Interim Decision #2716
MATTER OF HEALY AND GOODCHILD
In Exclusion Proceedings
A-21672002
A-21672008
Decided by Board July 8, 1979
(1) An alien destined for the United States for the primary purpose of study at a school
which has not been approved by the Attorney General for attendance by nonimmigrant students is subject to the provisions of section 101(a)(15)(F) of the Immigration and Nationality Act, 8 U.S.C. 1101(aX15)(F), and is not admissible as a nonimmigrant visitor for pleasure as defined by section 101(a)(15)(B) of the Act.
(2) The B-2, visitor for pleasure, nonimmigrant category is not a "catch-all" classification available to all who wish to come to the United States temporarily for whatever
purpose but instead encompaoocs a opeeific, defined Glace of aliens. Soetion
101(a)(15)(B) of the Act; 22 C.F.R. 41.25.
(3) Where an alien has failed to establish his entitlement to status as a nonimmigrant
under any of the classifications set forth in section 101(a)(15) of the Act, he is properly
excludable under section 212(a)(20) of the Act, 8 U.S.C. 1182(a)(20), as an immigrant
without the requisite travel or entry documents, not under section 212(a)(26) of the
Act, as a nonimmigrant not in possession of the necessary documentation.
(4) Adequate notice of section 212(a)(20) as an applicable ground of exclusion is provided by sections I01(a)(15) and 214(b) of the Act, 8 U.S.C. 1101(a)(15) and 1184(b),
which may mandate a finding that an alien is an immigrant whenever his right to a
particular nonimmigrant classification is questioned by the Service.
(5) Knowledge of the falsity of a representation satisfies the fraud and willfulness
requirements of section 212(a)(19) of the Act. Suite v. INS, 594 F.2d 972 (3 Cir. 1979).
(6) Section 291 of the Act, 8 U.S.C. 1361, places the burden upon the alien to demonstrate
that he is not inadmissible under any provision of the Act; however, inasmuch as an
alien excluded under the first clause of section 212(a)(19) is perpetually barred from
admission to the United States, the factual basis of the finding of excludability should
be subject to close scrutiny, particularly where the alleged fraud or misrepresentation
involves a disputed issue as to the alien's subjective intent.
EXCLUDABLE Act of 1952—Sec. 212(a)(19) [8 U.S.C. 1182(a)(19)]—Fraudulent visa
Sec. 212(a)(20) [8 U.S.C. 1182(a)(20))—Immigrant—no
. valid immigrant visa
Sec. 212(a)(26) [8 U.S.C. 1182(a)(26)]—Student—no valid
nonimmigrant visa
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Interim Decision 112716
ON BEHALF OF APPLICANTS: ON BEHALF OF SERVICE:
David Carliner, Esquire George Indelicato
Carliner & Gordon Appellate Trial Attorney
1511 K Street, N.W.
Washington, D.C. 20005
BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members
This case is before us on appeal from the April 26, 1978, decision of
an immigration judge which found the applicants, Mr. Healy and Mr.
Goodchild, excludable under section 212(a)(26) of the Immigration and
Nationality Act, 8 U.S.C. 1182(a)(26). Mr. Healy was additionally found
excludable under section 212(a)(19) of the Act. The appeal will be
dismissed.
Mr. Healy, a native and citizen of Ireland and a resident of Australia, applied for a nonimmigrant visa at the United States Consulate
General in Melbourne, Australia, for the stated purpose of visiting this
country for a 1-month period. On September 7, 1977, he was issued a B-
2 nonimmigrant visitor for pleasure visa, valid for multiple applications for admission to the United States within 3 months from the date
of issuance. One that same date, Mr. Goodchild, a native and citizen of
Great Britain, was issued a B 2 nonimmigrant visitor visa at the
-
United States Embassy in London, England, which was valid for
multiple applications for admission to this country within 6 months
from the date of issuance.
In the course of inspection upon their respective arrivals in New
York, each applicant was found to be in possession of a letter of
acceptance for admission to a 9-month course of study at the Claymont
School for Continuing Education, an institution which has not been
approved for attendance by nonimmigrant students. The applicants
were thereupon charged with excludability under section 212(a)(26) as
nonimmigrant students not in possession of valid nonimmigrant student visas and under section 212(a)(19) as aliens who procured their
visas by willfully misrepresenting material facts.
In the consolidated exclusion proceedings that ensued, the immigration judge found Mr. Goodchild excludable as charged under section
212(a)(26) but held that the charge under section 212(a)(19) could not
be sustained in his case. As noted above, Mr. Healy - was found excludable under both section 212(a)(26) and section 212(a)(19). The immigration judge's findings as to each charge will be examined in turn.
