56069/889
Decided by the Board April 28, 1941. Approved by the Attorney General December 9, 1941.
Seventh proviso to section 3, Immigration Act of 1917 — Preexamination — Exercise of discretion.
1. When in preexamination to determine an alien's admissibility if in possession of proper documents, the alien admits the commission of perjury, a crime involving moral turpitude, but is not deportable on that ground, discretion to admit him under the seventh proviso to section 3 of the Immigration Act of 1917 with reference to such ground of inadmissibility may be exercised in advance of his actual application for admission.
2. When an alien has perjured himself in a naturalization proceeding by falsely claiming a legal entry, but has been living in the United States for 13 years and has an otherwise clear record and a citizen wife dependent upon him for support, the seventh proviso to section 3 of the Immigration Act of 1917 will be exercised in his favor.
FOUND INADMISSIBLE BY BOARD OF SPECIAL INQUIRY:
Act of 1917 — Admits the commission of perjury.
Mr. Nathan Sinkman, of New York City, for the appellant.
Mr. Albert E. Reitzel, for the Immigration and Naturalization Service.
BEFORE THE BOARD
STATEMENT OF THE CASE: Preexamination was authorized in connection with the application of respondent's wife for the issuance to him of an immigration visa. A preexamination was accorded the respondent at Ellis Island on February 13, 1941, when it was found that if the appellant were applying for admission to the United States in possession of an appropriate immigration visa he would be inadmissible under section 3 of the Act of February 5, 1917, as one who admits the commission of a felony or other crime or misdemeanor involving moral turpitude, namely, perjury. From this decision the alien appeals.
The matter is now before this Board for review and decision.
DISCUSSION: The appellant testifies that he is a native of Poland, of the Hebrew race, born December 15, 1907. His only entry into the United States, according to his testimony, was as a stowaway at the Port of New York during December 1927 and in connection with which entry he admits paying $125 to a sailor for assistance to land illegally in the United States.
On February 16, 1931, the appellant declared his intention to become a citizen of the United States using the name of M---- K---- and alleging lawful entry for permanent residence at New York on September 11, 1920, on the S.S. Kroonland. The declaration of intention to become a citizen was sworn to before the deputy clerk of the United States District Court for the Southern District of New York. The appellant admits that he committed perjury at the time he obtained this declaration of intention. Specifically he swore falsely as to the date and manner of entry into the United States. The purpose of the false statement was to claim a legal admission for permanent residence under the name of M---- K----, inasmuch as lawful admission to the United States as an immigrant was prerequisite for obtaining a valid declaration of intention to become a citizen of the United States in 1934 (sec. 4, Act of March 2, 1929, 8 U.S.C., 373).
It is clear, therefore, that the appellant made false statements under oath in regard to a material matter when he obtained a declaration of intention to become a citizen of the United States and has admitted in this connection that he committed perjury. The board of special inquiry, therefore, was correct in finding him inadmissible under section 3 of the Act of February 5, 1917.
FINDINGS OF FACT: Upon the basis of all the evidence adduced at the hearing it is found:
(1) The appellant is an alien, a native and citizen of Poland;
(2) That the appellant entered the United States as a stowaway at New York during 1927 and was not admitted to the United States;
(3) That in a declaration of intention to become a citizen of the United States sworn to before a deputy clerk of the United States District Court for the Southern District of New York on February 16, 1931, the respondent alleged that he lawfully entered the United States for permanent residence at New York on September 11, 1920, ex-S.S. Kroonland.
(4) That the foregoing statements in the declaration of intention to become a citizen of the United States were false.
(5) That the respondent admits having committed perjury.
CONCLUSION OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
That under section 3 of the Immigration Act of 1917, if the appellant were now seeking admission to the United States with an immigration visa, he would be inadmissible as one who admits committing a crime involving moral turpitude, to wit: perjury.
OTHER FACTORS: The respondent was married in New York City on November 6, 1938, to a native-born citizen of this country. There are no children of this marriage. The respondent has a ladies' tailoring shop in Brooklyn from which he claims to derive an income of from $40 to $45 a week and from which he supports himself and his wife. He testified he has $300 in bank and besides has invested $800 in his business. The record developed nothing in any way indicating that the appellant is not a desirable person, with the exception of the perjury in connection with his declaration of intention to become a citizen and the manner of his original entry into the United States. The appellant did not pursue his application to become a citizen of the United States after he obtained a declaration of intention.
The seventh proviso of section 3 of the Act of February 5, 1917, provides "that aliens returning after a temporary absence to an unrelinquished United States domicile of 7 consecutive years may be admitted in the discretion of the Attorney General, and under such conditions as he may prescribe." The authority contained in this proviso may be exercised in a preexamination case.
