A-4614828 (56156/576).
Decided by Board March 5, 1946. Reconsidered by Board October 28, 1946. Approved by Attorney General November 4, 1946.
Seventh proviso relief — Section 3 of the Immigration Act of 1917 — Discretion — Conditions. Admission of crime — Conspiracy to commit fraud against Government of the United States — No conviction — Adequacy of admission.
1. In connection with the favorable exercise of the discretionary power contained in the provisions of the seventh proviso to section 3 of the Immigration Act of 1917, there may be imposed, as a condition precedent, the restitution of the sum the Government lost by a fraud against it in which the subject played a part.
2. To constitute a ground of inadmissibility, the admission of the commission of an offense (involving moral turpitude) must be voluntary, unequivocal, and unqualified.
FOUND INADMISSIBLE BY THE BOARD OF SPECIAL INQUIRY:
Act of 1917 — Admits commission of crime involving moral turpitude; to wit, conspiracy to commit fraud against the Government of the United States.
BEFORE THE BOARD
(March 5, 1946)
Discussion: The applicant appeared before a Board of Special Inquiry in New York, N.Y., on November 29, 1943, for the purpose of having his admissibility determined prior to his departure to obtain an immigration visa and reapply therewith for permanent residence. The Board of Special Inquiry has found that the applicant is inadmissible to the United States on the ground stated above. The alien has appealed from this action.
The applicant testified that he was born on May 17, 1904, at Chorzel, Poland; that he is a native and citizen of Poland; and, that he was admitted into the United States at the port of New York on the S.S. Bremen on February 24, 1931, as a temporary visitor upon the presentation of a 3 (2) visa, valid for 4 months. His admission was conditioned upon the filing of a departure bond in the amount of $500, his father serving as bondsman. The record indicates that the alien's departure from New York on July 2, 1931, was verified; however, he did not depart from the United States at this time, and has resided in this country since his original entry.
It appears that about 2 weeks before alien was to sail from the United States he made arrangements with an unnamed man whereby he was to depart from New York on the S.S. Providence, destined for Italy, then to meet the unnamed man on the boat at Boston where it was docked as a port of call; and, thereafter to leave the boat with the unknown man. The applicant's father was to pay the unnamed man $500 for his services.
Under date of June 27, 1931, the applicant advised the Commissioner of Immigration at Ellis Island by letter that he was leaving the United States on the S.S. Providence sailing from New York at 12: 00 o'clock July 2, 1931. The applicant testified that when he sent the letter to the Commissioner he had already made plans to leave the vessel at Boston; that the unnamed man purchased a ticket to Italy for him; and in exchange therefor, he gave the man a return steamship ticket valid to sail on another vessel August 6, 1931. The applicant stated that, he departed from New York according to the plan; that when the ship docked at Boston he went on the deck and the unnamed man met him at a predesignated spot, and took him off the ship; and that he proceeded, alone, by train back to his father's home in New York.
The applicant testified that he understood that on the basis of the letter to the Commission at Ellis Island, his departure was verified and that he understood there was a letter addressed to his father informing him that the $500 treasury note deposited as a bond for the departure had been released and would be surrendered to him.
The Board of Special Inquiry has found the alien inadmissible to the United States on the ground that he admits the commission of a crime involving moral turpitude, to wit: Conspiracy to commit fraud against the United States Government in connection with his nondeparture from the United States and the return of the departure bond deposited in his behalf. The alien was never convicted of any crime relating to the foregoing offense; nor does the record indicate that any action was instituted or contemplated against the alien, his father, and the unnamed man.
The admission of crime which forms the ground of inadmissibility was made under the following circumstances:
Q. Do you understand Mr. L----, that because you did not depart from the United States under the terms of the bond, and because the bond was canceled, and returned to your father, that the Government of the United States was defrauded of a sum of $500?
A. Yes.
Q. Conspiracy to defraud the Government of the United States has also been defined as a crime involving moral turpitude. Moral turpitude is an act or offense done contrary to good morals, modesty, honesty and justice. Understand?
A. Yes.
Q. It is an act which in itself is one of baseness, vileness and depravity as distinguished from an act which is wrong simply because it is prohibited by law. Do I make that clear to you?
A. Yes.
Q. Do you admit committing conspiracy to defraud the Government of the United States in connection with your alleged departure from the United States within the terms of the bond that was posted by your father?
A. I really didn't know it was a fraud that time. I didn't realize that at all because I was only here a couple of months. [Italics supplied.]
Q. You knew that you conspired with your father and with another man to cheat the Government of the United States?
A. My father had nothing to do with it. He just helped me out because I was his son, he was anxious to keep me over here. He knew about it, but he had nothing to do with the conspiracy. He was just anxious to keep me here because I didn't want to go back to Germany.
* * * * * * *
Q. And then you and your father undoubtedly arranged with some man whereby you could remain in the United States?
A. Yes.
Q. This man took you off the ship in Boston?
A. Yes.
Q. And you went back to your father's home?
A. Yes.
Q. Your father knew that you were back home, he knew that you were in the United States, and in spite of that he laid claim to the return of the $500 he put up as a bond in your behalf?
