Opinion · United States Board of Immigration Appeals

IN THE MATTER OF C----, 1 IN Dec. 14 (BIA 1940)

1 IN Dec. 14

Type: Opinion
Court: United States Board of Immigration Appeals
Jurisdiction: Federal
Date: 1940-12-20
Topic: general

IN THE MATTER OF C----, 1 IN Dec. 14 (BIA 1940) IN THE MATTER OF C----. IN EXCLUSION PROCEEDINGS. 56048/346Board of Immigration AppealsExecutive Office for Immigration ReviewU.S. Department of Justice Decided by the Board December 20, 1940.Reversed by the Attorney General January 16, 1941. Admission of crime — Perjury. When an alien in registering as such falsely swore that he was not employed, he is not excludable on the ground that he has admitted the commission of perjury, since the record discloses merely that he had lied as to his employment but had not admitted the essential elements of the crime of perjury.

Citator

UpLaw has not yet analyzed IN THE MATTER OF C----, 1 IN Dec. 14 (BIA 1940). The absence of a flag is not a finding that it is good law.

IN THE MATTER OF C----,1 IN Dec. 14(BIA 1940)

IN THE MATTER OF C----. IN EXCLUSION PROCEEDINGS.

56048/346

Board of Immigration Appeals

Executive Office for Immigration Review

U.S. Department of Justice

Decided by the Board December 20, 1940.

Reversed by the Attorney General January 16, 1941.

Admission of crime — Perjury.

When an alien in registering as such falsely swore that he was not employed, he is not excludable on the ground that he has admitted the commission of perjury, since the record discloses merely that he had lied as to his employment but had not admitted the essential elements of the crime of perjury.

EXCLUDED BY BOARD OF SPECIAL INQUIRY:

Act of 1917 — Admits commission of crime — perjury.

BEFORE THE BOARD

STATEMENT OF THE CASE: Appellant applied for admission at Montreal, and on October 21, 1940, was excluded by a board of special inquiry because coming to employment in the United States and because he admits having committed perjury when registering at the American consulate. From this decision the alien appeals.

DISCUSSION: Appellant testifies he is a native of Scotland, citizen of Canada, aged 37 years, male, single, accountant by occupation. He is destined to New York City and intends to reside permanently in the United States.

Appellant presents a British quota immigration visa, issued at the American Consulate General, Montreal, Canada, October 21, 1940, valid until February 21, 1941, and a passport issued by the Department of External Affairs, Montreal, Canada, valid until October 11, 1941.

Appellant previously entered the United States as a visitor in September 1937, found employment and took up residence here, remaining until October 1, 1940, when he departed to Canada on his annual vacation. He proceeded to Canada with the intention of obtaining an immigration visa and effecting a lawful entry into the United States.

Appellant has been employed by the Manufacturers Trust Company in New York City as a junior bank examiner at an annual salary of $1,800. At the outset of his board of special inquiry hearing, appellant testified that he had completely severed his connection with the ManufacturersPage 15Trust Company, and that he intended going into business for himself. Upon being cautioned by the chairman of the board of special inquiry that entry to the United States gained through false or misleading statements might lead to his deportation, the appellant retracted his testimony regarding employment and stated that he was still employed by the Manufacturers Trust Company in New York City, that his position with that firm was permanent, and that he was returning to that employment. Appellant's testimony was not given under oath for the reason that the hearing was held in Canada where immigrant inspectors have no power to administer oaths.

Attached to the appellant's immigration visa are the alien registration form and fingerprint chart required by title III of the act approved June 28, 1940. The alien registration form was executed by the appellant under oath administered by an American vice consul in Montreal. Among the items in that form appears the following:

9 (c) My present employer * * * is none.

Appellant admits that this particular statement is false and admits that in making it he committed the crime of perjury. He explains this statement as follows:

I thought that the fact of having a job down there would be held against me and my visa wouldn't be granted and that is the reason I withheld that information. As I understand it, it is a violation of the alien contract law when you have a permanent position.

