A-4591363
Decided by the Board October 22, 1953
Seventh Proviso — Not effective with respect to a ground of inadmissibility created under the Immigration and Nationality Act — Misrepresentation: Excludability under section 212 (a) (19) of the Immigration and Nationality Act.
(1) The seventh proviso to section 3 of the Immigration Act of 1917, as amended, cannot be used to waive a ground of inadmissibility created by the Immigration and Nationality Act and, particularly, to waive the ground of excludability set forth in section 212 (a) (19) of the Immigration and Nationality Act.
(2) An alien who left the United States to go to Canada pursuant to a grant of voluntary departure and waiver of a criminal ground of excludability authorized under the seventh proviso and whose application for a visa was denied by the American consulate in Canada on the ground that he had procured a visa in 1945 through willful misrepresentation, was found to be excludable under section 212 (a) (19) of the Immigration and Nationality Act. His admission to the United States by use of the seventh proviso to waive such ground of excludability could not be authorized.
EXCLUDABLE:
Section 212 (a) (19) of Immigration and Nationality Act — procurement of visa by fraud or by willfully misrepresenting a material fact.
Section 212 (a) (20) of the Immigration and Nationality Act — no immigrant visa.
BEFORE THE BOARD
Discussion: This is an appeal from an order of the special inquiry officer excluding the applicant from admission to the United States.
The applicant is a 43-year-old married male, a native and citizen of Canada. There is no dispute as to his excludability as an immigrant without a visa since he is not in possession of a valid immigrant visa or any document in lieu thereof. The main issue in this case concerns his excludability under the Immigration and Nationality Act as one who has procured a visa by fraud or willful misrepresentation of a material fact.
The record shows that the applicant first entered the United States in 1935 as a temporary visitor and remained here until 1944 when he departed. In 1938 he was convicted in Cambridge, Mass., on two charges of malicious injury to personal property, and in 1944 he was convicted on his plea of guilty in Boston, Mass., of the crime of larceny. On April 26, 1945, he was issued an immigration visa at St. John, New Brunswick, and admitted for permanent residence on the same day at Vanceboro, Maine. In applying for the visa he stated that he had not been in prison and that he was not a criminal, nor a member of any of the excludable classes. The visa file contains no United States police certificate.
The applicant claims that he did not willfully withhold the information as to his criminal record from the United States consul. He states that he was requested to procure and did obtain a police certificate showing that he had a criminal record and submitted such certificate to the consul's office. He admits that he read the application for the immigration visa before signing it but does not recall that any conversation took place when he executed the application and received the visa from the American consul. However, in addition to the formal statement in the visa application that the applicant is not a member of the excludable class of criminals, the American consul in St. John states, and the applicant does not deny, that other written declarations were made at the consul's office on April 19, 1945, and April 26, 1945, that the applicant had not been convicted of any crime. One of these statements was contained in the alien registration form executed by the applicant; another one is in the applicant's own handwriting.
Despite the applicant's disclaimer of any willful misrepresentation as to his criminal record, we agree with the conclusion of the special inquiry officer that the fact that the applicant denied having a criminal record on several occasions, and that one of these denials is contained in his own handwriting is very persuasive that the failure to disclose his criminal record in connection with the visa application was willful. Because the visa obtained by the applicant in 1945 was procured by a willful misrepresentation as to a material fact, he is now excludable under section 212 (a) (19) of the Immigration and Nationality Act.
We note that deportation proceedings were instituted against the applicant in 1947 on the grounds that he had been convicted of and admitted the commission of larceny and because of the conviction of willful and malicious injury to personal property, and on the further ground that the visa was obtained by misrepresentation. By order of this Board dated December 19, 1952, he was granted relief under the seventh proviso to section 3 of the act of 1917 in conjunction with the privilege of voluntary departure to waive the criminal grounds of excludability, provided he applied for admission to the United States within 3 months after his departure. The record shows that he departed on March 18, 1953, and is now seeking admission under the aforesaid order. We note that the United States consul in Canada has denied a visa to him on the ground that he procured the visa through willful misrepresentation in 1945. The seventh proviso waiver contained in our order was effective only to waive the criminal grounds of excludability under section 3 of the act of 1917. It has no efficacy with regard to the ground of excludability created by section 212 (a) (19) of the Immigration and Nationality Act.
While we recognize the hardship to the applicant resulting from the fact that the grant of seventh proviso relief previously exercised in his behalf cannot avail him in his present situation, there is no alternative but to order his exclusion.
Order: It is ordered that the appeal from the order of the special inquiry officer be dismissed.