56041/599
Decided by the Board April 23, 1942.
Admission of crime — Perjury — Managing house of prostitution — Evidence.
1. When an alien in deportation proceedings admits that in applying for admission to the United States he had falsely testified before a board of special inquiry as to his marital status he is not deportable as a person who has admitted the commission of perjury, a crime involving moral turpitude, since his false testimony before the board of special inquiry was not material to his right to enter the United States.
2. An alien is not deportable as a person who had been found managing a house of prostitution when the only evidence to support the charge was his conviction for keeping a disorderly house under section 1146 of the New York Penal Law.
CHARGES:
Warrant: Act of 1917 — Convicted of and admits commission of crime involving moral turpitude — perjury; likely to become public charge.
Lodged: Act of 1917 — Entered for immoral purposes; found managing a house of prostitution.
Miss Minerva Salzman, of New York City, for the respondent.
Mr. Anthony L. Montaquila, Board attorney-examiner.
STATEMENT OF THE CASE: Warrant of arrest issued June 29, 1928, on the first two charges set forth above. The warrant was served February 24, 1941, and the respondent was accorded hearing thereunder on that date. During the course of the hearing the additional two charges, also stated above, were lodged. The respondent was represented by counsel mentioned above. The presiding inspector found the respondent subject to deportation solely on the following charges:
(1) Admission of perjury prior to entry;
(2) That he has been found managing a house of prostitution.
The case is now before this Board for review and decision.
DISCUSSION: It is established that the respondent is a native and citizen of Italy, and that he was legally admitted to the United States for permanent residence January 23, 1921, at the port of New York ex-S.S. Saturnia. During April of 1928 he proceeded to Canada temporarily and, upon his attempt to reenter the United States, was excluded on April 28, 1928, by a board of special inquiry at Rouses Point, N.Y. A complaint was lodged against him for violation of section 22 of the Immigration Act of 1924, as a result of which execution of the excluding decision was deferred pending outcome of that complaint. Apparently, through inadvertence, upon completion of the proceedings for violation of said section 22, the respondent was not remanded to the custody of the Immigration and Naturalization Service. He has since remained in the United States. Deportation proceedings ensued.
The presiding inspector concluded that the respondent was not subject to deportation on the charges that he was a person likely to become a public charge and that he had entered for an immoral purpose. With this finding we agree. However, he concluded that the respondent was subject to deportation on the grounds that he admitted the commission of perjury and as one who had been found managing a house of prostitution.
(a) The respondent was not taken into custody until more than 5 years after issuance of warrant of arrest. The taking into custody is controlling. Hence the charge that he was a person likely to become a public charge is outlawed ( United States ex rel. Danikas v. Day, 20 F. 2d 733).
(b) The charge that the respondent entered for an immoral purpose on the basis of the facts of the case is not applicable under the principle enunciated in the case of Hansen v. Haff, 291 U.S. 559.
(c) The acting general counsel of the Immigration and Naturalization Service is in agreement with these points.
With a view to supporting the charge that the respondent had been found managing a house of prostitution, there was introduced into the record as evidence an excerpt from the Court of Special Sessions, Port Chester, N.Y., indicating that an information was filed against N---- G---- on August 23, 1928, charging him with keeping a disorderly house. This excerpt indicates that he entered a plea of guilty and that he received a sentence of 6 months to the county jail.
Section 1146 of the Penal Code of New York provides:
Whoever shall keep or maintain a house of ill fame or assignation of any description or a place for the encouragement of practice by persons of lewdness, fornication, unlawful sexual intercourse, or for any other indecent or disorderly act or business purpose therein or any place of public resort at which the decency, peace or comfort of a neighborhood is disturbed, shall be guilty of a misdemeanor.
