56113/805
Decided by the Board October 30, 1943.
Admission of crime — Perjury.
1. Perjury in violation of section 125 of the Federal Criminal Code ( 18 U.S.C., sec. 231) may be predicated on a sworn statement required either expressly by statute or by an authorized regulation of the governmental agency enforcing the statute.
2. Customs regulations requiring an applicant for a seaman's certificate of American citizenship issued pursuant to Section 4588, Revised Statutes, to present evidence of citizenship under oath were authorized by that Section.
CHARGES:
Warrant: Act of 1924 — Immigrant without immigration visa.
Lodged: Act of 1917 — Entered by false and misleading statements, thereby entering without inspection. Admits commission of crime involving moral turpitude prior to entry — perjury and subornation of perjury.
Mr. Leon Ulman, Board attorney-examiner.
STATEMENT OF THE CASE: The presiding inspector proposes that the respondent be found subject to deportation on the charges above specified. The Central Office concurs. Exceptions have been filed.
DISCUSSION: The respondent is a native of Ireland, 40 years of age, married. He claims that he is a subject of Great Britain by reason of his residence in England with his parents from his second to seventeenth year. The respondent first entered the United States in 1921 as a deserting seaman. He has resided in the United States continuously since that time. During this period he has made several trips abroad as a seaman on American vessels. He has never been admitted for permanent residence. He last entered the United States on July 3, 1940, at Honolulu, T.H., on the S.S. Mariposa as a member of the crew. He was admitted upon his false representation that he was a citizen of the United States. The record establishes that on this occasion the vessel on which the respondent arrived was returning from a trip to Melbourne, Australia. The evidence sustains the charge under the 1924 act and the charge that the respondent entered by false and misleading statements thereby entering without inspection.
To support the criminal charge there was introduced into evidence a copy of the respondent's application for Seaman's Certificate of American Citizenship executed by him under oath on October 8, 1926, before a deputy collector of customs. The respondent therein affirmed that he was a citizen of the United States by virtue of his birth at Houston, Tex. Annexed to the application is a supporting affidavit under oath of a third person in which it is stated that the respondent is a citizen of the United States. The respondent admits the commission of the crimes of perjury and subornation of perjury in connection with the foregoing. The Government's claim is that the respondent's false statement under oath that he was born in the United States constitutes perjury; and that his admitted procurement of a third person to swear to the same fact is subornation of perjury. Perjury is defined by section 125 of the Criminal Code ( 18 U.S.C. 231) as follows:
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.
Subornation of perjury is defined by section 126 ( 18 U.S.C. 232) as follows:
Whoever shall procure another to commit any perjury is guilty of subornation of perjury and punishable as in section 125.
The charge of crime must have a clear legislative basis. It cannot be doubted that a charge of perjury and subornation of perjury may be based on section 125 of the Criminal Code where a sworn statement is required either expressly by statute, or by an authorized regulation of the governmental agency to which the enforcement of the statute has been entrusted ( United States v. Smull, 236 U.S. 405, 59 L. Ed. 641 (1915)).
We therefore must examine the statute and the regulations upon which the alleged perjury is predicated. Section 4588 of the Revised Statutes (46 U.S.C. 686) (repealed October 9, 1940) providing for the issuance by the collector of customs of certificates of American citizenship, reads:
The collector of every district shall keep a book or books, in which at the request of any seaman, being a citizen of the United States of America, and producing proof of his citizenship, authenticated in the manner hereinafter directed, he shall enter the name of such seaman, and shall deliver to him a certificate, in the following form, that is to say:
"I, A.B., collector of the district of D, do hereby certify that E.F., an American seaman, aged __ years, or thereabouts, of the height of __ feet __ inches (describing the said seaman as particularly as may be), has this day, produced to me proof in the manner directed by law; and I do hereby certify that the said E.F. is a citizen of the United States of America. In witness whereof, I have hereunto set my hand and seal of office, this __ day of ________." It shall be the duty of the collectors to file and preserve the proofs of citizenship so produced.
It is clear that the statute itself does not require an oath.
Article 93 of the Customs Regulations of 1931 purporting to be issued pursuant to Section 4588 provided:
An application for a seaman's protection certificate (Commerce Form 1437) must be in writing, signed and sworn to and presented to the collector by the applicant in person, together with satisfactory evidence that he is a seaman and legal evidence that he is a citizen of the United States.
Article 95 provides:
Evidence of citizenship should be of the character described in article 34. The applicant should furnish proof that he either was born in the United States, or was duly naturalized as a citizen thereof.
Article 34 provides:
In addition to the oaths specified, a collector of customs may require the production of such further evidence as may be necessary to satisfy him that the person is a citizen of the United States.
In Treasury Decision 37484, dated January 21, 1918, it was stated that proof of American citizenship under Section 4588 might include the affidavits of two responsible persons, known to the collector, to the effect that the applicant is in fact of American birth.
In our judgment these regulations required an applicant for a certificate of American citizenship under Section 4588 to state under oath that he was a citizen of the United States.
In re J---- M---- (56076/118, February 24, 1943), we held that perjury was committed in a similar situation.
