56091/636
Decided by the Board November 29, 1943.
Admission of crime — Perjury — Capacity of minors to commit crime.
1. Perjury is committed when an alien falsely states under oath in applying for an immigration visa or for admission to the United States that he had never resided in the United States, as prior residence in this country is a material matter inasmuch as grounds of inadmissibility such as conviction for crime may stem from an alien's actions while in the United States, and a denial of prior residence cuts off inquiry into the alien's past record.
2. At common law persons over 14 years of age were presumed to be capable of committing a crime.
CHARGES:
Warrant: Act of 1924 — Immigrant without immigration visa.
Lodged: Act of 1917 — Admits commission of crime involving moral turpitude prior to entry — perjury.
Miss Arlene Tuck, Board attorney-examiner.
This respondent is a native and citizen of Mexico, 35 years old. He testified that he last entered the United States on July 23, 1926, at El Paso, Tex., intending to remain here permanently and without an immigration visa. Local immigration records and respondent's testimony establish that he was admitted to the United States for permanent residence on March 6, 1924, as R---- V----, over 18 years of age, coming to join his uncle. The respondent testified that at the time of this admission he was actually under 16 and had decided to give his age as over 18 and to take the surname of the man he was accompanying in order to gain admission into the United States. After his admission he attended school here under his true name. After 2 years, wishing to have "the proper immigration papers" and acting on the advice of one of his teachers, he went to Mexico and obtained an immigration visa under his own name. On July 20, 1926, he applied for admission but was excluded as an alien contract laborer, a person likely to become a public charge, and as one who admitted the commission of perjury. At the present proceeding he again admitted committing perjury in 1926 by having falsely stated under oath both before the American consul and the board of special inquiry that he had never been in the United States before. The question arises as to whether the crime of perjury was committed on these facts, and we conclude that it was. In an application for an immigration visa or for admission, prior residence in the United States is a material matter as grounds of inadmissibility, such as conviction for crime, may stem from an alien's actions while in the United States, and a denial of ever having been here before cuts off inquiry into the alien's past record.
According to respondent's testimony he was born in Mexico in August 1908. The false swearing took place in July 1926. He was therefore not yet 18. Upon this basis and without discussion of the law involved, the presiding inspector finds that the respondent is not subject to deportation on the ground that he admits the commission of perjury. The false swearing was done before an American consul and a board of special inquiry and, consequently, would be an offense against Federal law. "The Federal Juvenile Delinquency Act" ( 18 U.S.C., sections 921- 929), defining juvenile delinquency as an offense against the laws of the United States committed by a person under 17 years of age, was passed on June 16, 1938. The offenses here involved were committed in 1926, and, consequently, that act did not apply. Up until the passage of that act, there was no such provision in the Federal statutes. In the absence of specific statutory provision, the rule at common law would apply. The general rule was that for persons under 7 there was a conclusive presumption of incapacity to commit a crime, between 7 and 14 there was rebuttable presumption of incapacity to form a criminal intent, and persons over 14 years were presumed to be capable of committing a crime (31 Corpus Juris, sec. 218). By this rule the respondent at 17 would have been capable of committing perjury.
It may be noted that the presiding inspector appears to have lodged a separate charge based upon the commission of perjury because the respondent admitted having sworn falsely both before the American consul and the board of special inquiry. It does not necessarily follow, however, that there need be two charges because there were two perjuries.
FINDINGS OF FACT: Upon the basis of all the evidence presented, it is found:
(1) That the respondent is an alien, a native and citizen of Mexico;
(2) That the respondent last entered the United States on July 23, 1926, at El Paso, Tex.;
(3) That the respondent entered the United States for permanent residence;
(4) That at the time of his entry the respondent did not have an immigration visa;
(5) That the respondent admits having committed perjury prior to his entry.
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 on the ground that at the time of his last entry he was an immigrant, not in possession of an immigration visa;
(2) That under section 19 of the Immigration Act of 1917, the respondent is subject to deportation on the ground that he admits having committed a crime involving moral turpitude prior to entry, to wit: perjury.
(3) That under section 20 of the Immigration Act of 1917, the respondent is deportable to Mexico at Government expense.
OTHER FACTORS: The respondent has applied for suspension of deportation, but since he is subject to deportation on a criminal charge, he is ineligible for that privilege. It has been decided, however, that the restriction in section 19 (d) of the Immigration Act of 1917, as amended, shall not be a bar to authorizing the voluntary departure of an alien who upon his return to the United States would be qualified for admission under the seventh proviso to section 3 of that act.
The respondent would meet the 7-years' domicile requirement, as he has been residing in the United States since 1926. He was married in El Paso in 1928. His wife is also a native and citizen of Mexico, and her deportation is being suspended under the provisions of section 19 (c) (2) of the Immigration Act of 1917, as amended (File No. 56091/632). They have three living children, 13, 11, and 9 years old, respectively, all of whom were born in the United States. A daughter 5 and a baby born in December 1941 both died recently. The respondent has been employed as a waiter in a hotel, and his wife and children are entirely dependent upon him for support. His deportation would therefore cause them great hardship.
The respondent testified that he has never been arrested in the United States or abroad, and a check of fingerprints with those on file with the Federal Bureau of Investigation reveals no criminal record. At the time of the hearing two witnesses, who have known the respondent for over 10 years, testified he is a person of good moral character. An immigrant inspector conducted an independent investigation of the respondent's moral character in the neighborhood where he resides. Neighbors and local tradespeople reported favorably on his character, and his employer stated that he is one of their oldest employees from the standpoint of service and that he considers the respondent reliable and honest.
This would appear to be a worthy case to exercise the discretion provided for in section 19 (c) (1) of the Immigration Act of 1917, as amended, and that contained in the seventh proviso to section 3 of that act.
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 90 days after notification of decision, conditioned upon arrangements being made with the local immigration office for verification of departure.
It is further directed, That if upon application for admission the respondent is found admissible except on the ground that he admits the commission of perjury, he be admitted under the seventh proviso to section 3 of the Immigration Act of 1917.