6033312.
Decided by Central Office March 11, 1946. Decided by Board May 16, 1946. Decided by Attorney General October 31, 1946. Decided by Central Office April 2, 1947. Decided by Board September 9, 1947. Decided by Attorney General September 16, 1947.
Suspension of deportation — Section 19 (c) (2) of the Immigration Act of 1917, as amended — Good moral character — Discretion.
The admission of the commission of the crime of perjury within the statutory five-year period required by section 19 (c) of the Immigration Act of February 5, 1917, as amended, does not preclude a finding of good moral character and the grant of suspension of deportation, in an otherwise worthy case.
CHARGES:
Warrant: Act of 1924 — Immigrant without immigration visa.
Act of 1918, as amended — No passport.
Act of 1917 — Stowaway.
BEFORE THE CENTRAL OFFICE
(March 11, 1946)
Discussion: Upon consideration of the entire record, the findings of fact and conclusions of law as to deportability, proposed by the Presiding Inspector and served on the alien's counsel by registered mail on June 20, 1945 and on January 7, 1946, are here adopted except Finding of Fact No. 3, which is modified to read as follows:
(3) That the respondent was not inspected at the time of his last entry.
And Findings of Fact No. 6 is modified to read as follows:
(6) That at the time of his last entry respondent did not present a valid passport or other official document in lieu thereof issued by the country to which he owed allegiance showing his origin and identity.
This record relates to a native and citizen of Portugal, age 26, married, of white race, who last entered the United States at New York as a stowaway on the S.S. Serpa Pinto on September 19, 1941. He entered the United States without inspection. He was not in possession of an immigration visa. He did not present a valid passport or other official document in lieu thereof. It was his intention to remain in the United States. He has never been lawfully admitted to the United States for permanent residence. He is subject to deportation on the warrant charges.
Respondent has applied for suspension of deportation. On August 26, 1944, he married a native-born citizen of the United States. He has a child born in the United States on July 3, 1945. Respondent and his wife have testified that she is dependent upon him for support and that his deportation would result in economic detriment to her and their minor native born child.
He owns a fish market upon which he places a value of $600. He has operated this fish market since January 15, 1945, but intends to sell it soon. He was formerly employed as a molder for 3½ years. He is now employed at the Butterfield Co. in Naugatuck and earns $48 a week. He states that he earns about $220 a month. His assets are stated to be a truck valued at $400, furniture valued at $800 and five or six $50 War Bonds.
He states that his only arrest was for driving without a license for which he was fined $25. A check of the police records indicates that the respondent has no police record at the place where he lives. An independent character investigation was favorable to him. The Federal Bureau of Investigation indicates that there is no pertinent information in their files. He has submitted two affidavits attesting to his good moral character since about the Fall of 1941 and two other affidavits attesting to his good moral character for the last 2 and 3 years respectively.
On June 15, 1944, the respondent testified before an Immigrant Inspector that he was born in the United States and for that reason had not registered as an alien. He states that he was to bring evidence of his birth in the United States to the Immigrant Inspector within 6 months. He testified that he was under oath when he made this statement on June 15, 1944; that the crime of perjury was defined to him at that time; that the reason he falsely stated his place of birth was to avoid deportation. During the course of this hearing, on December 11, 1945, he admitted the commission of perjury in connection with the foregoing statement made on June 15, 1944. Although he admitted the commission of perjury he ventured the opinion that since he had come in and told the truth before this Service had completed its investigation that he did not believe he was guilty of perjury. It appears from this testimony that when the 6-month period within which he was to produce evidence of his alleged birth in the United States was drawing to a close he sought out his attorney and upon his advice made full revelation to this Service on January 6, 1945.
The crime of perjury is complete when the false statement concerning the material matter is made under oath administered by an officer of the United States, empowered to administer that oath ( U.S. ex rel. Boraca v. Schlotfeldt, 109 F. (2d) 106 (C.C.A. 7, 1940); Boehm v. U.S., 123 F. (2d) 791, 809 (C.C.A. 8, 1941), certiorari denied, 62 S. Ct. 626; U.S. v. Norris, 300 U.S. 564 (1937)).
