A-8302063
Decided by the Board March 12, 1954
Deportation proceedings — Effect of judgment of the court in criminal proceedings.
Adverse judgment of a court in a criminal proceeding is binding in a deportation proceeding in which deportation of the person who was the defendant in the criminal action is sought and in which the issue is one which was also an issue in the criminal case.
CHARGE:
Warrant: Act of 1924 — No immigration visa.
BEFORE THE BOARD
Discussion: Appeal from order of the hearing officer requiring respondent's deportation on the ground stated above. Voluntary departure was denied on the ground that respondent was not statutorily eligible.
Respondent is a 36-year-old single male, a native and citizen of Canada, who was admitted to the United States in 1952 in possession of an immigration visa issued at Windsor, Ontario, Canada. The Service urges that this visa was procured by false statements as to respondent's financial assets; that a visa so obtained is invalid; and that one who presents such visa legally has no visa and is deportable on the ground stated above. As to deportability, the sole issue presented is whether a visa was obtained by false statements.
The pertinent facts are stated in count II of a two-count indictment filed September 16, 1952 in the United States district court at Detroit, Mich., charging respondent with violation of sections 1546 and 3238 of title 18, U.S.C. This count states that the respondent, C---- Z----, "did knowingly accept and receive nonquota immigration visa No. 2993 from the American consul at Windsor, Ontario, Canada, knowing the same to have been procured by means of a false claim and statement in an application therefor, to wit: That he had an account with the Provincial Bank, Windsor, Ontario, Canada, since April 1942 and that balance in that account as of January 5, 1952, was $3,853.16 whereas, the said C---- Z---- well knew that he did not have" that sum on deposit, but had only $1,300 on deposit in an account which was opened a few days after January 5, 1952; and that the respondent did knowingly and willfully use the said visa in gaining admission to the United States.
On October 24, 1952, respondent pleaded guilty of the offense of violating sections 1546 and 3238 of title 18, U.S.C. as charged in the indictment. Respondent was given a sentence of 1 year suspended for a period of 3 years. The first count which was laid under section 1001 of 18 U.S.C. charging respondent with submitting a false writing to a Government agency was dismissed.
Counsel contends that the judgment of the court in the criminal action is not binding in this deportation proceeding on the question as to whether respondent's visa was procured by false statements. He urges that the misrepresentations were not material and that it should not therefore be found that the visa was obtained by fraud.
We shall first examine generally the issue as to what effect a judgment of the court in the criminal proceeding should have in a deportation proceeding in which deportation of the person who was the defendant in the criminal action is sought and in which the issue is one which was also an issue in the criminal case. Local 167, I.B.T., etc. v. United States, 291 U.S. 293, was an appeal by defendant in a civil action wherein the Government of the United States had been successful in obtaining a decree from the United States district court enjoining a conspiracy concerning interstate commerce. Twenty-nine of the defendants in the civil action had been previously convicted in a criminal prosecution. In the civil case, these convicted defendants denied all the material allegations of the Government's petition which contained "allegations identical with those of the indictment as to the conspiracy and the means used to carry it into effect." The district court struck out as sham the denials of conspiracy prior to the commencement of the criminal prosecution. The Supreme Court ruled:
The judgment in the criminal case conclusively established in favor of the United States and against those who were found guilty that within the period covered by the indictment the latter were parties to the conspiracy charged. The complaint in this suit includes the allegations on which that prosecution was based. The defendants in this suit who had been there convicted could not require proof of what had been duly adjudged between the parties. And, to the extent that the answers attempted to deny participation of convicted defendants in the conspiracy of which they had been found guilty, they are false and sham and the district court rightly so treated them.
In the case of United States v. Accardo, 113 F.Supp. 783 (D.N.J.), aff'd, 208 F. (2d) 632 (C.A. 3, 1953), the court held that a plea of guilty on a criminal charge in a Federal court constituted an estoppel of record which the person convicted could not be heard to deny in a subsequent civil proceeding for revocation of his naturalization. (See also Sunshine Anthracite Coal Co. v. Atkins, 310 U.S. 381, 402, 403; United States v. American Precision Products Corp., 115 F. Supp. 823 (D.N.J., 1953); Austin v. United States, 125 F. (2d) 816, United States v. American Precision Products Corp., 115 F. Supp. 823 (D.N.J., 1953); Austin v. United States, 125 F. (2d) 816, (C.C.A. 7, 1942); Freedman on Judgments, Vol. 2, Fifth Ed., 1925, sec. 657).
