BOSUEGO

                                                             Interim Decision #2732




                               MATTER. OF BOSUEGO

                           In Deportation Proceedings

                                      A-34162475

                       Decided by Board October 5, 1979
                        Decided by Board July 8, 1980
(1) Inasmuch as an alien who falls within the purview of the first clause of section
   212(a)(19) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(19), is permanently ineligible for admission to the United States, she may be found to have been
   excludable under that section at the time of her latest entry, and to be thereby
   deportable under section 241(a)(1) of the Act, 8 U.S.O. 1261(s)(1), on tho basis of
   misrepresentations made in connection with an application for a visa for an earlier
   trip to this country.
(2) The circumstances existing at the time thg respondent appeared before the consul
   control in determining whether her representations on her visa application, admittedly made with knowledge of their falsity, concerned facts material to her eligibility for
   a visa. Matter of Avalos Zavala, 

 (BIA 1965).
(3) Under Woodby v. INS, 385 U.S 2'76 (1966), the ultimate burden of proving all the
   facts necessary to sustain a determination of deportability must remain with the
   Government; the element of materiality is a fact crucial to a finding of deportability
   bottomed on a section 212(a)(19) charge.
(4) In order to sustain its Woodby-imposed burden in the case of an alien not excludable
   on the true facts, the Service must show that the alien's misrepresentation is material
   within the meaning of the definition set out by the Attorney General in Matter of S-
   and B C , 

 (A.G. 1961), to wit, it tended to shut off a line of inquiry
        —   —

   relevant to the alien's eligibility for a visa which might well have resulted in a proper
   determination that she be excluded.
(5) The Attorney General assigned the alien the burden of persuasion and proof on the
   question whether the inquiry cut off by the alien's misrepresentation might have
  resulted in a proper determination that she be excluded Matter of S— and B — C —. 

(6) Pursuant to the command of Woodby v. INS, supra, only after the Service has shown
  that facts possibly justifying denial of a visa or admission to the United States would
  have likely been uncovered and considered but for the misrepresentation is the alien
  required under Matter of S and B 

 to establish that no proper determi-
                              —        —   —


  nation of inadmissibility could have been made.
(9) Where the true facts concealed by the respondent, that she was a college graduate
  with a sister residing in the United States, would not in and of themselves have barred
  her admission as a nonimmigrant and where the record contains no additional facts
  which would have influenced the consul one way or another in determining whether
  she was inadmissible as a mala fide nonimmigrant or on section 212(a)(19) grounds,
  the Service failed to establish a factual foundation for a finding that further inquiry

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Interim Decision 112732
  might well have resulted in a proper determination of inadmissibility and the burden
  accordingly Miter shifted to the respondent to show that no such finding could have
  properly been made. Woodby v. INS, supra, compels conclusion that the Service's case
  is insufficient to sustain a determination of deportability for failure to establish the
  materiality of the respondent's misrepresentations

CHARGES:
  Orden Act of 1952—Sec. 241(a)(1), I&N Act [8 U.S.C. 1251(a)(1))]—Secured visa by
                        fraud or misrepresentation of material fact
                      Sec. 241(a)(1), I&N Act [8 U.S.C. 1251(a)(1))]—Immigrant
                        without valid visa


                             BEFORE THE BOARD
                               (October 5, 1979)
ON BEHALF OF RESPONDENT:                              ON BEHALF OF SERVICE
  Lyn I. Goldberg, Esquire                       Patrick T. McDermott
  3067 Fifth Avenue                              Trial Attorney
  San Diego, California 92103
BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members



   In a decision dated June 16, 1977, an immigration judge found the
respondent deportable as charged pursuant to section 241(a)(1) of the
Immigration and Nationality Act, 8 U.S.C. 1251(a)(1), as an alien
excludable at entry under section 212(a)(19) of the Act, 8 U.S.C.
1182(a)(19), for having procured a visa by willfully misrepresenting
material facts.' He further found that relief under section 241(f) of the
Act, 8 U.S.C. 1261M, is not available to the respondent. The immigration judge certified his decision to the Board for review pursuant to 8
C.F.R. 3.1(c). The proceedings will be terminated.
   The respondent is a 41-year-old female alien, a native and citizen of
the Philippines. The record reflects that she entered the United States
in December of 1967 in possession of a C-1 nonimmigrant transit visa.
She remained longer than authorized. At a deportation hearing held in
March of 1S70, an immigration judge found the respondent deportable
as an overstay pursuant to section 241(a)(2) of the Act, 8 U.S.C.
  ' The immigration judge erroneously concluded that a charge of deportability predicated upon excludability at entry under section 212(a)(20) of the Act, 8 U.S.C.
1182(a)(20), for lack of a valid immigrant visa, could not be sustained where brought
simultaneously with another charge of excludability under section 212(a) which is based
upon the same conduct. See Cacho v. INS, 

