he held that a misrepresentation as to identity is material even though it did not conceal a ground of inadmissibility. Little can be added to what has already been stated in Matter of B— and P—; therefore, our discussion of the case involving this difficult problem will be brief. As the statutes and decisions have been administratively interpreted, there are now two rules existing in misrepresentation cases. One rule applies to misrepresentations made as to identity; the other rule applies to all other types of misrepresentations. In identity cases, a misrepresentation is always material; that is, the misrepresentation is material whether or not the alien gained any substantial benefit by it. In the nonidentity cases, the rule is that a misrepresentation is material if by it the alien received a benefit he would not otherwise have been eligible for (Matter of B— and P—, supra; Matter of G—M—, 7-40, Atty. Gen.‘s Op. pp. 74-75; Matter of S—C—, 7-76, Atty. Gen.‘s Op. p. 92). Counsel is apparently of the view that there is only one rule in misrepresentation cases, and it is that a misrepresentation is material (even though it pertains to identity) only if by it the alien gained something to which he was not entitled. The cases cited by counsel in support of his contention are United States ex rel. Iorio v. Day, 34 F.2d 920 (C.A. 2, 1929); United States ex rel. Leibowitz v. Schlotfeldt, 94 F.2d 263 (C.A. 2. 1938); In re Iwanenko, 145 F. Supp. 838 (N.D. Ill., 1956); Calvillo v. Robinson, 271 F.2d 249 (C.A. 7, 1959); and Clarke v. Landon, 139 F. Supp. 113 (D.C. Mass., 1956).
We do not believe that the cases cited by counsel are authority for denying the existence of the separate rule in identity cases. In Iorio, the court held that a concealment of the conviction of crime and the service of a sentence was not material because it did not conceal a ground of inadmissibility. Identity was not involved. Leibowitz, as is shown by the analysis in Matter of B— and P—, supra, pp. 641-642, involved an individual who had assumed a name several years before he applied for a visa. By the time he applied for the visa he was generally known by the assumed name. The court held that the misrepresentation as to name was not material. The distinction is that Leibowitz had applied for the visa in a name which had become his own; the alien here was not known by the name he assumed. In Iwanenko, the court held that a misrepresentation as to place of birth was not material, since the deception had not given the alien a right she would have been denied had she told the truth. Identity was not involved. In Calvillo, the court held that a failure to reveal residence in the United States was not material. Identity was not involved. The district court decision in Clarke v. Landon, cited by counsel, was overruled on appeal (239 F.2d 631, C.A. 1). The circuit court declared that a misrepresentation as to identity was material, and the case may be added to those cited in Matter of B— and P— as holding that an identity misrepresentation is always material. In effect, counsel would have us depart from the rules set forth in Matter of B— and P—. We can see no reason to do this. In Matter of B— and P— we stated that the rule as to identity was founded in the public interest. The rule has existed for many years without either judicial or congressional criticism.
We shall now attempt to apply the rules to the situation before us. One who obtained an immigration document by fraud is ineligible to enter the United States whenever he attempts to enter (Matter of G—G—, 7-161, 164-165). Respondent is charged with having obtained an agricultural worker‘s card (Form I-100C) by misrepresentation. If respondent obtained such a card under a false identity, or if he concealed a ground of inadmissibility when he applied for the card, his misrepresentation was material and the document he obtained was procured by misrepresentation. Respondent applied for the issuance of an agricultural laborer‘s card which authorized him to enter for work in the United States. He obtained such a permit by voluntarily using a false identity. It was not an identity by which respondent was known generally before he entered the United States. Under these circumstances, whether or not respondent would have been admissible had he applied for the docu
ORDER: It is ordered that the motion be and the same is hereby denied.
BEFORE THE ATTORNEY GENERAL
(October 2, 1961)
In re: Matter of S— and B—C—
DISCUSSION: These cases present different aspects of the question whether misrepresentation by an alien in connection with the procurement of a visa or other documentation necessarily excludes him from admission to the United States under
Section 212(a) enumerates various classes of aliens who shall be ineligible to receive visas and excluded from admission into the United States. One such class is:
(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.
