Matter of Martinez-Lopez

Interim Decision #1312

临时决定第1312号

In. DEPORTATION Proceedings

驱逐出境程序

BEFORE THE BOARD This is an appeal by the examining officer from the order of the special inquiry officer terminating proceedings. The appeal will be dismissed. ed. The respondent, a 23-year-old single male, a native and citizen of Mexico, was admitted for permanent residence on May 1, 1961, upon surrender of an immigrant visa. The Service claims that this visa was invalid since it was obtained by wilful misrepresentation concern- ing an offerof employment. When the respondent applied for a visa, he was told to furnish an. affidavit of support and an offer of employment. He obtained the affi- davit of support from his brother, a legal resident of the 'United States, and through-correspondence with relatives in the United States, ob- tained a letter offering him employment as a farm hand. However,

在委员会面前 这是审查官对特别调查官终止程序之命令提出的上诉。上诉将被驳回。 ed. 被申请人，一名23岁单身男性，墨西哥本土出生公民，于1961年5月1日交出移民签证后获准永久居留。服务局声称该签证无效，因为它是通过关于就业邀请的故意虚假陈述取得的。 当被申请人申请签证时，他被告知需提供经济担保书和就业邀请。他从其兄弟（美国合法居民）处获得经济担保书，并通过与美国亲属的通信，获得了一封提供农场工人就业的函件。然而，

.Interim Decision #1312

临时决定第1312号

respondent was told by his relatives that the letter for which he had agreed to pay $350 was one for the record only and that no actual employment should be expected. The letter was in fact a forgery. The respondent states he knew he could not expect employment from the writer of the letter, but did not know it was a. forgery. He thought the writer had given the letter as a favor. Respondent was convicted on January 10, 1962, in the United States District Court at Sacramento, California, for conspiracy to violate 18 U.S.C. 1001, by making false statements or knowingly using false writings. (He was sentenced to five years' imprisonment with all but 30 days of the sentence suspended.) The special inquiry officer sustained neither charge; he ruled that although the forged offer of employment cut of inquiry, it did not relate to a material matter because inquiry would not have resulted in a proper determination that the alien was one likely to become a public charge. The Service Representative contends that since materiality - was an element of the crime for which the respondent was convicted, the Board should hold that the misrepresentation was material in the obtaining of the visa. The contention must be dismissed. The Board is not bound by the decision in the criminal case, for there are different tests for materiality in the criminal case and the immigration case. In the immigration. case the test of materiality is whether the matter concealed concerned a ground of inadmissibility or a probable inad- missibility (Matter of S— and B-C-, Int. Dec. No. 1168). In the criminal case (in those jurisdictions where materiality is required) the test is merely whether the false statement "could affect or influence the exercise of a Governmental function" (United States v. Allen, 193 F. Supp. 954 (S.D. Cal, 1961) ) . An analogous situation exists in regard to false statements amount- ing to perjury in visa, and immigration matters. A. person could be convicted for perjury for making a material false statement under oath although the same false statement would not necessarily con- stitute a material misrepresentation in determining whether a visa had been obtained by fraud (Matter of 7 I. & N. Dec. 76, 90). Since the standards of materiality in criminal and civil immigration matters differ, the existence of the conviction here does not preclude the Board from making its own determination as to the materiality of the . misrepresentation. (Neither does the letter of the Consul stat- ing that the Vice Consul would testify that the misrepresentation was material preclude the Board from making its own conclusions in the matter. See In re Field's Petition, 159 F. Supp. 144,146 (S.D.N.Y., 1955).) Would the inquiry which was cut off by the submission of the offer of employment have resulted in a proper determination that the alien

被申请人的亲属告诉他，他同意支付350美元的那封信仅用于备案，不应期望实际就业。该信实际上是伪造的。 被申请人称他知道不能期望从写信人处获得就业，但不知道该信是伪造的。他以为写信人是出于好意提供该信。被申请人于1962年1月10日在加利福尼亚州萨克拉门托的美国联邦地区法院因共谋违反18 U.S.C. 1001（作出虚假陈述或明知使用虚假文书）而被定罪。（他被判处五年监禁，除30天外其余刑期缓期执行。） 特别调查官未维持任何一项指控；他裁定，尽管伪造的就业邀请截断了查询，但它与重大事项无关，因为查询不会导致适当认定该外国人可能成为公共负担。服务局代表主张，由于重大性是定罪罪行的一个要素，委员会应认定该虚假陈述在取得签证时具有重大性。该主张必须被驳回。委员会不受刑事案判决的约束，因为刑事案和移民案对重大性的检验标准不同。 在移民案中，重大性的检验标准是所隐瞒的事项是否涉及不可入境理由或可能的不可入境性（Matter of S— and B-C-, Int. Dec. No. 1168）。在刑事案中（在要求重大性的那些司法管辖区），检验标准仅是虚假陈述"可能影响或左右政府职能的行使"（United States v. Allen, 193 F. Supp. 954 (S.D. Cal, 1961)）。 在签证和移民事务中构成伪证的虚假陈述方面存在类似情况。 一个人可能因在宣誓下作出重大虚假陈述而因伪证被定罪，尽管同一虚假陈述在确定签证是否通过欺诈取得时不一定构成重大虚假陈述（Matter of 7 I. & N. Dec. 76, 90）。 由于刑事和民事移民事务中的重大性标准不同，此处的定罪存在并不妨碍委员会自行裁定虚假陈述的重大性。（领事声称副领事将作证该虚假陈述具有重大性的信函也不妨碍委员会自行得出结论。见In re Field's Petition, 159 F. Supp. 144,146 (S.D.N.Y., 1955)。） 因提交就业邀请而被截断的查询是否会导致适当认定该外国人

was excludable as one likely to become a public charge? We think not. When respondent applied for a visa he was 22 years of age. He was sound of body and had about ten years of farming experience. He had no specialized training, but had five years of schooling and apparently planned to seek work for which he was qualified. He spoke no English, but this was no handicap for he would work among people who spoke Spanish. He had about $50 in assets. He had a brother gainfully employed in the United States and he had other close relations who were interested in his welfare and who worked to bring him to the United States. The brother was making $85 a week in permanent employment; he was unmarried; he had been sending money to his family in Mexico, and he was interested in helping his brother. Respondent had previous experience in the United States, having spent about three months here as a contract worker. At that time he worked both in the fields and in a cannery. His services appear to have been satisfactory for he was retained here until his contract was completed. Respondent had no criminal record. (After admis- sion for permanent residence, he secured employment in the United States which was interrupted only by civil and criminal matters con- nected with his efforts to come to the United States as a permanent resident.) The examining officer contends that the likelihood of becoming a public charge is not the only ground which must be considered in determining whether the respondent was ineligible for the issuance of a visa and inadmissible to the United States. The examining officer is of the belief that the respondent would have been excludable from the United States as one who admitted the essential elements of a crime involving moral turpitude, for he had conspired to impair the lawful function of a department of the United States in violation of 18 U.S.C. 371, a crime involving moral turpitude (Matter of E—, Int. Dec. No. 1164). It may well be that as an original proposition, the test for deter- mining whether a visa has been obtained by fraud could have been made dependent upon whether there had been an obstruction of Gov- ernmental functions; however, this has not been the test which has resulted from the years of adjudications both administrative and judicial. Historically, the rule has been stated without reference to the obstruction of the Government functions which exist, of course, in each case where there is a misrepresentation concerning a matter within the lawful functions of the Government. The rule which is applied holds that wilful misstatements of an alien made in attempt- ing to obtain a visa bar him from admission (1) if they were material, in which case he is barred because the visa had been obtained by fraud, or (2) if perjury were committed in the attempt to obtain the visa;