 (9 Cir. 1976); Persaud v. INS, 

 (3 Cir. 1976); Matter of Da Lomba, 

 (BIA 1978); Matter of
Gonna/ex, 

 (BIA 1978), °I'd sub nom. Gonzalez-Morquecho v. INS, 

 (9 Cir. 1979); Matter of Martinez-Lopez, 

 (BIA 19132; A.G.
1964).

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1251(a)(2), but granted her 30 days within which to voluntarily depart
the United States in lieu of deportation. She apparently left this
country within the allotted time.
  In January of 1972, the respondent was married in the Philippines to
a United States citizen who is a native and resident of the Philippines.
She was thereafter issued an immigrant visa predicated upon her
status as an immediate relative of a United States citizen and she
entered the United States with that visa in late December 1972.
                                                      -


   At these deportation proceedings, conducted in May of 1977, the
Service introduced into evidence sworn statements of the respondent,
executed on November 24, 1969, and on August 23, 1976, in which she
admitted that she had misrepresented certain facts to United States
consular officials on two separate occasions. According to her affidavits, the respondent informed the consul at the time she applied for
her nonimmigrant transit visa in 1967 that she had no close family ties
in the United States and that she had not yet completed her college
education when she in fact had a sister residing in this country and had
already received her college degree. When she applied for her immigrant visa in 1972, she deliberately concealed her prior residence in
this country from 1967 to 1970. The respondent testified at the hearing
to the truth and accuracy of those statements (Tr. pp. 10, 12). The
Government thereupon rested its case as to deportability (Tr. p. 13).
   The immigration judge found that the respondent's misrepresentations in applying for her immigrant visa in 19'72 were not material and
therefore could not serve as the basis of a finding of deportability.
However, he found that the respondent was excludable under section
212(a)(19) at the time of her entry as an immigrant in 1972, and is
thereby deportable under section 241(a)(1) of the Act, on the basis of
her 1967 statements to the consul? The question before us, then, is
whether the Government has established by the requisite standard of
proof that the respondent's statements in connection with her 1967
nonimmigrant visa application, admittedly made with knowledge of
their falsity, concerned facts material to her eligibility for a visa. We
conclude that the Government has not sustained its burden.
  The materiality requirement of section 212(a)(19) is satisfied 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 have resulted in a proper
determination that he be excluded. Matter of S and B--C , 9 I&N
                                                              —               —




  2 An alien who falls within the purview of the first clause of section 212(a)(19) as one
who "... seeks to procure, or has sought to procure, or has procured a visa or other
documentation ... by fraud, or by willfully misrepresenting a material fact..." is
permanently ineligible for admission to the United States. See Matter of Healy and
Goode/al, Interim Decision 2716 (BIA 1979).

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Interim Decision #2732

Dec. 436 (BIA 1960; A.G. 1961). The circumstances existing at the time
the alien appeared before the consul are controlling.
  Mlle important factor is how the case would have appeared to the consul had he been
  in possession of all the facts at the time application was made. If having been in
  possession of all the facts, it would have appeared probable to the consul that
  respondent was in admissible, then concealment of those facts was a material matter.
  Matter of Avalos Zavala, 

 (BIA 1965).
  Had the respondent in the instant case been truthful when she
applied for her nonimmigrant transit visa in 1967, the consul would
have known that she was then a college graduate who had a sister
residing in the United States. The likelihood that knowledge of those
facts would have led to a finding that the respondent was inadmissible
as a mala fide nonimmigrant or on section 212(a)(19) grounds' is,
however, undeterminable from the record before us. The record contains no reference whatever to other pertinent factors, such as the
presence or absence of family and community ties in the Philippines at
the time of application, which would have influenced the consul's
determination with respect to the respondent's bona fides as a nonimmigrant. See Vol 9, Foreign Affairs Manual, Part II, 22 C.F.R. 4125,
note 2. No attempt was made by the Service to develop the relevant
facts in existence when the respondent presented herself before the
consul and, absent any such development, we are unable to evaluate
the effect of her misrepresentations upon the consul's decision to issue
her nonimmigrant visa.
  We obviously do not condone the respondent's repeated, deliberate
deceptions in her dealings with officials of the United States Government. However, the burden is on the Government in deportation
proceedings to prove each element of the ground of deportability
charged by clear, unequivocal, and convincing evidence. Wooclby v.