The facts underlying the section 212(a)(26) charge present an issue
common to both applicants, specifically, whether an alien seeking
admission to the United States for the primary purpose of attending
an educational institution that has not been approved by the Attorney
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Interim Decision #2716
General for attendance by alien students in accordance with section
101(a)(15)(F) of the Act, 8 U.S.C. 1101(a)(15)(F), may be properly
admitted as a nonimmigrant visitor for pleasure pursuant to section
101(a)(15)(B) of the Act.
Under section 101(a)(15) of the Act, every alien is considered to be an
immigrant unless he is able to establish that he is entitled to nonimmigrant status under one of the specified classes of nonimmigrants
designated by Congress in section 101(a)(15)(A) through section
101(a)(15)(L). Section 214(b) of the Act, 8 U.S.C. 1184(b); 22 C.F.R.
41.10. Moreover, the burden is upon the alien to establish that he is
entitled to the nonimmigrant classification and type of nonimmigrant
visa for which he is an applicant. 22 C.F.R. 41.10; of section 291 of the
Act, 8 U.S.C. 1361.
The applicants conceded that they are not entitled to status as
nonimmigrant students under section 101(a)(15)(F) inasmuch as the
Claymont School has not been approved by the Attorney General or his
delegate.' Each applicant further acknowledged that the principal
purpose of his visit was to participate in the basic course to which he
was admitted at the Claymont School, that he had paid a deposit of
$100 toward the $2,750 tuition for the course prior to seeking admission
to the United States, and that he had been in attendance at the school
since his parole into this country.
Counsel does not seriously contest the fact that the Claymont School
is a school and that the applicants are students within the ordinary
usage of those terms and we are satisfied that they are properly
classifiable as such? Counsel argues instead that section 101(a)(15)(F)
' Section 101(a)(15)(R) accords nonimmigrant status to
an alien having a residence in a foreign country which he has no intention of
abandoning, who is a bona fide student qualified to pursue a full course of study and
who seeks to enter the United States temporarily and solely for the purpose of
pursuing such a course of study at an established institution of learning or other
recognized place of study in the United States, particularly designated by hint and
approved by the Attorney General after consultation with the Office of Education of
the United States, which institution or place of study shall have agreed to report to
the Attorney General the termination of attendance of each nonimmigrant student,
and if any such institution of learning or place of study fails to make reports
promptly the approval shall be withdrawn .... (Emphasis added.)
The purpose and program of the basic course at the Claymont School are described as
follows in excerpts from the institution's 1977-78 catalog (Ex. 4A):
The Claymont School for Continuous Education is founded on the principle that true
education must include techniques of self-perfecting in mind, body, and spirit and
must realize the potential latent in normal men and women.... The daily schedule
normally begins at 6 a.m. All students and staff share in psychological and spiritual
• exercises until breakfast. After breakfast, 4-5 hours are devoted to practical activities involving the acquisition of a wide variety of skills such as cooking, breadmaking, carpentry, housepainting, plumbing and electrical work, gardening, logging,
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Interim Decision #2'116
is solely concerned with alien students destined for approved schools.
Since the Claymont School has not been accredited by the Service, he
insists that the applicants are not subject to the provisions of section
101(a)(15)(F) of the Act but are admissible as visitors for pleasure. We
disagree.
It is clear that absent Service approval of the school to which an
alien student is destined, he may not establish eligibility for a nonimmigrant student visa under section 101(a)(15)(F). It does not follow
ipso facto, however, that an alien bound for the United States for the
primary purpose of pursuing a course of study at an unapproved school
is entitled to status as a nonimmigrant visitor for pleasure under
section 101(a)(15)(B)- That such alien is not entitled to status as a
nonimmigrant visitor is evident from the express terms of section
101(a)(15)(B) which includes among those classifiable as
nonimmigrants:
an alien (other than one corning for the purpose of study or of performing skilled or
unskilled labor or as a representative of foreign press, radio, film, or other foreign
information media coming to engage in such vocation) having a residence in a foreign
country which he has no intention of abandoning and who is visiting the United States
temporarily for business or temporarily for pleasure; ... (Emphasis added.)
While the statutory term "pleasure" is not defined in the Act, State
Department regulation 22 C.F.R. 41.25 provides the following
definition:
(c) The term "pleasure", as used in section 101(a)(15)(B) of the Act, refers to legitimate activities of a recreational character, including tourism, amusement, visits with
friends or relatives and rest; medical treatment, or activities of a fraternal, social or
service nature.
See also Vol. 9, Foreign Affairs Manual, Part II, 22 C.F.R. 41.25, note
5(a) through (g).
