Carlota LA MADRID-PERAZA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent

United States Court of Appeals for the Ninth Circuit1974-02-06No. No. 72-1817

492 F.2d 1297

Summary · law.co

Holding. The INS deportation order was reversed because the government failed to establish that the wage misstatement in the labor certificate application was material—that is, that disclosure of accurate wage information would have warranted denial of the labor certificate.

Carlota La Madrid-Peraza sought entry to the United States to work as a domestic employee and obtained a labor certificate and visa. In her application for the labor certificate, she allegedly overstated the wages she would receive. The INS initiated deportation proceedings, arguing that this wage misstatement constituted material misrepresentation that invalidated her labor certificate and visa. The court examined whether a misstatement in visa proceedings is sufficiently material to support deportation, drawing on precedent establishing that a misstatement is material only if disclosure of the truth would have warranted denial of the visa.

The court found that although the government presented evidence the applicant misstated her prospective wages, the record contained no evidence that her actual wages fell below prevailing rates for live-in domestic workers in Los Angeles. Under the applicable labor regulations, a labor certificate could not have been denied unless the offered employment paid below prevailing wage rates. Because the government failed to demonstrate that the truth about her wages would have resulted in denial of her labor certificate, the misstatement could not be deemed material.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Materiality standard for misrepresentations in visa and labor certification proceedings
Whether wage misstatement in labor certificate application justified deportation
Connection between prevailing wage requirements and materiality of wage misrepresentation

Procedural posture

The case involves review of an INS deportation order issued by a Special Inquiry Officer who found material misrepresentation in the labor certificate application.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

AMENDED OPINION

PER CURIAM:

The determination by the Immigration and Naturalization Service that Carlota La Madrid-Peraza was deportable for a material misrepresentation in the proceedings whereunder she obtained her visa to enter the country to take a domestic job is reversed.

At the deportation hearing the Special Inquiry Officer found that petitioner’s application for a labor certificate overstated the wages she was to receive from her prospective job, and ruled that this constituted a material misrepresentation that invalidated the labor certificate and the visa.

In Chaunt v. United States, 364 U.S. 350, 81 S.Ct. 147, 5 L.Ed.2d 120 (1960), the Supreme Court held that in order to denaturalize a citizen on the basis of a misrepresentation or concealment of facts in his naturalization petition, the Government must prove that if the truth had been disclosed, it would have warranted denial of citizenship. In United States v. Rossi, 299 F.2d 650 (9th Cir. 1962), we followed the Supreme Court’s rationale in Chaunt, and held that a fact suppressed or misstated is not material to an alien’s entry unless the truth would have justified a refusal to issue a visa.

At the time the deportation order was made the regulations as reflected in 29 C.F.R., § 60.5, provided in part:

“Certifications issued pursuant to this part are invalid if the representations upon which they are based are incorrect. . . .”

In 1971, this regulation was amended and revised to read as follows:

“29 C.F.R. § 60.5(g)

Certifications issued pursuant to this part are invalid if the representations upon which they are based are materially incorrect. Materially incorrect for the purposes of this paragraph means that if the correct facts had been known, a certification could not have been issued pursuant to the requirements set forth at section 212(a) (14) of the Immigration and Nationality Act.”

Although this amendment came after the deportation order was made the revision and amendments of the regulation were preceded by a note from the Secretary of Labor indicating that the amendments and revision were “[I]n large part ... a clarification and restatement of existing procedures and policies.” 36 F.R. 2462 (1971).

Another section of these regulations, in effect since July, 1967 (32 F.R. 10932 (1967)), provides that prospective employment offered at less than the prevailing rate for American workers similarly situated is deemed to adversely affect wages and working conditions of American workers within the meaning of § 212(a) (14) of the Act. 29 C.F.R. § 60.6(a). Under this regulation the petitioner could not have been issued a labor certificate if in fact her prospective job paid less than the prevailing rate.

Although the Government offered ample evidence that the petitioner’s application misstated the wages to be paid, there is no evidence in the record to show that the amount that she actually received was below the prevailing wage rates in the Los Angeles area for live-in domestics.

The order of deportation is reversed.

. Although Chaunt and Rossi involved denat-uralization proceedings, their rationale is forceful here, where the severe remedy of deportation is the issue.