Plaintiffs' basic assertion is that INS has charged the plaintiffs with fraud and found their actions to have been fraudulent. Plaintiffs then present an extensive review of the law of fraud including the elements that must be established and the standards to be applied. It does not appear, however, that a determination of fraud is necessary in order to find that a nonimmigrant visa is invalid under 8 U.S.C. § 1182(a)(26). Although there has been no determination by the courts as to whether a finding of fraud is required by that section, it should be noted that there is another section specifically dealing with fraud and the government must prove that there were wilful, material misrepresentations under that section. 8 U.S.C. § 1182(a)(19); Castaneda-Gonzalez v. INS, 183 U.S. App. D.C. 396, 564 F.2d 417, 434 (D.C. Cir. 1977). In the present case, however, the government is not trying to deport the plaintiffs for misrepresentations under § 1182(a)(19). Therefore, it does not appear that a finding of fraud is necessary to a determination that a visa is invalid.
In any event, even if a finding of fraud is required by § 1182(a)(26), or the government is required to show wilful misrepresentations under § 1182(a)(19) to invalidate the visas, the grant of a change of nonimmigrant status is discretionary under § 1258. Thus, assuming arguendo that the facts in this case are insufficient to establish fraud by the plaintiffs, the questionable circumstances surrounding their entry certainly would warrant an exercise of discretion adverse to the plaintiffs. It was reasonable for the Commissioner and the Director to find that the plaintiffs were less than candid with immigration officials and therefore, a change in status from visitor to student was not warranted. It was not arbitrary, capricious, nor an abuse of discretion for these officials to decline to exercise their discretion in favor of the plaintiffs.
Plaintiffs also assert that the issuance of visas to them and their admission into this country preclude a challenge to the validity of their visas. Again, the exercise of discretion adverse to their applications can be upheld regardless of the validity of their visas. To address plaintiffs' point, however, it is evident that neither prior decisions of the State Department nor decisions of immigration inspectors are binding on the Attorney General and his delegates in subsequent proceedings. See Alacron-Baylon v. Brownell, 250 F.2d 45, 47 (5th Cir. 1957); Yee v. Barber, 210 F.2d 613, 614 (9th Cir.), cert. denied, 347 U.S. 988, 98 L. Ed. 1122, 74 S. Ct. 850 (1954); cf. Cartier v. Secretary of State, 165 U.S. App. D.C. 130, 506 F.2d 191, 196-98 (1974), cert. denied, 421 U.S. 947, 44 L. Ed. 2d 101, 95 S. Ct. 1677 (1975). Thus, the denial of a change in nonimmigrant status from visitor to student was not arbitrary, capricious, nor an abuse of discretion and the applicable law was properly applied. Therefore, defendant's motion for summary judgment will be granted.
UNITED STATES DISTRICT JUDGE
[EDITOR'S NOTE: The following court-provided text does not appear at this cite in 445 F. Supp.]
ORDER & JUDGMENT
This matter comes before the court on cross-motions for summary judgment. In consideration of the motions and the opposition thereto, the arguments of counsel at the hearing, and the entire record herein, in accordance with the memorandum opinion accompanying this Order and Judgment, it is, by the court, this 1st day of February, 1978,
ORDERED, ADJUDGED and DECREED that defendant's motion for summary judgment be, and the same hereby is, granted, and plaintiffs' motion for summary judgment is denied, and therefore, judgment shall be entered for the defendant.
UNITED STATES DISTRICT JUDGE
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