A-6698137.
Decided by the Board July 25, 1952
Materiality: As to employment by visitor requesting extension of stay — Perjury: False statements as to employment by visitor applying for extension of stay.
(1) False statements as to employment made by temporary visitor in connection with his application for extension of stay are material so as to constitute perjury.
CHARGES:
Warrant: Act of 1924 — Remained longer — Visitor.
BEFORE THE BOARD
Discussion: This case is before us on appeal from a decision of the Acting Assistant Commissioner dated September 26, 1951, directing respondent's deportation. Respondent, a 28-year-old native and citizen of Czechoslovakia last entered the United States at New York on June 16, 1947, as a temporary visitor for 1 month. He received an extension of the period of his stay to November 16, 1947. After leaving Czechoslovakia in February 1946, respondent was successively in Paris, London, and Antwerp as a temporary resident. Respondent alleges that he cannot return to Czechoslovakia for fear of persecution. Respondent is clearly deportable as an alien remaining longer than the authorized period as a visitor (secs. 14, 15, act of 1924).
On July 14, 1948, an Immigration Service investigative officer questioned respondent under oath and reported their conversation in Form 3-1113. At that time, respondent stated that he had not been employed from the date of his entry in June 1947 to February 1948 as a part-time employee of Agudath Israel Youth Council of America in New York City. From February to November 15, 1948, respondent worked as a cashier in a New York City butcher shop at $50 per week. After November 15, 1948, respondent worked full time for Agudath Israel at $44 per week.
In addition to the above false statements about his employment, respondent said that he was not employed in an application for extension of time of temporary stay (Form I-539, filed March 4, 1948). On the basis of these statements, respondent was granted an extension of stay. During the present proceeding, respondent explained his false statements on July 14, 1948, by saying that he was afraid that he would be deported, if the Immigration Service learned that he had been working. Thereafter, the crime of perjury was defined and respondent reluctantly admitted the commission of this offense on July 14, 1948. ( Matter of L----, 56107/993, May 19, 1943, B.I.A. 1 IN Dec. 450; Matter of V----, 56154/764, December 3, 1943, B.I.A.; Matter of E----, A-6958010, January 11, 1951, B.I.A.)
Respondent's admission of the crime of perjury was made in the following words: "Yes; I admit it, but I would like to explain why I did it. This was the case of my deportation proceedings and I was worried and if I would have admitted that I as a visitor was working in the United States I would be deported back to Czechoslovakia, which was at that time already dominated by the Communist Government. * * *"
Respondent has applied for discretionary relief in the form of voluntary departure, for, although respondent originally intended to return to Belgium, he now wishes to go to Israel. In this connection, it is necessary to determine whether respondent was guilty of the crime of perjury on July 14, 1948. Perjury is defined in 18 U.S.C. 231 (new 1622) as follows:
Whoever, having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, shall willfully and contrary to such oath state or subscribe any material matter which he does not believe to be true, is guilty of perjury, and shall be fined not more than $2,000 and imprisoned not more than 5 years.
Were respondent's false statements that he had not been employed and was not then employed material to the question of whether he was maintaining his status as a temporary visitor?
In general, persons coming to the United States to work for hire in competition with American workmen are considered immigrants, not nonimmigrants. There are, of course, certain limited exceptions to this rule, if the aliens have a needed or exceptional skill and if their eventual departure is guaranteed, ( Karnwth v. United States, 279 U.S. 231 (1929); Matter of M----, 2 IN Dec. 240 (B.I.A., January 19, 1945)). Hence, when an alien is seeking entry as a temporary visitor he must make a prima facie showing that he has no intention of remaining permanently and working here or becoming an immigrant without benefit of quota admission (8 C.F.R. 119.3; 22 C.F.R. 40, 42).
A similar showing must be made by an alien seeking extension of the period of his stay in this country as a visitor. The alien must, of course, make a prima facie showing that he is still a nonimmigrant and that he plans to remain a nonimmigrant during the remainder of his proposed stay. A statement of nonimmigrant status must include an allegation that the alien has not been employed, is not presently employed, is not presently seeking employment, and does not intend to seek employment during the rest of his stay in this country. If the alien makes a contrary statement an extension of the authorized period of temporary stay would naturally not be granted (8 C.F.R. 119.4).
For the same reasons, an alien seeking to negative an allegation of deportability for violation of the terms of his admission as a nonimmigrant will be asked if he is or has been employed and, if he answers in the affirmative, a warrant of arrest in deportation may be issued. Therefore, we conclude that, because the false statements about respondent's employment were material, respondent committed perjury on July 14, 1948, ( Matter of L----, A-6625135, June 23, 1952, B.I.A.; Matter of H----, A-3728175, June 24, 1952, B.I.A.).
In recent years, it has been the Attorney General's view that the commission of perjury within the previous 5-year period will not preclude an exercise of discretionary relief in the alien's favor. In Matter of V----, 2 IN Dec. 606 (A.G., August 1, 1946), the alien was granted voluntary departure and advance exercise of the 7th proviso, because he had a long residence of 27 years and a citizen wife. In Matter of U----, 2 IN Dec. 830 (A.G., March 20, 1947), suspension was granted to alien parents on the basis of their long residence of 22 years and the fact that they had a 17-year-old dependent child. In Matter of B----, 2 IN Dec. 492 (A.G., September 16, 1947), suspension was ordered, because the alien had a citizen wife and two children, although the alien had been a United States resident only 6 years.
In the instant case, respondent has a citizen wife and two citizen children. He has been living here 5 years and committed the crime of perjury about 4 years ago. In view of these facts, respondent comes within the above rule and discretionary relief is permissible. On the basis of the entire record, we feel that respondent's case is a meritorious one, since, except for the perjury offense, respondent has a fine record. Therefore, we conclude that voluntary departure is appropriate, ( Matter of B---- ( supra)).
Order: It is ordered that the outstanding order of deportation be withdrawn and the alien be permitted to depart from the United States voluntarily without expense to the Government, to any country of his choice, within such period of time, in any event not less than 90 days, and under such conditions as the officer in charge of the district deems appropriate conditioned upon consent of surety.
It is further ordered that if the alien does not depart from the United States in accordance with the foregoing, the order of deportation be reinstated and executed.