Opinion
No. 20068.
May 15, 1929.
Hugh C. Todd, of Seattle, Wash., for applicants.
Anthony Savage, U.S. Atty., and Tom DeWolfe, Asst. U.S. Atty., both of Seattle, Wash., for the United States.
Habeas Corpus by Chin Chan On and another to procure their release from custody under exclusion orders. Writ denied.
Chin Chan On, a Chinaman, seeks admission to the United States as a returning merchant, and brings with him Chin Cheung, his three-year old son, and also Lee Shee, an alleged wife. Chin Chan On was denied admission upon the ground that he believed in and admits that he has been engaged in the practice of polygamy, and admits having committed a crime involving moral turpitude — perjury. The other two were denied admission upon the ground of relationship. Lee Shee did not appeal to the Secretary of Labor, but returned to China. Chin Chan On appealed for himself and on behalf of Chin Cheung. The appeal was dismissed.
Chin Chan On was admitted in 1921 as the son of a merchant and was granted a return certificate (Form 431) as a merchant by the San Francisco office, January, 1924, and left February 11, 1924.
On January 23, 1929, the testimony discloses that Lee Shee and Chin Chan On testified that they were married January 9, 1925, and neither had been married but once; that Chin Cheung was the blood son of Lee Shee and Chin Chan On.
On February 20, 1929, Chin Chan On testified that he had another wife, Lum Shee, at the time he married the appellant Lee Shee, and that two months thereafter his wife, Lum Shee, died.
On March 11, 1929, applicant stated the testimony given on January 23 was false. He was asked:
"Q. Do you admit then that you committed perjury in stating under oath January 23, 1929, that you had been married but once, Lee Shee being your only wife? A. Yes.
"Q. January 23, 1929, you testified under oath that the applicant Chin Cheung, whose name you pronounce as Chin Jung, was your blood son by Lee Shee, did you not? A. Yes.
"Q. Is that a true statement? A. That is not a true statement; he is a son of my deceased wife, Lum Shee.
"Q. Do you admit, then, in stating on January 23, 1929, that Chin Cheung was your blood son by Lee Shee you committed perjury? A. Yes.
"Q. Do you state for a fact today that you were living with the two women at the same time in China as your wives? A. Yes; but they lived in separate villages, not in the same house.
"Q. And who were these two women? A. Lum Shee and Lee Shee.
"Q. Then do you admit that you practiced polygamy, you claiming to have had two wives, Lum Shee and Lee Shee, at the same time and living with them at the same time? A. Yes."
The petitioner Chin Chan On also says in his testimony that he retained a $500 interest in the Grove Street Market in Berkeley, Cal., and that he had heard nothing about the firm since he left, knew nothing about the business. "I have been out of touch with the Grove Street Market ever since I left the United States and have heard nothing from it. I wrote there two years ago to the manager, Lee Look, to inquire as to the condition of the business, but I never had any answer to my letter."
The contention on behalf of the petitioner that he did not sustain a polygamous status is not sustained, and that he believed in polygamy in China but not in the United States is not well taken; but aside from this question, perjury is established beyond any question, and perjury involves moral turpitude, and the general provision of the Immigration Act has application to the petitioner's qualification (section 16, Act February 5, 1917; Title 8, § 152, USCA), and this has application on the right to re-enter. See, also, section 3, Act Feb. 5, 1917 (Title 8, § 136, USCA; section 4289¼b, C.S.).
The contention in argument on behalf of Chin Chan On that, having falsely testified, the correction of the testimony before the conclusion of the hearing purges the status, is not well taken, where the statement was made with the deliberate intention of misleading the immigration officers. The false testimony was not a statement made under misapprehension of fact and voluntarily corrected, but was a deliberate and preconceived plan for the purpose of testifying fraudulently and misleading the Board of Special Inquiry in determining the right of Lee Shee to enter. Kaneda v. United States (C.C.A.) 278 F. 694; In re Keizo Shibata (D.C.) 30 F.2d 942. See, also, In re Spenser, 22 Fed. Cas. 921, No. 13,234. He testified that this was agreed to by him and Lee Shee as strengthening her position on entry. The statement was willfully and designedly made. A willful assertion as to a material matter of fact by petitioner in the proceeding and being intended by him to mislead the Board of Special Inquiry is perjury. 2 Whart. C.L. § 1244; 2 Bish. N. Cr. Law, § 1013; State v. Smith, 63 Vt. 201, 22 A. 604; United States v. Conner, 25 Fed. Cas. 595, No. 14,847. Perjury is malum in se and malum prohibitum, and at civil and common law is classed as crimen falsi.
The act was willful, the oath was false and material to the inquiry, the proceeding semijudicial, and there can be no doubt from this record that the motive, purpose, and intent were corrupt.
Writ is denied.