55924/957
Decided by the Board April 22, 1941.
Admission of crime — Perjury — Materiality.
When an alien in applying for admission falsely testifies that a woman accompanying him is his wife, whereas in fact he intended to resume an illicit relationship with her, he is not inadmissible as a person admitting the commission of perjury, a crime involving moral turpitude, since his false testimony was not material to his right to enter the United States.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1917 — Admits commission of crime involving moral turpitude — perjury.
Act of 1924 — Immigrant without immigration visa.
Executive Order 8430 — No passport.
Mr. J.H. Krug, Board attorney-examiner.
STATEMENT OF THE CASE: The appellant arrived at the Port of San Ysidro, Calif., on March 12, 1941, and applied for the border-crossing privilege. A board of special inquiry excluded him on the grounds stated above. From this action he appeals.
DISCUSSION: The appellant testifies that he is a native and citizen of Mexico, 40 years of age, married. He testifies that he desires to enter the United States from time to time in order to make purchases. He presents a Mexican Official Form 5-C on which are noted the facts that on March 12 he was denied the border-crossing card at San Ysidro and that the American consulate at Tijuana, Mexico, refused a section 3 (2) visa. The appellant does not possess an immigration visa.
The appellant testifies that he owns a house and lot worth about $300 and that he also owns 55 chickens and 20 pigs and an automobile. He testifies that he has not been employed for the past 3 months and that he has no money. He testifies that he and his wife would prefer to live in the United States if they could obtain immigration visas. The appellant was excluded by the board of special inquiry on the ground that he did not possess an immigration visa and also on the ground that he did not possess a passport visa. These two grounds of exclusion are mutually contradictory, since the appellant cannot be an immigrant and a nonimmigrant at the same time. Since the appellant has no money at the present time, he does not present a reasonable explanation for his desire to visit the United States. We are of the opinion that he wishes to enter the United States for permanent residence, and that he is excludable because he does not possess an immigration visa.
The action of the board of special inquiry in excluding the appellant on the ground of his admission of perjury is based upon statements he made under oath on primary inspection on June 22, 1935. It appears that the appellant was lawfully admitted to the United States for permanent residence on January 18, 1932, and resided continuously in the United States until June 1935. After a temporary visit to Mexico he applied for admission to the United States on June 22, 1935, at San Ysidro, in the company of a woman whose name at that time was D---- U----. He admits at the present hearing that on primary examination he stated under oath that this woman was his wife. He admitted at the 1935 hearing before the board of special inquiry that he was not married to her, and that he had merely lived with her for about 2 years. The appellant admits that on primary examination he made other false statements, which need not be discussed because they are obviously immaterial. The appellant admits that he committed perjury by stating under oath on January 22, 1935, that he was married to D---- U----.
The appellant committed perjury only if the above statement was material to his admissibility in 1935. Prior to the decision in Hansen v. Haff, 291 U.S. 559 (1934), it was the practice to exclude an alien who admitted that on entering the United States he intended to resume an extramarital relationship, on the ground that the alien desired to enter for an immoral purpose. The appellant admitted at the 1935 hearing that he intended to resume his former relationship if admitted. Since Hansen v. Haff, it has been established that an alien who has a purpose of this kind is not excludable on the ground that he wishes to enter for an immoral purpose. Accordingly, the appellant's false statement to the effect that he was married was not material to his admissibility. Consequently, he is not excludable on the ground that he admits the commission of perjury.
FINDINGS OF FACT: Upon the basis of all the evidence adduced at the hearing and upon the entire record in this case, it is found:
(1) That the appellant is an alien, a native and citizen of Mexico;
(2) That the appellant desires to enter the United States for permanent residence;
(3) That the appellant does not possess an immigration visa;
(4) That the appellant admits that on June 22, 1935, he falsely stated on primary examination under oath that the woman accompanying him was his wife, whereas actually she was his mistress.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 13 (a) of the Immigration Act of 1924, the appellant is inadmissible to the United States on the ground that he does not possess an unexpired immigration visa;
(2) That under section 3 (2) of the Immigration Act of 1924, the appellant is not inadmissible to the United States on the ground that he does not possess a visitor's visa;
(3) That under section 3 of the Immigration Act of 1917, the appellant is not inadmissible to the United States on the ground that he admits the commission of a crime involving moral turpitude, to wit: perjury.
OTHER FACTORS: The appellant married D---- U---- on August 29, 1935, and is now living with her. The hearing before the board of special inquiry in 1935 was deferred on December 5, 1935, to permit the appellant to produce documentary evidence that his wife's first husband was dead. When the appellant failed to reappear, the board of special inquiry excluded him on January 31, 1936, as a person likely to become a public charge. The appellant's application for permission to reapply, made on September 1, 1936, was denied on September 16. The exclusion of the appellant's wife was affirmed on July 6, 1938, on the following grounds: no immigration visa, likely to become a public charge, admits the commission of perjury. It appears that the appellant has resided in Mexico since his exclusion in 1935.
ORDER: It is ordered that the excluding decision be affirmed solely on the ground that the appellant does not possess an immigration visa.