作为可能成为公共负担者而不可入境？我们认为不会。被申请人申请签证时22岁。他身体健康，有约十年农耕经验。他没有专业培训，但受过五年教育，显然计划寻找其合格的工作。他不会说英语，但这不构成障碍，因为他将在说西班牙语的人群中工作。他有约50美元资产。他有一名在美国有酬就业的兄弟，还有其他关心其福利并努力将他带到美国的近亲。该兄弟从事永久性工作，每周挣85美元；他未婚；他一直向墨西哥的家人寄钱，并有兴趣帮助其兄弟。被申请人有在美国的先前经验，曾作为合同工在此逗留约三个月。当时他既在田间工作也在罐头厂工作。他的服务似乎令人满意，因为他被留任至合同完成。被申请人没有犯罪记录。（获准永久居留后，他在美国获得了就业，仅因与其努力作为永久居民来美相关的民事和刑事事项而中断。） 审查官主张，在确定被申请人是否无资格获得签证和不可入境美国时，可能成为公共负担的可能性并非唯一必须考虑的理由。审查官认为，被申请人本应作为承认涉及道德败坏罪行基本要素者而被排除在美国之外，因为他共谋损害美国某部门的合法职能，违反18 U.S.C. 371，该罪行涉及道德败坏（Matter of E—, Int. Dec. No. 1164）。 很可能作为原始命题，确定签证是否通过欺诈取得的检验标准本可取决于是否存在对政府职能的妨碍；然而，这并非多年来行政和司法裁决所形成的检验标准。历史上，该规则的陈述未提及政府职能的妨碍，当然在每一起涉及政府合法职能范围内事项的虚假陈述案件中均存在此种妨碍。所适用的规则认为，外国人在试图获得签证时作出的故意虚假陈述阻止其入境：（1）如果它们是重大的，在此情况下他因签证通过欺诈取得而被阻止，或（2）如果在试图获得签证时实施了伪证；

in which case he is barred because he had committed a crime involving moral turpitude. Misstatements which did not amount to perjury (although they did impair the lawful function of a department of the United States) would not serve to make an alien inadmissible (37 Op. A.G. 293, 1938). Congress has not questioned the rule. We shall continue to determine materiality of misrepresentation and the admissibility of an alien who had made a misrepresentation in immigration matters, not by his liability to prosecution for impair- ing the lawful functions of a department of the Government, but by the standards set down by the Attorney General in Matter of B- and B—C—, supra. ORDER: It is ordered that the appeal of the examining officer be and the same is hereby dismissed.

在此情况下他因实施了涉及道德败坏的罪行而被阻止。不构成伪证的虚假陈述（尽管确实损害了美国某部门的合法职能）不会使外国人不可入境（37 Op. A.G. 293, 1938）。国会未质疑该规则。 我们将继续确定虚假陈述的重大性和在移民事务中作出虚假陈述的外国人的可入境性，不是依据其因损害政府某部门合法职能而受起诉的责任，而是依据司法部长在Matter of B- and B—C—, supra中设定的标准。 命令：兹命令审查官的上诉被驳回，且特此驳回。

The special inquiry officer terminated proceedings; appeal by the examining officer was dismissed by the Board on August 7, 1962. The Service believes that both charges are sustained and requests that the Board reconsider its dismissal. The motion will be denied. Respondent, a 23-year-old single male, a native and citizen of Mex- ico, was admitted to the United States for permanent residence on May 1, 1961. Respondent was convicted on January 10, 1962 in the United States District Court for conspiracy to violate 18 U.S.C. 1001 for making false statements or knowingly using false writings (in connection with an application for a visa) and given a five-year sentence to im- prisonment; he served 30 days, the remainder of the sentence was suspended. The Service contends that since materiality was an ele- ment of the crime for which respondent had been convicted, mate- riality should be found present in the deportation proceeding in considering the nature of the misrepresentation which had been made in obtaining the visa. We pointed out in our previous order that the test for materiality is different in the criminal case from the test in the deportation case. The test for materiality in deportation cases, insofar as it relates to the instant case, has two elements—first, did the misrepresentation cut off a material line of inquiry Second, if it did, might an inquiry have resulted in a proper determination that the alien was inadmissible to the United States. Both elements must exist before a misrepresentation may be found material (Matter of B—and B—C—, Int. Dec. No. 1168). On the other hand, in a prose- cution under 18 U.S.C. 1001, if only the first element of the test in deportation proceedings is present, materiality exists and can support a conviction. Since the second element is not a factor in the criminal

特别调查官终止了程序；审查官的上诉于1962年8月7日被委员会驳回。服务局认为两项指控均成立，并请求委员会重新考虑其驳回。该动议将被拒绝。 被申请人，一名23岁单身男性，墨西哥本土出生公民，于1961年5月1日获准在美国永久居留。 被申请人于1962年1月10日在美国联邦地区法院因共谋违反18 U.S.C. 1001（作出虚假陈述或明知使用虚假文书，与签证申请相关）而被定罪，被判处五年监禁；他服刑30天，其余刑期缓期执行。服务局主张，由于重大性是定罪罪行的一个要素，在驱逐出境程序中考虑取得签证时所作出虚假陈述的性质时，应认定重大性存在。我们在先前的命令中指出，刑事案中的重大性检验标准与驱逐出境案中的检验标准不同。驱逐出境案中的重大性检验标准，就本案而言，有两个要素——第一，虚假陈述是否截断了一条重大查询线索；第二，如果截断了，查询是否可能导致适当认定该外国人不可入境美国。两个要素必须同时存在，虚假陈述才可被认定为重大（Matter of B—and B—C—, Int. Dec. No. 1168）。另一方面，在18 U.S.C. 1001的起诉中，如果仅存在驱逐出境程序检验标准的第一个要素，重大性即存在并可支持定罪。由于第二个要素在刑事

case, a finding of materiality there cannot be controlling in the deportation case where the second element is of equal importance with the first in determining materiality. The motion enumerates the federal laws which could have been violated when respondent made false statements before the consul and points out that had the consul lmown the true facts, he might have obtained an admission of the commission of crime from respond- ent who would thereby become inadmissible to the United States. Apart from this, the Service contends, the consul, if in possession of the true facts, would have made at least a temporary refusal of the visa. The test for materiality laid down by the Attorney General in Matter of S— and B—C—, supra, does not concern itself with possible violation of federal laws or the possibility of a temporary refusal. B—C— had made willful misrepresentations when he applied for a visa; he probably violated the same federal laws which are mentioned in the motion. And, it is obvious, that had the consul been aware that B—C— made misrepresentations, he would have been justified in ranking a temporary refusal. Nevertheless, the Attorney General's test as to materiality made no reference to the possible violation of federal laws or to the fact that a temporary refusal was possible. While the Attorney General did. not discuss possible violations of federal law or temporary refusals, Matter of S— C--, 7 L & N. Dec. 76, one of the two precedents relied upon in the Board's order concern- ing Le—C— dealt with possible violations of law (p. 86) ; and U.S. reZ. Jankowski v. Shaughnessy, 186 F. 2d 580, 582, 2d Cir. (1951), cited by the Attorney General, indicates the use of a temporary refusal as a test; moreover, the fact that the Attorney General made the existence of materiality dependent upon what an investigation might have shown, would seem to rule out the possibility of using a tempo- rary refusal as a test. Examination of Matter of L—D-1,-1?—, Int. Dec. No. 1207, cited by the Service as support for the proposition that materiality exists for immigration purposes if there is a reasonable possibility that an alien would have made admissions concerning participation in crime which would have made him inadmissible, reveals that the misrepre- sentation there was material because it involved the concealment of conviction of a crime involving moral turpitude. The existence of the conviction made the alien ineligible for the issuance of a visa. The motion takes issue with our finding that respondent was not one likely to become a, public charge at the time he applied for ad- mission. Our determination was made upon the state of the record as it existed when the respondent applied for his visa. After careful review of the. Service e.ontention we see no reason to change our con- clusion. Reference in our order, to events occurring after respond-

