Aliens Without Documents or With Improper Documents

By October 11, 2017 No Comments

Nature of requirements
We have previously referred to the documents that must be presented by all entering aliens. One who comes without the prescribed documents or with defective documents may be subject to exclusion.1 And if he succeeds in entering, he may be aenable to deportation.

Application of requirements

The documentary exclusions arise in a variety of situa­ tions, and frequently ·are the basic grounds on which orders of exclusion or of deportation are issued.

A person who comes without any documents patently falls under the tatutory proscription ..a Since the law requires a “valid” visa, “properly” issued to an “eligible” person, it concomitantly forbids the entry of a person who has been issued a visa in a classification to which he is not entitled.

This concept is underlined by a statutory prescription barring any immigrant whose visa was not issued in compliance with statutory requirements.’ Good faith may not remedy the defect.

In addition, the general rule is that a document obtained
by deception is equivalent to no document at all. This rule
is most significant in connection with immigration visas
which have been obtained through fraudulent misrepre­ sentations.

Aliens Who Have Made Willf ul Misrepresentations in Seeking Entry
(1) Statutory provisions. The Act of 19521 bars from entry :
”Any alien who seeks to procure, or has sought to pro­ cure ·a visa or other documentation, or seeks to enter the United States, by fraud, or by willfully misrepresenting a material fact.”

t Santarelli v. Hughes, 116 F.2d 613 (3d Cir. 1940).
3 Lehmann v. Carson, 353 U.S. 685, 77 s.ct. 1022, 1L.Ed.2d 1122 (1957). a Sec. 211(a), Act of 1952, 8 U.S.C. 1181(a).
4 Sec. 212(a) (21), Act of 1952, as amended, 8 U.S.C.1182(a) (21).
s Ex parte Soucek, 101F.2d 405 (7th Cir. 1939). Bee f B.30d(S ).
6 Fink v. Reimer, 96 F.2d 217 (2d Cir. 1938) ; Ablett v. Brownell, 240 F.2d 625 (D.C. Cir. 1957).
t Sec. 212(a) (19), Act of 1952, 8 U.8.C. 1182(a) (19).
(Pub.334)

§ 2.33a What Aliens May Enter United States 2-59

The Attorney General has held that the first part of the 1952 Act, relating to fraud in documents, is both prospective and retr6spective, but that the second portion, relating to misrepresentations in seeking entry, is prospective only.2 Thus a misstatement in connection with an entry not related to the procurement of documents, will invalidate only that entry and will not preclude a subsequent entry otherwise regular. Moreover, it is the administrative view that the first portion of the statute relates only to fraud in the issuance of documents and not to fraud in their acquisition.3
(2) ) Waiver of exclud ability. The perpetual bar to the entry of one who has misrepresented may be waived by the Attorney General for an alien who is the spouse, parent, or child of an American citizen or of an alien lawfully admitted for permanent residence:”

• Exclusions Related to Personal Qualifications •
§ 2.33 Physical and Mental Defectives
§2.33a Mental defects or disabilities
(1) M ental disord ers. In a series of edicts the statute bars aliens who are mentally retarded, who are insane, who have had one or more attacks of insanity, or who are aff licted with psychopathic personality, or sexual deviation, or a mental defect.1
The 1952 Act retained the bar against entry of those who had experienced one or more attacks of insanity at any previous time, even though the derangement had since been cured. This exclusion sometimes results in distressing difficulties for returning residents, particularly alien wives of persons residing in the United States.

2 Matter of M., 6 IN 149 (A.G. 1954) ; Matter of M., 6 IN 752 (1955).
3 Matter of L.L., 9 IN 324 ( 1961) .
4 Secs. 212 (i) and 24l (f ) , Act of 1952, 8 U.S.C. 1182(i), and 1251(f).
1 Sec. 212(a) (1), (2), (3), and (4), Act of 1952, 8 U.S.C. 1182(a) (1),
(2), (3), and (4).

(Pub.334)

2-60 Immigration and Nationality Law § 2.33b

(2) Waiver of excludabilit y. Before 1965 there was no provision for waiving the mandatory exclusion of those afflicted with mental disorders. However, the. 1965 amend­ ments2 authorized the waiver of excludability and admission und er appropriate safeguards of certain aliens in this category who have close relatives in the United States.
(3) ) Other disabilities. The 1aw3 also directs the exclusions of aliens suffering from chronic alcoholism and narcotic drug addiction.