An oath administered to a witness calls on him freely to disclose the truth in the first instance and not to put the inquiring body to disadvantage, hindrance, and delay of ultimately extracting the truth by needless examination and extraneous investigation or other collateral means ( U.S. v. Norris, 300 U.S. 564).
After a witness commits wilful perjury he cannot purge himself of the offense by appearing at a later date at the inquiry and recanting the false testimony; he does not in this respect retain a "locus penitentiae" ( U.S. v. Norris, 300 U.S. 564).
There is nothing in the record to indicate that the false testimony regarding his citizenship by birth in the United States was made inadvertently or through misunderstanding or in error.
The present case is clearly distinguishable from the doctrine of timely correction before discovery urged in the W---- (56107/923, December 4, 1942) and S---- (1-519545, April 17, 1944) cases. In our case the respondent apparently waited until the danger of discovery appeared more or less imminent, since the six months' period, he states he had been granted to produce evidence of his alleged birth in the United States, was drawing to a close. No uncertainty or lack of knowledge or vagueness in the appellant's mind as to his actual place of birth is urged in our case. Nor can it be said he gave an incomplete answer which he later completed. In the S---- case, the subject returned within two hours to correct the misstatement as to place of birth. In the W---- case, it was stated that if the commission of perjury in the original testimony in 1935 was found, the subsequent statement (in 1942) though unforced and "timely" would not have absolved him of the crime. In the W---- case it was held that there was an incomplete answer rather than a deliberate lie in 1935. In our case there was a deliberate lie, purposely made to stave off the deportation proceedings.
It is therefore concluded that the respondent has committed perjury which he has admitted but wishes to excuse. The United States Attorney has refused to prosecute the respondent for alleged violations of sections 746 (a) (18) and section 231, title 8 U.S.C.
The respondent complied with the Alien Registration Act of 1940 after the United States Attorney advised on February 20, 1945, that no action would be taken against him for his failure to have complied with the regulations of the Alien Registration Act of 1940.
The respondent stated that on May 29, 1944, he volunteered for induction since he was then in Class 1-A. He states that he was rejected and placed in Class 2-BF. He had testified that just prior to his coming to the United States in September 1941, as a stowaway, he had served 18 months in the Portuguese Army.
It is concluded that the respondent has failed to establish that he has behaved as a person of good moral character for the preceding 5 years and his application for relief from deportation will be denied.
Order: It is ordered that the respondent be deported to Portugal at Government expense on the charges stated in the warrant of arrest.
In accordance with 8 C.F.R. 90.3, the case is referred to the Board of Immigration Appeals for consideration.
Discussion: Warrant of arrest on the charges above stated were issued March 12, 1945, and was served on April 12, 1945. A hearing was accorded the alien under that warrant on May 8, 1945, June 7, 1945, and December 11, 1945, after which the Presiding Inspector found him deportable and recommended deportation. The findings were served on counsel January 7, 1946, and on January 21, 1946, exceptions were taken to the proposed order. The case was considered by the Service on March 11, 1946, when an order was entered directing the alien's deportation to Portugal. The case was forwarded to the Board for review and decision. Counsel appeared and was heard by the Board on March 28, 1946, and the matter is now before us for decision.
This respondent is a native and citizen of Portugal, 27 years old, married, moulder and fish market proprietor, who last entered the United States at New York on September 19, 1941, as a stowaway ex S.S. Serpa Pinto, at which time he was not in possession of an unexpired immigration visa or a passport or other official document in the nature of a passport showing his origin and identity.
At the hearing before the Board, counsel substantially admitted the facts of record as to deportability but urged the favorable exercise of discretionary relief under section 19 (c) of the 1917 act, as amended. The evidence amply sustains the charges in the warrant of arrest, therefore, the respondent is subject to deportation.
Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That the respondent is an alien, a native and citizen of Portugal;
(2) That the respondent last entered the United States at New York on September 19, 1941, as a stowaway ex S.S. Serpa Pinta;
(3) That the respondent at the time of entry intended to remain permanently in the United States;
(4) That the respondent at the time of last entry was not in possession of an unexpired immigration visa.