  3 0f some interest in this regard, although not binding upon the Service, are the
pertinent substantive notes of the Department of State Foreign Affairs Manual which
serve as official Department guidelines to United States consular officers abroad In
determining whether a visa applicant is properly found inadmissible and, hence, ineligible for a visa under section 212(a)(19). The notes provide in part:
     In order to sustain a finding of materiality, it must be shown that the information
     foreclosed by the misrepresentation was of basic significance to the alien's eligibility for a visa. The information concealed by the misrepresentation must, when
     balanced against all the other information of record, have been controlling or
     crucial to a final decision of the alien's eligibility to receive a visa. EXAMPLE: If an
     alien were trying to establish his ties abroad by submitting false evidence of
     particular employment in an effort to establish his bona fides as a nonimmigrant
     and it appeared. that the alien had other ties meriting consideration, the misrepresentation would not be considered to be material unless the consular officer
     could state categorically that had he known the true state of affairs, no visa could
     properly have been issued. Vol. 9, Affairs Manual, Part H, 22 C.F.R. 41.91(a)(19),
     note 6.33.

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INS, 

 (1966). In light of our conclusion that the Service has
failed to establish the materiality of the respondent's misrepresentations, a showing crucial to a finding of excludability under both section
212(a)(19) and section 212(a)(20) in this case, we have no alternative but
to terminate the proceedings. We accordingly need not reach the issue of
the respondent's eligibility for relief under section 241(f) of the Act.
   ORDER: The deportation proceedings are terminated.

                            BEFORE THE BOARD
                                (July 8, 1980)
ON BEHALF OF RESPONDENT:        Lyn I. Goldberg, Esquire
                                Central Federal Tower
                                225 Broadway, Suite 1313
                                San Diego, California 92101
BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members


  This case is before us on the motion of the Immigration and Naturalization Service to reconsider our decision dated October 5, 1979, in
which we directed termination of the deportation proceedings. The
motion for reconsideration will be granted. Upon reconsideration, the
deportation proceedings will again be ordered terminated.
  In a decision dated June 16, 1977, an immigration judge found the
respondent deportable as charged under section 241(a)(1) of the Immigration and Nationality Act, 8 U.S.C. 1251(a)(1), as an alien excludable at entry under section 212(a)(19) of the Act, 8 U.S.C. 1182(a)(19),
for having procured a nonimmigrant visa in 1967 by willfully misrepresenting material facts.' The misrepresentations consisted of the
respondent's statements to the consul that she had no close family ties
in the United States and that she had not yet completed her college
education when she in fact had a sister residing in this country and had
already received her college degree.
  On review, we determined that the Service had failed to establish
that the misrepresentations at issue, admittedly made with knowledge
of their falsity, were material to the respondent's eligibility for a

  ' The immigration judge concluded that a subsequent misrepresentation of the respondent, willfully made in connection with an application for an immigrant visa in
1972, was not material and therefore could not serve as a basis of deportability. The
Service challenges that finding, as well as our October 1979 decision to terminate
proceedings, in its present motion for reconsideration. The Service's objection to the
foregoing portion of the immigration judge's decision, a proper subject for appeal or
cross appeal, is not timely made.

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nonimmigrant visa and we accordingly terminated the deportation
proceedings for failure on the part of the Service to sustain its burden
of proof under Woocltry v. /NS, 

 (1966). In its motion for
reconsideration, the Service contends that our decision in the case is
inconsistent with the Attorney General's holding in Matter of S— and
B—C—, 9 I&N Dee. 436 (A.G. 1961), and is therefore erroneous as a
matter of law. We disagree.
  In Matter of 8— and B—C—, supra, the Attorney General held that
a misrepresentation made in connection with an application for a visa
or other documentation, or with entry into the United States, is
material for purposes of section 212(a)(19) 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 have resulted in a proper determination that he be excluded. The Attorney General stated that the application of the foregoing test will turn on the answers to three questions, which the Service
set forth as follows in its motion:
  First, does the record establish that the alien Is excludable on the true facts? If it d000,
  then the misrepresentation was material. If it does not, then the second and third
  questions must be considered. Second, did the misrepresentation tend to shut off a line
  of inquiry which is relevant to the alien's eligibility? ... Third, if a relevant line of
  inquiry has been cut oil, might that inquiry have resulted in a proper determination
  that the alien be excluded? On this aspect of the question the alien bears the burden of
  persuasion and proof (Emphasis supplied.)
  The Service maintains that our October 1979 decision impermissibly
placed the burden upon the Service to establish that further inquiry
would have resulted in the denial of the respondent's application for a
nonimmigrant visa. It submits that the Attorney General assigned the
burden of persuasion and proof on that issue to the alien, not to the
Service.
  The Service inaccurately describes our holding in the case. We
observed that had the respondent been truthful when she applied for
her nonimmigrant visa, the consul would have known that she was
then a college graduate who had a sister residing in the United States,
facts which the Service concedes would not in and of themselves have
barred the respondent's admission as a nonimmigrant. Noting the
absence in the record of reference to any other pertinent facts bearing
upon the respondent's bona fides as a nonimmigrant,' we concluded