§2.33b Physical defects or disabilities
Exclusion is commanded for the following physical afflictions :
(1) Any dangerous contagious disease:1. It should be noted that the statute5 now authorizes the issuance of an immigrant visa and the admittance for permanent residence of any otherwise admissible alien afflicted with tuberculosis who is the spouse, the unmarried son or daughter, or parent of a United States citizen or an alien lawfully admitted for permanent residence. The statute specifies that the ad­ mission of such an alien shall be under terms, condition s, and controls, including the giving of a bond, prescribed in regulations issued by the Attorney General in bis discretion, after 1>nsultation with the Surgeon General of the United States 1 ublic Health Service.
(2) Other physical afflic tions impairing earning capacit y . Any alien with a physical disability, other than the specific physical afflictions previou sly enumerated, that may affect his ability to earn a living is excludable unless be satisfies the consular or immigration officers that be will not have to earn a livin.g.6 Persons affected by this exclusion may be

2 Sec. 212(g), Act of 1952, 8 U.S.C. 1182(g).
s Unless otherwise indicated, statutory references in this section are to
Sec: 212, Act of 1952, 8 U.S.C. 1182. ·
4 Sec. 212(a) (6). See also 12 CFR 34.2 (b).
s Sec. lll2{g), Act of 1952, 8 U.S.C. 1182(g).
6 Sec. 212(a) (7).

(Pub.334)

§ 2.34b What Aliens May Enter United States 2-61

admitted in the discretion of the Attorney General, by furnishing a bond guaranteeing that they will not become a public charge.7

§ 2.34 Aliens Likely to Become a Public Charge
§2.34a Statutory provisions
The statute announces a number of injunction s against the admittance of economic undesirables.
In the first place, it specifically bars paupers, prof essional beggars and vagrants.1 This pronouncement has survived, although it is of little importance today.
Secondly, as previously noted the law proscribes persons afflicted with various mental or physical diseases or disabilities, which may affect their ability to earn a liveli­ hood.
Finally, the law2 commands the exclusion of :
”Aliens who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission, are likely at any time to become public charges.”
It is noted also that a person likely to become a public charge who succeeds in gaining entry may be amenable to deportation, particularly if his indigence occurred within five years after entry.

§2.34b Administrative discretion
The designation of aliens likely to become public charges obviously is ambiguous. However, the consular and immi­ gration officers do not have unlimited authority. Their exercise of this discretion cannot rest on mere speculation

1 Sec. 213, Act of 1952, 8 U.S.C. 1183.
1 Sec. 212(a ) (8), Act of 1952, 8 U.S.C. 1182(a) (8).
2 Sec. 212(a) (.15), Act of 1952, 8 U.S.C. 1182(a) (15).

(Pub.334)

2-62 Immigration and Nationality Law § 2.34c

and must be based on some tangible evidence which pro­ duces probability that the alien will become a charge upon the public after entry.3

§2.34c Standards for determination
No regulations adequately defining the likelihood of be­ coming a public charge have been promulgated by the De­ partment of State or the Department of Justice. State Department regulations merely preclude a finding of ineligibility on this ground unless it is ”predicated on circumstances which indicate that the alien probably will be­ come a charge upon the public after entry”.’Moreover, the regulations also recognize that the public charge require­ ment may be satisfied by prearranged employment and specify that when the alien seeks to meet this requirement solely on the basis of his personal income, such income must exceed the official poverty guidelines announced by U.S. government agencies.”
In a leading case the Supreme Court overruled an immi­ gration officer ‘s determination that an alien was excludable as a prospective public charge because he was destined to Portland, Oregon, where the labor market was over­ crowded.6 However, changing economic, social, and popula­ tion patterns have generated ever tighter restrictions, which have entailed · proof of financial responsibility, such as affidavits of support, specific offers of employment, and evidence of personal assets and income.
There is thus no fixed standard for determining whether an alien is likely to become a public charge. The evaluation usually will take into account, among other things the alien ‘s age, mental and physical condition, the presence of

a 22 CFR 42.91(a) (15) (i) ; Gabriel v. Johnson, 29 F.2d 347 (1st Cir.
1928) ; Berman v. Curran, 13 F.2d 96 (3d Cir. 1926).
4 22 CFR 42.Sl(a) (15).
s Id.
6 Gegiow v. Uhl, 239 U.S.3, 36 S.Ct. 2, 60 L.Ed. 114 (1915).

(Pub.334)

§ 2.35a What Aliens May Enter Un ited States 2–63

friends or relatives in this country, and his willingness to find usef ul employment.

§2.34d Proof of financial responsibility
Since 1930 American consuls have required that an immi­ grant supply evidence of his own financial worth or sponsor­ ing affidavits from residents in the United States assuring that the applicant for entry will be supported in this coun­ try. The latter documents, commonly known as affidavits of support, usually are required unless the immigrant can prove his financial dependability by showing that he has sufficient funds or has a satisfactory job awaiting him. How­ ever, the nature and adequacy of the proofs is determined by the consul.

