A-5954930
Decided by Central Office November 13, 1947 Decided by Board December 29, 1947
Crime involving moral turpitude — Forgery of an application for a United States passport — Admission of the commission thereof — Adequacy thereof — Voluntary nature of admission — Permission to reapply after arrest and deportation — When bar under act of March 4, 1929, as amended.
(1) Forgery of an application for an United States passport is not specified in Federal statutes as a crime, and an admission of the commission of such offense is not deemed adequate if the alien fails to admit the legal conclusion that he committed such offense notwithstanding his admission of conduct constituting the essential elements of such offense; nor is such admission considered voluntary under the circumstances in this case, and, accordingly, the evidences does not sustain a ground of exclusion under section 3 of the Immigration Act of 1917 based on an admission of such offense.
(2) If an alien, when ordered deported in 1923, was granted permission to reapply for admission to the United States within a year after such arrest and deportation, the provisions of the act of March 4, 1929, as amended, do not apply to him under the circumstances in this case, the alien having taken up residence here again prior to 1929.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — No immigration visa.
Act of 1929 — Previously arrested and deported — no permission to reapply.
Act of 1917 — Admits commission of crime involving moral turpitude prior to entry, to wit: Forging another person's name on an application for a United States passport.
BEFORE THE CENTRAL OFFICE
Discussion: On September 28, 1947, the appellant arrived at Miami, Fla., by plane from Balboa, C.Z. He applied for admission into the United States and was held for a Board of Special Inquiry which, after hearings conducted on October 2, October 7, and October 17, 1947, ordered him excluded on the above-stated grounds. He has appealed from this decision.
The appellant testified that he is 45 years old, an alien, a native and citizen of Cuba. He stated he first entered the United States in 1921 from Mexico at Laredo, Tex. Our records show that he was arrested and deported from the United States on July 24, 1923, on the charges that he had entered the United States without inspection and that he was deemed to be a person likely to become a public charge at the time of his entry in 1921. The order of deportation granted the alien permission to reship foreign one way in lieu of deportation, and to reapply for admission within 1 year (55226/882, July 19, 1923). It appears from the War Department records at Havana, Cuba, that this alien was absent from his ship on April 20, 1924, while the vessel was at the port of Pensacola, Fla., and that he did not report back to the ship but was declared a deserter on May 5, 1924. The appellant testified that he was a crew member on this Cuban Navy ship and that he remained in the United States since April 20, 1924, except for his comings and goings out of the country as a seaman thereafter. The appellant stated that he had applied for a certificate of lawful entry and our record shows that such application for a certificate of lawful entry, under the provisions of section 328 (b) of the Nationality Act of 1940, as amended, was denied in 1945, on the ground that the alien had failed to establish continuous residence in the United States since prior to July 1, 1924.
The appellant states that he shipped in and out of the United States as a seaman since 1924 and he presented evidence of his having shipped as a seaman on vessels of United States registry or American vessels for more than a period of 5 years.
The appellant admits that he made a claim to United States citizenship in connection with his service as a seaman from 1934 to about 1942 or 1943. He admitted that he had submitted an application for a United States passport about 1942 or 1943, executing such sworn statement by signing another person's name. He admitted the essential elements involved in the commission of the offense of forging another person's name on an application for a United States passport but he did not admit a legal conclusion that he committed such offense. He did not admit the commission of perjury, as defined to him ( 18 U.S.C. 231).
His statements in regard to perjury and forgery in connection with the application for the United States passport mentioned above, were made in the following manner: His attorney first objected that his client did not wish to make any statement lest he incriminate himself. The alien was then advised by a member of the Board of Special Inquiry that the statute of limitations had run in regard to possible prosecution. This information appears to have been in error inasmuch as the offense was committed in 1942 or 1943 and prosecution for a similar offense under the provisions of section 346 of the Nationality Act of 1940, carried a 5-year limitation. This 5-year limitation is in contrast to the 3-year limitation affecting the offense of perjury as defined in 18 U.S.C. 231.