(5) That the respondent at the time of last entry was not in possession of a passport or any other official document in the nature of a passport showing his origin and identity.Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under sections 13 and 14 of the Immigration Act of 1924, the respondent is subject to deportation on the ground that at the time of entry he was an immigrant not in possession of an unexpired immigration visa and not exempted from the presentation thereof by said act or regulations made thereunder;
(2) That under section 19 of the Immigration Act of 1917 and the Passport Act approved May 22, 1918, as amended, the respondent is subject to deportation on the ground that at the time of entry he did not present an unexpired passport or official document in the nature of a passport issued by the government of the country to which he owes allegiance or other travel document showing his origin and identity, as required by Executive order in effect at time of entry;
(3) That under sectiton 19 of the Immigration Act of 1917, the respondent is subject to deportation on the ground that at the time of entry he was a stowaway;
(4) That under section 20 of the Immigration Act of 1917, the respondent is deportable to Portugal at Government expense.Suspension of Deportation — Factors: This respondent has requested suspension of deportation and has filed the General Information Form dated May 23, 1945. He is a person of the white race.
The record indicates that on August 26, 1944, the respondent married an American citizen. He has one American-born minor child, 9 months old. The wife testified that she is dependent upon the alien for support.
This alien is steadily employed earning $48 weekly and is operating a fish market which business he values at $600. He has a truck valued at $400, furniture valued at $800, and five or six $50 war bonds.
The alien was arrested for driving without a license and fined $25. He has no other police record. The files of the Federal Bureau of Investigation reveal no pertinent information concerning him. Witnesses who know him well vouch for his good character. The independent character investigation made by the Immigration and Naturalization Service is favorable to him.
The respondent testified before an immigration inspector under oath on June 15, 1944, that he was born at San Luis Obispo, Calif., which statement he knew was not correct. The record further indicates that he made the statement under oath when securing a marriage license on July 19, 1944. During the course of the hearing on December 11, 1945, he admitted making the statements in question on June 15, 1944, but said he came in and told the truth so, therefore, did not believe he was guilty of perjury. The matter of violation of section 746 (a) (18) of title 8 U.S.C. for knowingly and falsely representing himself to be a citizen and under section 231 of title 8 U.S.C. for perjury was presented to the United States Attorney on February 12, 1945, who advised the Service that no action would be taken in connection therewith. This alien is not deportable as a criminal, or otherwise, on any of the grounds enumerated in section 19 (d) of the 1917 act, as amended.
The record establishes that the alien is racially eligible for discretionary relief under section 19 (c) of the 1917 act, as amended, that his family would suffer serious economic detriment through his deportation, and that he is not a member of a class denied discretionary relief by section 19 (d) of the 1917 act, as amended. As the remaining factor, we will now consider the requirement of statute that the alien has been a person of good moral character for the preceding 5 years. It will be readily conceded that the alien's arrest and conviction for operation of an automobile without a permit in and of itself does not indicate that he is not a person of good moral character. As to the false statements made by the alien concerning his birth and his wilful misrepresentation of citizenship status, it appears that the United States Attorney did not consider the matter sufficiently heinous to warrant prosecution and consequently from those acts we may not impute that he lacks good moral character nor should a cloud be placed upon his reputation. He was never arrested abroad.
Upon consideration of the entire case, we conclude that the alien has been a person of good moral character for the past 5 years.
Suspension of Deportation — Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That the alien is a person of the white race and is eligible for naturalization in the United States;
(2) That the alien has been of good moral character for the preceding 5 years;
(3) That deportation of the alien would result in serious economic detriment to his American citizen wife and minor child;
(4) That after full inquiry no facts have been developed which would indicate that the alien is deportable under any of the provisions of law specified in section 19 (d) of the Immigration Act of 1917, as amended.Suspension of Deportation — Conclusion of Law: Upon the basis of the foregoing findings of fact, it is concluded:
That the alien is eligible for suspension of deportation under the provisions of section 19 (c) (2) of the Immigration Act of 1917, as amended.
Order: It is ordered that deportation of the alien be suspended under the provisions of section 19 (c) (2) of the Immigration Act of 1917, as amended.