It is thus apparent from the explicit language of section
101(a)(15)(B), as supplemented by the foregoing regulation, that the B-
2, or visitor for pleasure, nonimmigrant category was not intended to
be a "catch-all" classification available to all who wish to come to the
United States temporarily for whatever purpose. Instead, as is the case
with the other nonimmigrant classes enumerated by Congress in section 101(a)(15), section 101(a)(15)(B) was designed to encompass a
specific, defined class of aliens; by the express terms of the statute, that
class does not include aliens coming for the purpose of study. To accept
counsel's theory would not only disregard the explicit language of
animal and vegetable husbandry, repairs and special crafts and skills such as
spinning, woodworking and pottery to meet particular needs.... In the afternoon ... the two groups not on house duty attend classes, which include work at
the Gurdjieff sacred gymnastics, psychology, cosmology, art, music, and theatre.
There are also special. classes, seine conducted by the School staff, some by visiting
tutors, on subjects such as health, ecology and intermediate technology....
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Interim Decision #2716
section 101(a)(15)(B) but would undermine the requirements for entitlement to student status under section 101(a)(15)(F) and the
detailed regulations which have been promulgated to implement that
section.3 See 8 C.F.R. 214.2(f); 8 C.F.R. 214.3; 8 C.F.R. 214.4.
We accordingly hold that an alien bound for the United States for
the primary purpose of study is not admissible as a nonimmigrant
visitor for pleasure as defined by section 101(a)(15)(B) but must instead establish his entitlement to nonimmigrant student status under
section 101(a)(15)(F) and the pertinent regulations. Cf. Matter of Le
Flock, 13 I&N Dec. 251 (BIA 1969). We recognize that our decision in
effect declares unapproved educational institutions such as the
Claymont School to be unavailable to alien students. Our holding,
however, is in keeping with the clear statutory scheme drawn by
Congress which deems all aliens to be immigrants unless they can
demonstrate that they qualify for status under one of the distinct
nonimmigrant classes enumerated in section 101(a)(15). The dispositive fact is that Congress made no provision thereunder for aliens
destined for the United States for the primary purpose of pursuing a
course of study at an unapproved school.
Although we agree with the immigration judge that the applicants
are excludable on the facts presented, we believe that section
212(a)(20), not section 212(a)(26), constitutes the appropriate ground
of exclusion. Inasmuch as the applicants have failed to establish their
entitlement to status as F-1 students, as B-2 visitors, or as nonimmigrants under any other classification set forth in section 101(a)(15),
they are properly excludable as immigrants without the requisite
travel or entry documents rather than as nonimmigrants not in possession of the necessary documentation. We note the absence from the
record of an express reference to section 212(a)(20) as an applicable
exclusion ground but are nevertheless satisfied under the circumstances of this case that the applicants had adequate notice of that
charge. Whenever the right of an alien to a particular nonimmigrant
classification is questioned by the Service, sections 101(a)(15) and
MAN of the Act may mandate a finding that the alien is an
immigrant.
The remaining issue before us concerns the finding of excludability
under 212(a)(19) with respect to Mr. Healy. At the hearing, Mr. Goodchild testified that he had requested a visa valid for 9 months, telling
the consul at the Embassy in London that he was "coming to a
Section 101(a)(16)(F) and the correlative regulations manifestly have the dual purpose of protecting alien students by ensuring the legitimacy of the school to be attended
and of facilitating the enforcement of the immigration laws with respect to those
students.
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Interim Decision #2716
community where we practice all sorts of living" (Tr. p. 27). He
conceded that he did not disclose to the counsul that he intended to
take an actual course of study here but accepted as accurate the
immigration judge's summation that te had "more or less told them
everything about the place except that it was a school" (Tr. p. 29). On
the basis of this testimony, the immigration judge concluded, with the
concurrence of the Service, that a charge under section 212(a)(19) had
not been sustained with respect to Mr. Goodchild.
Mr. Healy testified that he had had but one brief conversation with a
State Department employee at the United States Consulate in
Melbourne prior to obtaining his visa.` He stated that he was told by
that employee when he visited the Consulate to inquire about
procedures for coming to the United States, that he need only fill out a
visitor visa application form if he planned to remain here for 1 month
or less but that he would have to produce documentary evidence of his
intention to return to Australia if he contemplated a longer stay.' He
testified that he told the employee that he would apply for a 1-month
visit but would probably seek an extension of his stay from the Service
after his arrival in this country.
Mr. Healy maintained that his visa was issued on the basis of that
single conversation, which involved no discussion as to the purpose of
his trip, and of the visitor visa application form which he contemporaneously completed and returned to the Consulate employee.
On his application form, Mr. Healy responded to Items 18 and 19 as
follows:
18. What is the purpose of your trip?
"to visit America"
19. How long do you plan to stay in the USA?
"one month"
In response to the inquiry set forth in Item 20, "At what address will
you reside in the USA?", Mr. Healy provided the address of the
Claymont School.