Counsel contends that the record relating to the respondent's conviction for keeping a disorderly house is not proof of prostitution. We agree that the charge in question is not supported. The complaint upon which the conviction was based is not available. Our position is that where the only evidence to support a warrant charge consists of a conviction had in a minor court, and the attending circumstances lend no support to that charge, other substantial and independent evidence is necessary. Here the bare conviction throws no light on whether the charge against the respondent for keeping a disorderly house involved any element of prostitution. Moreover, the statute upon which the conviction was based is broad enough to warrant charging a person with keeping a disorderly house without any element of prostitution being present. Then too, there is not a scintilla of evidence connecting the respondent with the management of a house of prostitution, or for that matter, any evidence even remotely indicating that he was involved in any aspect relating to prostitution. The only reference on this point is the respondent's own statement during the hearing that many years ago he had heard that a woman named "Mary," with whom he was friendly had allegedly practiced prostitution. The record is devoid of any proof of prostitution.
(a) People v. Rankin, 155 N.Y.S. 86; People v. Wade, 217 N.Y.S. 488.
(b) The acting general counsel also concurs with this conclusion.
See decision of Mar. 12, 1941, in re M---- J. G---- (56041/121).
The issue then is whether the perjury charge justifies a finding of deportability. The evidence brought forward in support thereof is based on the following:
When the respondent was questioned by the board of special inquiry at Rouses Point, N.Y., on April 28, 1928, he testified that the woman accompanying him, known as Mary, was his wife and presented a marriage certificate in the name of Samuel Dadonna and Carmella Magnamino. The members of the board of special inquiry, not feeling that the subject was telling the truth, searched his pockets and extracted certain papers which disclosed his true identity.
Counsel also urges dismissal of the perjury charge, and of the entire proceeding, on the following grounds:
(1) That the false statements made by the respondent before the board of special inquiry in 1928, relative to his marital status, are insufficient to justify a finding of either moral turpitude or perjury;
(2) That even if it is found that the respondent committed perjury, the offense was, in fact, committed after entry and not prior thereto as contended by the presiding inspector;
(3) That the warrant of arrest which issued in 1928 is invalid because subsequent thereto the respondent became a naturalized citizen of the United States.
The presiding inspector takes issue with counsel's second contention, namely, that even if perjury is held to have been committed its commission took place after entry. We hold that the contention of counsel is without merit.
(a) Zartarin v. Billings, 204 U.S. 170; Kaplan v. Tod, 267 U.S. 228; Masaichi Ono v. Carr, 56 F. 2d 772, and decision cited therein. In these cases it was held that an alien applying for admission to the United States is regarded as stopped at the boundary line until the question of his admissibility has been determined by the immigration authorities.
(b) See also United States v. Norris, 300 U.S. 564, in which the court stated: "The respondent admitted that he gave intentionally false testimony on September 22. His recantation on the following day cannot alter this fact. He would have us hold that so long as the case or proceeding in which the false statement was given is not closed, there remains a locus poenitentiae of which he was entitled to avail himself. The implications and results of such doctrine prove its unsoundness. Perjury is an obstruction of justice. Its perpetration may affect the dearest concerns of parties before a tribunal. Deliberate material falsification made under oath constitutes the crime of perjury, and the crime is complete when a witness' statement has once been made."
The presiding inspector, it will be recalled, found the respondent subject to deportation solely on the ground of alleged admission of perjury with reference to misstatements concerning marital status before the board of special inquiry. His discussion on this point and his corresponding findings of fact are confined solely to the misstatements made by the respondent before the board of special inquiry. However, the acting general counsel also urges that the conviction feature of the perjury is supported. He bases his position on an unofficial excerpt of the record, which merely indicates that on June 12, 1928, an indictment was filed against the respondent for violation of the Immigration Act of May 26, 1924, his plea of guilty thereto, and a sentence consisting of a fine.
