A-6799230
Decided by Board June 28, 1957
Visa procured by fraud or willful misrepresentation — Excludability under section 212 (a) (19), Immigration and Nationality Act (by reason of willful concealment of conviction of burglary), is not removed by subsequent pardon for the crime.
An alien who procured a visa by concealing a conviction for burglary was excludable at time of entry in 1954 under section 212 (a) (19) of the act and thereafter deportable under section 241 (a) (1). A full and unconditional pardon for the burglary offense granted by the Governor of Texas in 1956 did not relieve the alien of the consequences of deportability, since the pardon could not vitiate the fraud committed at the time the document was obtained.
CHARGES:
Warrant: Act of 1952 — Section 241 (a) (1) ( 8 U.S.C. 1251 (a) (1)) — Procured visa or other documentation by fraud or by willfully misrepresenting a material fact.
Act of 1952 — Section 241 (a) (1) ( 8 U.S.C. 1251 (a) (1)) — Convicted of crime prior to entry, to wit: Burglary.
BEFORE THE BOARD
Discussion: On April 1, 1957, following the initial hearing under warrant of arrest served June 1, 1955, and reopened hearings, respondent, a 56-year-old married male alien, a native and citizen of Mexico, was found deportable solely on the first warrant charge; an application for discretionary relief was denied, and deportation was directed. The case has been certified to this Board by the special inquiry officer for review and final decision. Counsel for the alien and Service counsel have submitted briefs. The issue to be resolved is whether the first warrant charge is supported by reasonable, substantial, and probative evidence.
The second warrant charge, which has not been sustained, was predicated on the conviction of the alien in Criminal Court, Harris County, Texas, on September 10, 1930, of the crime of burglary committed June 20, 1930, for which he was sentenced to serve a term of 5 years. The conviction and judgment on appeal was affirmed by the Court of Criminal Appeals on June 5, 1931. On December 6, 1956, subsequent to the institution of warrant proceedings, the Governor of Texas granted the alien a full pardon to cover the crime of burglary. Consequently, the special inquiry officer has decided that the pardon removes the criminal charge in the warrant of arrest ( 8 U.S.C. 1251(b)). We concur in that finding.
Looking to the first warrant charge, assigned under section 241 (a) (1) of the Immigration and Nationality Act, the evidence shows that at the time of respondent's last entry to the United States at Brownsville, Texas, on August 10, 1954, he presented an immigrant visa, procured on an application executed August 5, 1954, before the American Consul at Monterrey, Mexico. The charge is that he was excludable, in that, he had procured the immigrant visa he presented by fraud, misrepresentation, and concealment of a material fact, namely, his criminal conviction in 1930 for the crime of burglary. Having been excludable under section 212 (a) (19) of the Immigration and Nationality Act ( 8 U.S.C. 1182 (a) (19)), he is now deportable ( 8 U.S.C. 1251 (a) (1)). The evidence shows that the material misrepresentations and concealments were willful. The facts are undisputed.
Counsel contends that the Executive pardon granted December 6, 1956, extinguished the conviction for the crime of burglary, and should operate retroactively to render ineffective the misstatements or misrepresentations the alien willfully made relative to his criminal record when he executed the application for an immigrant visa on August 5, 1954. Apparently, counsel's point of argument is that the Executive pardon granted subsequent to the procurement of the immigrant visa, which wiped out the conviction for crime existing at the time of the application for the immigrant visa (1954), thus extinguished the material fact misrepresented; and that the document procured should now be considered valid and free of fraud. Essentially, the question to be resolved is whether the pardon extinguished the pertinent evidence upon which the first warrant charge is based.
There is a broad distinction between the effect the pardon granted to wipe out the crime of burglary in this case had on the criminal charge here as compared with the effect it had on the other charge. The conviction for crime (burglary) was the sole factor in the criminal charge, and when that factor was removed, there was no evidence to support the charge. Moreover, section 241 (b) of the Immigration and Nationality Act applied to preclude deportation on that charge ( Matter of H----, A-4118292, 6 IN Dec. 90).
The charge now under consideration is predicated on acts committed by respondent, and on a factual situation existing at the time he obtained an immigrant visa on August 5, 1954, immediately prior to his entry to the United States on August 10, 1954. It is important to note that independently of the conviction for crime the alien was excludable on August 10, 1954, because the immigrant visa he presented at that time was procured by fraud or willful misrepresentation. It is not disputed that the American consul was deceived and that if the visa issuing official had known that respondent had been convicted of the crime of burglary (the truth), no immigrant visa would have been issued.
The gravaman of procuring a document by willful misrepresentation of a material fact is the element of fraud in the procurement which invalidates the document. Fraud consists of false representation or concealment of a material fact, made with knowledge of its falsity and with intent to deceive the other party, which representation must be believed and acted upon by the party deceived to his disadvantage ( United States v. United States Cartridge Co., 95 F. Supp. 384). A misrepresentation which results in entry of an alien into this country without proper statutory investigation by authorities is material, justifying deportation as an excludable alien who has secured a visa by fraud. Developments or happenings occurring afterwards cannot vitiate the fraud committed at the time the document was obtained ( United States ex rel. Jankowski v. Shaughnessy, 186 F. (2d) 580 (1951), and Landon v. Clarke, 239 F. (2d) 631 (1956)). By denial of a criminal record, this respondent cut off further investigation and inquiry into his criminal record by the American consul.
In Ablett v. Brownell, 240 F. (2d) 625 (1957), an alien had concealed a criminal conviction for petty theft, a turpitudinous offense, and thereby obtained an immigrant visa (1951), entered the United States and was ordered deported. By operation of 8 U.S.C. 1251 (a) (4), as amended September 3, 1954, the pertinent crime was no longer a ground of inadmissibility. The court held such change did not alter the effect of the acts of fraud and misrepresentation made in 1951, to obtain the invalid document. A parallel factual situation is set forth in Matter of R---- J----, A-8609551, Int. Dec. No. 782.
In conclusion we find that the pardon granted to respondent for the crime of burglary on December 6, 1956, did not extinguish the essential evidence upon which the first warrant charge is based. The evidence is reasonable and substantial. The principal elements of that charge are fraud, misrepresentation, and concealment in procuring a document, which invalidated the document. Accordingly, we find that counsel's argument is without merit.
Concerning respondent's application for discretionary relief, the special inquiry officer has correctly found that good moral character has not been established. Respondent was first married in 1927 in Texas and separated from his spouse about 1942. His first wife is living, and it appears that the first marriage has not been terminated. On March 14, 1945, respondent was ceremonially married to a native of the United States. Five children have been born by his relationship to the woman of the second ceremonial marriage. He is employed earning $60 weekly and his 5 minor children and their mother are entirely dependent on him for support. Notwithstanding the hardship factors that are obviously present in the case, there is no alternative but to affirm the decision of the special inquiry officer.
Order: It is ordered that the decision of the special inquiry officer on April 1, 1957, certified to this Board for review and final order, be and the same is hereby affirmed.