56071/391
Decided by the Board June 24, 1941. Approved by the Attorney General June 25, 1941.
Admission of crime — Perjury — Materiality.
1. False statements to constitute perjury must be material to the issues involved.
2. False statements of an alien before a board of special inquiry that she has not seen her husband for some time and did not know his whereabouts are not material to the right of the alien to enter the United States.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1917 — Admits commission of crime involving moral turpitude — perjury.
Mr. Louis E. Spiegler, of the Hebrew Sheltering and Immigrant Aid Society, for the appellants.
Mr. Albert E. Reitzel, for the Immigration and Naturalization Service.
Mr. David Schwartz, Board attorney-examiner.
BEFORE THE BOARD
STATEMENT OF THE CASE: Appellants, a family consisting of mother, son, and daughter, arrived at Ellis Island from Havana, Cuba, April 22, 1941, ex-S.S. Imperial and applied for admission for permanent residence. A board of special inquiry excluded them under section 3 of the 1917 act, on the ground that they have admitted the commission of perjury before the board. From this action they have appealed.
DISCUSSION: The mother testifies that the appellants are all natives of Poland and stateless, that she is married, aged 50, and a housewife by occupation, and that her daughter and son are single, students by occupation, and 23 and 17 years of age respectively. They have resided in Cuba for 2 years and are destined to a relative in New York City for permanent residence. The mother has $51.
Appellants present affidavits in lieu of passports executed at the American Consulate General, Havana, Cuba, March 18, 1941. They also present nonpreference Polish quota immigration visas, issued to them at said consulate, March 20, 1941, and valid until July 19, 1941.
The mother testifies that the family lived in Poland before going to Cuba and that she gave up her grocery store in Poland to go to Cuba to wait until they could get immigration visas. Another daughter was married about 9 months ago to a resident of the United States. The mother testifies that she is going to a relative here who has promised to look after her and her children until they find work.
At first she testified that she had not seen her husband since 1928. She was asked whether it was true that her husband was residing in the United States in violation of the immigration laws and she stated that it was possible but that she did not know. Her daughter and her son testified similarly stating that they did not know their father's whereabouts and whether or not he was living.
The relative to whom appellants are destined testified that he is a naturalized citizen, an umbrella manufacturer with savings of $10,000, and that he filed affidavits of support in behalf of appellants at the request of the husband and father of the appellants, whom he had met in New York. He is willing to post a bond to insure that appellants will not become public charges. He offered to produce the missing husband for examination, and the hearing was deferred for the latter's appearance.
The husband appeared the following day and testified that he entered the United States in 1910 and again in 1926 with citizenship papers he purchased in Havana. He has a certificate of citizenship issued to him under his name in New York City on June 26, 1933, on the basis of a claim that he had never left the United States after his first entry in 1910. He traveled abroad in 1934 with a United States passport and visited his family then, and he has since visited them in Cuba. Since he left Poland in 1926 he has been contributing to the support of his family, and he last heard from them a few weeks ago.
After this testimony the appellants were recalled. They admitted that they had seen their father and husband about a year ago and that their testimony that they had not seen him in many years was false. They stated that they knew perjury was a crime, and they admitted committing perjury before the board of special inquiry.
Appellants' attorney has submitted a brief in which he argues that these misstatements do not in any way affect the right of the aliens to enter the United States, and that, consequently, the element of materiality is not present in the alleged crime of perjury. The Service attorney in his memorandum of May 28, 1941, urges that the excluding decision be affirmed. He does not argue that the misstatements are material or that they in any way affect the right of the aliens to enter the United States. He rather advances the position that materiality is not an element of the crime of perjury before a board of special inquiry. From this he concludes that the appellants have admitted the commission of a crime involving moral turpitude, namely, perjury as thus defined.
This Board cannot accept the reasoning of the Service attorney and holds that misstatements must be material to the issues involved in order that they may constitute perjury. This Board further holds that the misstatements here made are not material. The appeal will therefore be sustained as to the charge that the appellants have admitted the commission of perjury. However, because of their limited funds and the absence of assured employment for appellants, it is our conclusion that they are inadmissible as persons likely to become public charges, and that they can be admitted only under a $1,500 public charge bond, one-third thereof to become due and payable upon the breach of a condition by any one of the aliens.
The view presented by the Service attorney is entirely novel and undocumented. If adopted, it would reverse the settled interpretation of the immigration laws both by the courts and the administrative authorities. On the other hand, as urged by appellants' attorney, it has always been thought necessary to first find that the falsehoods were material before an alien could be excluded on the ground that he admitted the commission of perjury before a board of special inquiry. See, e.g., Ex parte Chin Chan On, 32 F. 2d 828 (D.C., S.D. Wash. 1929); Ex parte Keizo Shibata, 30 F 2d 942 (D.C., S.D. Calif. 1929); Masaichi Ono (file No. 55742/134, January 22, 1931, writ of habeas corpus dismissed on appeal in Masaichi Ono v. Carr, 56 F. 2d 772 (C.C.A. 9th, 1932)).
Under date of August 28, 1933, the Department of State requested from the Attorney General an interpretation of that portion of section 3 of the 1917 act that excludes persons who have been convicted of or admit having committed a crime involving moral turpitude. In an opinion Attorney General Cummings said, in part (37 Op. Atty. Gen. 293, 295 (1938)):
If, however, the offense has merely been admitted by the alien, there having been no conviction, the permissible range of inquiry is wider. For example, false swearing, admitted by the alien, does not necessarily constitute perjury, for there may have been justifiable inadvertence or misunderstanding or the statement may have been upon an immaterial matter.
