Opinion · United States Board of Immigration Appeals

IN THE MATTER OF J----, 2 IN Dec. 285 (BIA 1945)

IN THE MATTER OF J----. In EXCLUSION Proceedings., 2 I. & N. Dec. 285 (Board of Immigration AppealsExecutive Office for Immigration ReviewU.S. Department of Justice 1945)

Type: Opinion
Court: United States Board of Immigration Appeals
Jurisdiction: Federal
Date: 1945-03-01
Topic: general

IN THE MATTER OF J----, 2 IN Dec. 285 (BIA 1945) IN THE MATTER OF J----. In EXCLUSION Proceedings. 56038/559Board of Immigration AppealsExecutive Office for Immigration ReviewU.S. Department of Justice Decided by Board March 1, 1945 Crime Involving Moral Turpitude — Perjury — Adequacy of Admission of Commission — No conviction. 1. In deciding whether an alien has admitted the commission of a crime involving moral turpitude, under sections 3 and 19 of the Immigration Act of 1917 (where there has not been a conviction thereof based on a plea of guilt), certain rules enumerated in this opinion are to be observed. (See restatement of rules at end of decision.) 2.

Citator

UpLaw has not yet analyzed IN THE MATTER OF J----, 2 IN Dec. 285 (BIA 1945). The absence of a flag is not a finding that it is good law.

IN THE MATTER OF J----,2 IN Dec. 285(BIA 1945)

IN THE MATTER OF J----. In EXCLUSION Proceedings.

56038/559

Board of Immigration Appeals

Executive Office for Immigration Review

U.S. Department of Justice

Decided by Board March 1, 1945

Crime Involving Moral Turpitude — Perjury — Adequacy ofAdmission of Commission — No conviction.

1. In deciding whether an alien has admitted the commission of a crime involving moral turpitude, under sections 3 and 19 of the Immigration Act of 1917 (where there has not been a conviction thereof based on a plea of guilt), certain rules enumerated in this opinion are to be observed. (See restatement of rules at end of decision.)

2. Where perjury is imperfectly defined so that it does not include all essential elements, and the alien not only refuses to admit he committed perjury, but surrounds his answers thereon with qualifications, mere admissions of fact are not deemed sufficient to establish his guilt, and his statement that he went through all the acts of committing perjury does not amount to an admission of the commission of perjury.

EXCLUDED BY BOARD OF SPECIAL INQUIRY:

Act of 1917 — Admits commission of crime — Perjury.

BEFORE THE BOARD

Discussion:The appellant is a native and citizen of Canada who applied on February 9, 1945, at Detroit, Mich., for admission to the United States as a temporary visitor under the border crossing privilege. He was found to be inadmissible by a Board of Special Inquiry on the ground stated above and has appealed from that decision.

In the instant case the appellant was asked the question "Mr. J----, did you commit the crime of perjury before an immigrant inspector on August 7, 1939, at this port by executing under oath an oath that you were a citizen of the United States?", to which question the appellant answered "Yes". No definition of the crime of perjury was offered the appellant and the record of his exclusion by a Board of Special Inquiry on May 6, 1940, is relied upon in the instant case.

On June 10, 1940, the then Board of Review, affirmed the excluding decision of the Board of Special Inquiry, on the ground that the appellant had admitted the commission of perjury. In that decision it was stated:

On August 7, 1939, following a 2-day visit to Canada, appellant applied for readmission to the United States at Detroit, Mich., and executed an "Oath of citizenship" for the express purpose of being admitted to the United States as a United States citizen. In that "Oath of citizenship" he set forth that he was bornPage 286in Detroit, Mich., June 20, 1908, that he had been absent from the United States since the 5th of August, 1939, and that he was then returning to the United States to resume his residence here. The "Oath of Citizenship" was executed before Immigrant Inspector Gordon J. Griffiths, who administered the jurat. Upon executing that "Oath of citizenship" appellant was admitted as an American citizen.

Subsequently, the appellant was arrested on a warrant issued by the Secretary of Labor, and on September 11, 1939, was accorded a hearing to enable him to show cause why he should not be deported. On February 5, 1940, the Department directed that although appellant was deportable, he was permitted to depart to any country of his choice within 90 days after notification of decision. He accordingly departed to Canada May 4, 1940. He was married between the time he was arrested and the time he departed to Canada. His wife is a native of Canada residing lawfully in the United States.

The major part of this Board of Special Inquiry hearing is devoted to the "Oath of citizenship" executed by the appellant on August 7, 1939, and to examining the appellant for the purpose of determining whether he admits having committed the crime of perjury in connection therewith. Appellant acknowledges that he did sign that "Oath of citizenship" and that he was placed under oath at that time and he asserts that he did swear falsely under oath. He admits that the circumstances surrounding the signing of that "Oath of citizenship" were that of perjury.