The appellant testified that he had last departed from the United States as a seaman on the American S.S. Las Vegas Victory on August 21, 1947. He was discharged in the Canal Zone on August 29, 1947. He explains that upon arrival in Cristobal, C.Z., on this vessel he had gone ashore the following day; that on his return to his ship he had been attacked and robbed; that the man who attacked and robbed him had been arrested; that the district attorney there had advised the appellant that he had to leave his ship until the case was tried and that he would later be taken to New York. There was introduced into the record a letter dated September 27, 1947, signed by the Acting District Attorney, Department of Justice, District of Ancon, C.Z., stating that the appellant was removed from his vessel at the request of the District Attorney's office, so that he might be detained by the Government as a material witness in a criminal prosecution for robbery pending against a certain person in the United States District Court in the Canal Zone. This letter added that the appellant's vessel was en route to New York City at the time the appellant was removed from the ship, "and he is now being returned to the United States at Government expense in order to rejoin his ship in New York City."
The appellant stated that he was paid off and that he embarked on the plane which brought him to the United States, as stated above, at Miami, Fla., on September 28, 1947, having embarked on that plane at Balboa, C.Z. He arrived as a passenger.
The appellant stated that he was married to a native-born citizen of the United States on October 3, 1942. She testified as to her birth in the United States and that her first and only marriage was to the appellant as stated. The appellant considers his home to be in the United States and he desires to seek naturalization under the provisions of section 325 of the Nationality Act of 1940, on the basis of his service as a seaman. He intends to continue shipping out of the United States but desires to become naturalized in this country. He is not in possession of an immigration visa.
Inasmuch as the appellant seeks to resume permanent residence in the United States, and since he has never been lawfully admitted to the United States for permanent residence and since he is not exempt from such requirement the Board of Special Inquiry properly concluded that he was subject to exclusion on the above-stated documentary ground. Inasmuch as the appellant is not a lawful permanent resident in the United States, he does not come within the exception set forth under 8 C.F.R. 176.203 (b) and is not exempted from the visa requirement even though he is considered occupationally a seaman, returning in accordance with the terms of the articles of outward voyage.
Inasmuch as at the time he was ordered deported in 1923 he was granted permission to reapply for admission into the United States within a year after his arrest and deportation, the provisions of the act of March 4, 1929, as amended, do not apply to him. On June 24, 1929, a proviso had been added to subdivision (a), section 1 of the act of March 4, 1929, providing that the act of March 4, 1929, was not to apply to any alien arrested and deported before March 4, 1929, in pursuance of law, in whose case the Secretary of Labor had granted such alien permission to reapply for admission prior to March 4, 1929. This was in effect superseded by the act of May 25, 1932, incorporated into subdivision (a) of section 1 of the act of March 4, 1929, as amended. It is concluded that the act of 1929 is not a bar to the alien's readmission into the United States and that he is not subject to exclusion on that ground. This conclusion is supported by the fact that the record shows that the alien reentered the United States prior to March 4, 1929, and took up residence there since. Where a person who had been arrested and deported from the United States had reentered the United States and taken up residence herein prior to March 4, 1929, the Board of Immigration Appeals has held that the act of March 4, 1929, does not apply to such an alien and that he is not required to apply for permission to reapply to enter the United States notwithstanding his arrest and deportation prior to March 4, 1929 (56158/554, August 12, 1944; 56033/411, March 20, 1943).
Foreign Service Regulations, Visa Supplement A, notes to section XX — I, appendix A, item 13, effective November 1, 1940.