案件中，实质性的认定在驱逐案件中不能具有控制力，因为在确定实质性时，第二个要素与第一个要素同等重要。 该动议列举了 respondent 在领事面前作出虚假陈述时可能违反的联邦法律，并指出，如果领事知道真实事实，他可能已从 respondent 处获得犯罪实施的承认，从而使 respondent 不可入境美国。除此之外，Service 主张，如果领事掌握真实事实，他至少会临时拒绝签证。司法部长在 Matter of S— and B—C—, supra 中确立的实质性检验标准并不涉及可能违反联邦法律或临时拒绝的可能性。B—C— 在申请签证时作出了故意虚假陈述；他很可能违反了动议中提到的相同联邦法律。而且，显而易见，如果领事知道 B—C— 作出了虚假陈述，他就有理由作出临时拒绝。然而，司法部长关于实质性的检验标准并未提及可能违反联邦法律或临时拒绝可能发生的事实。虽然司法部长没有讨论可能违反联邦法律或临时拒绝，但 Matter of S— C--, 7 L & N. Dec. 76 是委员会关于 Le—C— 的命令所依赖的两个先例之一，该案涉及可能违反法律（第86页）；而司法部长引用的 U.S. reZ. Jankowski v. Shaughnessy, 186 F. 2d 580, 582, 2d Cir. (1951) 表明使用临时拒绝作为检验标准；此外，司法部长将实质性的存在取决于调查可能显示的内容，这似乎排除了使用临时拒绝作为检验标准的可能性。 审查 Service 引用以支持以下主张的 Matter of L—D-1,-1?—, Int. Dec. No. 1207——即如果存在合理可能性，外国人本会作出关于参与犯罪的承认，而该承认本会使其不可入境，则就移民目的而言存在实质性——显示该案中的虚假陈述之所以具有实质性，是因为它涉及隐瞒涉及道德败坏犯罪的定罪。该定罪的存在使该外国人不符合签证签发资格。 该动议对我们关于 respondent 在申请入境时不太可能成为公共负担的认定提出异议。我们的裁定是基于 respondent 申请签证时存在的记录状态作出的。在仔细审查 Service 的争辩后，我们认为没有理由改变我们的结论。我们命令中提及在 respondent 入境后发生的事件，是为了在口头辩论中回应 Service 的争辩，即 respondent 在美国的工作记录表明他无法找到工作。

Interim Decision #1312

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east's entry was to meet the Service contention at oral argument that respondent's work record in the United States demonstrated his in- ability to find employment. The motion now raises the contention that respondent's visa was not valid because he did not furnish full and correct information on his visa application as required by the Immigration and Nationality Act and State Department regulations concerning the issuance of a visa. We do not concur in this conclusion. In B—C—, supra, there was a failure to furnish full and truthful information; the Attorney General touched on whether the visa, was a valid one (footnote on p. 6), but there was no finding that the visa was invalid. To accept the Service position that any failure to furnish full or correct in- formation regardless of the nature of the information results in an invalid visa, would in effect make every misrepresentation a material one; this approach would have made unnecessary the Congressional provision for the exclusion of a alien for obtaining a visa because of a material misrepresentation (section 212(a) (19) of the Act; see Matter of 8— and B-0—, supra, p. 4). It appears best to use the visa charge in situations where the visa, is actually invalid; for ex- ample, where a visa has been issued without specific authority or by an improper source, or it has been altered, procured by fraud, or presented after the period of validity has expired. This approach will give effect to both the provision concerning validity of visas and the provision concerning procurement of a visa, by fraud. In view of this conclusion we need not enter into an elaborate analysis of the Service position other than to mention briefly two matters. Regula- tions and laws requiring complete and correct information in visa applications have been in existence since 1924 and have not been util- ized as the basis for declaring visas invalid (See, Inn Field's Petition, 159 F. Supp. 144, 146, 3d full para., S.D.N.Y. (1958) ). The fact that the misrepresentation charge is now a separate charge although prior to the Immigration and Nationality Act it was coupled with a visa charge, appears to be irrelevant. It was true before the Act, as it is true now, that a visa charge could be sustained even though the mis- representation charge could not. There is, therefore, no significance to be drawn from the fact that the law now specifically provides for a misrepresentation charge (See, U.S. ex rel. Fink v. Reimer, 96 F.2d 217 (2d Cir., 1938) ; U.S, ex rel. Perms v. Karma, 28 F. Supp. 597, W.D.N.Y. (1939) ). ORDER: It is ordered that the motion be and the same is hereby denied. BEFORE THE ATTORNEY GENERAL

respondent 入境后发生的事件是为了在口头辩论中回应 Service 的争辩，即 respondent 在美国的工作记录表明他无法找到工作。 该动议现在提出以下争辩：respondent 的签证无效，因为他没有按照《移民和国籍法》以及国务院关于签证签发的规定，在签证申请中提供完整和正确的信息。我们不同意这一结论。 在 B—C—, supra 中，存在未提供完整和真实信息的情况；司法部长谈及签证是否有效（第6页脚注），但并未认定签证无效。如果接受 Service 的立场，即任何未提供完整或正确信息的行为，无论信息性质如何，都会导致签证无效，实际上将使每一项虚假陈述都成为实质性的；这种做法将使国会关于因实质性虚假陈述而获得签证的外国人不得入境的规定（该法第212(a)(19)条；见 Matter of 8— and B-0—, supra, 第4页）变得不必要。看来最好在签证实际无效的情况下使用签证指控；例如，签证未经特定授权或由不当来源签发，或被篡改、通过欺诈取得，或在有效期届满后出示。这种做法将同时落实关于签证有效性的规定和关于通过欺诈取得签证的规定。鉴于这一结论，我们无需对 Service 的立场进行详尽分析，只需简要提及两点。要求签证申请中提供完整和正确信息的法规和法律自1924年以来一直存在，但从未被用作宣布签证无效的依据（见 Inn Field's Petition, 159 F. Supp. 144, 146, 3d full para., S.D.N.Y. (1958)）。虚假陈述指控现在是单独指控，而在《移民和国籍法》之前它与签证指控结合在一起，这一事实似乎无关紧要。在该法之前是这样，现在也是这样：即使虚假陈述指控不能成立，签证指控也可以成立。因此，法律现在明确规定虚假陈述指控这一事实并无重要意义（见 U.S. ex rel. Fink v. Reimer, 96 F.2d 217 (2d Cir., 1938)；U.S, ex rel. Perms v. Karma, 28 F. Supp. 597, W.D.N.Y. (1939)）。 命令：特此命令，该动议予以驳回。 在司法部长面前