Although placed in the record, [this excerpt from the record] does not appear to have been utilized by the presiding inspector as a basis for his finding that the respondent admitted the commission of perjury. Nevertheless, the Acting General Counsel states after quoting secs. 22 (b) and (c) of the 1924 act, as follows: "While the record does not contain any copy of the information or indictment to which the alien filed a plea of guilty, it is stated that he was convicted for violating the above-discussed statutes. As the gist or gravamen of these statutes is fraud they unquestionably involve moral turpitude" (citing Tassari v. Schmucker, 53 F. 2d 570; Nishimoto v. Nagle, 44 F. 2d 304; Ponzi v. Ward, 7 F. Supp. 736; United States ex rel. Popoff v. Reimer, 79 F. 2d 513; Guarneri v. Kessler, 98 F. 2d 580). We said in the case of J---- R----, (56071/174) [ see page 118, this volume] that fraud is not, of itself, an offense under Federal statutes; that it is merely an element of a specific substantive offense. However, the issue raised by the Acting General Counsel is not before us. Moreover, we may say that [the excerpt] is valueless.
Section 22 (b) of the Immigration Act of May 26, 1924, provides:
Any individual who (1) when applying for * * * admission to the United States, impersonates another or falsely appears in the name of a deceased individual, or evades or attempts to evade the immigration laws by appearing under an assumed or fictitious name, * * * shall, upon conviction thereof, be fined not more than $10,000 or imprisoned for not more than 5 years, or both.
Section 22 (c) of the same act provides:
Whoever knowingly makes under oath any false statement in any application, affidavit, or other document required by the immigration laws or regulations prescribed thereunder, shall, upon conviction thereof, be fined not more than $10,000, or imprisoned for not more than 5 years, or both.
It appears quite likely that the respondent's conviction was had under section 22 (b), supra, for the reason that the record does not indicate that the respondent made under oath any false statement in any application, affidavit, or other document as the language of section 22 (c), supra, appears to require. It is our judgment that the question revolves solely around the materiality of the statements made by the respondent before the board of special inqury in 1928 relative to his marital status. Our finding will be dispositive of the issue in its entirety.
The acting general counsel, however, concludes that the quality of materiality is not an essential prerequisite to the crime of perjury created by section 16 of the 1917 act. He urges that the language of that section makes no reference whatever to the requirement of materiality, as does section 125 of the Criminal Code.
Section 125 of the Criminal Code provides: "Whoever, having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed is true, shall willfully and contrary to such oath state or subscribe any material matter which he does not believe to be true, is guilty of perjury, and shall be fined not more than $2,000 and imprisoned not more than 5 years.
At any rate, he contends if a materially false statement is essential to constitute this statutory crime, the respondent's false statements pertaining to his marital status related to and dealt with a material matter.
Section 17 of the 1917 act 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, which has reference to the primary inspection of arriving aliens, provides for the taking of evidence under oath "touching the right of an 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 willfully 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 sec. 125 of the Act approved March 4, 1909, entitled "An act to codify, revise, and amend the penal laws of the United States." 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.]
We cannot accept the position taken by the Acting General Counsel. We hold that the respondent's misstatements were not material. Sections 16 and 17, supra, require, as a prerequisite to a consummation of perjury, that the misstatements must have affected or related to the respondent's right to admission in 1928. The language of those sections shows that Congress advisedly specified the materiality required for the commission of perjury under section 16. The information required of an alien seeking admission to the United States is that which will aid in determining whether or not he belongs to a class excluded by section 3 of the 1917 Immigration Act. It is this information which is material. It is significant that nothing was uncovered by the board of special inquiry which would have placed the respondent within any of the excludable classes in section 3. The alleged charge of perjury as developed by the board of special inquiry was not based on anything existing prior to the hearing before that board. It was something which developed thereafter — something apart and not based on any previous existing disability. He was admissible as the record shows and although he may have been under the impression that it was necessary to give a name other than his own because, as, he explained, he was accompanying a woman with whom he had relations in Canada, the basic fact is that he was not thereby excludable and was not affected.fn9 The fact that he was accompanying the woman named was not, for the reasons indicated, a ground which would have subjected him to exclusion. The position of the acting general counsel would amount to negation of the plain terms of section 16. It would reverse settled administrative and judicial interpretation.
Hansen v. Haff, supra.
Prior to 1934 when the case of Hansen v. Haff was decided by the Supreme Court of the United States, the respondent possibly would have been excluded as had been done in many instances — but the fact remains that such action was not warranted in cases of this nature. The court said: "The words `any other immoral purpose' in subsection (g), excluding aliens coming into the United States `for the purpose of prostitution or for any other immoral purpose' refer to immoral purposes of like character with prostitution and hence not to extramarital relations short of concubinage."