Inasmuch as the alien has not admitted the legal conclusion that he committed the offense of forging another person's name on an application for a United States passport, he is not deemed to have admitted the commission of this offense, notwithstanding his having clearly admitted conduct constituting the essential elements of this offense (O.I. 660.2 I [ 2 IN Dec. 288]: Howes v. Tozer, 3 F. (2d) 849 (C.C.A. 1, 1925): 38 Op. Atty. Gen. 128 (1934): Op Sol. Labor (September 5, 1929); Ex parte Tozier, 2 F. (2d) 268; affirmed 3 F. (2d) 849; U.S. ex rel. Rosen v. Williams, 200 F. 538 (C.C.A. 2, 1912), cert. denied 323 U.S. 722; In re C---- C---- L----, 56111/370, October 12, 1942; Matter of J----, 56038/559, March 1, 1945; Matter of P----, C.F. 36645, May 15, 1945). Furthermore, it cannot be stated that the statements made by this alien were voluntarily made, in view of the misinformation given him regarding the statute of limitations for prosecution for similar offenses, especially in view of his prior disinclination to make any statement regarding such offenses. The requirement that the admission be explicit and voluntary is intended to limit the power of immigration officials and to insure the alien in an immigration proceeding against a trial of his guilt ( U.S. ex rel. Castro v. Williams, 203 F. 155 (D.C.N.Y., 1931); In re K---- G----, Board of Immigration Appeals, file P.X. 5327 — Buffalo (April 30, 1942). It has been held that it is not enough that the facts stated by the alien permit an inference of his guilt. The immigration authorities are not given the power to try the question of guilt. Accordingly, it is concluded that the above-stated criminal ground of exclusion is not sustained.
Information has been received that complaint by the Department of State looking to the prosecution of this alien for the apparent violation of the statute dealing with forging another person's name on an application for a United States passport, was dismissed by the United States attorney. In the Matter of V----, A-5574821, May 3, 1946, and In the Matter of B----, A-4445871, June 20, 1947, the Board of Immigration Appeals commented that there was no such Federal crime as forging an application for a passport, indicating that the chief offense of forgery was a Federal offense that should have been discussed.
Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That the appellant is a 47-year-old alien, a native and citizen of Cuba, who has never been admitted to the United States for permanent residence heretofore:
(2) That the appellant was arrested and deported from the United States on July 24, 1923, but was granted permission to reapply for admission into the United States within 1 year;
(3) That the appellant arrived at Miami, Fla., on September 28, 1947, as a passenger on a plane (flight 314, Pan American Airways), from Balboa, C.Z.;
(4) That the appellant does not admit the commission of forging another person's name on an application for a United States passport in 1942 or 1943.Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 13 (a) (1) of the Immigration Act of 1924, the appellant is subject to exclusion as an immigrant, in that, at the time of entry, he was in possession of a valid immigration visa and not exempted from the presentation thereof by said act or regulations made thereunder;
(2) That the appellant is not subject to exclusion under the provisions of the act of March 4, 1929, as amended, as an alien who had been arrested and deported in pursuance of law and to whom the proper authority had not granted permission to reapply for admission;
(3) That the appellant is not subject to exclusion under the provisions of section 3 of the act of February 5, 1917, as an alien who admits having committed a felony or other crime or misdemeanor involving moral turpitude prior to entry, to wit: Forging another person's name on an application for a United States passport, in 1942 or 1943.Other Factors: It is stated that the appellant might be eligible for naturalization under the provisions of section 325 of the Nationality Act of 1940 by virtue of his service as a seaman. His parole into the United States to permit him to legalize his status is not indicated in view of his admission that he continuously claimed United States citizenship in connection with his seaman service from 1934 to 1942 and in view of his apparent fraud, perjury, and forgery in connection with his application for a United States passport in 1942 or 1943. It has been noted that he served in the Merchant Marine during the war period and that he has a sick United States citizen wife in the United States depending upon him for support. His parole into the United States, however, is not deemed justified.
The appellant is in possession of a document issued by the Consulate General of the Republic of Cuba, at New York on September 2, 1943, certifying that the appellant was a native and citizen of Cuba. He is now being held in detention at transportation expense at Miami, Fla.
Recommendation: It is recommended that the excluding decision of the Board of Special Inquiry be affirmed on the following ground, without prejudice to reapplication for admission into the United States when in possession of appropriate documents:
The Immigration Act of May 26, 1924, in that, at the time of entry, he was an immigrant, not in possession of a valid immigration visa and not exempted from the presentation thereof by said act or regulations made thereunder.So ordered.
Upon consideration of the entire record, it is ordered that the appeal from the decision of the Commissioner be and the same is hereby dismissed.
[THIS PAGE IS BLANK.]