Interim Decision #2378
MATTER OF KM KING HUI
In Deportation Proceedings
A-20019215
Decided by Board April 7, 1975
(As corrected by amendatory order of May 2, 1975)
The Service appeals from the grant of adjustment of status to that of a lawful permanent
resident alien, ender section 245 of the Immigration and Nationality Act. The appeal is
sustained. Respondent gained entry into the United States by using a nonresident alien
Mexican horder crossing card which he obtained by misrepresenting his identity, date
and place of birth and nationality. He is therefore excludable under section 212(a)(19) of
the Act because he obtained his entry document by wilful misrepresentations of material facts, and does not merit the favorable exercise of discretion for adjustment of
status.
Order: Act of 1952—Section 241(a)(2) (8 U.S.C. 1251(a)(2)]—Nonimmigrant visitor-
-remained longer than permitted.
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Jack Wong Sing, Esquire Irving A. Appleman
Chow and Sing Appellate Trial Attorney
550 Montgomery Street Stuart Shelby
San Francisco, California 94111 Trial Attorney
This is an appeal by the Service from a decision of an immigration
judge dated December 12, 1972 granting the respondent's application
for status as a permanent resident under section 245 of the Immigration
and Nationality Act. The appeal will be sustained.
The respondent is a 43-year-old native of China who last entered the
United States on June 14, 1970 with a nonimmigrant alien Mexican
border crossing card which had been issued to him in 1967 upon his
application which was based on a false identity. The respondent had
entered Mexico in 1948, when he was 18 years of age, with a false
Mexican passport obtained for him by his father. At the deportation
hearing, the respondent conceded his alienage and deportabffity as an
overstayed visitor.
The respondent's naturalized United States citizen sister petitioned
to have him classified as a fifth preference alien on August 14, 1970. The
petition was granted on January 2, 1971. The respondent's application
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Interim. Decision #2378
for permanent resident status, however, was denied by the district
director on the ground that the respondent was excludable from the
United States under section 212(a)(19) of the Act as an alien who had
obtained his entry into the United States by fraud or wilful misrepresentation.
The alien renewed his application for section 245 relief before an
immigration judge. The immigration judge concluded that the respon
dent was not inadmissible under section 212(a)(19) of the Act,- and
granted him adjustment of status pursuant to section 245_ The Service
has appealed this grant.
On appeal the Service contends ,(1) that the respondent is excludable
as one who has procured a visa or other documentation, or entry into the
United States by wilfully misrepresenting a material fact within the
meaning of section 212(a)(19) of the: Act; and.(2) that the respondent is
ineligible to receive a visa and is therefore not statutorily eligible for
section 245 relief.
The sole issue before us is whether the respondent's misrepresentations of his identity, date of birth, nationality, and place of birth in
obtaining a nonresident alien Mexican border crossing card is material
within section 212(a)(19) of the Act.
In Matter of8— and B—C—, 9 I. & N. Dec. 486, 448-449 (A.G. 1961),
the Attorney General, in discussing whether a misrepresentation is
material, stated:
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 haie resulted
in a proper determination that he be excluded. . . .
In applying for the nonresident alien Mexican border crossing card
the respondent certified that his name was Fernando Ghee Acevedo,
that his date of birth was May 1, 1929, and that he was born in
Chihuahua, Mexico. The "true" facts are that the respondent's name is
Kai. Hing Had and that he was born on December 14, 1930in-China. As a
citizen of China he was ineligible for a nonresident alien Mexican border
crossing card, use of which is, limited to Mexican nationals (8 CFR
212.6).
The immigration judge concluded that intent to deceive was a necessary prerequisite to a finding of deportability under 212(a)(19). He
asserted that the Attorney General in Matter of S— and supra,
overruled our decision in Matter of G—G—, 7 I. & N. Dec. 161 (BIA
1956). We do not agree. The information furnished by the respondent to
the Service regarding. his identity was not true. The issue of intent with
which the respondent gave those untrue answers is no longer govern-
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Interim Decision 42878'
ing. We interpret the Attorney General's decision in Matter of S— and
B—C--- as one which modified Matter of G—G— so that the intent to
deceive is no longer required before the wilful misrepresentation charge
comes into play.
In the present case, the respondent misrepresented his identity, place
of birth, nationality, and date of birth. He did so in order to obtain a
benefit to which he was not otherwise entitled —entry into the United
States with a. nonresident alien Mexican border crossing card, use of
which is restricted to citizens of Mexico. The respondent knew that he
was not Fernando Chee Acevedo and in claiming to be that person he
was making a claim to gain the border 'crossing card which would not
have been issued to him on the "true" facts.
Our review of the record, as well as contentions raised on appeal,
satisfies us (1) that the respondent procured a visa or other documentation by fraud, or by wilfully misrepresenting a material fact; and (2) that
the respondent has not established his admissibility.
After consideration of the evidence of this record, we conclude that
the respondent obtained his visa by wilful misrepresentation of material
facts and is ineligible for adjustment of status on the basis of his
inadmissibility under section 212(a)(19) of the Act. We disagree with the
immigration judge that the respondent's obtaining the nonresident alien
Mexican border crossing card in a false identity and nationality is not an
adverse factor. The respondent has not offered sufficient countervailing
equities necessary to offset the adverse factors to merit favorable exercise of administrative discretion. In applying the standards established
in Matter of Arai, 13 I. & N. Dec. 494 (BIA 1970), we conclude that the
respondent does not merit the favorable exercise of discretion. Accordingly, we shall sustain the Service appeal. The following order will be
entered.
ORDER: The Service appeal is sustained.
Further order:The immigration judge's order of December 12, 1972 is
withdrawn.
Further order: In lieu of an order of deportation, the respondent is
granted voluntary departure within 30 days from the date of this decision, or any extension beyond that date as is granted by the district
director and under such conditions as he shall direct.
Further order: If the respondent fails to depart voluntarily when and
as required, the privilege of voluntary departure shall be withdrawn
without further notice or proceedings, and the respondent shall be
deported to Mexico, if that country agrees to accept him, and if Mexico
refuses to accept him, then the respondent will be deported to the
Republic of China on Taiwan.
Irving A. Appleman, Board Member, abstained from consideration of
this case.
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