United States Ex Rel. Jankowski v. Shaughnessy, 186 F.2d 580 (2d Cir. 1951)
Annotate this CaseDecided January 29, 1951
Appellant is an alien seaman. On the basis of an application which he signed and to which he swore before the U. S. Vice-Consul at Helsinki, Finland, on September 2, 1947, the Vice-Consul granted appellant a visa on October 1, 1947. Under that visa, appellant subsequently entered the United States as a permanent resident.
In deportation proceedings, after a hearing, the examiner found that "the visa which was issued October 1, 1947, * * * as the result of his application made on September 2, 1947, before the U. S. Vice-Consul in Helsinki, Finland, was not valid, because procured through fraud and misrepresentation, in that it appears that the respondent, in his application, concealed the fact that he had been arrested in England in 1940 and imprisoned or interned there until December 1942, and falsely stated that he was at sea during the period he actually was in England."
The examiner concluded that appellant was subject to deportation because, at the time of entry, he was not in possession of a valid visa. The Assistant Commissioner adopted the examiner's recommendations, and a warrant of deportation issued.
Before the deportation proceedings began, appellant had instituted naturalization proceedings. Seeking to stay his deportation until the final determination of his pending petition for naturalization, he sued out a writ of habeas corpus in the court below. The district court dismissed the writ. 93 F. Supp. 7.
Before AUGUSTUS N. HAND, CLARK and FRANK, Circuit Judges.
Carol King and Blanch Freedman, New York City, for relator-appellant.
Irving H. Saypol, New York City (William J. Sexton, Asst. U. S. Atty., Louis Steinberg, Immigration and Naturalization Service, and Lester Friedman, Immigration and Naturalization Service, all of New York City, of counsel), for respondent-appellee.
FRANK, Circuit Judge.
1. Under Executive Order No. 8766, June 3, 1941, Part II(1),1 and Regulations 8 C.F.R. 175.42 and 176.201, appellant could lawfully have entered the United States for permanent residence only if he then possessed a "valid" visa. A visa obtained by fraud or misrepresentation of a material fact is not a valid visa.2
At the deportation hearings, there was substantial evidence to support the examiner's finding that appellant procured his visa "by fraud and misrepresentation in that it appears that, in his application, [he] * * * concealed the fact that he had been arrested in England in 1940 and imprisoned there until December 1942, and falsely stated that he was at sea during the period he actually was in prison in England." The misrepresentation and concealment were material. Had he disclosed those facts, they would have been enough to justify the refusal of a visa.3 For surely they would have led to a temporary refusal, pending a further inquiry, the results of which might well have prompted a final refusal.
2. At the opening of the deportation hearings, appellant expressly waived the right to counsel. He was then questioned in detail about the false statements in his application for the visa. Later the hearings were reopened; again, when asked, he said he did not desire counsel. We perceive no unfairness in the hearings.
3. Section 27 of the Internal Security Act of 1950, 8 U.S.C.A. § 729(c), explicitly devitalizes our decision in U. S. ex rel. Walther v. District Director of Immigration & Naturalization, 2 Cir., 175 F.2d 693, by providing: "No person shall be naturalized against whom there is outstanding a final finding of deportability * * *." Appellant contends that this provision does not apply to a naturalization petition pending at the time when the new Act became effective. For the reasons stated by the judge below, we see no merit in that contention.
Affirmed.
"1. Immigrants must present unexpired passports, or official documents in the nature of passports, issued by the governments of the countries to which they owe allegiance, or other travel documents showing their origin and identity, prescribed in regulations issued by the Secretary of State, and valid immigration visas granted by the consular officers of the United States in accordance with the requirements of the Immigration Act of 1924 and the regulations issued thereunder."
U. S. ex rel. Fink v. Reimer, 2 Cir., 96 F.2d 217, 218; U. S. ex rel. Lamp v. Corsi, 2 Cir., 61 F.2d 964, 965; Ex parte Soucek, 7 Cir., 101 F.2d 405, 407; Heizaburo Hirose v. Berkshire, 9 Cir., 73 F.2d 86; Daskaloff v. Zurbrick, 6 Cir., 103 F.2d 579, 580
U. S. ex rel. Fink v. Reimer, 2 Cir., 96 F.2d 217, 218; cf. U. S. ex rel. Iorio v. Day, 2 Cir., 34 F.2d 920
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