§2.34e Public charge bonds
The law permits the admission, in the discretion of the Attorney General, of an alien found likely to become a public charge, if a bond or undertaking is furnished on his behalf indemnif ying the United States as well as States and localities against his becoming a public charge.7

§ 2.35 Aliens Coming to Perform Labor

§2.35a Present statutory provisions
The present statute I excludes:
“(14) Alien s seeking to enter the United States, for the purpose of performin g skilled or unskilled labor, unless the Secretary of Labor has determined and certi­ fied to the Secretary of State and the Attorney General that (A) there are not sufficient workers who are able, willing, quali:fiecl. (or equally qualified in the case of aliens who are member s of the teaching prof ession or who have exceptional ability in the sciences or the arts),

7 Sec. 213, Act of 1952, 8 U.S.C. 1183.
I Sec. 212(a) (14), Act of 1952, 8 U.S.C. 1182(a) (14) .
(Rel.2-6/82 Pub.334)

)

2-64 Immigration and Nationality Law § 2.35b
and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and ( B) the employment of such aliens will not ad­ versely aff ect the wages and working conditions of the workers in the United States similarly employed. The exclusion of aliens under this paragraph shall apply to pref erence immigrant aliens described in section 203 ( a) (3) and (6), and to nonpreference immigrant alien described in section 203(a) (8)”.

§2.35b Applicability of labor exclusion
(1) Immigrants entering labor market. Under its terms, the labor exclusion discussed in this section generally is applicable only to those whose primary purpose in coming here is the performance of labor. Consequently, a labor certification is not required by an applicant for entry or
adjustment of status who establishes that he will not per­
form skilled or unskilled labor.2 In addition, the regula­
tions3 declare that certain classes of immigrants are not subject to the labor certification requirement. The most important exempt category relates to the so-called business investor-on e coming to engage in a commercial or agricul­ tural enterprise in which he has invested, or is actively in the process of investing, capital totaling at least $40,000 in an enterprise in the United States of which he will be 1-1 principal manager and which will employ a person or per­ sons in the United States who are American citizens or lawf ul resident aliens, exclusive of the alien, his spouse and children.4 Since such investors were chargeable to the non­ pref erence portion of the quota which has been unavailable since 1976, this category is currently obsolete. A 1981 amendmen t granted residence benefits to certain investori;; whose applications for adjustment of status were pending· on or before ,June 1, 1978.6 Note that aliens seeking entr?

2 8 CFR 2.12.S(a) ; Matter of Caralekas, 15 IN 142 (I.D. 2333, 1975).
4 8 CFR 212.S(b) (4) ; 22 CFR 42.91 (a) (14).
6 Sec.19, Act of Dec. 29, 1981, P.L. 97,116, 9:’i Stat. llfil.
(Rel.2-6/82 Pub.334)

§ 2.35c What Aliens May Enter United States 2-65

as refugees to obtain political asylum are not coming to perf orm labor and are not subject to the labor certification requirement. 6
(2) Preference and nonpre ference im1nigrants. The stat­ ute excludes from its operation those entitled to exemption or pref erence on the basis of relationship to an American citizen or resident alien, expressly confining its impact to the third and sixth preference and the nonpreference groups.
(3) Svecial immigrants and noninimigrants. Also re­ moved from the operation of the statute are special immi­ grants and nonimmigrants.

§2.35c Impact of statutory requirement
Certain aspects of the statutory directives should be mentioned. In the first place, the statute specifies that a certification by the -Secretary of Labor can be issued if he finds that “there are not sufficient workers who are able, willing, qualified . . ., and available” f or the employment in question . This req uirement manifestly cannot be satisfied by a :finding that workers are qualified but not available, or available bu t not qualified. Moreover, a special requirement relating to teachers and applicants specially skilled in the sciences or arts, added in 1976, specifies that in such cases the available workers must be “equally qualified.”7 In addi­ tion, the statute declares that the American worker’s avail­ ability mu st be at the place where the alien is to be em­ ployed and at the time of the application for a visa and admission to the United States. The Secretary of Labor also must certify that the employment of the alien will not affect the wages and working conditions of the aliens in the United States similarly employed.
Like the other exclusions prescribed in the statute, the labor certification requirement must be satisfied at the time admission to the United States is sought.

6 See 9&.f2!JAa ; Pierro v. U.S., 525 F.2d 933, 935 ( 5th Ci!’. 1976) .
7 Sec. 5, Act of Oct. 20, 1976, P.L. 94-571, 90 Stat. 2703, 2705.

(Rel.2-6/82 Pub.334)

2-66 Immigration and Nationality Law § 2.36

§ 2.36 Illiterates
The Act of 1952 with a number of specified exception s, bars aliens “over SL”‘\:teen years of age, physically capable of reading, who cannot read and understand some lang11age or dialect.”‘
An alien who is not exempt from the literacy requirement is examined in any language or dialect he designates.

§ 2.37 Aliens Accom panying Excluded Aliens
An alien who is not himself inadmissible may be barred from entry if he is accompanying another excluded alien who requires his protection and guardianship because the excluded alien is helpless from sickness or mental or physi­ cal disability or infancy. 1

§ 2.38 Foreign Medical Graduates
Until 1976 the immigration laws were hospitable to foreign doctors who wished to study, work, or settle in the
United States.
A marked change in policy was announced in 1976, when Congress imposed rigid restrictions on th e immigration opportunities of foreign doctors.1
The 1976 Act, as amended in 1977,2 provides for the ex­ clusion from the United States of aliens who are graduates of a medical school not accrer1ite

Francisco Hernandez

Author Francisco Hernandez

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