56107/856
Decided by the Board November 24, 1942.
Admission of crime.
An admission by an alien of the commission of a crime must be direct and voluntary in order to justify his exclusion on the ground that he admits the commission of a crime involving moral turpitude.
FOUND INADMISSIBLE BY BOARD OF SPECIAL INQUIRY:
Act of 1917 — Admits commission of crime involving moral turpitude — perjury.
Mr. Anthony L. Montaquila, Board attorney-examiner.
STATEMENT OF THE CASE: Pursuant to authority therefor, the applicant appeared before a board of special inquiry at Ellis Island October 15, 1942, for the purpose of having his admissibility determined prior to his departure to obtain an immigration visa and reapply therewith for permanent residence.
The board of special inquiry has found that the applicant would be inadmissible to the United States, even were he to be in possession of an immigration visa, on the ground and under the provision of law stated above. From this action the subject has appealed.
DISCUSSION: The applicant testified that he was born December 18, 1900, in Castendo, Vilzeu, Portugal, and is, therefore, age 41, and a native and citizen of Portugal; that he last entered the United States on March 12, 1926, at the port of Miami, Fla., ex-S.S. Seneca. At the time of arrival the applicant presented a nonquota immigration visa No. 1428, issued to him at the American consulate, Havana, Cuba, on March 9, 1926, under the provision of section 4 (c), Immigration Act of May 26, 1924. The visa was issued under his true name, but, on the basis of the birth certificate indicating birth at Belem, Para, Brazil, December 18, 1900.
Section 4 (c) of the Immigration Act of May 26, 1924, defines a nonquota immigrant as "an immigrant who was born in * * * or an independent country of * * * South America."
The applicant admits that he was not entitled to the nonquota immigration visa that he presented at the time of his arrival at the port of Miami, Fla., on March 12, 1926, as a native of an independent country of South America, he being, in fact, a native of Portugal and, therefore, subject to the quota requirements of the Immigration Act of 1924. The applicant testified that he resided in his native country, namely, Portugal, until he was approximately 25 years of age and went to Cuba where he resided from June 1925 until March 1926, and that he had never, in fact, resided in Brazil. Some of the testimony pertinent to the issue presented in this case is as follows:
Q. I present for your inspection, nonquota 4 (c) visa No. 1428, that was issued to A---- dA---- L---- at the American consulate, Havana, Cuba, on March 9, 1926. To this visa there is affixed an autographed photograph and I ask you if you identify the likeness thereof?
A. Yes, sir; that was mine.
Q. Is that the immigration visa that you obtained at the American consulate?
A. Well, it must be.
There is entered into the record and made a part thereof, nonquota 4 (c) visa 1428, dated at Havana, Cuba, March 9, 1926.
Q. Whose signature appears on the application part of this immigration visa?
A. This one here, that is mine, sir.
Q. What documents did you present to the American consul to satisfy him that you were entitled to a nonquota 4 (c) visa?
A. I can't remember that, sir. Those things were long ago.
Q. The application part of this visa indicates that the applicant, A---- dA---- L----, stated among other things, that he was born at Belem, Para, Brazil. Did you make that statement?
A. I signed it.
Q. But did you state in your application, as here indicated, that you were born in Brazil?
A. Well, the young man there, the man who got first papers, he made the statement for me. I signed it, that's all.
Q. There is affixed to this immigration visa a birth certificate apparently issued by the Republic of the United States of Brazil, at Belem, Brazil, December 25, 1925. It is indicated that according to livro No. 42, folhas No. 123, termo No. 924, there was born at Belem, Para, Brazil, one A---- dA---- L----, mother's name, M---- L----, father's name, A---- dA----, on December 18, 1900. Have you recollections of seeing this document before?
A. I haven't sir. It was so long ago I don't remember seeing those things before.
Q. What document did you present to the American consul when you applied for and obtained this visa?
A. I don't remember, sir.
Q. But you do recognize your signature on the application part of this visa?
A. Yes; I recognize that.
* * * * * * *
Q. Did you know when you signed your name to this document that you were not born in Brazil?
A. Yes, sir, I did know that, sir.
* * * * * * *
Q. Did you in fact, as indicated by this visa, swear on oath before the consular officer that the contents of your application were true and correct?