The Service attorney contends that admission of the appellant should not be authorized in preexamination proceedings under the seventh proviso of section 3 of the 1917 act because of the provisions of section 19 (c) and (d) of the same act. Subsection (c) of section 19 grants authority to the Attorney General to permit an alien to depart from the United States in lieu of deportation, with the qualification, however, that the alien has established good moral character for the preceding 5 years and is not subject to deportation on any of the grounds set forth in subsection (d). Aliens deportable as criminals under section 19 (a) are listed in section 19 (d) as one of the classes of aliens whose voluntary departure from the United States in lieu of deportation is prohibited.
The Service attorney argues that, if the appellant were subject to deportation because of the admission of a crime committed prior to his entry into the United States, the Department could not countenance his voluntary departure from the United States. The manner whereby the case comes to the attention of the Department is not controlling. It is the substance of the case which should decide the action to be taken, and, therefore, although deportation proceedings were not instituted in the present case, if the preexamination record gave reason for finding that the alien involved was deportable on any ground mentioned in section 19 (d), it would be necessary to immediately institute deportation proceedings. Any other course of action would make possible an evasion of the requirements of section 19 (d).
This is not the situation in the instant case. The appellant, as before stated, is not deportable today on any ground mentioned in section 19 (d). If deportation proceedings had been instituted, there would seem to be no legal reason why voluntary departure in lieu of deportation could not be authorized.
Another issue raised is whether the authority of the Attorney General contained in the seventh proviso ought to be exercised in a case of this character. Had the appellant made a short trip to Canada and reentered the United States after the execution of the declaration of intention, he would now be subject to deportation because of the admission of the commission of a crime involving moral turpitude, and, therefore, under section 19 (d) could not be permitted to depart voluntarily. Would his case be less deserving because of such a short absence and reentry than it is today? It is apparent that such would not be the case. Basically, the objection to the appellant is the fact that he did commit perjury in 1931.
The purpose of Congress in making section 19 (d) a limitation on section 19 (c) is set forth in the conference report which accompanied H.R. 5138, The Alien Registration Act of 1940, and which act contained subsections (c) and (d) of section 19. This report (R. No. 2683, House of Representatives) in reference to this point states as follows:
Subsection (d) provides that the benefits of subsection (c) shall not be extended to aliens who are deportable on grounds which may be generally described as those grounds which indicate that such aliens are likely to be undesirable residents.
While it is clear that the commission of the offense makes an alien undesirable and on this premise the view might be taken that the authority of the Attorney General should not be exercised in preexamination in any case in which, if an alien were an applicant for admission to the United States he would be found inadmissible for any of the grounds mentioned in subdivision (d) of section 19, we do not believe that such a rule would be justified. In the first place Congress was attempting a general designation of classes of undesirable aliens. Within this broad definition there may be found certain aliens worthy of discretionary relief. If not technically bound by subsection (d) and if legal authority exists to exercise the seventh proviso, it is our belief that a case should be decided on the basis of its individual merit and not by an invariable standard that one who, if he were applying for admission to the United States, would be inadmissible on any of the grounds mentioned in subsection (d) and, because of this fact alone, should be refused the benefits of discretionary action under the seventh proviso.
The Service attorney also makes the point that over and above the foregoing contention, and on its merits, the case is not one that calls for favorable exercise of discretionary authority contained in the seventh proviso because of the unlawful entry of the appellant as a stowaway and his deliberate efforts to obtain naturalization in violation of law. In many cases offenses committed in connection with efforts to obtain naturalization have been waived under the seventh proviso of section 3. Adopting the view suggested by the Service attorney would be a radical change in policy. In the present case, with the exception of the naturalization fraud and the manner of originally entering the United States, there is nothing that may be used as an argument that the appellant appears to be personally undesirable. He has a native-born wife, and unless his admission under the seventh proviso is authorized he may never legally join her in this country.
Although not condoning perjury, we feel that the offense committed in this case is not so great as to warrant action that will forever prevent the appellant from becoming a lawful resident of the country of his wife's birth and citizenship and the country where he has resided for the past 13 years with no mark upon his record except those under discussion. We see no valid point in the argument that one who pays to be brought here as a stowaway is any more undesirable than one who may accomplish an illegal admission to the United States through his own efforts.
Notwithstanding the objection raised by the Service attorney, it is the conclusion of the Board of Immigration Appeals that the case is one in which there is power at this time to authorize admission under the seventh proviso of section 3 and one in which this power ought to be exercised in favor of the appellant.
Because of the nonconcurrence of the Service attorney with this view, the case is certified to the Attorney General for review of the Board's decision.
ORDER: It is ordered that if the alien applies for admission to the United States in possession of a valid immigration visa and is admissible except for having admitted the commission of a crime involving moral turpitude, to wit, perjury in connection with the execution of a declaration of intention to become a citizen of the United States on February 16, 1931, he be admitted under the seventh proviso of section 3 of the Immigration Act of February 5, 1917.
The foregoing decision and order of the Board were certified to and approved by the Attorney General.