been certified to me by the Board for review, pursuant to 8 CFR 3.1 (h) (1) upon motion of the Commissioner of Immigration and Naturalization. The Commissioner has requested review because of the possible impact of the Board's decision on other cases. The deci- sion raises several problems concerning the application of the criteria enunciated in my opinion in Matter of AS— and B--C—, 9 L & N. Dec. 136, for determining the materiality of a misrepresentation in cases involving section 212(a) (19) of the Immigration and Nationality Act, 8 U.S.C. 1182 (a) (19) . The respondent's deportation is being sought on the ground that he was excludable at the time he entered the United States as an immigrant because he had procured his visa by willfully misrepre- senting a material fact (§ 212(a) (19) ) and because he was not hi possession of a valid unexpired immigrant -visa as required by section 212 (a) (20) of the Immigration and Nationality Act, 8 U.S.C. 1182 (a) (20) 1 The record shows the following. In the winter of 1960-61, the respondent planned to immigrate to the United States. At that time, he was a citizen and resident of Mexico, in his early twenties and unmarried. He had about 5 years of schooling and had begun to work on the family farm when he was 12 or 13. He had worked in the United States for. 3 months as a laborer in 1958. His brother, Salvador Martinez-Lopez, who had emigrated to the United States, lived in Los Angeles and was employed by a. furniture company at an annual salary of $4,000. In the past, Salvador had contributed to .the support of his relatives in Mexico; the respondent had several other relatives living in the United States. When the respondent inquired at the United States Consulate it Monterrey, Mexico, concerning the papers required for an immigration visa, he was advised that he needed, among other things, an affidavit of support and an offer of permanent employment in the United States. Having heard from neighbors that work offers could be obtained from one Jose C. Miranda of Stockton, California, for $350, the re- spondent asked his brother Salvador to get one for him. Because of

由委员会根据8 CFR 3.1(h)(1)应移民和归化局局长的动议认证给我审查。局长因委员会的决定可能对其他案件产生影响而请求审查。该决定提出了若干问题，涉及适用我在 Matter of AS— and B--C—, 9 L & N. Dec. 136 意见中阐述的标准，以确定涉及《移民和国籍法》第212(a)(19)条、8 U.S.C. 1182(a)(19)的案件中虚假陈述的实质性。 寻求驱逐 respondent 的理由是：他作为移民进入美国时不可入境，因为他通过故意虚假陈述实质性事实取得了签证（§212(a)(19)），并且因为他没有按照《移民和国籍法》第212(a)(20)条、8 U.S.C. 1182(a)(20)的要求持有有效未过期的移民签证1。记录显示如下。 1960-61年冬天，respondent 计划移民美国。当时，他是墨西哥公民和居民，二十出头，未婚。他受过约5年教育，12或13岁时开始在家庭农场工作。1958年，他曾在美国作为劳工工作3个月。他的兄弟 Salvador Martinez-Lopez 已移民美国，住在洛杉矶，受雇于一家家具公司，年薪$4,000。过去，Salvador 曾资助其在墨西哥的亲属；respondent 还有其他几名亲属居住在美国。 当 respondent 在墨西哥蒙特雷的美国领事馆询问移民签证所需文件时，他被告知需要除其他外，一份经济担保书和一份美国永久就业邀请。从邻居处听说可以从加利福尼亚州斯托克顿的 Jose C. Miranda 处以$350获得工作邀请后，respondent 请他的兄弟 Salvador 为他获取一份。由于

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the distance from Los Angeles to Stockton, Salvador asked one Reyes Fragoso, the husband of a cousin, who resided in Oakland, to talk to Miranda. Fragoso did so, and for $350, furnished by Salvador, Miranda sent to the respondent a letter of permanent employment to which Miranda had forged the signature of one Pelleg,ri, a ranchowner. Attached was a note from Miranda advising the respondent not to go to the Pellegri ranch because he already had enough workers. Re- spondent inferred from the note that the Pellegri letter was only for the record and that he could not expect employment by Pellegri. He thought the letter had been given merely as a favor or accomodation but did not know that it was a forged documemt. Subsequently the respondent applied at the United States Consulate at Monterrey for a visa, submitting an affidavit of support, executed by his brother, and the purported Pellegri letter, although he knew that he could not expect to be employed by Pellegri. When asked about his destination in the United States, he gave the address of Pellegri's ranch. The respondent was issued a visa on April 27, 1061, and was admitted to the United States as an immigrant a few days later. At that time he had in his possession from $60 to $70. He went directly to his brother in Los Angeles and never contacted Pellegri. For about a week he stayed with his brother, then obtained work as a cook through another relative. At about that time Miranda's forgeries were discovered. The re- spondent, his brother Salvador, his cousin Reyes Fragoso, and Jose Miranda were indicted in the United States District Court for the Northern District of California for conspiracy to violate 18 U.S.C. 1001.2 The indictment contained two counts. The first count charged them with having conspired to make false and fictitious representations, or to make or to use writing or documents, knowing them to contain false, fictitious or fraudulent statements, to the Department of State for the purpose of enabling the respondent to enter the United States as an immigrant. The second count in. effect charged the defendants other than Salvador with having caused Miranda to falsify the work offer. The respondent, his brother and his cousin were tried before the court, a jury having been waived. The court found them guilty on

从洛杉矶到斯托克顿的距离，Salvador请了一位名叫Reyes Fragoso的人——一位表亲的丈夫，住在奥克兰——去和Miranda谈。Fragoso照做了，并且用Salvador提供的350美元，Miranda给respondent寄了一封永久雇用信，Miranda在这封信上伪造了一位牧场主Pellegri的签名。随信附有Miranda的一张便条，建议respondent不要去Pellegri牧场，因为他已经有足够的工人了。Respondent从这张便条推断，Pellegri的信只是为了存档，他不能指望受雇于Pellegri。他以为这封信只是作为帮忙或通融而给的，但不知道这是一份伪造文件。 随后，respondent在美国驻蒙特雷领事馆申请签证，提交了一份由其兄弟签署的抚养宣誓书，以及那份据称是Pellegri写的信，尽管他知道自己不能指望受雇于Pellegri。当被问及他在美国的目的地时，他给出了Pellegri牧场的地址。Respondent于1061年4月27日获发签证，几天后作为移民获准进入美国。当时他身上有60至70美元。他直接去了洛杉矶他兄弟那里，从未联系过Pellegri。他和兄弟住了大约一周，然后通过另一位亲戚找到了一份厨师工作。 大约在那时，Miranda的伪造行为被发现了。Respondent、他的兄弟Salvador、他的表亲Reyes Fragoso和Jose Miranda在美国加利福尼亚北区联邦地区法院被起诉，罪名是共谋违反18 U.S.C. 1001.2 起诉书包含两项罪名。第一项罪名指控他们共谋向国务院作出虚假和虚构的陈述，或制作或使用明知含有虚假、虚构或欺诈性陈述的书面材料或文件，目的是使respondent能够作为移民进入美国。第二项罪名实际上指控除Salvador以外的被告致使Miranda伪造工作邀请。 Respondent、他的兄弟和他的表亲在法院受审，陪审团被放弃。法院认定他们在