It is further ordered, That if Congress takes no action adverse to the order granting suspension of deportation, and when the required fee is paid, proceedings be canceled.
As the case involves suspension of deportation of an alien pursuant to the provisions of section 19 (c) (2) of the Immigration Act of 1917, as amended, in accordance with the provisions of title 8, section 90.12, Code of Federal Regulations, the Board refers the case to the Attorney General for review of its decision.
Because of alien's relatively short residence in the United States, his perjury in Immigration proceedings and his repeated disregard of the truth as to his alienage, I do not find his case worthy of the discretionary relief of suspension of deportation.
However, this opinion is not intended to establish the rule that the conviction for or the admission of the crime of perjury within the statutory five year period required by section 19 (c) of the Immigration Act of February 5, 1917, as amended, precludes the finding of good moral character. Each case would depend on its own facts.
Therefore, the order of deportation of the Acting Commissioner dated March 11, 1946 is hereby approved.
Discussion: On March 11, 1946, this Service denied the alien's application for suspension of deportation and directed that he be deported to Portugal on the above charges. The Board of Immigration Appeals, on May 16, 1946, entered an order directing that the alien's deportation be suspended under the provisions of section 19 (c) (2) of the Immigration Act of 1917, as amended, and referred the matter to the Attorney General for review of its decision.
On October 31, 1946, the Attorney General directed that the order of this Service dated March 11, 1946, directing the alien's deportation, be approved. In entering this order he stated "because of alien's relatively short residence in the United States, his perjury in immigration proceedings and his repeated disregard of the truth as to his alienage, I do not find his case worthy of the discretionary relief of suspension of deportation."
Counsel for the alien, in a telegram dated March 28, 1947, requested a stay of deportation. He states, among other things, "This man is married to American citizen. The second child was born to him and his wife on the third instant and wife is in a weak condition following birth. Subject working as hod carrier. Wife and children will be destitute if deportation effected at this time as subject cannot leave them any money."
The reasons which impelled the Attorney General to deny discretionary relief in this case are still present. Consequently, the application for stay of deportation must be denied.
Order: It is ordered that application for stay of deportation be denied.
In accordance with 8 C.F.R. 90.3, the case is referred to the Board of Immigration Appeals for consideration.
Discussion: The alien is a native and citizen of Portugal, whose only entry into the United States occurred in September 1941, as a stowaway. On May 16, 1946, the Board of Immigration Appeals found him subject to deportation on the charges stated above but ordered that his deportation be suspended. On October 31, 1946, the Attorney General disapproved the order of this Board and approved the proposed order of the Central Office that the alien be deported. On March 28, 1947, counsel requested a stay of deportation. He stated in his telegram:
This man is married to American citizen. The second child was born to him and his wife on the third instant and wife is in a weak condition following birth. Subject working as hod carrier, wife and children will be destitute if deportation effected at this time as subject cannot leave them any money.
In view of the outstanding order of the Attorney General, neither the Commissioner of Immigration nor this Board has power to act on the motion which in effect is for discretionary relief. We shall consider the motion as a request on the Attorney General to reconsider his decision, and the case will be submitted to the Attorney General for this purpose.
We may review the facts briefly. In August 1944 the alien married a native-born citizen of the United States and he and his wife became the parents of a child born in this country in July 1945. It now appears from counsel's telegram that a second child was born in March 1947. The wife and children are dependent on the alien for their support. He has had regular employment since coming to this country and he has always supported his family. He has been arrested only once, for a minor traffic violation. The record contains four character affidavits by citizens of the United States, and an independent character investigation made by the Immigration Service was favorable to the alien.
For about 3 years after his arrival in the United States the alien claimed that he was a native-born citizen of this country. He made statements of this kind when he applied for a job in December 1941, when he registered for Selective Service in 1942, and when he applied for a marriage license in 1944. His claim of United States citizenship when he registered for Selective Service deprived him of the opportunity to claim exemption from military service as a neutral alien and as a matter of fact in April 1944 he volunteered for military service. He was rejected, apparently on physical grounds.
