A-8315659
Decided by Board January 25, 1957
Visa — Procured by misrepresentation — Willfulness of misrepresentation not material where alien was ineligible for the visa he received and the charge is based on invalid visa.
(1) Where an alien concealed the true facts of his marital status in applying for a visa and the true facts, if disclosed to the consul, would have raised a question as to the alien's eligibility for a visa in respect to the commission of bigamy, the visa was invalid as having been procured by fraud or misrepresentation.
(2) When the charge is based on the invalidity of the visa, it is immaterial whether the concealment was made willfully. It is sufficient if the record establishes that the alien had obtained a visa to which he was not entitled and that there had been a misrepresentation.
CHARGE:
Order To Show Cause: Act of 1952 — Section 241 (a) (1) ( 8 U.S.C. 1251 (a) (1)) and the Act of 1924 — Immigrant not entitled to enter United States because visa procured by fraud or misrepresentation.
BEFORE THE BOARD
Discussion: This is an appeal from the order of the special inquiry officer requiring respondent's deportation on the ground stated above. The appeal will be dismissed.
Respondent is a 50-year-old married male, a native of England and subject of Great Britain, who was admitted to the United States for permanent residence on May 19, 1952, upon the presentation of a nonpreference quota immigration visa charged to the British quota. The Service contends that the respondent obtained this visa by fraud because, when he applied for it, he willfully failed to reveal his true marital status.
The respondent married M---- in 1931. A daughter was born of the union. M---- and the child are living. The marriage was never legally terminated. In 1949, respondent married C---- with whom he now resides. On April 15, 1952, when he applied for his visa, the respondent stated under oath that he was married and that his wife's name is C----. He listed a child of C----'s by a former marriage, but failed to list the child of his union with M----.
We have always held that where an alien was ineligible for the issuance of a visa, the visa he received was not a valid one ( Matter of G----, A-8247543, 4 IN Dec. 735). An alien has the burden of showing eligibility for the issuance of a visa. Had respondent revealed the true facts, it would have been the duty of the consul to ascertain whether bigamy had been committed, and if the alien had been questioned on this score, he may have made a valid admission of the commission of bigamy, a crime involving moral turpitude, and, therefore, established his ineligibility for the issuance of a visa. The true facts raised a question as to the alien's eligibility for a visa. He did not resolve the issue. He was, therefore, ineligible for the issuance of a visa (see also Matter of R---- J----, A-8609551, Int. Dec. No. 782).
Counsel cites Matter of G---- G----, A-8949107, Int. Dec. No. 784, in support of his contention that the charge is not sustained. Matter of G---- G----, stated that a record must establish that a misrepresentation was willfully and purposefully made to obtain a benefit under the immigration and naturalization laws before a charge under section 212 (a) (19) of the act will be sustained. The charge in question is not based on section 212 (a) (19) of the act but upon the 1924 act under which a different rule applied. A charge under the 1924 act concerning the procurement of a visa by fraud was sustained where the record established no more than that an alien had received a visa to which he was not entitled and that there had been a misrepresentation. A specific intent to deceive was not required ( Matter of C----, A-4852428, 3 IN Dec. 662; Matter of T----, A-7138424, 3 IN Dec. 641; Matter of G----, supra). In effect, it was often no more than a finding that a visa issued to an alien was not a valid one. It is, therefore, not material in this proceeding whether the record establishes that respondent willfully and purposefully concealed the facts as to his first marriage in order to obtain a visa.
Counsel has stressed many facts surrounding respondent's "marriage" to C----, but he has presented no evidence that under the law of the state where the marriage took place, respondent was considered free to marry C---- or that the marriage to C---- is considered a valid one.
Counsel argues that an affidavit by M---- stating that she had not taken steps to terminate the marriage was not properly admitted in evidence because a wife is incompetent to testify against her husband in deportation proceedings. Cahan v. Carr, 47 F. (2d) 604 (C.C.A. 9, 1931), cert. den. 283 U.S. 862, cited by counsel in support of the contention, is discussed in Matter of B----, E-055392, 5 IN Dec. 738. It is well established that in deportation proceedings the usual rules of evidence do not apply, but the issue is as to the probative value of the evidence. In view of the respondent's own testimony, we believe M----'s affidavit was properly considered as probative by the special inquiry officer.
Order: It is ordered that the appeal be and the same is hereby dismissed.