Section 3 of the Immigration Act of 1917 provides, among other classes, for the exclusion of aliens who have been induced, assisted, or encouraged to migrate to this country by an offer or promise of employment. It has been the constant position of the Immigration and Naturalization Service, following judicial interpretations, that this provision does not relate to employment that is essentially mental as distinguished from manual. In the present case, therefore, as the appellant is employed as a junior bank examiner, which work is mental and not manual, although returning to his position with the Manufacturers Trust Company in New York, he is not inadmissible to the United States because of the excluding provisions of section 3 of the act of 1917 relating to contract laborers.

Whether the appellant is inadmissible to the United States on the criminal charges resolves itself into the following questions:

In making a false statement under oath when registering in compliance with the Registration Act of 1940, did the appellant commit a crime?

If so, does the crime involve moral turpitude?

Has the appellant admitted committing this crime?

In reference to the first question, section 36 (c) of the Alien Registration Act contains the following provisions:

Any alien or any parent or legal guardian of any alien, who files an application for registration containing statements known to him to be false, or who procuresPage 16or attempts to procure registration of himself or another person through fraud, shall, upon conviction thereof, be fined not to exceed $1,000, or be imprisoned not more than 6 months, or both;

The alien registration form was promulgated under the authority contained in section 34 (a) of the act, which reads as follows:

The Commissioner is authorized and directed to prepare forms for the registration and fingerprinting of aliens under this title. Such forms shall contain inquiries with respect to (1) the date and place of entry of the alien into the United States; (2) activities in which he has been and intends to be engaged; (3) the length of time he expects to remain in the United States; (4) the criminal record, if any, of such alien; and (5) such additional matters as may be prescribed by the Commissioner, with the approval of the Attorney General.

It would seem clear from the foregoing provisions of law that there is complete statutory authority for requiring an alien registrant to give the name of his present employer. Likewise, it appears that one who knowingly makes a false statement in the alien registration form has committed a criminal offense under section 36 (c). The fact that the violation of section 36 (c) did not occur within the United States is unimportant, because the violation was committed at an American consulate. It was held inUnited States ex rel. Majkav.Palmer,67 F. 2d 146, that one who swears falsely before an American consular officer, who by law is empowered to administer oaths (22 U.S.C. 131), commits a crime against the United States. As will later be pointed out, American consuls are authorized to register aliens who are applying for visas. It is, therefore, concluded that the appellant has violated the provisions of section 36 (c) of the 1940 act.

It may be observed that section 36 (c) refers to false statements in "applications for registration." Other provisions of the statute also mention "applications for registration" (sec. 32 (a), sec. 33 (a)). Some provisions speak of aliens required "to apply for registration" (sec. 31 (a), (b), sec. 34 (c), sec. 36 (a)), while other provisions refer to aliens "required to be registered" (sec. 32 (b), sec. 35). The regulations (part 29 of title 8, Code of Federal Regulations) refer only to the registration of aliens, not to applications for registry. There is, however, but one document that must be executed by an alien when registering under the act, and it is apparent that section 36 (c) must refer to false statements in this document.

Coming to the second point: Does the violation of the statute in question involve moral turpitude? Section 34 (c) provides as follows:

Every person required to apply for the registration of himself or another under this title shall submit under oath the information required for such registration. Any person authorized to register aliens under this title shall be authorized to administer oaths for such purpose.

Section 30 of the act contemplates that aliens seeking visas to enter the United States shall be registered by American consuls. UnderPage 17these provisions of law, consuls have power to administer oaths to alien registrants. In addition to this, general power is conferred on consular officers to administer oaths in Section 1750, Revised Statutes (22 U.S.C., 131). All statements in the alien registration form are required by law to be under oath. Hence, under section 36 (c) a statement known by the registrant to be false means a statement under oath known by the registrant to be false. The question of the materiality of the false statement is not an issue. The statute does not distinguish between material and immaterial statements. Indeed, there would seem to be no logic in differentiating between items of information required of a registrant, all of which go to make up a succinct record of him.

