relatives in the United States. He served in the Canadian Armed Forces from July 1944 to March 1946. His employment subsequent to leaving the armed forces is not shown for the full period. However, it appears that in the 211⁄2 years preceding January 23, 1952, he had been steadily employed except for a total of about 6 months. He has never received welfare assistance.

In November 1951, he was employed as a waiter. He was then earning about $70 a week. His assets at the time consisted of about $150 in a bank deposit and personal belongings valued by him at about $500. He determined to emigrate to the United States; he approached a Mrs. P whom he had been told could assist him in obtaining a visa. She questioned him concerning his financial status and the availability of a sponsor who could furnish financial assistance in the United States. He disclosed his true financial status and the fact that he had no sponsor in the United States. He was informed by Mrs. P—— that before he could lawfully enter the United States, it would be necessary that he establish that he had sufficient funds.

The alien, at the instruction of Mrs. J' -, obtained a preliminary application for a visa from the American consulate. With her assistance, he executed this preliminary application. The preliminary application which was signed by the alien but was not under oath, contained the information that he had $30 in cash, $3,460 in the bank and $500 in household goods, etc. It stated that when he emigrated to the United States, he expected to take with him in cash $3,500; that he had no debts or obligations; and that he received no loans or offer of a loan of money to enable him to obtain a visa for the United States. The alien testified that he knew the application contained these statements, and that these statements as to his assets were false prior to the time he presented it to the American consulate. The application also showed the alien had no dependents; that there was no one in the United States willing to guarantee his support; and that he had not been offered or promised employment in the United States.

On the following day (November 29, 1951), the alien, in person, submitted the preliminary application to the office of the American consulate with the purpose of having the American consul act upon the information contained therein.

Ralph Fratzke, visa officer at the American consulate, testified that he received the preliminary application submitted by the alien, and inspected it to determine whether the alien was admissible under all the applicable immigration laws. Among the objects of inquiry was the financial status of the applicant in order to determine whether he was a person likely to become a public charge. Mr. Fratzke's belief that the applicant had $3,460 in the bank satisfied him that under the circumstances, the alien was not a person likely to become a public

charge. Further inquiry which otherwise would have been made was abandoned. Mr. Fratzke determined that the alien had set forth a prima facie case of eligibility. He gave the alien a list of documents which were to be presented by the alien when he filed a formal application for a visa. Among the documents required was a letter from a bank "stating the current balance, the date upon which the account was opened, and whether the present balance is an accumulation of deposits or was made in one lump sum."

On the same day, at the direction of Mrs. P—, the alien opened an account in a bank in Canada with a deposit of $2 (two dollars). On December 4, 1951, he received from the manager of that bank, under date of December 4, 1951, a letter on the official stationery of the bank, addressed to the American consul at Windsor, Ontario, Canada, stating that the alien "has had an account at this branch since April 1946 and the balance as of this date is $3,461.18 and is accumulation of deposits since that time." The manager of the bank testified that he had issued the letter at the direction of Mrs. P; that he had been paid by her for the issuance of the letter; that the alien had made no deposits after opening the account; that the letter furnished false information concerning the alien's bank account; and that he understood the letter would be used as a statement of assets in connection with an application for a visa. The alien testified he was aware of the contents of this letter before he submitted it to the office of the American consulate. He stated that he thought it was a legal transaction because he felt that a sum of money equal to the amount shown in the letter would be deposited in the account.

On December 4, 1951, the alien returned to the office of the American consulate with certain required documents among which was the bank letter of December 4, 1951. Mr. Charles Conrad Sundell, consular officer, attached to the American consulate at Windsor, Ontario, Canada, and the person who issued the visa to the alien, testified he examined the preliminary application and supporting documents; that other than the bank letter, applicant did not present any documentary evidence as to his financial worth; that the bank letter was reviewed; that it was accepted at face value; and that had the applicant shown a considerable less amount of assets, it would have been unlikely that his application would have received approval. Mr. Sundell, finding the preliminary application and supporting documents acceptable, gave the alien an appointment to file a formal application on January 23, 1952.

On the last mentioned date, the alien filed a formal application for a visa which contained no allegation as to his net worth. His supporting documents which included the letter from the bank were rechecked by Mr. Sundell. He was sworn to his formal application

and a visa was issued to him. At this time, the alien had exhausted his funds which had at their maximum totaled about $150 and with the exception of personal property which he valued at about $500, and the $2 (two dollars) deposit in the bank, apparently had no liquid assets.

The pertinent sections of law relating to this matter are as follows:

No immigration visa shall be issued to an immigrant if it appears to the consular officer, from statements in the application, or in the papers submitted therewith, that the immigrant is inadmissable to the United States under the immigration laws, nor shall such immigration visa be issued if the application fails to comply with the provisions of this Act, nor, shall such immigration visa be issued if the Consular Officer knows, or has reason to believe that the immigrant is inadmissible to the United States under the immigration laws (sec. 2 (f) of the Immigration Act of 1924 (8 U. S. C. A. 202)). [Italics added.] Section 3 of the Act of February 5, 1917, as amended, setting forth the classes of aliens inadmissible to the United States, includes "persons likely to become a public charge;" In setting up this class of inadmissible persons, it was the intent of Congress that aliens shall be excluded upon said ground for economic as well as other reasons.1

We think it self-evident that with or without the existence of a specific law or regulation, a public official charged with the duty of determining whether an alien is a person likely to become a public charge on economic grounds as well as others, may properly inquire from the person as to his financial status and require corroborative proof of the status claimed.