As a statutory ground of exclusion this provision is new in the 1952 Act. However, decisions under earlier immigration acts have held that a willful misrepresentation of material fact subjected the alien to exclusion or deportation on various grounds, such as that the misrepresentation defeated inspection, United States ex rel. Volpe v. Smith, 62 F.2d 808, 811 (C.A. 7, 1933), or that a visa procured by misrepresentation is no visa, Ablett v. Brownell, 240 F.2d 625 (C.A. D.C., 1957). In general, the judicial and administrative decisions have applied the same tests of materiality, regardless of whether the
In the cases before me, the Board of Immigration Appeals, properly regarding itself as controlled by prior administrative decisions which had been affirmed by my predecessors, applied two different tests of materiality to the misstatements. In the case of S—, the alien, a Hungarian, failed to disclose in his application for a nonimmigrant visa issued by the U.S. Consul at Toronto, Canada, and in a subsequent entry interview the fact that he had been a member of the Communist Party in Hungary from December 1947 to October 1956. Before the special inquiry officer, he admitted his Communist Party membership and explained it in a manner which persuaded the officer that it was involuntary within the meaning of section 212(a)(28)(I) of the Act, and hence not a ground of exclusion. The Board, considering that involuntariness had been conceded by the District Director, treated the alien‘s membership as involuntary. Applying the rule stated by the Attorney General in Matter of G—M—, 7-40, 74 (1956), that “a misrepresentation is not material . . . if the alien would not have been denied a visa or excluded had he told the truth,” the Board held the alien should be admitted.
In the case of B—C—, the alien, a Mexican, had lived in the United States as a permanent resident from 1927 to 1930, and had worked as a contract laborer in the United States from 1944 to 1946, and from 1952 to August 1954. He was again admitted as a permanent resident on April 24, 1956. In 1952 and in May 1954, he entered the United States on agricultural laborer‘s cards issued in the name of his nephew. In connection with these entries he also misstated his wife‘s name. In his visa application in 1956 he gave the correct names of himself and his wife, but failed to disclose several of his prior residences in the United States, including those which followed his entries using his nephew‘s name, and failed to disclose his use of an alias. The Board of Immigration Appeals pointed out that “there is nothing in this record to reveal that that respondent could not have qualified for a laborer‘s permit in his own name.” However, applying the rule which it regarded as settled by the Attorney General‘s affirmance of its decision in Matter of B— and P—, 2-638 (1947), that a misrepresentation as to identity “is always material,” the Board ordered the alien deported.
In both cases the sole issue is materiality. There is no doubt that the misrepresentations were willful, in the sense that they were deliberately made with knowledge of their falsity.
The Conference Report on the 1952 Act reflects a concern, in the administration of section 212(a)(19), both with “fair humanitarian standards” and with the need to “prevent the evasion of law by fraud” (House Report No. 2096, 82d Congress, 2d Session, p. 128). False statements to the United States, under oath, should not lightly be condoned, particularly, as the Report indicates, if they serve to cut off the investigation which Congress provided for. As one court has observed, to allow an alien to make a false statement which chokes off investigation into a substantial question of eligibility for a visa, and then, when the falsity is discovered, “try out his eligibility just as if nothing had happened,” is “an invitation to false swearing.” Ganduxe y Marino v. Murff, 183 F. Supp. 565, 567 (S.D., N.Y., 1959), affirmed sub nom. Ganduxe y Marino v. Esperdy, 278 F.2d 330 (C.A. 2, 1960), cert. den. 364 U.S. 824 (1960). Moreover, a rule that false statements are material only if on the true facts the alien was excludable would deny subsection (19) any effect as an independent ground of exclusion, since in every case the alien would be excludable because of the existence of other grounds of exclusion and the fact that he had made false statements would add nothing. I am unwilling to approve an interpretation which would deny any practical significance to subsection (19), in the face of the clear congressional intent by that section to create a separate and independent ground of exclusion.
On the other hand, it is important to remember that—
Shutting off the opportunity to come to the United States actually is a crushing deprivation to many prospective immigrants. Very often it destroys the hopes and aspirations of a lifetime, and it frequently operates not only against the individual immediately but also bears heavily upon his family in and out of the United States. (Report of the President‘s Commission on Immigration and Naturalization, Jan. 1, 1953, p. 177.)