the first count. It held that work offer was "material" because the visa would not have been issued but for it. 3 It acquitted the respond- ent and his cousin on the second count, finding that a reasonable doubt existed as to the defendants' knowledge that the work offer was not signed by Pellegri. The court stated that they were victims, albeit willing victim% of circumstances and not flagrant or malicious vio- lators of the law. The respondent MS given a prison sentence of 5 years, of which all but 30 days was suspended, and placed on pro- bation for 5 years. The others also received 5-year terms which were suspended in their entirety. The Immigration and Naturalization Service then instituted pro- ceedings to deport the respondent on the grounds described above. The Service charged that the respondent had obtained his visa by presenting to the United States consul the Pellegri work offer, al- though he knew that he did not and would not have employment with Pellegri; that he had concealed from the consul the fact that the letter had been obtained. from Miranda for $350, and that he withheld those facts because he believed that the consul would not have issued the visa had he been told the truth. The special inquiry officer dis- missed the proceedings on the ground that the respondent's mis- representation was not material and, hence, did not render him excludable under section 212(a) (19) or vitiate the visa for the pur- 'rums of maim 212(a) (20). In reaching Ills conclusion, the special inquiry officer applied the teas of materiality laid down in Matter of S— and B—C—, supra, at 448-449, via. : First, does the record establish that the alien is excludable on the true facts? Second, did the misrepresentation tend to shut off a line of inquiry which is relevant to the alien's eligibility [for admission] ? 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? The special inquiry officer answered the first question in the negative. He took the position that in connection with the determination as to

第一项罪名成立。法院认定工作邀请是“重大”的，因为如果没有它，签证就不会签发。3 法院就第二项罪名宣判respondent及其表亲无罪，认定对于被告是否知道工作邀请并非由Pellegri签署存在合理怀疑。法院表示，他们是环境的受害者——尽管是自愿的受害者——而不是明目张胆或恶意的违法者。Respondent被判处5年监禁，除30天外全部缓刑，并处5年缓刑。其他人也被判处5年刑期，全部缓刑。 随后，移民和归化局以上述理由启动程序驱逐respondent。该局指控respondent通过向美国领事提交Pellegri工作邀请而获得签证，尽管他知道自己没有也不会受雇于Pellegri；他向领事隐瞒了这封信是从Miranda处花350美元获得的事实，并且他隐瞒这些事实是因为他认为如果领事知道真相就不会签发签证。特别调查官驳回了程序，理由是respondent的虚假陈述不是重大的，因此没有使他根据第212(a)(19)条成为不可入境者，也没有为第212(a)(20)条的目的使签证无效。在得出结论时，特别调查官适用了Matter of S— and B—C—，supra，第448-449页中规定的重大性检验标准，即： 第一，记录是否证明该外国人在真实事实下是不可入境的？ 第二，虚假陈述是否倾向于切断与外国人[入境]资格相关的一条调查线索？ 第三，如果一条相关的调查线索被切断，该调查是否可能导致正确认定该外国人应被排除？ 特别调查官对第一个问题作了否定回答。他认为，在关于

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whether an applicant for an immigration visa is excludable under section 212 (a) (15) of the Act, 8 U.S.C. 1182 (a). (15), as an alien likely to become a public charge,' a work offer is not legally required as an absolute condition for the issuance of the visa, and therefore that the purpose of such a document is merely to assist the consul in his deter- mination. Viewed in that context, the record did not establish the respondent's excludability on the true facts Rather, the evidence established that, even in the absence of the work offer, the respondent was not likely to become a public charge. The special inquiry officer answered the second question in the affirmative; he concluded that the submission of the work offer did cut off further investigation by the consul into the public charge issue. The third question, however, was answered by him in the negative, since nothing had been adduced to suggest that a further investigation might have resulted in a proper determination that the respondent was likely to become a public charge. Accordingly, he held that the respondent's misrepresentation with regard to the spurious Pellegri work offer was not material for the purposes of section 212(a) (19), 5

在判断移民签证申请人是否根据该法第212(a)(15)条，8 U.S.C. 1182(a)(15)，作为可能成为公共负担的外国人而不可入境时，工作邀请在法律上并非签发签证的绝对条件，因此该文件的目的仅仅是协助领事作出决定。在此背景下，记录并未证明respondent在真实事实下不可入境。相反，证据表明，即使没有工作邀请，respondent也不可能成为公共负担。 特别调查官对第二个问题作了肯定回答；他得出结论，提交工作邀请确实切断了领事对公共负担问题的进一步调查。然而，他对第三个问题作了否定回答，因为没有提出任何证据表明进一步调查可能导致正确认定respondent可能成为公共负担。因此，他认定respondent关于虚假的Pellegri工作邀请的虚假陈述对于第212(a)(19)条的目的而言不是重大的，5

and similarly did not vitiate the visa for the purpose of section 212(a) (20). On appeal by the Service, the Board of Immigration Appeals af- firmed the ruling of the special inquiry officer. It recognized that, as judicially interpreted, materiality was an element of the offense under 18 U.S.C. 1001 of which the respondent had been convicted. It ruled, however, that the district 'court's holding that the work offer was a material document was not conclusive in the deportation pro- ceeding. Under .18 U.S.C. 1001 a statement, representation, or docu- ment is material if under the formulation of United States v. Allen, 193 F. Supp. 954 (S.D. Cal.), it "could affect or influence the exercise of a Government function." This has a broader reach than the term "materiality" in section 212 (a) (19) of the Immigration Act, as it is defined in Matter of S— and B—C--, supra. The respondent's con- viotion under 18 U.S.C. 1001 therefore did not nenesSarily establish that the misrepresentation was material within the meaning of sec- tion 212(a) (19). The Board therefore felt itself free to examine the question de nova, and concluded that the respondent's misrepre- sentations were not material because nothing the consul or the immi-

并且同样没有为第212(a)(20)条的目的使签证无效。 在移民局上诉后，移民上诉委员会维持了特别调查官的裁决。它承认，按照司法解释，重大性是respondent被定罪的18 U.S.C. 1001罪行的要件。然而，它裁定，地区法院关于工作邀请是重大文件的认定在驱逐程序中不具有决定性。根据18 U.S.C. 1001，如果按照United States v. Allen, 193 F. Supp. 954 (S.D. Cal.)的表述，一项陈述、表示或文件“可能影响或左右政府职能的行使”，则该陈述、表示或文件具有重大性。这比《移民法》第212(a)(19)条中“重大性”一词的范围更广，后者在Matter of S— and B—C--, supra中已有定义。因此，respondent根据18 U.S.C. 1001的定罪并不必然证明该虚假陈述在第212(a)(19)条含义内是重大的。因此，委员会认为自己可以重新审查该问题，并得出结论，respondent的虚假陈述不是重大的，因为领事或移民

gration authorities could have discovered, but for the misrepresenta- tion, might have resulted in a proper determination that the respondent was excludable as a person likely to become a public charge. 6 On the Service's motion for reconsideration the Board adhered to its decision. The Commissioner raises essentially the following points : 1. Whether materiality of the misrepresentation for deportation purposes was established by the respondent's conviction. 2. Whether the Board properly applied the materiality tests estab- lished by Matter of lc — and B — C — . In this connection the Com- missioner also argues that the test in Matter of S— and B-0— is not applicable where the alien's conduct in obtaining a visa constitutes an offense against the United States. 3. Whether a significant misrepresentation, even if it does not amount to a "material" misrepresentation, renders a visa invalid for the purpose of section 212 (a) (20).

