HUA MIN LIN

                                                            Interim Decision #2419




                           MATTER OF HUA MIN LIN

                           In Deportation Proceedings
                                     A-31243881

                       Decided by Board August 5, 1975
Where respondent was admitted to the United States for pernianent residence in possession of a labor certification issued on the basis of representations that he would be
 employed by the San Francisco Chinese Opera Club as a teacher of musical instruments
 used in Chinese opera to over 40 pupils at a salary of $650 per month, whereas, in fact;
 the Club had no job to offer respondent; at most, there was an arrangement by which he
 could give private music lessons to Club members for whatever compensation he might
 receive; and the purported "salary" from the Club was nothing more than a ruse by
 which he was allowed to submit $650 of his own money, obtained from any source, and
 receive a check back from the Club "for the record", the labor certification was invalid
 since no certification could have been issued had the correct facts been known. Hence,
 respondentis deportable under section 241(a)(1) of the Immigration and Nationality Act
 be cause excludable at entry under section 212(a)(14) of the Act for lack of a valid labor
 certification.
CHARGES:
  Orden Act of 1952—Section 241(a)(1) [8 U.S.C. 1251(a)(1)]—Excludable at time of
                       entry (section 212(a)(14)) [8 U.S.C. 1182(a)(14)I—no labor certification
  Lodged: Act of 1952—Section 241(a)(1) [8 U.S.C. 1251(a)(1)—Excludable at time of
                             entry (section 212(a)(14)) [8 U.S.C. 1182(a)(14)]—no valid
                             labor certification
ON BEHALF OF RESPONDENT:                              ON BEHALF OF SERVICE:
  Robert S. Bixby, Esquire                               Bernard J. Hornbach
  30 Hotaling Place                                      Trial Attorney
  San Francisco, California 94111

   In a decision dated November 9, 1978, the immigration judge found
the respondent deportable as charged and denied his application for
voluntary departure. The respondent has appealed from that decision.
The appeal will be dismissed.
   The respondent was admitted to the United States for permanent
residence on September 14, 1971. At that time, he was in possession of a
labor certification issued on the basis of an application executed by
Harry HO, who was then the president of San Francisco Chinese Opera
Club. This application stated that the respondent would be paid a salary
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of $650 per month, and that he would instruct over 40 pupils. The
application evidently was submitted by Harry Ho without the knowledge or consent of the other officers of the club (Exh. 5 "C", p. 2).
  A Service investigation revealed that the San Francisco Chinese
Opera Club did not at any time have the funds required to pay the
respondent (and another alien music teacher for whom it also had
petitioned) at a rate of $650 per months (Exh. 5). In a sworn statement,
Harry Ho admitted that the club never had paid the repondent a salary
of $650, nor was the club ever in a financial position to do so. Mr. Ho
claimed that h€ had hoped that in the future the club could afford to pay
the respondent such an amount (Exh. 3 "C", pp. 5-7). However, Mr. Ho
stated that he did not divulge the true facts surrounding the respondent's -employroent to the Labor Department because "they wouldn't
understand, then they would deny the petition." (Exh. 3 "C", p. 12)
   When initially questioned under oath by the Service, on June 12,
1972, the respondent claimed to have had no knowledge that his job
offer mentioned a salary of $650 per month until informed of that fact by
the Service at the time of the interview (Exh. 8 "A", p. 3). Later the
respondent claimed that his employment contract provided for the
monthly payment of $850 by the club (Tr. p. 18).
  The evidence of record establishes that the respondent was never
paid a salary of $650 per month by the San Francisco Chinese Opera
Club. Nevertheless, the club's financial records and canceled checks
show that the respondent received several monthly checks for $650 from
the club (Exhs. 5 "A" & "B"). The current president of the club stated
that the respondent and the other alien music teacher gave the club $650
for deposit in each of these months and received in return the club's
check for the same amount 'just for the record." He indicated that this
procedure had been set up when Harry Ho was the president of the
club, and that it had been continued for some time thereafter. The
arrangement was such that the check for $650 was written only if the
respondent an6 the other instructor turned in that amount of money to
the club. If less than $650 were turned in by either of the instructors,
the club was in no financial position to reimburse him for the difference
between the amount he turned in and $650. The club would issue the
check without regard to the source of the funds turned in by the
instructors (Exh. 5 "0", p. 4).
   The respondent gave conflicting explanations regarding his financial
arrangements with the club. At best, however, he only collected an
average of $300-$400 per month from his students (tr. p. 24). Since he
has been in the United States, the respondent his worked as a janitor in
a restaurant and as a busboy in addition to his music teaching. The
immigration judge, who had an opportunity to observe the respondent's
demeanor, four.d him not to be a credible witness.
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  29 CPR 60.5(g) states:
    [Labor] Certifications issued pursuant to this part are invalid if the representations
 upon which they are based are materially incorrect. Materially incorrect, for the
 purposes of this paragr4h, means that if the correct facts had been known a certification could not have been issued pursuant to the requirements set forth at section
 212(a)(14) of the Immigration and Nationality Act.
  The respondent's labor certification was issued on the basis of incorrect representations in the application. If the correct facts had been
known, no labor certification could have been issued, since it would have
been apparent that the San Francisco Chinese Opera Club had no job to
offer the respondent. At the most, there was an arrangement by which
the respondent could give private music lessons to club members for
whatever compensation he might receive. In addition, he might receive
some unspecified compensation for helping the club stage its yearly
"money-making" production.' The respondent's purported "salary" from
the club was nothing more than a ruse by which he was allowed to
submit $650 of his own money, obtained from any source, and receive a
check back from the club "for the record." The respondent's labor
certification was issued on the basis of material misrepresentations. His
doportability under section 241(a)(1) of the Immigration and Nationality
Act by reason of section 212(a)(14) of the Ad has been established by
clear, convincing, and unequivocal evidence.
   The respondent applied for the privilege of voluntary departure. The
immigration judge denied such relief in the exercise of his discretion.
We find that the respondent was a knowing participant in a scheme to
circumvent the labor certification requirements of the Act. In addition,
there were several inconsistencies in the statements the respondent
made under oath. We agree with the immigration judge that the respondent does not merit a favorable exercise of discretion.
   The result reached by the immigration' judge was correct. The appeal
will be dismissed.
   ORDER: The appeal is dismissed.




   The club apparently puts on one production each year for which admission is charged.
Such productions evidently, make little, if any, profit for the club (Exh. 5 "C", pp. 5-(i).

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