J-D-D

                          ALATTER OF      J—D—D--

                   In DEPORTATION Proceedings

                                 A-10554745

                    Decided by Board April 13, 1962
 lisrepresentation—Section 212(a)(19)—Materiality.
Willful misrepresentations as to name, marital status, and existence of minor
 children held not material in this case: connection between the possible
  line of inquiry the misrepresentations cut off and raqpnnripnt's   P1Igihll ity
  for admission is so remote, tenuous, and fanciful as not to satisfy the test
  of materiality. (Compare Matter of          9-602.)
CHAaox:
  Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)]—Excludable
           at time of last entry: procured visa by fraud or willfully misrepresenting a material fact.

                           BEFORE THE BOARD

   DISCUSSION: On June 2, 1961, the special officer found the respondent to be subject to deportation on the charge set forth
above. On appeal, the Board by order dated October 23, 1961,
remanded the case to the special inquiry officer for consideration
in the light of the Attorney General's ruling in the Matter of S-
and B—Cf—, 9-436 (Oct. 2, 1961), and further directed that the
decision of the special inquiry officer be certified to the Board. By
order dated December 29, 1961, the special inquiry officer again found
the charge sustained and granted the respondent the privilege of
voluntary departure in lieu of deportation. This decision has been
certified to the Board.
  The respondent was admitted to the United States at El Paso,
Texas, on August 3, 1956, as a nonquota immigrant upon surrendering a nonquota immigrant visa which had been issued to her by
the American Consulate at Juarez, Mexico, on August 3, 1956. This
visa had been issued on the basis of an application for a visa which
she had executed on August 3, 1956, before the American vice-consul, in which the respondent stated in Item 1 that her family
name was "J—Ii—G--"; and replied "None" to Item 3 which called
for other names by which she had been known; in Item 18 she

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 indicated :Mc war ;Jingle and in Item '27 , which requested the namec -
 and residence of spouse and minor child, she stated "I have never
  been married and have no children. Nunca he lido casada ni tengo
 hijos," In truth and in fact, respondent at that time had been
 married to one A—D—S— in Juarez, Mexico, on May 20, 1954, by
 civil ceremony; and had two children by this marriage, one of
 whom was born April 7, 1954, and the second of whom was born
 on March 7, 1955, both in Mexico. The respondent testified that
 she had been separated from her husband for about 5 years and
 that since being separated she had not talked with him-but that
 she had seen him two times from a distance in Juarez, Mexico.
 The respondent explained that she was separated from her husband at the time she made her application and she stated that she
 was single on the visa application because she was not asked if
 she was married but only if she was single. She further explained
 that she was of the Catholic faith and, as she had married D—
 only by a civil ceremony, she did not believe that she was actually
 married to him and for this reason she was not accustomed to
 using his surname. She testified that she had never denied having
 children and said that she was never asked, but if she had been
 asked, she would have admitted that she had the children. The
respondent also testified that she did not intend to deliberately lie
to the consul in making her visa application.
   A sworn statement was taken from the respondent by an immigration officer on February 15, liP.G1, in which she stated that she answered Item . 27 in the way she did because she was separated and
thought it would be easier to arrange a visa if she said that she
was alone and admitted that she knew that she was not telling the
truth when she made the visa application. A birth certificate of the
second child shows that the respondent personally appeared to register the birth of the child and stated the child was the second child
of her marriage to the father,                  She explained that she
registered the.child in this way so that he would not be shown as
illegitimate.
   The special inquiry officer has found not credible the respondent's present testimony that she did not consider herself as married
because she was of the Catholic faith and the marriage ceremony
was a. civil one only, and that she was not accustomed to using the
surname "D—" for this reason and that she was single because she
was separated from her husband. He puts more credence in her
earlier statement that she was never married and had no children
because she was separated and thought it would be easier to arrange
a visa by showing she was single at which time she knew she was
not telling the truth.
  The special inquiry officer has found that the respondent made
a willful misrepresentation to the American vice-consul regarding
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her marital status, concealed the fact that she had two children
and concealed her married name from the consul, all of which she
did for the purpose of facilitating the issuance of the immigrant
visa to her. He has concluded that the misrepresentations were
material because her action tended to shut of a line of inquiry
which was relevant to her eligibility for a visa and 'which well
might have resulted in a determination that the visa should not
be issued to her; that the consul would have had an opportunity
to make an investigation and that the disposition of the respondent's visa application might well have hinged upon her establishing
to the satisfaction of the consul what arrangements she was making
for the care and support of her two children.
   The test of materiality under section 212(a) (19) of the 'miniation and Nationality Act has been formulated by the Attorney
General in Matter of S— and B—C—, supra, which holds that a
misrepresentation made in connection with an application for a 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 have resulted in a
proper determination that he be excluded. This test should also be
applied to misrepresentations relating to identity. The fact that
the 1952 Act provides for exclusion of aliens who "procure" documents by misrepresentation suggests an intent that the misrepresentation must have had at least some tendency to achieve a result
which would not have been achieved without it.
   The application of the test set forth will turn on the answer to
three questions:
     First, does the record establish that the alien is excludable on
              the true facts? If it does, 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? It
              should be emphasized that a remote, tenuous or fanciful
              connection between a misrepresentation and a line of
              inquiry which is relevant to the alien's eligibility is
              insufficient to satisfy this aspect of the test of materiality.'
     Third, if a relevant line of inquiry has been cut off, 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.
             Having made a willful misrepresentation which tends
             to cut off a relevant line of investigation, he cannot now
             try out his eligibility as if nothing had happened.
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  in the case of 13--C      in 9 d50 there ex isted two sets of misrepresentations by the alien: (a) misrepresentations of his and his wife's
identity in obtaining agricultural worker's permits in 1952 and 1954,
and (b) failure in his 1956 visa application to disclose his prior
residence in the United States and use of an alias in connection with
those entries in 1952 and 1954. While conceding that the use of a
false name in '1952 and 1954 shut off investigation at that time, the
Attorney General held there was nothing in the record to indicate
that if he had used the true name of himself and his wife the resultant
investigation would have revealed a ground of exclusion and held the
misrepresentation as to name not material. As to the 1956 misrepresentation the Attorney General stated that in view of his holding
as to the 1952 and 1954 misrepresentations, the Board's reasoning that
such misrepresentation concealed a ground of exclusion could not
 stand.
   The special inquiry officer has found that the respondent's action
in concealing her marital status and the fact that she had two
children tended to shut off a line of inquiry which was relevant
to her eligibility for a visa ; that had the consul been correctly
informed by the respondent that she had been married and separated
from her husband and that she had two children, the disposition
of the' respondent's visa application might well have hinged upon
her establishing to the satisfaction of the consul what arrangements
she was making for the care and support of her two children.
However, it has not been shown how such a line of inquiry would
be relevant to the alien's eligibility as contrasted to her failure to
reveal that she was married but separated, and her failure to disclose her married name which, the special inquiry officer has conceded, would not under section 212(a) of the Act have caused her to
be found to be excludable from the United States. Upon full consideration of the nature and circumstances of the misrepresentations,
we find that the connection between the misrepresentations and the
possible line of inquiry which an investigation might have developed
presented so remote, tenuous, or fanciful a connection to her eligibility for admission under the immigration laws as to be insufficient
to satisfy the second question as to materiality set forth by the
Attorney General in Matter of S— and B—C—, euprcz. The appeal
will he sustained and the proceedings terminated.
   ORDER: It is ordered that the appeal be sustained and the proceedings terminated.




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