An alien ought not be excluded from entry or subjected to deportation, because of a misrepresentation made at some time in the
In Matter of G—M—, supra, the test that a misrepresentation is not material unless the alien would have been excludable on the true facts was said to be consistently applied by the courts, citing one decision of the seventh circuit and four decisions within the second circuit. Although recently reaffirmed by the seventh circuit, Calvillo v. Robinson, 271 F.2d 249, 253 (C.C.A. 7, 1959), that test has now been definitely rejected by the second circuit, United States ex rel. Jankowski v. Shaughnessy, 186 F.2d 580, 582 (C.A. 2, 1951); Ganduxe y Marino v. Murff, supra; In re Field‘s Petition, 159 F. Supp. 144, 147 (S.D. N.Y., 1958); cf. United States v. Flores-Rodriguez, 237 F.2d 405, 412 (C.A. 2, 1956), and by every other circuit that has passed on the question. Landon v. Clarke, 239 F.2d 631, 634-6 (C.A. 1, 1956); Ablett v. Brownell, 240 F.2d 625, 630 (C.A. D.C., 1957); Duran-Garcia v. Neelly, 246 F.2d 287, 291 (C.A. 5, 1957); Viruette Torres v. Hoy, 269 F.2d 289, 291 (C.A. 9, 1959); and see McCandless v. United States ex rel. Murphy, 47 F.2d 1072 (C.A. 3, 1931); Daskaloff v. Zurbrick, 103 F.2d 579 (C.A. 6, 1939).
On the related question whether naturalization should be revoked as having been procured “by concealment of a material fact or by willful misrepresentation,” the Supreme Court has recently indicated that the facts concealed are material if either “they would have warranted denial of citizenship” or “their disclosure might have been useful in an investigation possibly leading to the discovery of other facts warranting denial of citizenship.” Chaunt v. United States, 364 U.S. 350, 355 (1960); see Costello v. United States, 365 U.S. 265, 269-270 (1961).
The test of materiality which in my judgment will best effectuate the objectives of the Act is the following: A misrepresentation made in connection with an application for visa or other documents, or with entry into the United States, is material if either (1) the alien is excludable on the true facts, or (2) 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. This test is generally consistent with the prevailing judicial authorities, cited above.
This test should be applied also to misrepresentations relating to identity. In Landon v. Clarke, supra, the first circuit stated that a misrepresentation as to identity which resulted in entry without proper statutory investigation “is always material, . . . no matter
The application of the test set forth in this opinion will turn on the answers to three questions.
First, does the record establish that the alien is excludable on the true facts? If it does, then the misrepresentation was material. If it does not, then the second and third questions must be considered.
Second, did the misrepresentation tend to shut off a line of inquiry which is relevant to the alien‘s eligibility? A misrepresentation as to identity or place of past residence, for example, would almost necessarily have shut off an opportunity to investigate part or all of the alien‘s past history, and thus have shut off a relevant investigation. In other situations, the tendency of the misrepresentation to shut off a relevant line of investigation may depend on the particular facts. It should be emphasized that, as the Chaunt decision indicates, a remote, tenuous, or fanciful connection between a
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? On this aspect of the question the alien bears the burden of persuasion and proof. Having made a willful misrepresentation which tends to cut off a relevant line of investigation, he cannot now try out his eligibility as if nothing had happened. Ganduxe y Marino v. Murff, supra. The law recognizes numerous situations in which one who, by his intentional and wrongful act, has prevented or restricted an inquiry into relevant facts bears the burden of establishing the true facts and the risk that any uncertainties resulting from his own obstruction of the inquiry may be resolved against him. Compare, e.g., The Idaho, 93 U.S. 575, 585-6 (1876); Holland v. United States, 348 U.S. 121, 130-32 (1954); II Wigmore, Evidence §§ 278, 291.
