Judicial decisions are not in agreement as to what constitutes a “material fact” such that its intentional misrepresentation warrants exclusion of the alien.[A15-209] Some cases indicate that a misrepresentation in an application for a visa involves a material fact even if the alien would not definitely have been excluded on the true facts;[A15-210] others hold that a misstatement is material only if it referred to such facts as would have justified refusing the visa had they been disclosed.[A15-211] The Visa Office of the Department of State has announced that it applies a “rule of probability” under which a misstatement will be deemed material only if it concealed facts which probably would have resulted in a denial of a visa.[A15-212]
Waiver of the provisions of section 243(g).—Section 243(g) of the Immigration and Nationality Act of 1952, by its terms, prevented issuance of a visa to Marina Oswald by the Moscow Embassy. The section provides that upon notification of the Secretary of State by the Attorney General that a country has refused or unduly delayed the acceptance of a deportable alien from the United States who is a subject or was a resident of that country, consular officers in such country are not to issue visas to citizens of the country. The section had been invoked against Russia on May 26, 1953. Nonetheless, although section 243(g) does not contain an express provision for waiver, the Justice Department has concluded that the Attorney General possesses such waiver powers.[A15-213] Pursuant to this decision, the Department has granted waivers in over 600 cases from the Soviet Union since 1953.[A15-214] The waiver procedures followed in 1962 were prescribed by the Immigration and Naturalization Service. The relevant provision reads:
Before adjudicating a petition for an eligible beneficiary residing in the USSR, Czechoslovakia or Hungary, against which sanctions have been imposed, the district director shall obtain a report of investigation regarding the petitioner which shall include an affiliation of a subversive nature disclosed by a neighborhood investigation, local agency records and responses to Form G-135a. * * * If no substantial derogatory security information is developed, the district director may waive the sanctions in an individual meritorious case for a beneficiary of a petition filed by a reputable relative to accord status under Section 101(a)(27) (A) or Section 203(a) (2), (3) or (4). * * * If substantial adverse security information relating to the petitioner is developed, the visa petition shall be processed on its merits and certified to the regional commissioner for determination whether the sanctions should be waived. The assistant commissioner shall endorse the petition to show whether the Waiver is granted or denied, and forward it and notify the appropriate field office of the action taken. * * *[A15-215]
State Department regulations are much less explicit.[A15-216] The State Department’s visa instructions for the guidance of consular officers provide, “The sanctions will be waived only in individual meritorious cases in behalf of a beneficiary of a petition filed by a reputable relative pursuant to [sections] of the act.”[A15-217]
Because Lee Harvey Oswald signed the petition on Marina’s behalf, his character was relevant to whether the sanctions of section 243(g) could be waived for her. The file on Lee Harvey Oswald which was maintained by the Department of State and made available to the Department of Justice for purposes of passing on his wife’s application contained the facts relating to Oswald’s attempted expatriation. However, despite the derogatory material in the Oswald file, the Immigration and Naturalization Service regulations did not require automatic denial of the waiver; they provided only that if adverse security information were developed, “the visa petition shall be processed on its merits and certified to the regional commissioner for determination whether the sanctions should be waived.” This procedure was followed in Marina’s case and the factors considered in reaching the decision do not appear to be inappropriate. The State Department successfully urged that the original decision of the Immigration and Naturalization Service be reversed because this would be in the best interests of future United States dealings with the Soviet Union on behalf of American citizens, and because it seemed unfair to punish Lee Harvey Oswald’s wife and baby for his own earlier errors.[A15-218] Prevention of the separation of families is among the most common reasons underlying the frequent waivers of section 243(g).[A15-219]
OSWALD’S LETTER TO SENATOR TOWER
Sometime shortly before January 26, 1962, an undated letter from Lee Harvey Oswald was received in the office of the U.S. Senator from Texas, John G. Tower.[A15-220] The letter reads as follows:
My name is Lee Harvey Oswald, 22, of Fort Worth up till October 1959, when I came to the Soviet Union for a residenaul stay. I took a residenual document for a non-Soviet person living for a time in the USSR. The American Embassy in Moscow is familier with my case
Since July 20th 1960, I have unsucessfully applied for a Soviet Exit Visa to leave this country, the Soviets refuse to permit me and my Soviet wife, (who applied at the U.S. Embassy Moscow, July 8, 1960 for immigration status to the U.S.A.) to leave the Soviet Union. I am a citizen of the United States of America (passport No. 1733242, 1959) and I bessech you, Senator Tower, to rise the question of holding by the Soviet Union of a citizen of the U.S., against his will and expressed desires.[A15-221]
The letter was read in Senator Tower’s office by a caseworker on his staff. According to the caseworker and the Senator’s press secretary, the letter was forwarded as a matter of routine on January 26 to the Assistant Secretary for Congressional Relations, Department of State. The letter was forwarded with a cover letter, machine signed by the Senator, stating that he did “not know Oswald, or any of the facts concerning his reasons for visiting the Soviet Union; nor what action, if any, this Government can or should take on his behalf.” The cover letter pointed out that Oswald’s inquiry should have gone to the executive branch of the Government and that for this reason the Senator was forwarding it “for whatever action the Department may consider appropriate.”[A15-222] On February 1 an officer at the Department of State telephoned the Senator’s office and spoke briefly with the caseworker on the Oswald case. She made a memorandum of the call which notes, “Senator should not become involved in such case—therefore State will report to us the course which they follow regarding Lee Harvey Oswalt [sic].”[A15-223] About a week later the Department of State forwarded to Senator Tower copies of some of the correspondence which the Department had had with Oswald and informed the Senator that if he wished to be kept informed on further developments regarding Oswald he could contact the Department of State.[A15-224] Neither the Senator nor any member of his staff contacted the Department again nor did they take any other action in respect to the matter.[A15-225]