Administrative interpretation 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 1907 act. Case of von A---- F---- (53367/144), Oct. 24, 1911. A similar view was expressed on May 4, 1914 (52600/52.) Also on Apr. 21, 1941, in the de R---- case (56068/776).
(a) Ex parte Ohin Chan On, 32 F. 2d 828 (D.C., S.D. Wash. 1929) in which the subject admitted polygamy. Ex parte Keizo Shibata, 30 F. 2d 942 (D.C., Calif. 1932); M---- O---- (55742/132) January 22, 1931; writ of habeas corpus dismissed on appeal in Masichi Ono v. Carr, 56 F. 2d 772 (C.C.A. 9, 1932). In that case, the alien testified before a board of special inquiry that he had been previously lawfully admitted to the United States. In fact, he was never lawfully admitted. Therefore, the statement was material to his entry for it brought him within the inadmissible class of sec. 13 (c) of the 1924 act. So in the Chin Chan On case, his testimony was material for it brought him within sec. 3 of the 1917 act.
(b) In the instant case, assuming the subject had succeeded in entering the United States under a name other than his own, within the statutory period, he could have been charged with entering without inspection or entering by means of false and misleading statements, thereby entering without inspection. However, these charges would not be predicated under sec. 3 but under sec. 19 of the act of 1917.
The Attorney General in an opinion rendered in 1933 (37 Op. Atty. Gen. 293) in interpreting that part of section 3 of the 1917 act, which excludes persons who have been convicted of or admit having committed a crime involving moral turpitude, said, in part, that "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 file No. 55248/466, p. 14, memorandum of the Legal Advisor of the Department of State to the Attorney General.
It follows that the respondent's misstatements before the board of special inquiry in 1928 did not place him within the excludable class of section 3 of the 1917 act, and, therefore, were not material to his readmission to the United States. Hence, the ingredients of perjury not being present, this charge, too, is not established. We shall order that this proceeding be quashed.
In view of the foregoing, we need not consider counsel's contention bearing on the validity or invalidity of the warrant of arrest.
FINDINGS OF FACT: Upon the basis of the evidence adduced at the hearing and upon consideration of the entire case, it is found:
(1) That the respondent is an alien, a native and citizen of Italy;
(2) That the respondent was legally admitted to the United States on January 23, 1921, at the port of New York ex-S.S. Saturnia;
(3) That during April 1928 he proceeded to Canada for a temporary visit;
(4) That upon his attempt to reenter the United States he was excluded by a board of special inquiry at Rouses Point, N.Y., on April 28, 1928;
(5) That following prosecution for violation of section 22 of the 1924 act, he was not remanded into the custody of the Immigration and Naturalization Service and through inadvertence remained in the United States;
(6) That the respondent was not a person likely to become a public charge at the time of last entry into the United States;
(7) That the respondent had not been found managing a house of prostitution since his last entry;
(8) That the respondent did not enter the United States for immoral purposes;
(9) That the respondent falsely stated before the board of special inquiry during 1928 that the woman accompanying him was his wife and that his name was S---- D----;
(10) That the respondent admitted making such false statements.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That the respondent's false statements before the board of special inquiry in 1928 were not material to the issue involved at that hearing and therefore did not constitute the crime of perjury;
(2) That under sections 3 and 19 the respondent is not subject to deportation on the grounds:
(a) That he admits the commission of an offense involving moral turpitude prior to his entry into the United States, to wit: perjury;
(b) That he was a person likely to become a public charge at the time of last entry;
(c) As one who entered for an immoral purpose at the time of last entry;
(3) That under section 19 of the Immigration Act of February 5, 1917, as amended, respondent is not subject to deportation on the ground that he was found managing a house of prostitution subsequent to his last entry into the United States.
ORDER: It is ordered that the warrant of arrest dated June 29, 1928, and delivery bond in the sum of $1,000 be canceled and the proceedings in this case closed.