A-5911300.
Decided by Central Office May 23, 1946. Decided by Board July 10, 1946. Ruling by Attorney General August 9, 1946.
Seventh proviso relief — Section 3, Immigration Act of February 5, 1917 — Discretion.
Where an alien carries perjury and fraud into court in connection with a petition for naturalization, discretionary relief will not be granted under the seventh proviso to section 3 of the Immigration Act of February 5, 1917, for the naturalization process is a solemn process for an alien and such a fraud upon the court cannot be condoned.
CHARGES:
Warrant: Act of 1924 — No immigration visa.
Lodged: Act of 1917 — Admits crime prior to entry — Perjury and perjury.
BEFORE THE CENTRAL OFFICE
(May 23, 1946)
Discussion: Upon consideration of the entire record, the findings of fact and conclusions of law proposed by the Presiding Inspector and served on the alien on December 17, 1945, are hereby adopted, except findings of fact #6 and #7 which are amended to read:
(6) That the respondent admitted that in making false statements under oath before the American consular officer in Rome, Italy, on January 15, 1925, relative to prior residence in the United States, he committed perjury;
(7) That the respondent admitted that he committed perjury in making false statements under oath before a naturalization examiner on August 23, 1930, relative to absence from the United States.Discussion: This record relates to a 50-year-old alien, native and citizen of Italy, who testified that he last entered the United States as a passenger on the S.S. Rex, May 27, 1937, at which time he was admitted as a United States citizen. He first entered the United States on April 20, 1920, and was admitted for permanent residence. He returned to Italy in November or December 1921 and resided there with his family until early in 1925. He reentered the United States on February 1, 1925, as a returning resident ex-S.S. America at the port of New York in possession of a nonquota section 4 (b) immigration visa.
The respondent testified that work was scarce here in 1921 and he decided to go back to Italy and that he remained in Italy for 3 years. He testified that it was just in his mind that he would come back here again. However, he stated that he left no personal belongings here and there were no outward acts on his part to show an intention to return to the United States. His wife and children were in Italy and it appears that such residence as he established between his original entry April 20, 1920, and his departure in November or December 1921, was abandoned by his return to Italy and staying for 3 years. He was not entitled to readmission as a returning resident on February 1, 1925.
The respondent was naturalized November 28, 1930, based upon his first entry April 20, 1920. He failed to reveal in the naturalization proceedings his absence from the United States during the years 1922, 1923, and 1924. On November 26, 1941, his naturalization was canceled ab initio by order of the United States District Court, Southern District of New York. He was an immigrant and required an immigration visa when he last entered on May 27, 1937. The documentary charge is sustained.
The respondent admits the commission of the crime of perjury in connection with his application for a nonquota immigration visa before the American consular officer in Rome, Italy, on January 15, 1925, at which time he made false statements under oath concerning his prior residence in the United States, which statements were material. He also admits the commission of the crime of perjury on August 23, 1930, in connection with his petition for citizenship relative to absence from the United States. Additional charges under the act of February 5, 1917, were lodged during the hearing based upon his admissions of the commission of the crime of perjury prior to his last entry. Such charges are sustained.
The respondent has applied for the privilege of voluntary departure in lieu of deportation and for the privilege of preexamination. He lives at the home of his son, L----, in Bronx, N.Y. He has two other sons, one last known to be a prisoner in Germany and the other a member of the Italian Army. He has his wife as well as three brothers and a sister in Italy. He has been employed as a pressman by the Uneeda Doll Co. since 1933 and earns $75 a week. He has assets in the United States valued at $2,825, and states he has a little property in Italy worth about $2,000.
The respondent stated that he has never been arrested and is not wanted by the police authorities for any crime either in the United States or abroad and submitted affidavits of two United States citizens attesting to his good moral character. Independent investigation disclosed nothing not favorable to his character. He further stated that he has never received aid from any public or private charitable organization and that he has never been confined to a hospital or other institution at public expense. He has complied with the requirements of the Alien Registration and the Selective Training and Service Acts of 1940. He stated that it is his utmost desire to live in the United States, and it is his intention to bring his family here; that he would like very much to obtain permission to legalize his residence here. The respondent's representative requested in his behalf that his case be given consideration under the seventh proviso inasmuch as he has admitted that he committed perjury before entry.
The respondent has no close entirely dependent family ties in the United States. Although he stated it is his intention to bring his family here, he apparently has not seen fit to do so during the many years he has resided here. It is concluded that the case does not present exceptional merit warranting the exercise of the seventh proviso in connection with voluntary departure and preexamination. Those applications must therefore be denied, as he is deportable on a charge within 19 (d) of the act of February 5, 1917, as amended.
Order: It is ordered that voluntary departure and preexamination be denied.