Frequently the alien will attempt to meet this burden by evidence that on the true facts he is eligible for admission to the United States. The weight to be given such evidence will depend in large part on whether the government authorities have had adequate opportunity, once the misrepresentation became known, to conduct the kind of investigation which would have been conducted had there been no misrepresentation. Where the opportunity for adequate investigation has been lessened because of the alien‘s misconduct in making a deliberate misrepresentation, either because of the passage of time or for other reasons, the alien‘s evidence of his eligibility may be unpersuasive, for the same reasons that have led courts to strike or to place little or no weight on evidence with respect to which the opposing party, through no fault of his own, was denied adequate opportunity for cross-examination. Compare Communist Party v. Subversive Activities Control Board, 351 U.S. 115. On the other hand, where the government officials have made an adequate investigation after the misrepresentation became known, or have had reasonable opportunity to do so, an unrefuted showing of eligibility by the alien may be highly persuasive that the misrepresentation was not material.
In a sense, of course, any misrepresentation which delays an investigation could be said to have impaired the opportunity for investigation. One can always speculate that a witness might have become unavailable or less cooperative, or a document have been mislaid, or some other investigative opportunity lost, by the passage of time. Where a reasonably adequate investigation fails to suggest the existence of a ground of exclusion, however, such theoretical possibilities are not a sufficient basis for denying valuable rights
The two cases before me well illustrate some of the variations that can occur. In the S— case it is obvious that disclosure of the alien‘s Communist Party membership in connection with his visa application would have raised a serious question as to the alien‘s admissibility, and would have been likely to lead to further investigation of the question whether his membership was voluntary or involuntary. It is quite possible that investigation by the State Department, either into the alien‘s own activities or into the correctness of his statements as to conditions existing in Hungary during the period of his Communist Party membership, would have led to a proper denial of a visa. Indeed it appears that on an earlier application to the consul in Vienna in which the alien disclosed his Communist Party membership, the visa was denied, for reasons which do not appear in this record. Even on the alien‘s own testimony it is at least a very close question, which I am not required to and do not decide, whether his Communist Party membership was “necessary” to enable him to obtain employment, food rations, or other essentials of living, or merely convenient in the sense that it facilitated his obtaining an education, and bettering his status in life. It would not be necessary to question the alien‘s credibility or sincerity in order to determine that the investigation, which would have been made had the alien stated the true facts in his application for visa, might well have produced independent evidence sufficient to tip the scales of decision in the opposite direction. On the present record I find that the alien‘s failure to disclose his Communist Party membership was a material misrepresentation which renders him excludable under section 212(a)(19).
In the case of B—C—, the Board‘s decision rested on two sets of misrepresentations by the alien: (1) misrepresentations of his and his wife‘s identity in obtaining agricultural worker‘s permits in 1952 and 1954, and (2) failure in his 1956 visa application to disclose his prior residence in the United States following the 1952 and 1954 entries, and his use of an alias in connection with those entries. As to the first, there is no doubt that the alien‘s use of his nephew‘s name in obtaining agricultural worker‘s cards in 1952 and 1954 shut off investigation at that time. But there is nothing in the record to indicate that if he had used the true name of himself and
As to the 1956 misrepresentations, the Board treated them as material because they concealed the 1952 and 1954 entries; since the Board regarded the misrepresentations made in connection with the earlier entries as making the alien excludable under section 212(a)(19), it considered that the 1956 misrepresentations concealed a ground of exclusion and for that reason were material. In view of my holding as to the 1952 and 1954 misrepresentations, this ground of decision cannot stand. On remand, the Board should reconsider the materiality of the 1956 misrepresentations in the light of this decision.
This decision applies a test of materiality different from those heretofore applied by the Board. In order not to foreclose any party from presenting any new evidence or contentions which may have become relevant in the light of this decision, and which such party was not under any obligation to present earlier, the cases will be remanded to the Board of Immigration Appeals for such further proceedings, consistent with this opinion, as it deems appropriate.
Notes
At oral argument, the Service representative, using evidence that is not in the record, and contrary to the position taken by the District Director in filing the appeal, contended that the applicant‘s membership was voluntary. This issue is not properly before us. When an applicant for admission is ordered admitted and the district director takes an appeal, the district director notifies the applicant in writing of the grounds of the appeal and the applicant is allowed five days to make his representations (