See also page 14, Memorandum of the Legal Adviser to the Department of State transmitted to the Attorney General under date of August 28, 1933 (file 55248/466).
The rule that materiality is a requisite element for the commission of perjury under the language of what is now section 16 of the 1917 act dates back to the administrative interpretation of the act of [February 20] 1907. See, e.g., C.J. von A---- F---- (53367/144) October 24, 1911 (approved by the Secretary of the then Department of Commerce and Labor); letter dated January 25, 1913, from the Commissioner-General to the Commissioner of Immigration at New Orleans, La., file 52600/52; memorandum of the Acting Commissioner-General dated May 4, 1914, file 52600/52. And this rule was reiterated as recently as 2 months ago. At that time this Board held that perjury, though admitted by the alien, could not have been committed because the misstatements made before the board of special inquiry were not material. See M---- L---- de R---- (56068/776) April 21, 1941.
The Service attorney was furnished with a copy of this opinion before publication and did not object to it.
Section 17 of the 1917 act (8 U.S.C.A., sec. 153) provides that boards of special inquiry "shall have authority to determine whether an alien who has been duly held shall be allowed to land or shall be deported." Section 16 of the 1917 act (8 U.S.C.A., sec. 152), which has to do with the primary inspection of arriving aliens, provides for the taking of evidence under oath "touching the right of any alien to enter, reenter, pass through, or reside in the United States, * * *." This section further provides that any person under oath —
who shall knowingly or wilfully give false evidence or swear to any false statement in any way affecting or in relation to the right of any alien to admission, or readmission to, or to pass through, or to reside in the United States shall be deemed guilty of perjury and be punished as provided by section one hundred and twenty-five of the Act approved March fourth, nineteen hundred and nine, entitled "An Act to codify, revise, and amend the penal laws of the United States. [Criminal Code, sec. 125; 18 U.S.C.A., sec. 231]. All aliens coming to the United States shall be required to state under oath the purposes for which they come, the length of time they intend to remain in the United States, whether or not they intend to abide in the United States permanently and become citizens thereof, and such other items of information regarding themselves as will aid the immigration officials in determining whether they belong to any of the excluded classes enumerated in section three hereof. [Italics supplied.]
These two sections plainly require, before it can be said that perjury has been committed, that the misstatements must affect or relate to the alien's right to admission. By the above-quoted language, Congress has carefully specified the materiality required for the commission of perjury under section 16. It will be noted that, with exceptions not here relevant, the information required from the alien is that which will aid in determining whether or not he belongs to a class excluded by section 3 of the 1917 act. It is this information that is material.
The false statements made in this case are not relative to nor would they have tended to conceal the inadmissibility of any of the appellants under the provisions of section 3. Whether they know or did not know the whereabouts of their husband/father has no bearing on their inadmissibility as idiots, imbeciles, or as members of any of the classes excluded by section 3. Theoretically, their misstatements may have had some slight bearing on the likelihood that they would become public charges. In point of fact, they are being held inadmissible as such on the evidence as it now stands, and they would have been held inadmissible on that ground even if their misstatements had not been revealed.
If the right of the appellants' husband/father to enter or reside in the United States was in question in this or any other immigration proceeding, any misstatements in such a proceeding as to his right so to enter or reside would no doubt have constituted perjury ( Ex parte Chin Chan On, supra). However, he is not a party to this proceeding, and his right to enter or to reside in the United States is not now being questioned. False testimony by his children and wife as to his whereabouts is therefore not relevant to their right to admission or to any other issue before the board of special inquiry.
The construction of section 16 of the 1917 act urged by the Service attorney would create a new crime of perjury based on immaterial testimony not affecting the right of an alien to enter the United States. This Board believes that the adoption of the Service attorney's construction would be a negation of the plain language of the statute.
The Service attorney also urges that since the appellants made similar misstatements as to the whereabouts of their husband/father in their respective applications for immigration visas, they have thereby violated section 22 (c) of the 1924 act ( 8 U.S.C.A., sec. 220 (c)). However, the appellants have not admitted the commission of false swearing under this section, and for this reason it is not necessary to consider this argument.
FINDINGS OF FACT: Upon the basis of all the evidence adduced at the hearing, it is found:
(1) That the appellants are aliens, natives of Poland and stateless;
(2) That appellants are applying for admission for permanent residence;
(3) That appellants are in possession of affidavits in lieu of passports executed at the American Consulate General at Havana, Cuba, on March 18, 1941;
(4) That the appellants are in possession of immigration visas issued to them March 20, 1941, at the said consulate and valid until July 19, 1941;
(5) That the appellants are persons likely to become public charges;
(6) That appellants falsely testified before the board of special inquiry that they had not seen their father and husband respectively in recent years.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 16 of the Immigration Act of 1917 the appellants' false testimony at the hearing accorded them by the board of special inquiry was not material to the issues involved at that hearing and therefore did not constitute the crime of perjury;
(2) That under section 3 of the Immigration Act of 1917 the appellants are not inadmissible to the United States as having admitted the commission of a crime involving moral turpitude, to wit: perjury before a board of special inquiry;
(3) That under section 3 of the Immigration Act of 1917 the appellants are inadmissible as persons likely to become public charges.
ORDER: It is ordered that the appeal be sustained and that the appellants be admitted under section 21 of the Immigration Act of 1917, provided that a $1,500 public charge bond be filed in their behalf, one-third thereof to become due and payable on the breach of a condition by any one alien.
The foregoing decision and order were approved by the Attorney General.