It is further ordered, That the alien be deported to Italy at Government expense on the charge stated in the warrant of arrest and on the charge lodged during the hearing:
The Immigration Act of February 5, 1917, in that he admits having committed a felony or other crime or misdemeanor involving moral turpitude prior to entry into the United States, to wit: Perjury and perjury.
In accordance with 8 C.F.R. 90.3, the case is referred to the Board of Immigration Appeals for consideration.
Discussion: Upon consideration of the entire record, the findings of fact and conclusions of law proposed by the presiding inspector, and served on the alien December 17, 1945, as modified and adopted by the Commissioner, are hereby affirmed.
Factors Relating to Discretionary Relief: The Commissioner recommended the alien's deportation to Italy on the charges stated above.
The respondent is 50 years of age. He was admitted to the United States for permanent residence on April 20, 1920, and returned to Italy during November or December of 1921 and resided there until the early part of 1925. He returned to the United States on February 1, 1925, and was admitted upon presentation of a nonquota immigration visa issued to him under section 4 (b), Immigration Act of 1924. The respondent testified that work was scarce here in 1921 and he decided to return to Italy, where he remained for approximately 3 years; that when he departed from the United States he had in mind to return hereto. Upon his arrival in Italy, however, he rejoined his wife and children and was employed there. He left no interests in the United States.
We agree that the foregoing facts establish that the alien abandoned any domiciliary rights he acquired when he was admitted to this country for permanent residence in 1920, and therefore he was not entitled to the nonquota immigration visa which he presented upon his return in 1925. He was in fact a quota immigrant and required a quota immigration visa (sec. 13, Immigration Act of 1924).
The respondent was naturalized a citizen of the United States on November 28, 1930, upon the basis of his entry on April 20, 1920. He neglected to reveal his absence in Italy during the period mentioned. On November 26, 1941, his certificate of naturalization was canceled in the United States District Court for the Southern District of New York.
The respondent last entered the United States on May 27, 1937, as a citizen of this country.
The respondent has admitted the commission of perjury when he obtained the nonquota visa which he presented upon his arrival on February 1, 1925. He stated that when he executed application for that visa, under oath, before the American Consul in Rome, Italy, on January 15, 1925, he made false statements concerning his residence. Specifically, he indicated in the application that he had resided in Chester, Pa., from March 1920 to May 1922, in Trenton, N.J., from May 1922 to September 1924, and in Rome, Italy, since September 1924.
Likewise, the respondent admitted the commission of perjury committed on August 23, 1930, in connection with his petition for naturalization, in which he repeated false information as to his residence.
Thus, in fact, the two perjury offenses, admitted by the respondent, stem from the same premises — one was the outgrowth of the other. They were committed as stated in 1925 and 1930, more than 20 and 15 years ago, respectively. The ground of deportation is based on an admission of the commission of that offense, there being no conviction. (In this respect the case is distinguishable from that of B---- A----, 2264770, involving conviction of extortion committed within 5 years after entry, in which the Attorney General declined exercise of the discretion contained in the seventh proviso to section 3, Immigration Act of 1917, although the alien had had 26 years of residence, and his wife and two children, citizens of this country, were dependent upon him for support.)
The respondent in the present case has resided in the United States since 1925 with the exception of a short absence in 1927. He resides with his son in New York. His wife and two other sons reside in Italy. He has been steadily employed and has no criminal record. An independent character investigation proved favorable.
Hence, while the alien has no close relatives in the United States dependent upon him for support, this case may be well considered an exception to the general policy on the premise of long residence, and that the offenses are predicated upon an admission rather than a conviction, and an unblemished record for the past 7 years, together with other favorable factors generally.
Order: It is directed that an order of deportation not be entered at this time, but that the alien be required to depart from the United States, without expense to the Government, to any country of his choice, within 6 months after notification of decision, conditioned upon arrangements being made with the local immigration office for verification of departure.
It is further ordered that preexamination be authorized conditioned upon a showing that a visa is promptly available to him.
It is also further ordered that if the alien applies within 3 months from the date of authorized departure, he be admitted if otherwise admissible than as one who admits the commission of perjury committed in 1925 and 1930 in connection with application for an immigration visa and petition for naturalization, respectively, pursuant to the discretion contained in the seventh proviso to section 3 of the Immigration Act of February 5, 1917, as amended.
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 alien in this case admits the commission of perjury in connection with the application for a nonquota immigration visa in 1925 and further admits the crime of perjury in connection with his petition for citizenship in 1930. Where perjury and fraud are carried into the court in connection with the petition for naturalization, discretionary relief will not be granted under the seventh proviso. The naturalization process is a solemn occasion for an alien and such a fraud upon the court cannot be condoned. Accordingly, the decision and order of the Acting Commissioner of Imimgration and Naturalization, dated May 23, 1946, are hereby approved.