A. Yes.
Q. And you were in your father's home when the money was returned to him?
A. I suppose I was at home that time, yes.
Q. Well your father didn't report your presence to the Immigration Service so that you might be deported, did he?
A. No.
Q. So I must ask you again if you admit committing conspiracy to defraud the Government of the United States?
A. I suppose that is the only thing. [Italics supplied.]
We believe that, according to the rules concerning admissions as stated by the Solicitor General in his opinion of May 29, 1945, the charge cannot be sustained that the alien admits the commission of a crime involving moral turpitude. (In the matter of J----, 56038/559.) The applicant's replies to the Presiding Inspector's questions as to whether or not he admits the commission of conspiracy (as emphasized above), do not meet the requirements of a voluntary, unequivocal and unqualified admission within the meaning of Howes v. Tozer, 3 F. (2d) 849. Since the alien has not voluntarily admitted the commission of crime, it is unnecessary to determine whether the offense was one involving moral turpitude.
Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That the applicant is an alien, a native and citizen of Poland;
(2) That the applicant entered the United States at the port of New York on February 24, 1931, as a passenger on the S.S. Bremen at which time he was admitted as a temporary visitor upon presentation of a 3 (2) visa valid for 4 months;
(3) That the applicant has never departed from the United States;
(4) That the applicant's father posted a departure bond in the amount of $500 in his behalf;
(5) That the applicant, his father, and an unnamed man made arrangements whereby the applicant was to depart from the United States on the S.S. Providence to meet the unnamed man when the boat docked at Boston and thereafter to depart from the boat;
(6) That the foregoing plan was executed;
(7) That on June 27, 1931, the applicant informed the immigration authorities that he was leaving the United States;
(8) That the $500 Treasury note was returned to the applicant's father;
(9) That the bond given for the applicant's departure was canceled;
(10) That it has not been established that the acts of the applicant, his father and unnamed man constituted a conspiracy to defraud the United States;
(11) That the applicant has not made a voluntary, unequivocal, and unqualified admission of conspiracy.Conclusion of Law: Upon the basis of the foregoing findings of fact, it is concluded:
That under section 3 of the Immigration Act of 1917, the applicant is not inadmissible to the United States as one who admits the commission of a crime involving moral turpitude, to wit: Conspiracy to commit fraud against the United States in connection with his nondeparture bond deposited in his behalf.
Other Factors: The applicant was married on November 28, 1935, at Brooklyn, N.Y. His father, a brother, and a sister reside in this country. The applicant owns a candy store at Brooklyn. He states that his business is worth about $1,000; and, that he realizes a net weekly income of $35 from it. The applicant has no criminal record.
We shall sustain the alien's appeal. However, in the event the alien applies for readmission to the United States and is found inadmissible because of admission of a crime involving moral turpitude in connection with his nondeparture from the United States in 1931, and the return of the departure bond deposited in his behalf, we shall direct that his admission under the seventh proviso to section 3 of the Immigration Act of 1917 be authorized.
Order: It is ordered that the alien's appeal be sustained.It is further ordered, That, in the event the alien applies for readmission to the United States within 4 months after his departure and is in possession of the proper documents, and is found admissible except for the admission of the commission of a crime involving moral turpitude in connection with his nondeparture from the United States in 1931 and the return of the departure bond deposited in his behalf, that he be admitted under the seventh proviso to section 3 of the Immigration Act of 1917 notwithstanding his inadmissibility on the foregoing grounds.
Discussion: The alien is a 42-year-old native and citizen of Poland who has been living in the United States since February 24, 1931, when he was admitted as a temporary visitor upon posting a $500 departure bond. On July 2, 1931, the alien purported to leave the United States from the port of New York on board the S.S. Providence. However, when the vessel reached Boston, the alien managed, with the aid of a third person, to leave the boat. Thereafter, the alien's father, who had posted the $500 bond guaranteeing the alien's departure from the United States, applied for the return of the collateral. The Immigration and Naturalization Service, believing that the alien had actually departed from the United States, returned the collateral to the father.
In August 1943 the alien voluntarily appeared before the immigration authorities and sought permission to adjust his immigration status. The Board of special inquiry in preexamination proceedings found that the alien would be inadmissible upon reapplication for admission on the ground that he admitted conspiring to defraud the Government in violation of 18 U.S.C. 88. On March 5, 1946, we found that the alien had not made a valid admission of the commission of this offense and sustained his appeal. Because of the possibility that the alien might admit the commission of the offense when appearing before an American consul abroad, the Board authorized the alien's readmission under the seventh proviso to section 3 of the act of February 5, 1917. The case is now before us for reconsideration at the request of the Immigration and Naturalization Service.
The alien is married to an American citizen. He is the father of three minor children born in this country. His father, a brother, and sister live here. The alien's family is dependent upon him for support. The alien has never been arrested in this or any other country. Except for the one incident in connection with the alien's failure to depart from the United States in 1931, he has behaved as a law-abiding person. It was because of all these factors that the Board granted the alien permission to adjust his immigration status in its order of March 5, 1946.
We so wish to add, however, that because of the alien's failure to depart from the United States and the resulting conspiracy, the Government was defrauded of $500. The Attorney General may, in exercising the seventh proviso, impose any constitutional condition he sees fit. It is clear from this record that the alien did play a part in defrauding the Government of $500. He now seeks the Government's favor. We believe that as a condition precedent to the grant of this favor the Government should be made whole for the loss suffered by it as a result of the alien's conduct.
Order: The Board's order of March 5, 1946, is amended by adding thereto the following:
Subject to revocation in the discretion of the Attorney General, after hearing, if the alien subsequently commits any offense, and upon condition that the alien make restitution to the Government of the $500 involved in the departure bond posted as a condition precedent to the alien's admission on February 24, 1931.
As the order involves the exercise of the seventh proviso to section 3 of the Immigration Act of 1917, in accordance with section 90.12, title 8, C.F.R., the Board refers the case to the Attorney General for review of its decision.
The decision and order of the Board of Immigration Appeals dated October 28, 1946, are hereby approved.