In immigration proceedings the rule is likewise firmly settled that insofar as matters of deportability are concerned, we will not go behind a record of conviction to determine the guilt or innocence of the person convicted ( Matter of G----, 56040/547, 1 IN Dec. 8, 12).
Hartford Accident and Indemnity Co. v. Jasper, 144 F. (2d) 266 (C.C.A. 9, 1944) cited by counsel, does not appear to be contradictory of the precedents we have cited.
The Cases of Chantangco v. Abaroa, 218 U.S. 476 (1910) and Stone v. United States, 167 U.S. 178 (1897), cited by counsel in support of his position that a judgment in a criminal action does not create an estoppel, are distinguishable from the precedents we have cited because in each of the cases cited by counsel, the original adjudication was an acquittal. It is well established that an acquittal in a criminal case will not bar a subsequent action in a civil matter ( Lewis v. Frick, 233 U.S. 291 (1914); Helvering v. Mitchell, 303 U.S. 391; Freeman on Judgements, vol. 2, Fifth Ed. 1925, sec. 657; United States v. Accardo, supra).
We must now determine what effect the specific judgment rendered against respondent in the criminal action should have in this deportation proceeding. Section 3238 of Title 18 U.S.C. provides for the trial of offenses committed out of the jurisdiction of the district in which the offender is found. It is not material to this discussion. The portion of section 1546 with which we are concerned provides:
Whoever, knowingly forges, counterfeits, alters, or falsely makes any immigrant or nonimmigrant visa, permit, or other document required for entry into the United States, or utters, uses, attempts to use, possesses, obtains, accepts, or receives any such visa, permit, or document, knowing it to be forged, counterfeited, altered, or falsely made, or to have been procured by means of any false claim or statement, or to have been otherwise procured by fraud or unlawfully obtained; or * * *.
A review of cases concerned with the provision in question is not of assistance in determining the material elements of the offense with which the respondent was charged. The word "procure" means to obtain by any means; to acquire; to gain; or get (Webster's New Collegiate Dictionary Edition). To us, the natural import of the language used indicates that to obtain a conviction, it is not sufficient merely to show that a false statement was made in an application for a visa, but, it must be shown that the false statement was one of the factors which made possible the issuance of a visa; in other words, it was the false statement of a material fact. The court must first find the existence of a visa which was obtained by means of a false claim or statement before there can be conviction.
In the instant case, it follows that the court in the criminal action was faced with the question: Was the visa issued to respondent obtained by false statement of a material fact? This is the very question before us. The court found it established beyond a reasonable doubt that the answer to the question was in the affirmative. May we, before whom proof as to the issue by a mere preponderance of evidence is required, find differently? We think not. We believe the precedents we have cited set forth the rule we are required to follow. We find that the district court ruled the visa used by respondent was obtained by false statement of a material fact. We find respondent now estopped from establishing that he did not so obtain the visa. We therefore conclude the visa presented by respondent at the time of his admission was not legally a visa and that the charge that he entered without a visa must be sustained.
The hearing officer found respondent was not statutorily eligible for discretionary relief on the ground he had failed to prove good moral character because of his conviction on October 24, 1952, and the facts on which the conviction is based. Warrant of arrest was served on September 10, 1952. Application for voluntary departure was made on November 13, 1952. The application should therefore be considered under the laws and regulations then in effect ( Matter of E----, A-9557645 (Nov. 13, 1953), Int. Dec. No. 520). The arrests arising out of his immigration difficulties have been his first and are the only blemishes on his record. Good moral character is the sum of a person's actions. While the performance of an act may stamp one as a person devoid of good moral character, the circumstances under which the respondent's involvement incurred; his reliance upon the advice of an "immigration counselor"; the fact that sentence was suspended; and in view of his good record generally, we believe that good moral character is established and respondent is statutorily eligible for voluntary departure. Since respondent had resided in the United States for less than 5 years at the time of his application, we are without the power to consider the advisability of granting discretionary relief (8 C.F.R. 151.5 (e)). The case will therefore be remanded to the Service so that the special inquiry officer, who has jurisdiction, may dispose of the application for voluntary departure.
Order: It is ordered that action in accordance with the foregoing be taken.