A. Yes, sir.
Q. And you did know at the time that you were born in Portugal and not in Brazil as indicated?
A. Yes, sir.
Q. Do you know that perjury is a crime?
A. I know that now.
Q. Do you admit committing perjury in connection with your application for a nonquota 4 (c) visa that was executed at the American consulate, Havana, Cuba, on March 9, 1926?
A. At that time I didn't know it, sir. I did know I was doing something wrong but the extent of my doing I didn't know, sir, but now I admit it was very wrong. I shouldn't do it.
The testimony quoted above constitutes the premise upon which the board of special inquiry in preexamination proceedings based its finding that the applicant would be inadmissible to the United States as one who admits the commission of an offense involving moral turpitude, to wit: perjury.
With that finding we do not agree. The Immigration and Naturalization Service also disagrees with that finding. Although the testimony discloses a factual basis for the offense, nevertheless the applicant has not made a direct admission of the commission thereof, as required by the statute. Section 3 of the Immigation 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 * * * admit having committed a felony or other crime or misdemeanor involving moral turpitude * * *."
That perjury, which is defined as the willful and false affirmation under oath, administered, by authority of law in a material matter, is an offense involving moral turpitude may be conceded ( United States ex rel. Karpay v. Uhl, 70 F.2d 792; United States ex rel. Boraca v. Schlotfeldt, 109 F. 2d 106).
As already indicated, the operative fact required by the statute (sec. 3, supra) is that there be a direct and voluntary admission by the alien of the commission of an offense involving moral turpitude, in this case, perjury. The applicant in this case has not made such an admission. His admission to the specific question, to repeat, and which constitutes the gravamen in the case is, "At that time I did not know it, sir. I did know I was doing something wrong but the extent of my doing I did not know, sir. But now I admit it was very wrong. I shouldn't do it." To say that the applicant's admission is a direct admission of the commission of perjury, would, we believe, necessitate the drawing of an inference from his testimony upon which to predicate a finding of guilt. This we may not do without going beyond the scope of the specific provisions of the statute, namely, section 3, supra ( Howes v. Tozer, 3 F. 2d 849; United States ex rel, Castro v. Williams, 203 F. 155; 39 Op. Atty. Gen. 58).
Since the applicant's admission lacks the directness required by the statute we find that the applicant would not be inadmissible to the United States as determined by the board of special inquiry.
FINDINGS OF FACT: Upon the basis of the entire record in this case, it is found:
(1) That the applicant is an alien, a native and citizen of Portugal;
(2) That the applicant last arrived in the United States on March 12, 1926, at the port of Miami, Fla.;
(3) That the applicant presented a nonquota immigration visa issued to him as a native of Brazil;
(4) That the applicant executed an application for a nonquota immigration visa under oath at the American consulate in Havana, Cuba, on March 9, 1926;
(5) That the applicant admitted that the birth certificate that he submitted with that application, indicating birth in Brazil, did not pertain to him;
(6) That the applicant has not made a direct admission of the commission of perjury;
CONCLUSION OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
That under section 3, Immigration Act of 1917 the applicant would not be inadmissible to the United States as one who admits the commission of perjury.
OTHER FACTORS: The applicant is single, and since he last entered the United States on March 12, 1926, has had residence in this country of approximately 16 years. Since his entry he resided for varying periods in Massachusetts, Rhode Island, and New Jersey. He has presented certificates of good conduct issued by the police authorities where he had previously resided, as well as his present residence and Havana, Cuba, indicating that he has no police record in those places. He has never been the recipient of relief in this country and since October 1937 has been continuously employed by the Darlington Fabrics Corporation, Newton, N.J.
The applicant also presented a letter from the American consulate general, Montreal, Canada, dated July 28, 1942, to the effect that he has been classified as a nonpreference Portuguese case, quota immigrant, on the basis of documents submitted to the consulate.
ORDER: It is ordered that the alien be found admissible to the United States when in possession of the appropriate documents.