The gravity of the crime is the false swearing. It is analogous in nature, though not in all elements, to the crime of perjury. Perjury has been held to involve moral turpitude (Kauedav.United States,278 F. 694;Masaichi Onov.Carr,56 F.2d 772;United States ex rel. Majkav.Palmer, supra).

We believe that a deliberate false oath is always an act involving moral turpitude, and where a deliberate false oath is made crime, that crime involves moral turpitude, and therefore it is our conclusion that a violation of section 36 (c) of the Alien Registration Act involves the element of moral turpitude.

The last issue is whether the appellant admits a violation of section 36 (c). After pointing out to the appellant the false statement in question, the board of special inquiry asked him if he admitted committing perjury before the American consul, to which he replied, "Yes, in view of the circumstances." The Board of Immigration Appeals believes that by this answer the appellant subsequently has made an admission of the commission of violating section 36 (c). Although to be clearly distinguished from perjury at common law or perjury defined by a statute relating to judicial or quasi-judicial proceedings, section 36 (c) defines a crime that in the popular mind would be regarded as perjury. When the nature of the false swearing was called to the appellant's attention and he then admitted committing perjury, in substance he has admitted violating section 36 (c). To ask the appellant if he admitted committing a violation of section 36 (c) after acquainting him with the provisions of this section would be the exact method of approach. Failure to do so is not considered fatal.

This is the first case that involves the point whether an alien, who has admitted that he violated section 36 (c) of the Alien Registration Act, has admitted committing a crime involving moral turpitude. Because of this it is deemed advisable to certify the case to the Attorney General as a question of difficulty for review of the Board's decision.Page 18

FINDINGS OF FACT: Upon the basis of all the evidence adduced at the hearing, it is found:

(1) That the appellant is an alien, a native of Scotland and a citizen of Canada;

(2) That the appellant made a false statement under oath in the alien registration form executed by him before the American vice-consul at Montreal, in that he stated he had no employer, although then employed by the Manufacturers Trust Company in New York City;

(3) That the appellant admits that in making the foregoing false statement under oath he committed a crime;

(4) That the appellant is coming to work as a junior bank examiner.

CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:

(1) That under section 3 of the Immigration Act of 1917 the appellant is not inadmissible as an alien contract laborer;

(2) That under section 3 of the Immigration Act of 1917 the appellant is inadmissible on the ground that he admits the commission of a crime involving moral turpitude, to wit: violation of section 36 (c) of the Alien Registration Act of 1940.

ORDER: It is ordered that the excluding decision of the board of special inquiry be affirmed solely on the ground that the alien admits the commission of a crime involving moral turpitude, namely, a violation of section 36 (c) of the Alien Registration Act of 1940.

BEFORE THE ATTORNEY GENERAL

The file in the case of C---- has been carefully reviewed in the view of the report of the Board of Immigration Appeals that a question of difficulty is involved in the decision excluding applicant from admission to the United States. Applicant is a native of Scotland who entered the United States as a visitor in September 1937, took up employment in New York City, and remained until October 1, 1940, when he went to Canada for a vacation. On October 21, 1940, he applied at the American consulate at Montreal for an immigration visa in order that he might return to reside permanently in this country. In connection with his application he registered as an alien and, in answer to a question on the alien registration form, swore that he was not presently employed, although as a matter of fact he was in the employ of the Manufacturers Trust Company of New York City. In his examination before a board of special inquiry applicant admitted that he had failed to disclose to the American consulate the fact that he was still in the employ of the trust company in New York City.Page 19He was excluded on the ground that he had admitted the commission of the crime of perjury. The record discloses that applicant avoided properly answering the question as to his employment for the reason that he feared he might be excluded from admission as a contract laborer, although he was not excludable on that ground under the law. The record does not disclose that applicant admitted the elements that go to make up the crime of perjury and merely admitted that he lied as to his employment.

It is hereby ordered that the appeal of applicant for admission to the United States be sustained.Page 20