若非该虚假陈述，移民当局本可发现相关事实，从而可能作出适当认定，即该受访者属于可能成为公共负担而应被排除入境的人。6 应移民局重新审议的动议，委员会坚持其裁决。 局长实质上提出以下几点： 1. 受访者的定罪是否已确立为驱逐出境目的之虚假陈述的重大性。 2. 委员会是否正确适用了Matter of lc —和B — C —所确立的重大性检验标准。 就此，局长还主张，在外国人获取签证的行为构成对美国犯罪的情况下，Matter of S—和B-0—中的检验标准不适用。 3. 一项重大虚假陈述，即使不构成“重大”虚假陈述，是否会使签证就第212(a)(20)条而言无效。

I

I

Unquestionably the respondent did make a misrepresentation to the consul. He submitted a. document which he knew was not a bona fide work offer. However, the immigration statute, section 212(a) (19), supra, requires that an alien's misrepresentations must be material to the question of his admissibility to the United States under the immigration laws. I agree with the Board that the respondent's con- viction of conspiracy to violate 18 U.S.C. 1001, for the purpose of which the same misrepresentation was found to be material, does not conclusively establish its materiality for deportation purposes. At the outset it should be noted that, although ordinarily a court decision may be res judicata or operate as a collateral estoppel in a later administrative proceeding, there is some basis for doubt as to whether this rule applies in cases where, as here, Congress has vested primary responsibility for enforcing a statute in an administrative agency and not in-the courts. See Title v. Imanlgration ct Naturaliza- tion Service, 322 F.2d 21 (C.A. 9) ; Davis, iidministrative Law Treatise, sec. 18.11 (Vol. II, pp. 619-623)? Section 242(b) of the

毫无疑问，被调查人确实向领事作出了虚假陈述。他提交了一份他知道并非真实工作邀请的文件。然而，移民法第212(a)(19)条（见上文）要求，外国人的虚假陈述必须对其根据移民法是否可被准许进入美国的问题具有实质性。我同意委员会的意见，即被调查人因共谋违反18 U.S.C. 1001而被定罪——为该项定罪目的，同一虚假陈述被认定具有实质性——并不能决定性地确立其在驱逐出境目的上的实质性。首先应当指出，尽管通常法院判决在后续行政程序中可能具有既判力或作为间接禁反言发挥作用，但对于该规则是否适用于国会已将执行某部法律的主要责任授予行政机关而非法院的案件（如本案），仍存在一些疑问依据。见Title v. Immigration and Naturalization Service, 322 F.2d 21 (C.A. 9)；Davis, Administrative Law Treatise, sec. 18.11 (Vol. II, pp. 619-623)？第242(b)条

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Immigration and Nationality Act, 8 U.S.C. 1252(b), provides that "Metermination of deportability in any case 001 be made only upon a record made in a proceeding before a special inquiry officer," and that "[t]he procedure so described shall be the sole and exclusive pro- cedure for determining the deportability of an alien. * "." There is, therefore, a. basis for the argument that in the instant case the judicial finding of materiality could not, as a matter of law, relieve the special inquiry officer from his duty of making an independent determination of materiality.8 Assuming, however, that the doctrine of collateral estoppel is ap- plicable in cases of this kind, I agree with the Board's view that on the question of materiality there was no true identity of issues in the criminal case and the deportation proceeding. Even if statutes use the same language, a determination under one is not necessarily binding in a proceeding under another since the purposes of the statutes may differ and the contexts in which the language is used may not be the same. See Title, supra at 25, fn. 11. The determination in the criminal case to the effect that the work offer was "material" might be considered to be binding in the deportation proceedings only if the word "material" has the same meaning in prosecutions under 18 U.S.C. 1001 as in deportation proceedings involving section 212(a) (19) of the Immigration and Nationality Act. Cf. Hines v. Welch, 23 F. 2d 979 (C.A.D.C.) ; Thompson v. Flemmin g , 188 F. Supp. 123 (D. Ore.). This, however, is not the case. The issue of materiality under 18 U.S.C. 1001 is merely whether the misrepresentation was "calculated to induce action or reliance by an. agency of the United States." Brandow v. United States, 268 F. 2d 559, 565; United States v. Allen,193 F. Supp. 954, 957, supra. In contrast, the opinion in Matter of B— and B—C—, supra, rejects the notion that an alien. becomes deportable for every false statement "cal- culated to induce action or reliance" by a. consul; a false statement is not material unless the alien would have been excludable on the true facts, or unless the misrepresentation has shut off a line of inqUiry which might have resulted in a. proper determination of excludability. The term "material" does not have the same meaning in 18 U.S.C. 1001 . and in section 212(a) (19) of the Ant, and a determination under the former that the work offer was material is therefore not to be re-

《移民与国籍法》，8 U.S.C. 1252(b)，规定“在任何案件001中，驱逐出境可能性的认定只能基于在特别调查官面前进行的程序中所制作的记录”，并且“如此描述的程序应当是认定外国人驱逐出境可能性的唯一和排他性程序。*”。因此，有依据主张在本案中，关于实质性的司法认定在法律上不能免除特别调查官对实质性作出独立认定的职责。8 然而，假设附带禁反言原则在此类案件中适用，我同意委员会的观点，即在实质性问题上，刑事案件与驱逐出境程序之间不存在真正的争点同一性。即使 statutes 使用相同的语言，根据其一作出的认定在根据另一者进行的程序中并不必然具有约束力，因为 statutes 的目的可能不同，且语言使用的语境可能不相同。见 Title，supra 第25页，脚注11。刑事案件中关于工作邀约具有“实质性”的认定，只有在“实质性”一词在18 U.S.C. 1001下的起诉中与在涉及《移民与国籍法》第212(a)(19)条的驱逐出境程序中具有相同含义时，才可能被视为在驱逐出境程序中具有约束力。比较 Hines v. Welch, 23 F. 2d 979 (C.A.D.C.)；Thompson v. Flemming, 188 F. Supp. 123 (D. Ore.)。然而，情况并非如此。 18 U.S.C. 1001下的实质性问题仅仅是虚假陈述是否“旨在诱使美国机构采取行动或依赖”。Brandow v. United States, 268 F. 2d 559, 565；United States v. Allen, 193 F. Supp. 954, 957，supra。相比之下，Matter of B— and B—C—，supra 中的意见拒绝了这样一种观念，即外国人因每一项“旨在诱使”领事“采取行动或依赖”的虚假陈述而变得可被驱逐出境；虚假陈述不具有实质性，除非外国人在真实事实下本应被排除，或者除非虚假陈述切断了一条可能已导致对可排除性作出适当认定的调查线索。“实质性”一词在18 U.S.C. 1001和该法第212(a)(19)条中不具有相同含义，因此根据前者关于工作邀约具有实质性的认定不应被重新——