The law is settled that a visa obtained by fraud or misrepresentation of a material fact is not a valid one.2

3

Whatever other tests may have been or may be applied as to materiality, decisions are unanimous in holding that where a misrepresentation is of a sort that would justify the refusal of a visa, the misrepresentation is material and the visa is one obtained by fraud

1

2

1S. Rept. 352, 64th Cong. 1st sess.

2 United States ex rel. Jankowski v. Shaughnessy, 186 F. (2d) 580, 582, C. A. 2, 1951; United States cx rel. Fink v. Reimer, 96 F. (2d) 217, 218, C. C. A. 2, 1938; Daskaloff v. Zurbrick, 103 F. (2d) 579, 580, C. C. A. 6, 1939; Heizaburo Hirose v. Berkshire, 73 F. (2d) 86, C. C. A. 9, 1934.

3

' (a) If the statements were material to support an admission of perjury, then they were material to support fraud which would vitiate the visa under the 1924 act, (Matter of C, B. I. A. 1949, 3, I. & N. Dec. 662.) For test as to materiality in perjury cases, see Matter of N- and B, 2, I. & N. Dec. 206.

(b) The hearing officer urges that any misrepresentation which cuts off inquiry as to an alien's admissibility be deemed material and cites as authority, Matter of B, et al., 2, I. & N. Dec. 638, a case dealing with a visa obtained by false impersonation. For the distinction between cases involving false impersonation and those involving other types of misrepresentation, see comment in the following footnote.

or misrepresentation. If, therefore, it can be determined upon this record that the misrepresentation as to financial status was such a misrepresentation that under the circumstances of this case, the American consul would have been justified in refusing to issue the visa, we need ponder no further and may reach a final determination. We shall therefore first consider whether the misrepresentation in the instant case would have justified the refusal of a visa.

We have seen that a person likely to become a public charge for reasons which include economic among others is inadmissible to the United States, and that a person whom the consular officer has reason to believe is inadmissible to the United States must be refused a visa. In carrying out the duty placed upon him by law, the American consul has prepared a preliminary application which is a questionnaire designed to determine whether an applicant is inadmissible under any provisions of the immigration laws. The financial status of an applicant is one of the matters into which inquiry is made. Upon learning of the alien's representation that he had a large sum of money on deposit in a bank and finding such representation corroborated by a letter from the bank, consul could reasonably conclude that this single, able-bodied male had sufficient resources to maintain him while he made his adjustments in the new country in which he sought to live.

At the time the visa application was finally considered by consul, the facts were that the alien, a single male, who had been residing with his mother and who had no listed dependents, had been in civilian life for 6 years; during this period of time, he had accumulated no estate; and if his own account were true, had been unemployed for about 6 months in the 22-year period immediately preceding the application. He had an apparently insignificant sum on his person; only the sum of $2 in the bank; and personal assets which he valued at $500. There was no one in the United States willing to guarantee his support and he had no promise of employment. He had no close relatives in the United States. With such facts in his possession, consul could reasonably have concluded that the alien was a person likely to become a public charge in the United States and could have denied the visa. The consul who considered the application involved herein, stated that had the applicant listed considerably less total of assets then shown by him, it would have been unlikely that his appli

• United States ex rel. Iorio v. Day, 34 F. (2d) 920 (C. C. A. 2, 1929); see cases cited in footnote 1; Matter of B, et al. (supra), 2, I. & N. Dec. 638, 645. "There [cases other than false impersonation] the sound view and that sustained by the judicial authorities is that a false statement in an application will not invalidate an immigration visa or other immigration document if it appears that the person would have been equally entitled to what he obtained had he told the truth." [Matter in brackets added.]

cation would have been approved. It is obvious from the wide discrepancy between the alien's actual economic condition and the illusion he presented, that his misrepresentations prevented consul from obtaining the facts which would have given reason to believe that the immigrant was inadmissible as a person likely to become a public charge; and prevented the consequent denial of a visa to the alien.

It is true that the American consul then had an alternative to denying the issuance of a visa in that he could have deferred decision pending receipt of other evidence as to sponsorship in the United States and inquiry into the alien's financial status. The fact however remains that upon the real situation as it existed when decision was made, the consul would have had reason to believe that the immigrant was a person inadmissible to the United States as one likely to become a public charge. Furthermore, it should be pointed out that the inquiry was one not desired by the applicant and was cut off by his act in representing himself to be possessed of a large sum of money (as a matter of fact, we have previously noted the record shows that the alien had no sponsor in the United States). We need not therefore speculate on what might have been.

The alien has indicated that he was of the belief that a sum of money would be deposited in the bank to the amount shown in the bank. Whether or not this is so, is immaterial. In his preliminary application, he had furnished the information to the American consul that he had no debts or obligations; and that he had received no loan or offer of a loan to enable him to obtain a visa for the United States. Even if the money had been deposited to his account, he would be in the position of having furnished the American consul false information as to his economic status, for he then would have had a debt outstanding and would have been a person who had received a loan to enable him to obtain a visa for the United States. Here too, the consul would have been justified in refusing the alien a visa as a person inadmissible to the United States as one who is likely to become a public charge, for the loan of money to him to enable him to emigrate to the United States did not change his economic status."

His

It is clear that the visa herein was one obtained by fraud and misrepresentation and is invalid. The alien therefore illegally entered the United States following his admission on January 23, 1952. reentry on July 18, 1952, without presenting a valid immigration visa was likewise illegal." The charge in the warrant of arrest is sustained. We may point out in passing that since we found the misrepresenta

'Cf. United States v. Goldsmith, 108 F. (2d) 917. C. C. A. 2, 1940. See footnote 2.

7 Sec. 13 (a) (b) Immigration Act of 1924 (8 U. S. C. 213 (a) (b)); Executive Order 8766, June 3, 1941, pt. II (1), 8 C. F. R. 175.42 and 176.201.