56050/906
Decided by the Board February 20, 1943.
Admission of crime — Perjury.
A false statement under oath does not constitute perjury unless the oath was required by law.
CHARGES:
Warrant: Act of 1924 — Immigrant without an immigration visa. Act of 1917 — Entered by means of false and misleading statements.
Lodged: Act of 1917 — Unable to read. Act of 1917 — Admits perjury.
Miss Arlene Tuck, Board attorney-examiner.
STATEMENT OF THE CASE: The presiding inspector has recommended that respondent be deported to Mexico on all of the warrant and lodged charges.
DISCUSSION: Respondent testified that he is a native and citizen of Mexico, 29 years old. He first entered the United States in 1919, accompanied by his parents and sisters and brothers. They were not legally admitted at that time. Respondent has since resided in the United States. He last entered in May 1940 at Laredo, Tex. At that time he told the inspector that he was born in Lockhart, Tex., and showed a birth certificate so stating. Respondent's father testified that he obtained this birth certificate for respondent on the basis of a false affidavit. When respondent last entered he was returning to the United States to live here. He did not then, and has never had, an immigration visa.
Respondent has never been legally admitted to the United States for permanent residence. When he entered in May 1940 he was coming here to reside and was required to have an immigration visa. His false statement that he was born in Texas is tantamount to a claim that he was a United States citizen. The charges that he entered without having an immigration visa and that he entered by false and misleading statements, thereby entering without inspection, are therefore sustained.
Respondent testified that at the time of his last entry he could not read in any language or dialect. At the hearing he was given a literacy test in Spanish, the language that he speaks, and was unable to read. The charge based on respondent's inability to read is clearly sustained.
Respondent testified that he was employed by the Works Progress Administration in 1938, and that he was so employed for 16 or 17 months. He testified that in connection with this employment he executed an affidavit stating that he was a citizen of the United States. This he believed was in 1939. He admitted that he signed this affidavit before an officer of the W.P.A. He then admitted that he committed perjury when he stated falsely under oath that he was a United States citizen.
Although respondent's admission was unqualified, we do not believe that the evidence establishes that perjury was committed in that connection. It is generally held that a false statement under oath does not constitute perjury unless the oath was required by law ( United States v. Robertson, 257 F. 195). The question arises then whether the oath, which respondent states he took in connection with his employment by the W.P.A., was required by law. Section 303.2 (d), 45 Code of Federal Regulations, provides:
The State works progress administrators shall not knowingly permit the employment of aliens illegally within the limits of the continental United States on work projects and shall make every reasonable effort consistent with prompt employment of the destitute unemployed to see that such aliens are not employed, and that if employed, and their status as such alien is disclosed, they shall be thereupon discharged (A.D. Mar. 4, 1937).
Under this regulation the W.P.A. officer is to ascertain whether an applicant for employment is a citizen or an alien. But it does not require that the applicant state under oath that he is a citizen. The oath that respondent took was therefore not required by law, and the crime of perjury was not committed. Since no crime was committed, the charge that respondent admits the commission of perjury is not sustained.
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 Mexico;
(2) That the respondent last entered the United States in May 1940 at Laredo, Tex.;
(3) That the respondent entered the United States for permanent residence;
(4) That at the time of his entry the respondent did not have an immigration visa;
(5) That at the time of his last entry respondent falsely stated that he was born in Lockhart, Tex.;
(6) That in 1938 or 1939, in connection with employment by the W.P.A., respondent executed an affidavit stating that he was a citizen of the United States.
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 his last entry he was an immigrant not in possession of an immigration visa;
(2) That under section 19 of the Immigration Act of 1917 the respondent is subject to deportation on the ground that he entered by means of false and misleading statements, thereby entering without inspection;
(3) That under sections 3 and 19 of the Immigration Act of 1917 the respondent is subject to deportation on the ground that at the time of his entry he was unable to read in any language or dialect although physically capable of reading and not exempt by section 3 from the literacy requirement;
(4) That under section 19 of the Immigration Act of 1917 the respondent is not subject to deportation on the ground that he admits that prior to his last entry he committed a crime involving moral turpitude, namely, perjury;
(5) That under section 20 of the Immigration Act of 1917 the respondent is deportable to Mexico at Government expense.
OTHER FACTORS: Respondent was married in 1937 to H---- R----, a native and citizen of Mexico. A child was born to them in Texas and is now about 3 years old. Respondent procured a divorce in November 1940 and was directed to contribute $2 a week to the support of his child. His testimony and that of his ex-wife indicate that he makes contributions when he is able. He is not regularly employed, however, but gets odd jobs.
Respondent was fined twice for striking or beating his wife.
In March 1942 respondent was convicted on a plea of guilty for violating 18 U.S.C.A., section 141 — falsely claiming citizenship — and was sentenced to 4 months' imprisonment. According to the correspondence in this record, the conviction was based on respondent's false claim in his preliminary statement to the immigrant inspector that he was born in Lockhart and on the other occasions when he claimed United States citizenship, namely, in order to obtain work on Works Progress Administration and to be admitted to the Civilian Conservation Corps.
The latest communication in the record is a letter from "Mrs. M---- C. M----," who says she is the wife of respondent and an American citizen. Apparently respondent has remarried. The new wife encloses letters from three persons in Lockhart who have employed respondent intermittently and who recommend him.
Within the past 5 years respondent has twice been fined for striking his wife. He has on several occasions falsely claimed United States citizenship in order to obtain benefits from the United States Government to which he was not entitled. We cannot find that respondent has been a person of good moral character for the past 5 years. While it does not reflect against his moral character, we note that respondent has lived in the United States since he was 6 years old but nevertheless cannot read or write in any language and required the services of a Spanish interpreter at the hearing. His employment record is far from regular.
ORDER: It is ordered that the alien be deported to Mexico at Government expense on the charges stated in the warrant of arrest and on the further charge: That under sections 3 and 19 of the Immigration Act of 1917 the respondent is subject to deportation on the ground that at the time of his entry he was unable to read in any language or dialect although physically capable of reading and was not exempt by section 3 from the literacy requirement.