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garded as conclusive in proceedings involving the latter, where the term "materiality" has a more restricted scope. Accordingly, I con- clude that the Board of Immigration Appeals properly held that the inquiry into the materiality of the respondent's misrepresentation was not foreclosed by his conviction for conspiring to violate 18 II.S.C. 1001. II

在涉及后者的程序中视为决定性，因为后者中“实质性”一词的范围更为有限。据此，我得出结论，移民上诉委员会恰当地认定，对被调查人虚假陈述实质性的调查并未因其共谋违反18 U.S.C. 1001的定罪而被排除。II

I find no error in the Board's conclusion that the materiality stan- dards of Matter of 5— ernd B—C— were properly applied in this case. As pointed out above, that opinion holds that the issue of ma- teriality for purposes of section 212(a) (19) turns on three questions: First, whether the alien is excludable on the true facts; second, whether the misrepresentation tended to shut off a line of inquiry relevant to the alien's admissibility; and third, whether, if a relevant line of in- quiry has been shut off, that inquiry might have resulted in a proper determination that the alien be excluded. In the context of this case, the initial question is whether the re- spondent would have been excludable under section 212 (a) (15), supra, footnote 4, as a person likely to become a public charge. Although under the statutory language the question for -visa purposes seems to depend entirely on the consular officer's subjective opinion, both the administrative and judicial decisions hold that the question must be reexamined de novo on an objective basis when it arises in deportation proceedings. See Matter of M—, 4 I. & N. Dec. 532, 538; Matter of 8—C—, 7 I. & N. Dec. 222, 225; Matter of C—T--P—, 8 I. & N. Dec. 134-135 ; In re Field's Petition,159 F. Supp. 144, 146 (S.D. N.Y., 1958) . There is no error in the determinations below that the respondent was not excludable on the true facts; that, in other words, the evidence in the deportation proceeding establishes that he would not have been excludable as a person likely to become a public charge even though he did not have an offer of employment in the United States. The provision in the immigration lavve excluding aliens likely to become public charges had its origin in section 2 of the Immigration Act of 1882, 22 Stat. 214, and has been continued in all subsequent im- migration statutes. It has been the subject of extensive judicial in- terpretation. The general tenor of the holdings is that the statute requires more than a. showing of a possibility that the alien will re- quire public support. Some specific circumstance, such as mental or physical disability, advanced age, or other fact reasonably tending to show that the burden of supporting the alien is likely to be cast on the public, must be present. A healthy person in the prime of life cannot ordinarily be considered likely to become a public charge, especially where he has friends or relatives in the United States who have in-

我认为委员会关于Matter of 5— ernd B—C—案中实质性标准在本案中已得到正确适用的结论并无错误。如上所述，该意见认为，就第212(a)(19)条而言，实质性问题取决于三个问题：第一，该外国人在真实事实基础上是否应被排除入境；第二，该虚假陈述是否倾向于切断与外国人可入境性相关的一条调查线索；以及第三，如果一条相关调查线索已被切断，该调查是否可能产生该外国人应被排除入境的适当认定。 在本案背景下，首要问题是，被申请人是否本应根据上文脚注4所引第212(a)(15)条，作为可能成为公共负担的人而被排除入境。尽管根据法定语言，就签证目的而言，该问题似乎完全取决于领事官员的主观意见，但行政和司法裁决均认为，当该问题在驱逐出境程序中产生时，必须在客观基础上重新审查。见Matter of M—, 4 I. & N. Dec. 532, 538；Matter of 8—C—, 7 I. & N. Dec. 222, 225；Matter of C—T--P—, 8 I. & N. Dec. 134-135；In re Field's Petition, 159 F. Supp. 144, 146 (S.D. N.Y., 1958)。下级认定被申请人在真实事实基础上不应被排除入境，换言之，驱逐出境程序中的证据确立，即使他在美国没有工作邀请，他也不会作为可能成为公共负担的人而被排除入境，这些认定并无错误。 移民法中排除可能成为公共负担的外国人的规定源于1882年《移民法》第2条，22 Stat. 214，并在其后所有移民法规中延续。它一直是广泛司法解释的主题。裁决的一般要旨是，该法规要求的不仅仅是表明外国人有可能需要公共支持。必须存在某些具体情况，例如精神或身体残疾、高龄，或其他合理倾向于表明支持该外国人的负担可能落到公众身上的事实。一个处于壮年的健康人通常不能被视为可能成为公共负担，尤其是当他在美国有朋友或亲属已经——

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dicated their ability and willingness to come to his assistance in case of emergency. See, e.g., Ex parte Mitchell, 256 Fed. 229 (N.D. N.Y.) ; Ex parte Hosaye Sakaguohi, 277 Fed. 913, 916 (C.A. 9) ; U.S. ex rel. Manlier v. Commissioner of Immigration, 3 F. 2d 234 (CA. 2) ; Ex parte Turner, 10 F. 2c1 816, 817 (S.D. Cal.) ; Ex parts Sturgess,13 F. 2d 624, 625 (CA. 6) ; Gabriel v. Johnson., 29 F. 2d 347, 349 (CA. 1) ; U.S. ex rel. Mimeo v. Reimer, 83 F. 2d 166, 168 (CA. 2). While it appears that in appropriate cases consular officers have followed the practice of requiring an alien to submit evidence of support, there is no indication that a guaranty of employment has been a prerequisite. The legislative history of the Immigration and Nationality Act of 1952, which retained the public charge provision as section 212 (a) (15), contains a review of its background and interpretation. See S. Rept. No. 1515, 82d Cong., 2c1 Sass., pp. 346-348. This review refers to the practice of requiring evidence of support in appropriate cases and to the judicial holdings.' Employment offers are not mentioned, and there is nothing to show that Congress intended such offers to be required as an absolute condition for satisfying the public charge provision. Nor is the administrative practice of the Department of State to the contrary. The Department's regulations provide that a conclusion of ineligibility under section 212 (a) (15) is to be predicated upon circumstances indicating that the alien "will probably beenme a charge upon the public after entry into the United States ;" the disability, however, may be removed by the furnishing of a bond or undertaking. 22 CFR 42.91(a) (15). The Department's instructions to consular officers on this subject admonish them to be "flexible"- and to predicate their decision upon facts relating to the alien's "age, physical condition, vocation, and existing conditions in the United States coupled with their probable effect on the applicant's likelihood of becoming a publio charge after admission into the United States." (State Department Visa Handbook, Notes on 22 CFR 42.91 (a) (15), Note 1.1.) While consular officers are authorized to consider "the promise of a job" (Note 3.1), this is not stated as an absolute prerequisite; alternative means of satisfying the statute are provided, viz., the possession of sufficient funds or assurances of support by relatives or friends in the United States (Notes 1.2; 4). The record shows that the respondent was an able-bodied man in. his early twenties, without dependents; that he had no physical or mental defects which might affect his earning ca- pacity, and that he had performed agricultural work for nearly 10 years. He had previously worked for 3 months in the United States,

