56071/174
Decided by the Board June 13, 1941.
Admission of crime involving moral turpitude — Fraud.
1. Fraud is not a crime unless specifically so defined by statute.
2. When a Greek alien admitted that he committed fraud by entering the United States with the Cuban birth certificate of another, he is not subject to deportation on the ground that he admits the commission of a crime involving moral turpitude, fraud in general not being defined as a crime by Federal law and there being no perjury involved.
FOUND INADMISSIBLE BY BOARD OF SPECIAL INQUIRY:
Act of 1917 — Admits commission of crime involving moral turpitude — fraud in connection with entry.
Mr. Max Margules, of New York City, for the applicant.
Mr. Anthony L. Montaquila, Board attorney-examiner.
STATEMENT OF THE CASE: On April 14 and 15, 1941, the applicant was granted a hearing before a board of special inquiry at Ellis Island pursuant to authority therefor contained in Circular Letter No. 456 dated August 19, 1940, and Central Office letter dated March 15, 1941, No. V-298457, for the purpose of having his admissibility determined were he to depart the United States and reapply for admission in possession of an appropriate immigration visa.
The matter is now before this Board for review and decision.
DISCUSSION: The applicant testified that he is a native and citizen of Greece, aged 37, married, occupation machine operator, and that he last entered the United States at the Port of New York on March 7, 1928, ex-S.S. Colombia, under the name of D---- G---- and has since remained.
The applicant further testified that on the occasion of his entry as stated he was in possession of a Cuban birth certificate in the name of D---- G----, which was obtained for his use by one A---- G---- for which he paid the sum of $300. He denied that it was necessary to appear before any official of the Cuban Government in connection with the obtainment of said birth certificate or that he was required to execute an application therefor under oath. He added that at the time of his entry he was accompanied by the said A---- G----. He admitted his true name to be J---- R----, that he was not entitled to said birth certificate, and also that he committed fraud in entering the United States on the basis of said birth certificate. He also made a categorical admission in the affirmative to the question, "Do you know that fraud is a crime?"
Upon the basis of the foregoing, the board of special inquiry found that the applicant would be inadmissible to the United States, even were he to be in possession of an appropriate immigration visa, by virtue of the provisions of section 3 of the Act of February 5, 1917, as amended, as one who admits the commission of the offense of fraud.
Counsel in his brief takes exception to the finding of the board of special inquiry on the ground that the offense consisted essentially of violation of the immigration laws.
This Board also is of the opinion that the board of special inquiry was incorrect in its conclusion. There appear to be two sound reasons for this view. In the first place, this case presents no issue as to perjury or forgery. The alien's offense was essentially as asserted by counsel, a violation of our immigration and/or passport laws. It has been determined that violations of our immigration laws respecting illegal entry or the passport laws of this or any country, accompanied by false swearing amounting to perjury, would constitute an offense involving moral turpitude. However, this would not be true if the violation, as in the instant case, consisted merely of subterfuge or concealment of a fact upon entering the country, such as using a foreign passport belonging to another, as an unwise convenience, and such violation was not accompanied by false swearing. The basic difference is that the taking of a false oath is considered wrong independently of statute, whereas the other offense, though grave and properly penalized, cannot be said to possess the same inherent baseness that attaches to perjury.
Secondly, the fact that before it can be concluded that the applicant has admitted the offense of fraud, which renders him inadmissible to the United States, there must be a statute upon which to predicate a finding of inadmissibility. We know of no statute that defines fraud, of itself, as an offense. This being so, the finding of inadmissibility by the board of special inquiry has no foundation in law.
As stated, the applicant's action in entering the United States illegally was essentially a violation of the immigration and/or passport laws. Therefore, the basis upon which the board of special inquiry concluded that the applicant would be inadmissible to the United States, in effect, amounts to an attempt to create an offense not classified as such by law. FINDINGS OF FACT: Upon the basis of all the evidence adduced at the hearing and upon the entire record in this case, it is found:
(1) That the applicant is an alien, a native and citizen of Greece;
(2) That the applicant last entered the United States at the Port of New York on March 7, 1928, under the name of D---- G----;
(3) That on the occasion of the foregoing entry the applicant presented a Cuban birth certificate in the name of D---- G----;
(4) That the applicant admitted that he purchased said birth certificate from one A---- G---- for the sum of $300;
(5) That the applicant admitted that his entry was accomplished through fraud.CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That the applicant's illegal entry into the United States upon presentation of a Cuban birth certificate did not involve moral turpitude;
(2) That the offense of fraud is not a crime under the Federal statutes;
(3) That by reason of the foregoing, the applicant's admission of an offense for which there is no basis in law is of no legal efficacy.ORDER: It is ordered that the finding of the board of special inquiry in preexamination proceedings be reversed and that the applicant be found admissible to the United States when in possession of an appropriate immigration visa and passport.