The remaining question is whether the regulations are consistent with the statute. A similar problem was presented to the court in United States v. Smull, 236 U.S. 405, supra. In that case the defendant was indicted for perjury in making an application for a homestead entry under Section 2289 of the Revised Statutes in that he swore falsely before the receiver of the General Land Office that he had not theretofore made an entry under the homestead laws. Section 2289 itself did not require that fact to be stated under oath. However, regulations of the General Land Office imposed such conditions. The trial court sustained a demurrer to the indictment on the ground that the affidavit was not within section 125 of the Criminal Code. The Supreme Court reversed the judgment and remanded the case, saying:
The false swearing is made a crime, not by the Department, but by Congress; the statute, not the Department, fixes the penalty. * * * As it is apparent that the departmental rule makes it necessary for the applicant to state under oath whether or not he has made a former entry under the homestead laws, the sole question in the present case is whether this requirement was one which the Department could impose. This inquiry is naturally divided into two branches:
(1) Was the regulation addressed to the enforcement of the laws, the administration of which was confined to the Department; and (2) was it inconsistent with any specific provision of the statutes?
As to the former, it is sufficient to say that the homestead laws contain an express prohibition with respect to the amount of land which any one person may secure under their provisions, and the Commissioner of the General Land Office is intrusted with the duty of promulgating appropriate rules to make this prohibition effective * * * it would seem to be plain that a rule requiring an affidavit from the applicant, stating whether or not he had made other entries, was suitably addressed to the execution of the law. * * *
There remains the question whether the regulation is inconsistent with the terms of the statute. * * * It is not a case where the statute points out the character of the proof to be required as to the particular fact, and thus impliedly denies authority to exact proof of a different sort. Thus, with respect to final proof of residence and cultivation, Section 2291 of the Revised Statutes requires the proof to be made by "two credible witnesses," not by the claimant; accordingly it was held that Congress had provided the "exact measure" of the claimant's obligation, and that the Department could neither add to it nor detract from it ( United States v. George, 228 U.S. 14, 57 L. Ed. 712). But here the statute is silent as to the mode of proving the particular fact. Still it is an essential fact; Congress made it the duty of the Department to enforce the condition prescribed, and, in the absence of either inhibition or of a requirement of some other procedure, we are unable to find any ground for saying that Congress debarred the Department from availing itself of the natural and appropriate course in examining the applicant. * * * The oath in such cases is administered by authority of law, as provided in Section 125 of the Criminal Code. [Italics supplied.]
We think that the requirement imposed by the regulations that an applicant for a seaman's certificate of American citizenship state such fact under oath was an appropriate method of enforcing the condition prescribed by Section 4588 of the Revised Statutes.
The respondent urged in his exceptions that he made the false statements in order to obtain employment and disclaims any criminal intent. However worthwhile may have been the respondent's purpose, it is not a legal justification for a deliberate, material falsification ( United States v. Norris, 300 U.S. 564, 81 L. Ed. 808 (1937)).
We conclude that the criminal charge is sustained.
FINDINGS OF FACT: Upon the basis of all the evidence presented, it is found:
(1) That the respondent is an alien, a native of Ireland, subject of Great Britain;
(2) That the respondent last entered the United States on July 3, 1940, at Honolulu, T.H., on the S.S. Mariposa as a member of the crew;
(3) That the respondent entered the United States for permanent residence;
(4) That the respondent did not have an immigration visa;
(5) That the respondent effected his entry by falsely representing himself as a citizen of the United States;
(6) That on October 8, 1926, the respondent executed under oath an application pursuant to Section 4588 of the Revised Statutes for a seaman's certificate of American citizenship;
(7) That in said application the respondent falsely stated under oath that he was a native-born citizen of the United States;
(8) That in support of said application the respondent induced a third person to falsely swear that the respondent was a native-born citizen of the United States;
(9) That in connection with the foregoing the respondent admits that he committed perjury and subornation of perjury.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under sections 13 and 14 of the Immigration Act of 1924 the respondent is subject to deportation in that at the time of entry he was an immigrant not in possession of an unexpired immigration visa;
(2) That under section 19 of the Immigration Act of 1917 the respondent is subject to deportation in that he entered by false and misleading statements thereby entering without inspection;
(3) That under section 19 of the Immigration Act of 1917 the respondent is subject to deportation in that he admits having committed a crime involving moral turpitude prior to entry into the United States, to wit: perjury and subornation of perjury;
(4) That under section 20 of the Immigration Act of 1917 the respondent is deportable to England at Government expense.
OTHER FACTORS: The respondent has formally applied for suspension of deportation. Since, however, he is deportable pursuant to the provisions of section 19 (d) of the Immigration Act of 1917, as amended, relating to the criminal classes, his application must be denied.
The respondent has resided in the United States continuously since 1921. The issue is whether the case merits favorable consideration under the seventh proviso to section 3 of the Immigration Act of 1917 in accordance with In re B---- (V-292720) [ see page 204, this volume]. The respondent is married to a citizen of the United States. His first marriage was terminated by divorce. There are four minor children born in the United States, and the respondent's family is wholly dependent on him for support. He operates a gas station from which he derives a monthly income of $200. His assets are valued at $2,200. He is registered under the Alien Registration Act and the Selective Training and Service Act of 1940. The Federal Bureau of Investigation has no criminal record concerning him. He has never been arrested or convicted of any crime. An outside investigation was conducted in the case and nothing detrimental to the respondent's character was ascertained. Numerous witnesses have stated under oath that the respondent is a person of good moral character. In our opinion if at some future time the respondent should apply for admission to the United States in possession of appropriate documents, his case might receive favorable consideration under the seventh proviso. An appropriate order will be entered.
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 directed, That preexamination be authorized, conditioned upon approval by the Department of State of the alien's preliminary application for an immigration visa.