MA R or 0
In VISA PETITION Proceedings
VP 07-1-22106
Decided by Board March 28, 1959
Viza petition--Determining admissibility not within the scope of visa petition
procedure.
Visa petition procedure is not the forum for determining substantive questions of admissibility under the immigration laws. When eligibility for the
claimed status is established, the petition should be granted.
BEFORE THE BOARD
Discussion: The case comes forward on certification by the
Assistant Commissioner, Examinations Division, under the authority
contained in section 3.1 (c), Title 8, Code of Federal Regulations.
The petitioner, a native - born citizen of the United States, seeks
nonquota status on behalf of the beneficiary, her husband, a native
and citizen of Italy. The parties were married on September 25,
1929, at Fulton, New York. The petition is supported by the birth
certificate of the petitioner and by a marriage certificate. The
beneficiary appears, upon the basis of the documents submitted,
prima facie eligible for nonquota status under section 101 (a) (27)
(A) of the Immigration and Nationality Act as the alien husband of a citizen of the United States.
The beneficiary is the subject of immigration file A-3458045 (E-
076779). He claims to have entered the United States from Italy in
April 1924, as a stowaway, and was found deportable under the Immigration and Nationality Act on the ground that he entered without
inspection and that he entered as a stowaway. On July 19, 1954, this
Board dismissed his appeal and denied an application for suspension
of deportation. At that time the alien alleged that his deportation
would result in exceptional end extremely nnusnal hardship fn himself, his citizen wife, and adult daughter. The special inquiry officer denied the application for suspension of deportation, finding
that his deportation would not result in exceptional and extremely
unusual hardship within the meaning of section 244(a) (1) of the
Immigration and Nationality Act ; and further, that respondent has
not established that he has been a person of good moral character
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since 1946. Although the alien had actually been convicten or
four traffic violations in the United States, examination of the
roco,l revealed instances of misrepresentations and false claims in
connection with an attempt t o obtain a certificate of legal residence
in 1938 by falsely claiming the name of one E — A-- -- Attempts
to establish residence in the United States prior to July 1, 1921, by
affidavits of witnesses claiming to have first met him in April or
May 1924, turned out, upon examination, to be false or the allia,nts
had no knowledge of the alien. It was also established that the
alien had been convicted in absentia in Italy in May 1928 of two
offenses of murder and as an accomplice in two murders and he
admitted that an arrest in Italy when he was 18 years old which he
had described as "for fighting" was actually an arrest on suspicion
of murder. It was noted that the alien's conviction in absentia in
Italy would not support a charge of deportability for conviction of
a crime prior to entry because of the nature of the conviction. He
has been arrested on several other occasions but was acquitted of a
charge of murder and a charge of conspiracy to defraud the United
States.
Based upon the alien's past history as revealed in his immigration
files, the Service concludes that the beneficiary would be ineligible
to receive a visa and would be excluded from the United States
under section 239.(x)(27) of the Immigration and Nationality Act
which encompasses aliens who the conoular officer or the Attorney,
General knows or has reason to believe seek to enter the United
States solely, principally, or incidentally to engage in activities
prejudicial to the public interest, or endanger the welfare, safety or
security of the United States. Relying on the words "or the Attorney General" in section 212(a) (27), the Service concludes that the
beneficiary is ineligible to receive a visa and is inadmissible to the
United States under that section and accordingly denies the visa
petition. At oral argument the same contentions were advanced,
and the argument was also made that circuity of action should be
avoided wherever possible; that it would be anomalous to require
approval of the visa petition when a subsequent determination upon
the alien's application for admission to the United States will result
in a finding of inadmissibility upon the grounds already set forth.
It is believed that the finding of inadmissibility as a basis upon
which to deny approval of a visa petition is not sanctioned under
the procedure set forth in granting vioa petitions. The visa petition
procedure for granting nonquota immigrant status under ooctinn
101(a) (27) (A) or quota immigrant status under sections 203(a) (2),
203(a) (3) or 203(a) (4) is set forth in section 205 of the Immigration and Nationality Act. Subsection (c) of section 205 provides
that after an investigation of the facts in each case the Attorney
296
General shall, if he determines that the facts stated in the petition
are true and that the alien with respect to whom the petition. is
made is eligible for a nonquota status or for preference quota immigrant ettitue, 0.11 approve the petition and forward one copy
thereof to the Department of State and the Secretary of State shall
then authorize the consular officer to grant the approved status.
It is obvious from a reading of section 205 that no provision is
made therein for determining admissibility under the immigration
laws. The sole concern of this procedure is eligibility for the status
claimed. In relationship cases, the only evidence submitted is documentary or in affidavit form. It is true, of course, that the consular
officer must be satisfied as to the admissibility of the alien to the
United States under other provisions of the immigration laws and
that the alien when seeking athili,tion may also again be e.samincil
as to admissibility by the Attorney General or other officer to whom
he has delegated authority. However, this authority is contained in
sections 104 and 221(g) of the Immigration and Nationality Act as
to consular officers and in sections 235 and 236 as to immigration
officers. The fact that section 206 grants the Attorney General
authority to revoke approval of any petition at any time for good
and sufficient cause is not pertinent because the revocation of an
approved petition is not here involved, and we need not concern
ourselves as to the scope of good and sufficient cause.
The procedure set forth in section 205 is generally a reenactment
of the provisions contained in the prior law as set forth in section
9 of the Immigrant Act of 1924. It has previously been held that
neither section 9 of the Immigration Act of 1924 nor regulations
promulgated thereunder require a general inquiry into an alien's
admissibility under all the immigration laws; and that if there is
no challenge to the truthfulness of the claim of relationship or to
the claim of citizenship or permanent residence, there is no basis for
denial (Matter of 0—,
3 I. & N. Dec. 376
). The visa petition
procedure is concerned merely with the question of status. It does
not concern itself with substantive questions of inadmissibility
which may be explored by the consular officer before issuing the
visa or by the Service in connection with the inspection and exclusion procedure set forth in sections 235 and 236. The Service position would deprive the consular officer of the opportunity to determine whether a visa should be issued, and would also circumvent
the statutory hearing available to an applicant for admis s ion into
the United States.
The evidence supporting the visa petition establishes the citizenship of the petitioner and the claimed relationship of husband and
wife between the petitioner and the beneficiary. The visa petition
will accordingly be approved for nonquota status. This approval
297
constitutes no assurance of admission into the United States inasmuch as the question of admissibility under the general immigration
laws is still to be determined by the consular officer and by the
Service.
Order: It is ordered that the appeal be sustained and the visa
petition be approved for nonquota status under section"101 (a) (27)
(A) of the Immigration and Nationality Act.
9aS