    The record and the Service's moving papers refer to a previous, unsuccessful attempt
by the respondent to obtain a nonimmigrant visa. We do not believe it appropriate to
consider that factor in light of a stipulation entered into by counsel and the Service at
the hearing that any reference to the earlier application be disregarded, an undertaking
which, incidentally, foreclosed development of the circumstances surrounding the denial
of that application.

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that the likelihood that knowledge of the true facts would have led to a
finding that the respondent was excludable as a male, fide nonimmigrant or on section 212(a)(19) grounds was simply not determinable
from the record before us. We stated:
  ... No attempt was made by the Service to develop the relevant facts in existence when
  the respondent presented herself before the consul and, absent any such development,
  we are unable to evaluate the effect of her misrepresentations upon the consul's
  decision to issue her nonimmigrant visa.
 The import of our decision is that the Service erred in failing to show
 that further inquiry might have resulted in a proper denial of the
 respondent's visa application, not in failing to establish that such
 inquiry would have resulted in the denial of the application. Thus
 characterized, and for reasons discussed below, we are satisfied that
 our decision is correct.
    The Supreme Court in Woodby v. INS, supra, concluded that ". .. it is
 incumbent upon the Government in [deportation] proceedings to establish the facts supporting deportability by clear, unequivocal, and convincing evidence." 386 U.S. at 277. Under Woodby, the ultimate burden
 of proving all the facts necessary to sustain a determination of deportability must remain with the Service. The element of materiality
 is a fact crucial to a finding of deportability bottomed on a section
 212(a)(19) charge.
    In order to sustain its Woodby-imposed burden in the case of an
 alien who is not excludable on the true facts, the Service must show
 that the alien's misrepresentation is material within the meaning of
 the definition set out by the Attorney General in Matter of S — and
B— C--, supra, to wit, that the misrepresentation tended to shut off a
 line of inquiry relevant to the alien's eligibility which might well have
resulted in a proper determination that he be excluded. Only after the
 Service has shown that facts possibly justifying denial of a visa or
admission to the United States would have likely been uncovered and
considered but for the misrepresentation is the alien required under
S— and B—C— to establish that no proper determination of inadmissibility could have been made by the consul or the inspecting immigration officer.
   In the instant case, where further inquiry might have led and
whether it might have resulted in the proper denial of the visa is
purely speculative. Unlike suspected grounds for exclusion which rest
upon solid facts,       criminal convictions, membership in proscribed
political organizations, etc., excludability as a male fide nonimmigrant
is by nature a subjective determination, but one nonetheless susceptible of review. The present record contains no cognizable facts
whatever, apart from the facts actually misrepresented, which would
have influenced the consul one way or another in deciding whether to

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Interim Decision #2732
issue the visa and therefore provides no basis for evaluating whether a
proper determination to deny the visa might have been made'
   The Service has failed to establish a factual foundation for a finding
that further inquiry foreclosed by the respondent's misrepresentations might well have resulted in a proper determination that she be
excluded. The burden accordingly never shifted to the respondent to
establish that a proper finding of inadmissibility could not have been
made. Under the circumstances, Woodby requires us to find the Service's case insufficient to sustain a determination of deportability. The
proceedings. will be terminated.
   ORDER: The motion for reconsideration is granted.
   FURTHER ORDER: The deportation proceedings are terminated.




  ' We recently had occasion to note in a different context that given the serious
consequences of a finding of excludability under the first clause of section 212(a)(19),
dealing with the procurement of documents, the factual basia of such finding ought to be
given close scrutiny, particularly where the alleged fraud or misrepresentation involves
a disputed issue as to the alien's subjective intent. Matter of Healy and Goodchild,
Interim Decision 2716 (BIA 1979).

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