PX-5327
Decided by the Board April 30, 1942.
Admission of crime — Voluntary admission.
An admission of crime must be voluntary to render an alien excludable under section 3 of the Immigration Act of 1917.
FOUND INADMISSIBLE BY BOARD OF SPECIAL INQUIRY:
Act of 1917 — Admits the commission of crime involving moral turpitude — swearing falsely under oath.
Mr. Anthony L. Montaquila, Board attorney-examiner.
STATEMENT OF THE CASE: Deportation proceedings have not been instituted in this case. The applicant was extended the privilege of preexamination pursuant to section 142.5, title 8, Code of Federal Regulations (General Order C-27). Accordingly, she appeared before a board of special inquiry on February 25, 1942, at Detroit, Mich., for the purpose of having her admissibility determined prior to her departure from the United States for the purpose of obtaining a valid immigration visa and reapplying therewith for permanent residence.
The board of special inquiry in preexamination proceedings concluded that the applicant would be inadmissable to the United States on the ground, and under the provision of law, stated above.
The matter is now before this Board on the applicant's appeal.
DISCUSSION: This applicant was admitted to the United States at the port of Buffalo, N.Y., October 10, 1926, upon presentation of nonquota immigration visa No. 2727, issued to her at the American Consulate, Toronto, Ontario, Canada, on October 2, 1926, under the provisions of section 4 (c) of the Immigration Act of 1924.
In the application for the immigration visa, the applicant subscribed under oath that she was born in Toronto, Ontario, Canada, on July 23, 1903, was therefore 23 years of age, and single. She attached to said application a certificate purporting to establish her birth in Canada on the date and place stated. This certificate was issued by the Registrar General of the Province of Ontario, Canada, on October 1, 1926.
This applicant, however, testified in the preexamination hearing that she was in fact born in Belatzerkoff, Russia, on July 23, 1901. She was brought to Canada by her parents when she was approximately 2 or 3 years of age and continued to reside there until the occasion of her entry into the United States.
Section 4 (c) of the Immigration Act of 1924, defines, pertinent hereto, a nonquota immigrant as "an immigrant who was born in the Dominion of Canada * * *."
The applicant admitted, as stated, that she was not in fact born in Canada and was not therefore entitled to the status of a 4 (c) nonquota immigrant. She also admitted that she was aware of this fact when she made application for the visa. She gave the following testimony:
Q. Do you admit the commission of the crime of perjury in connection with your application for an immigration visa?
A. I wouldn't call it perjury, I had no intention of committing perjury at the time, I know that.
Q. You understand that swearing falsely under oath to a material fact constitutes the crime of perjury?
A. I know it now, I certainly did not know it then.
Q. Knowing it now, do you admit you committed perjury before an American Consul October 2, 1926?
A. I wouldn't want to say it was perjury. I know it wasn't true, I can see now that I did the very wrong thing, I paid for it for 15 years, it had been preying on my mind, I certainly would like to straighten it out once and for all and not have it hanging over me any longer.
Q. You do admit, however, that you did make false statements to the American Consul?
A. Yes.
Q. But you do not admit that you committed the crime of perjury by swearing falsely under oath to the statements in this application?
A. I don't want to say, if I did that, I did not intend to commit perjury.
Q. However, you do admit that you did it for the purpose of concealing certain information from your husband?
A. Yes.
Q. If you wished to conceal certain information from your husband, why did you conceal certain information concerning your birth and age from the American Consul?
A. I don't know.
Q. Do you admit that you secured this visa by fraud and misrepresentation?
A. You are asking me something that I did so long ago, I have a different conception of things than I did then. I am older now than I was then.
Q. I will repeat the question — Do you admit that you secured this visa by fraud and misrepresentation?
A. No.
Q. If that is the case why are you here today?
A. Because you told me to come here, because I wanted the visa, I wanted it straightened out again and get a visa and have a legal entry.
Q. If this visa was not secured by fraud and misrepresentation and if it was entirely legal why do you wish it straightened out?
A. Because I did the wrong thing and I have to get it straightened out.
The testimony just quoted constitutes the premise upon which the board of special inquiry in preexamination proceedings predicated its conclusion that the applicant would be inadmissible to the United States as one who admits the commission of an offense involving moral turpitude, to wit: false swearing under oath.
Section 3 of the Immigration Act of 1917 ( 39 Stat. 874; U.S.C.A., title 8, section 136 (e)), provides:
That the following classes of aliens shall be excluded from admission to the United States: * * * persons who have been convicted of or admit having committed a felony or other crime or misdemeanor involving moral turpitude; * * *
We are unable to accept the position of the board of special inqury in preexamination proceedings that the applicant would be inadmissible to the United States as one who has admitted the commission of the offense described. We feel that the board of special inquiry committed error. Section 3, supra, is clear that in order to subject the applicant to exclusion on the ground of the admission of an offense, the admission must come voluntarily from her. It is not sufficient that the testimony show an offense has been committed. It must be an explicit admission thereof by the applicant. Moreover, the admission should be wholly voluntary. The testimony as a whole in this case creates some question as to whether the necessary elements to constitute perjury are present. In any event there seems to be no doubt that the voluntary aspect of an admission is lacking. The persistence on the part of the board of special inquiry to extract an admission from the applicant, even after she indicated she could not, in view of the attending circumstances, make an admission, smacks of an attempt on their part to try the guilt of the applicant. The statute does not license this manner of interrogation, otherwise the very purpose and requirement of the statute would be defeated. In a word, such a process is circumscribed and whether the applicant is telling the truth or not is not for the immigration authorities to judge. By so doing they exceed their jurisdiction. ( United States ex rel. Castro v. Williams, 203 F. 155; Howes v. Tozer, 3 F. 2d 849; 39 Op. Atty. Gen. 58; United States ex rel. Rosen v. Williams, 200 F. 538.)
We are of the opinion, therefore, that the interrogatories put to the applicant after she indicated a refusal to admit the commission of the offense were not competent. We do not hold that in a proceeding of this nature proper and even prolonged interrogation may not be undertaken and often found necessary. Where, however, there has been a refusal to make an admission it is not competent to extract an admission that is not voluntary on the part of the alien. Therefore, any admission she may have made at that time must be considered as moot. Consequently, we must find that the applicant would not be inadmissible to the United States as found by a board of special inquiry.
FINDINGS OF FACT: Upon the basis of the entire record in the case, it is found:
(1) That the applicant is an alien, a native of Union of Soviet Socialist Republics;
(2) That the applicant was admitted to the United States on October 10, 1926, at the port of Buffalo, N.Y., upon presentation of a nonquota immigrant visa issued to her as a native of Canada;
(3) That the applicant admitted that she was not entitled to a nonquota immigration visa under the provisions of section 4 (c) of the Immigration Act of 1924 in that she was, in fact, a native of a country not specified in that section;
(4) That the applicant has not made an explicit admission of the commission of the offense of false swearing under oath.
CONCLUSION OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
That under section 3 of the Immigration Act of February 5, 1917, as amended, the applicant would not be inadmissible on the ground, and under the provision of law stated above.
OTHER FACTORS: The respondent's parents reside in Canada. Her father was naturalized as a citizen of that country during 1905. On March 10, 1926, she was married in Canada to R---- G----, who was naturalized as a citizen of the United States on March 18, 1929, in the United States District Court, Detroit (proof presented). They are the parents of a child born in this country and also maintain a foster son. She has no police record and is dependent upon her husband for support.
ORDER: In the event the applicant applies for entry into the United States within 4 months from the date hereof that she be found admissible on presentation of the required documents.