The alien also claimed birth in the United States in a sworn statement to an Immigrant Inspector in June 1944. On January 6, 1945, after consulting an attorney, the alien made another sworn statement before an Immigrant Inspector in which he told the truth regarding his citizenship. He admits that he committed perjury in his first statement, but he believes that since he subsequently told the truth he is not actually guilty of perjury. The United States Attorney has refused to prosecute the alien for the false statements under section 346 (a) (18) of the Nationality Act of 1940 or under 18 U.S.C., 231.
The Attorney General has held in Matter of V----, A2223768 [56169/114], August 1, 1946, that an admission of perjury within the 5-year period did not preclude the grant of voluntary departure together with an advance exercise of the discretionary authority conferred by the seventh proviso to section 3 of the Immigration Act of February 5, 1917. This Board is of the opinion that the alien's admission of perjury in the present case should not preclude the grant of suspension of deportation.
Reference is made to the memorandum from the Chairman of this Board to Mr. Donald Cook dated June 5, 1946, which sets forth testimony of Judge Holtzoff before a House committee in March 1941. Judge Holtzoff stated:
* * * an alien may be a perfectly good and moral person, but in his zeal to enter the promised land, he may cheat or do something that amounts to a crime, but he may have led a blameless life after that.
The memorandum continued:
Of course, the facts in this case are somewhat different. The perjury was not in connection with entry but was after entry in connection with an effort to remain in the United States. I am by no means suggesting that all perjury in reference to an alien's immigration status should be overlooked as having no bearing on the issue of good moral character, but in this case in the alien's favor, he did later tell the truth as to his place of birth and admitted his alienage. There is no indication in the record that the alien recanted because the Service was in possession of the facts as to his place of birth. Indeed, while it is pretty clear that the immigrant inspector surmised that the alien was lying in claiming birth here, nothing had been uncovered by the Immigration Service at the time of the second interrogation which definitely proved that the alien was born in Portugal. At most there was evidence that disproved the allegation of birth in the United States. The alien did volunteer for army service. His claim of birth when registering for the draft was certainly not to his advantage.
Reference is also made to a memorandum addressed to Mr. Donald C. Cook, prepared for Mr. Shoemaker's signature and initialed by Mr. Savoretti dated July 9, 1946, from which the following excerpt is taken:
Incidentally, I might say that in the naturalization field the courts appear to have been troubled with the same issue. While, generally, petitions for naturalization have been denied where the records established that the petitioners had been convicted of offenses involving moral turpitude, including perjury, committed during the period in which the petitioners were required to prove good moral character, there have been exceptions to that general rule. For example, an alien found guilty of receiving stolen property was admitted to citizenship by the United States District Court at Rock Island, Ill., the court ruling that despite the conviction it believed the alien to be a person of good moral character. A number of courts have made exceptions in cases involving petty larceny.
I doubt that any hard and fast rule on the question can be laid down as a pattern for all cases. Each must be decided on its own merits. However, I feel reasonably sure that as a matter of law either view can be taken and supported. For the reasons set forth in my memorandum of today with reference to the V---- case, I would have no objection, if the Department is of that view, to a greater degree of leniency being exercised as to an alien where the offense committed by the alien which is the bar to discretionary relief, either administrative or statutory, arose out of his desire to enter or remain in the United States. I realize the dangers of that policy, as set forth in the V---- memorandum, but if the policy is strictly limited to cases having otherwise good records, close family ties and appealing hardship features, I believe the dangers can be minimized. The factors influencing me in the above view are the seriousness of the deportation order in the case of any alien having United States family ties, and the resulting hardships to such ties.
The alien's perjury arose out of his desire to remain in the United States. Except for his false claims of citizenship, his record is excellent. His deportation would result in hardship for his American citizen wife and two children. This Board recommends to the Attorney General that he reconsider his decision of October 31, 1946, and that he approve the order of this Board suspending deportation.
Order: It is ordered that the request for reconsideration of the Attorney General's decision be referred to the Attorney General.
Upon reconsideration of this case, the decision of the Attorney General dated October 31, 1946, is rescinded, and the decision and order of the Board of Immigration Appeals dated May 16, 1946, are hereby adopted.