表明了他们在他遇到紧急情况时前来协助他的能力和意愿。参见，例如，Ex parte Mitchell, 256 Fed. 229 (N.D. N.Y.)；Ex parte Hosaye Sakaguohi, 277 Fed. 913, 916 (C.A. 9)；U.S. ex rel. Manlier v. Commissioner of Immigration, 3 F. 2d 234 (CA. 2)；Ex parte Turner, 10 F. 2c1 816, 817 (S.D. Cal.)；Ex parts Sturgess,13 F. 2d 624, 625 (CA. 6)；Gabriel v. Johnson., 29 F. 2d 347, 349 (CA. 1)；U.S. ex rel. Mimeo v. Reimer, 83 F. 2d 166, 168 (CA. 2)。虽然看来在适当案件中领事官员遵循了要求外国人提交扶养证据的做法，但没有迹象表明就业担保一直是先决条件。1952年《移民与国籍法》的立法历史——该法将公共负担条款保留为第212(a)(15)条——包含对其背景和解释的回顾。参见S. Rept. No. 1515, 82d Cong., 2c1 Sass., pp. 346-348。该回顾提及在适当案件中要求扶养证据的做法以及司法判例。'就业邀请未被提及，也没有任何内容表明国会意图将此类邀请作为满足公共负担条款的绝对条件。 国务院的行政实践也并非相反。该部门的法规规定，根据第212(a)(15)条作出的不合格结论应基于表明该外国人"在进入美国后很可能成为公共负担"的情形；但是，该障碍可以通过提供保证金或承诺书予以消除。22 CFR 42.91(a)(15)。该部门就此主题给领事官员的指示告诫他们要"灵活"，并基于与外国人"年龄、身体状况、职业以及美国现有条件，连同其对申请人进入美国后成为公共负担可能性的可能影响"相关的事实作出决定。（国务院签证手册，关于22 CFR 42.91(a)(15)的注释，注释1.1。）虽然领事官员被授权考虑"工作承诺"（注释3.1），但这并未被规定为绝对先决条件；提供了满足该法规的替代方式，即拥有足够资金或美国亲属或朋友的扶养保证（注释1.2；4）。记录显示，被申请人是一名二十出头的健壮男子，无受扶养人；他没有可能影响其 earning ca-pacity 的身体或精神缺陷，并且他从事农业工作近10年。他此前曾在美国工作3个月，

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and his immigration was sponsored by a brother who had lived in the United States for several years and was earning approximately $85.00 a. week in permanent employment. The special inquiry officer was fully justified in concluding that the respondent was not likely to be- come a public charge, and, in the light of the judicial interpretation of section 212(a) (15) and the pertinent administrative regulations and instructions, that he was admissible in the absence of an employ- ment offer. The respondent's misrepresentation, however, did shut off a line of inquiry relevant to his eligibility for a visa. It may be assumed that if the consular officer had known that the work offer was spurious, he would have examined the evidence of support more carefully. It does not appear, however, that this would have resulted in a proper deter- mination that the respondent was excludable. Further investigation of the relationship between the sponsor and the respondent would have shown that the sponsor was a devoted brother who had in the past sent money to his family in Mexico and who was genuinely interested in assisting the respondent; that, indeed, he had assisted him in his his immigration efforts by paying $350 for the work offer. Further examination also would have disclosed that the respondent had other relatives in the United States who were willing to assist him in finding work. There is nothing in this case to suggest that further investi- gation would have disclosed any reasonable ground for the proper denial of a visa. In view of the particular circumstances of this case, it appears therefore that the respondent's misrepresentation with respect to the work offer was not of a material nature. The Commissioner seeks to distinguish this case from Matter of S- and B—C—, on the ground that "this record establishes that the re- spondent was in the very act of participating in one or more crimes against the United States at the very moment he got the visa and un- questionably would not have received the visa if the forgery had been known." The fact that the respondent committed a crime against the United States at the very moment he received his visa is not peculiar to this case. It would seem that virtually every alien who at the time of his visa application makes a misrepresentation "which was calcu- lated to induce action or reliance by an agency of the Government" (Brant:low v. United States, supra) violate 18 U.S.C. 1001 at that very moment. Accordingly, this case is not distinguishable from the situations normally covered by Matter of S— and B—C—, supra. In view of the findings below that the respondent did not know that Miranda had forged the work offer, I am not confronted here with the problem as to whether Matter of S— and R---C — also applies to a situation where a misrepresentation to the consular officer shuts off a

而他的移民是由一位在美国居住多年、从事永久性工作每周收入约85.00美元的兄弟担保的。特别调查官完全有理由得出结论，认为被申请人不太可能成为公共负担，并且根据对第212(a)(15)条的司法解释以及相关行政法规和指示，在没有就业邀请的情况下他是可入境的。 然而，被申请人的虚假陈述确实切断了一条与其签证资格相关的调查线索。可以假定，如果领事官员知道工作邀请是虚假的，他会更仔细地审查扶养证据。然而，看来这并不会导致适当认定被申请人应被排除。进一步调查担保人与被申请人之间的关系本会表明，担保人是一位忠诚的兄弟，过去曾向其在墨西哥的家人寄钱，并且真正有意协助被申请人；事实上，他通过支付350美元购买工作邀请来协助其移民努力。进一步审查还会发现，被申请人在美国还有其他愿意协助他找工作的亲属。本案中没有任何内容表明进一步调查会揭示任何适当拒发签证的合理理由。鉴于本案的具体情况，因此看来被申请人关于工作邀请的虚假陈述不具有实质性。 专员试图将本案与Matter of S- and B—C—区分开来，理由是"本记录证明被申请人在获得签证的那一刻正处于参与一项或多项针对美国的犯罪的行动之中，并且毫无疑问如果伪造行为被知晓他就不会获得签证。"被申请人在获得签证的那一刻实施了针对美国的犯罪这一事实并非本案所特有。看来几乎每一个在签证申请时作出"旨在诱使政府机构采取行动或依赖"的虚假陈述的外国人（Brant:low v. United States, supra）都在那一刻违反了18 U.S.C. 1001。因此，本案与Matter of S— and B—C—, supra所通常涵盖的情形无法区分。 鉴于下文认定被申请人不知道Miranda伪造了工作邀请，我在此不面临Matter of S— and R---C—是否也适用于向领事官员的虚假陈述切断了对除虚假陈述本身或与其不可分割地联系的违法行为之外的犯罪的调查线索这一情形的问题。参见Matter of L—D—L—R, 91. &. N. Dec. 623。

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The Commissioner finally urges that the respondent's misstatements not only constituted a material misrepresentation within the meaning of section 212(a) (19) but that they vitiated the visa itself and thus rendered the respondent inadmissible under section 212(a) (20), supra. It has been consistently recognized, however, that the type of mis- representation which invalidates a visa is substantially identical with that which renders the alien excludable under section 212(a) (19). See Matter of S`—C—, 71. & N. Dec. 76,89-90, and the authori- ties cited therein. This rule appears to be correct and in accord with the general proposition that a representation invalidates a visa only if it is material or amounts to a fraud. For the foregoing reasons, the decision of the Board of Immigration Appeals is affirmed.

专员最后主张，被申请人的虚假陈述不仅构成第212(a)(19)条意义上的实质性虚假陈述，而且使签证本身无效，从而使被申请人根据上述第212(a)(20)条不可入境。然而，一贯公认的是，使签证无效的虚假陈述类型与根据第212(a)(19)条使外国人应被排除的虚假陈述类型实质上相同。参见Matter of S`—C—, 71. & N. Dec. 76,89-90及其所引权威。该规则看来是正确的，并与以下一般命题一致：陈述只有在具有实质性或构成欺诈时才使签证无效。 基于上述理由，移民上诉委员会的决定予以维持。