At several points in the course of the hearing, Mr. Healy indicated
that notwithstanding his acceptance at the Claymont School for a
9-month course of study and his payment of a $100 deposit to the
school, he had not firmly decided to remain in this country for the
duration of the course at the time he applied for his visa. He stated
4 It is not apparent from the record whether Mr. Healy spoke with a consular officer or
with a local employee at the Consulate.
As an element of his overall burden of demonstrating entitlement to nonimmigrant
status under section 101(a)(15)(11) and (F), an alien must establish that he has a
residence in a foreign country which ho has no intention of abandoning. We are unaware
of any State Department policy or practice which absolves an alien of his burden of
establishing his bona fides as a nonimmigrant upon his representation that he intends to
remain in this country for a relatively short period of time.
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Interim Decision 112716
that he instead intended to visit the school and, if he found that course
to be suitable, to apply to the Service for an extension of his stay. Mr.
Healy explained that he would have requested additional time for his
visit when he initially applied for a visa but felt he would have
encountered difficulties in producing documentation to establish the
requisite ties in Australia since he had terminated his employment in
that country.
Mr. Healy stated that he believed that he was ineligible for a student
visa since the Claymont School is not an approved educational institution and thought, as a consequence, that he could properly apply for a
tourist visa. He further stated that while his acceptance at the
Claymont School provided the primary impetus for seeking admission
into the United States, he also wished to visit this country.
The immigration judge held that Mr. Healy had willfully misrepresented a material fact within the ambit of section 212(a)(19) by
indicating that he was destined for a 1-month visit to the United States
when he in fact knew that he was coming to study for a
9-month period. While the record is not free of ambiguities, we are, on
balance, unable to agree with the conclusion reached by the immigration judge.
In determining whether an alien has procured his visa by fraud or
willful misrepresentation of a material fact within the meaning of
section 212(a)(19), it is appropriate to examine the circumstances as
they existed at the time the visa was issued. Under the rule of law
announced herein, an alien's trip to the United States for the primary
purpose of participating in a course of study at an educational institution that has not been approved by the Service may not be characterized as a "visit" of a nature which would qualify him for status as a
visitor for pleasure under section 101(a)(15)(B). This precise issue,
however, has not previously been addressed by the Board. Given the
uncertain state of the law at the time Mr. Healy applied for his visa, it
is not unlikely that he considered the declared purpose of his trip, "to
visit America," to be an accurate statement of his intent.' Moreover,
we find Mr_ Healy's explanation with respect to his stated anticipated
length of stay plausible, if not compelling.
In interpreting the term "willful" for purposes of section 212(a)(19),
the Court of Appeals for the Third Circuit held in a recently decided
case that knowledge of the falsity of a representation satisfies the
fraud and willfulness requirements of that section- Suite v. INS, 594
F.2d 972 (3 Cir. 1979). We are not persuaded that a finding of willful-
'We note that unlike Mr. - Goocichild, Mr. Healy apparently was not afforded an
opportunity to fully discuss the purpose of his trip with a consular officer prior to the
issuance of his visa.
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Interim Decision #2716
ness is warranted on the particular facts of this case, and we accord-
'
ingly hold that Mr. Healy in not inadthissible under secton 212(a)(19)
of the Act for having procured his visa by fraud or by willfully
misrepresenting a material fact.
In so holding, we recognize that the Act places the burden on the
alien to demonstrate that he is not inadmissible under one of the
exclusionary grounds enumerated in secton 212(a). Section 291 of the
Act, 8 U.S.C. 1361. We believe, however, that given the harsh consequences of a finding of excludability under the first clause of section
212(a)(19), the factual basis of such finding, should be subject to close
scrutiny. This is particularly true where the alleged fraud or misrepresentation involves a disputed issue with respect to an alien's
subjective intent.
In accordance with the foregoing discussion, we shall order each
applicant excluded and deported solely on the ground of inadmissibility set forth in section 212(a)(20) of the Act.
IT IS ORDERED THAT the applicants be excluded and deported
from the United States pursuant to section 212(a)(20) of the Immigration and Nationality Act.
FURTHER ORDER. The appeal is dismissed.
' An alien excluded under 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 perpetually barred from
admission to the United States. In contrast, the Board bas held that a finding of
inadmissibility under the second clause of the section, which refers to any alien who "...
seeks to enter the United States by fraud, or by willfully misrepresenting a material fact
..." affects only the application for admission then under consideration and does not
constitute a continuing ground of inadmissibility. Matter of M--, 6 I&N Dec. 752 (BIA
1955).
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