55917/338
Decided by the Board June 7, 1941.
Admission of crime — Perjury — Oath.
In connection with an admission of perjury, it must be clearly and independently established that the alleged false statements were under oath.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
(Both appellants.)
Act of 1924 — Immigrants without immigration visas.
(E---- G---- T----.)
Act of 1917 — Admits the commission of crime — perjury.
Mr. David Schwartz, Board attorney-examiner.
STATEMENT OF THE CASE: The appellants applied for admission at Laredo, Tex., on May 16, 1941. The board of special inquiry excluded them on the above-mentioned grounds and they appealed.
DISCUSSION: The appellants, husband and wife, are natives and citizens of Mexico, aged 58 and 50, respectively, and a peddler and without occupation, respectively. They have $22 and are going to visit their son in San Antonio, Tex., for 29 days.
They present Mexican Forms 5C and border-crossing identification cards issued on May 14, 1941.
The appellants resided in the United States from 1914 to December 7, 1931, when they were repatriated to Mexico. After an absence of 8 or 9 months they were readmitted as returning residents on the basis of false statements that they had been in Mexico for only a few days. In 1935 this was discovered and a statement was taken from them, after which they were afforded the privilege of voluntary departure to Mexico. Subsequently, in 1935 and again in 1936 they were both refused immigration visas. In the latter hearing, 1 day after she had been refused a visa, the female appellant, then temporarily separated from her husband, applied for admission and was excluded on appeal as likely to become a public charge and as an immigrant not in possession of an immigration visa. Despite their having gained admission in 1935 by means of false statements, the male appellant was admitted in 1937 for 1 day to shop, and the female appellant was admitted in 1935 and in 1938 to visit her son.
The appellants own the home in which they are living, and the female appellant testifies that they are paying for a piece of land in Mexico. The male appellant denies that he will work in the United States, and they both claim that they will not remain in the United States for longer than 29 days. They present return bus transportation from the border to their home and testify that they expect their son or his nephew to meet them at the border in an automobile.
The evidence in the record does not show that at this time the appellants intend to remain in the United States indefinitely. Although their immigration record is unfavorable, they have been admitted as visitors since their fraudulent entry, and they seem to have complied with the terms of their temporary admissions. They are apparently making bona fide applications for admission for 29 days to visit their son, and they have made preparations for their return.
The male appellant has been excluded on the additional ground that he admits that on August 15, 1932, in connection with his application for admission as a returning resident, he committed perjury by stating under oath that he had been in Mexico for only a few days. This excluding ground is based on the following excerpt taken from him on June 26, 1935:
Q. By whom were you accompanied at the time of your entry [in 1932] into the United States?
A. My wife and my son Jesus.
Q. Were you, at that time, in possession of an unexpired immigration visa or permit to reenter the United States?
A. No.
Q. Were you inspected and admitted to the United States by an immigrant inspector?
A. Yes.
Q. What was said to you at that time?
A. An immigration officer asked me where I was going, and I said I was going to San Antonio, Tex., back home, and they asked me how long I had been in Mexico, and I told them just a few days, that I had gone to Mexico for a few days to see my mother. Then they went inside and looked for my card and found my name and told me to go on to San Antonio.
Q. You told the inspector that you had been in Mexico only a few days. In reality how long were you in Mexico prior to your last entry?
A. I was there a little over 9 months.
Q. Then you gained entry at that time by making false statements?
A. Yes.
Q. Do you admit that you entered the United States by means of a false statement; to wit, saying that you were in Mexico only a few days while in reality you have been in Mexico over 9 months?
A. Yes.
and the following testimony given in the present proceeding:
Q. You came back and stated to the immigration authorities you were in Mexico just about 1 day and were permitted to reenter without an immigration visa or the payment of head tax on or about August 15, 1932, by making false statements on material facts, is that not true?
A. Yes; it is true.
NOTE BY CHAIRMAN: The records of this office show this alien was last admitted as an alleged returning resident on August 15, 1932.
Q. Do you admit the commission of a crime involving moral turpitude, to wit: perjury on material facts at the time of that entry on August 15, 1932, by defrauding this Government of revenue rightfully belonging to it, inasmuch as you had returned to Mexico as a repatriate in 1931, concealed that fact, and stated under oath before the immigration authorities you were in Mexico just a few days?
A. Yes; I didn't have the money to get the passport.
It will be noted that in the 1935 statement the appellant was not asked, nor was it developed, that he was under oath when he made the false statements in question. It is also noteworthy that in 1939, when the female appellant was questioned as to this fraudulent entry, the examining officer described the illegal entry without mentioning that the false statements had been made under oath. Nor is it likely, from the circumstances, that the male appellant was under oath when he stated that he was a returning resident. He appeared at the border and said that he was returning to the United States after a visit of a few days. That it was not suspected that his statements were false is shown by the fact that he was not held for a board of special inquiry. The records were informally checked, and he was passed in. Since the 1935 proceeding did not show that he was under oath, there was no justification in the present proceeding for a question which assumed that he was under oath. It is not conclusive that he admitted being under oath. The question as to whether he admitted the commission of perjury was a long one and hence the acquiescing answer was not directly responsive. An admission under such circumstances is improper and will not be accepted.
FINDINGS OF FACT: Upon the basis of all the evidence adduced at the hearing, it is found:
(1) That the appellants are aliens, natives and citizens of Mexico;
(2) That the appellants are in good faith applying for admission as visitors for pleasure for 29 days;
(3) That the appellants are in possession of Mexican Forms 5C;
(4) That the appellants are in possession of nonresident alien's border-crossing identification cards issued to them on May 14, 1941;
(5) That it does not appear that the appellants intend to remain in the United States indefinitely;
(6) That the male appellant has not admitted the commission of perjury.CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 13 of the Immigration Act of 1924 the appellants are not inadmissible to the United States as immigrant aliens not in possession of immigration visas;
(2) That under section 3 of the Immigration Act of 1917, the appellant, E---- G---- T----, is not inadmissible to the United States as one who admits the commission of a crime involving moral turpitude, namely, perjury.ORDER: It is ordered that the appeal be sustained and the aliens admitted as visitors for pleasure for 29 days.