The appellant excuses his actions on the ground that he had been called to Canada because of a serious accident to his fiancee, in which she broke her arm 5 days prior to their intended marriage and that the shock to him was so great that he got drunk and was under the influence of liquor and under great emotional strain when he executed the oath. He also testifies that it was about 1 a.m. when he arrived at the port of entry, that he was tired and drunk and that when the officer asked him where he was born he thought it would be easier to get through by telling them he was born in Detroit. He acknowledges that on other occasions he has also accomplished entry into the United States by claiming birth in Detroit. He acknowledges that he understands the nature of an oath, and that the giving of false testimony under oath constitutes perjury. When appellant was questioned on August 29, 1939, preliminary to deportation proceedings against him, he testified before an immigrant inspector with respect to his entry on August 7 — "I told him a lie at that time. I have often said I was born in Detroit, Mich., to save time". In the hearing accorded him on the warrant of arrest on September 12, 1939, he was asked whether he was under the influence of liquor at the time he executed the "Oath of citizenship" and replied — "I wasn't drunk — I had a drink or so that evening." At this hearing he explains that statement by stating thatPage 287he so testified because he was afraid that he might be charged with driving while intoxicated should he testify that he was drunk at that time. * * * The appellant undoubtedly swore falsely on August 7, 1939, when he stated under an oath administered by an immigrant inspector that he was born in Detroit, Mich. The sole point for determination is whether appellant admits having committed perjury. InHowesv.Tozer,3 F. (2d) 849, it was stated that the word "admits" in the clause "Any alien who was convicted or admits the commission prior to entry of a felony or other crime involving moral turpitude" under section 19 of the 1917 act means "An unequivocal acknowledgment of guilt, an acknowledgment which shall leave no fair ground for doubt or debate," that it did not mean "admitting facts from which an inference of guilt may be drawn * * *." This appellant does make such unequivocal admission of guilt. He does not deny having made false statements under oath, but merely tries to excuse himself on the ground that he was acting under great emotional strain, and while under the influence of liquor, although in his warrant hearing he testified under oath that he was not under the influence of liquor at the time of the offense.

The record in the exclusion proceedings of May 6, 1940, discloses that the crime of perjury was not defined for the appellant. He was asked if he understood the nature of an oath and stated that he did. He was then asked "and you do know that giving false testimony under oath constitutes the crime of perjury?" to which he answered "Yes."e admitted signing the oath that he was a citizen and that he swore falsely under oath and although he stated he did not remember being placed under oath he stated that he was satisfied that he went through all the acts of committing perjury. However, he consistently refused to admit that he had committed perjury. Admissions of fact are not sufficient to establish his guilt and his statement that he is satisfied that he went through all the acts of committing perjury does not amount to such an admission. This is particularly so in view of the qualifications which surround his answers; his refusal to admit that he committed perjury, and his imperfect definition of the offense.

In deciding whether an alien has admitted the commission of a crime involving moral turpitude under sections 3 and 19 of the Immigration Act of 1917, the following rules are to be observed:

(1) It must first be established that under the law where the act was alleged to have been committed that it is a crime.

(2) An adequate definition of the crime, including all essential elements, must first be given to the alien. This must conform to the law of the jurisdiction where the offense is alleged to have been committed, and it must be explained in understandable terms.

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(3) The alien must then admit all the factual elements which constitute the crime. (In the Matterof P----,Atty. Gen., 56107/465, March 7, 1941.)

(4) The alien must thereafter admit the fact that he has committed the crime — in other words, the legal conclusion. (Howesv.Tozer,3 F. (2d) 849.)

(5) The admission by the alien of the crime must be explicit, unequivocal and unqualified. (Howesv.Tozer,3 F. (2d) 849.)

(6) It must also appear from the statute and statements of the alien that the crime which he has admitted committing involves moral turpitude. It is not necessary that the alien admit that the crime involves moral turpitude.

We are of the opinion that the appellant cannot be considered as having admitted the commission of perjury.Findings of Fact:Upon the basis of all the evidence presented, it is found:

(1) That the appellant is a native and citizen of Canada;

(2) That the appellant has applied for admission to the United States as a temporary visitor;

(3) That the appellant has not admitted the commission of perjury.

Conclusion of Law:Upon the basis of the foregoing findings of fact, it is concluded:

That under section 3 of the act of February 5, 1917, the appellant is not inadmissible to the United States on the ground that he admits the commission of a felony or other crime or misdemeanor involving moral turpitude, to wit: Perjury.Other Factors:The appellant's wife and two children reside in Canada.Order:It is ordered that the appeal be sustained and that the alien be admitted to the United States as a temporary visitor for visits not to exceed 29 days.

* * * * * * *

RESTATEMENT OF RULES

Re — Memorandum of Solicitor General of May 29, 1945

The following rules are observed in exclusion or expulsion proceedings in establishing that an alien admits the commission of a felony or other crime or misdemeanor involving moral turpitude.

(1) It must be clear that the conduct in question constitutes a crime or misdemeanor under the law where it is alleged to have occurred.

(2) The alien must be advised in a clear manner of the essential elements of the alleged crime or misdemeanor.

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(3) The alien must clearly admit conduct constituting the essential elements of the crime or misdemeanor and that he committed such offense. By the latter is meant that he must admit the legal conclusion that he is guilty of the crime or misdemeanor.

(4) It must appear that the crime or misdemeanor admitted actually involves moral turpitude, although it is not required that the alien himself concede the element of moral turpitude.

(5) The admissions must be free and voluntary.

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