56043/929
Decided by the Board December 2, 1942.
Admission of crime — Perjury.
1. To constitute perjury the false statements must have been in fact material and the person making them must have known them to have been false at the time.
2. When an alien is seeking readmission to the United States, the date, place, and manner of his previous entry or entries are material matters.
3. When an alien has made an unqualified admission that he committed perjury, the record establishing that perjury was in fact committed, his statement at a later hearing that he does not believe he committed perjury does not obliterate the earlier admission.
CHARGES:
Warrant: Act of 1924 — Quota immigrant without quota immigration visa.
Lodged: Act of 1924 — Reentry permit procured by fraud.
Act of 1917 — Admits commission of crime involving moral turpitude prior to entry — perjury.
Mr. Daniel A. Caputi, of New York City, for the respondent.
Mr. Joseph Minton, for the Immigration and Naturalization Service.
Miss Arlene Tuck, Board attorney-examiner.
STATEMENT OF THE CASE: On December 3, 1941, we reopened this case to give the respondent an opportunity to produce additional evidence concerning the perjury charge and to file application for discretionary relief. Previously we had considered the case and approved the findings of fact and conclusions of law, wherein the respondent was found deportable on the warrant charge and the charge that the reentry permit that he presented at the time of his last entry was invalid because procured by fraud. Then because of evidence that respondent admitted that he committed perjury before a board of special inquiry on April 23, 1931, we reopened the case so that a charge might be lodged against him based on that admission. On September 15, 1941, an order was entered directing that respondent be deported to Italy on all the above charges. Respondent's attorney claimed that he did not have adequate opportunity to state his objections to the order proposed by the presiding inspector, which we followed on September 15, 1941, and hence the attorney was given an opportunity to argue the case orally before this Board on November 12, 1941. After the last reopening the attorney was again heard on June 25, 1942.
No issues are raised concerning respondent's alienage or the details of his entries into the United States. Respondent is a native and citizen of Italy, 47 years old. He first entered the United States on July 17, 1926, at Norfolk, Va., as a member of the crew of the S.S. Buccari, and was admitted temporarily as a seaman. He remained in the United States until January 15, 1931, when he departed for Italy. On April 29, 1931, he was admitted to the United States for permanent residence at the port of New York. He came as a passenger on the S.S. Augustus, and had a reentry permit. He has remained in the United States ever since.
DISCUSSION: According to respondent's testimony at the several hearings, he obtained the reentry permit in 1931 in the following manner. He called on a Mr. Fiorini, who told him that for $250 he could arrange it so that respondent might go to Italy and return to the United States. He also told respondent that his residence would be legalized. Respondent was given a blank application for a reentry permit which he signed, the details being filled out by someone else later. Fiorini told respondent that when he was asked about his previous entry into the United States, he should say that he came to the United States in 1920 on the S.S. Imperator.
An application for a reentry permit by V---- R---- stated that he arrived in the United States on October 3, 1920, at the port of New York, as a third-class passenger on the Imperator. This application was signed and notarized. The application is marked to show that on December 4, 1930, the applicant was granted reentry permit number 670757. Respondent was shown the application for the reentry permit and identified it as the document with which he entered the United States in April 1931. He stated that the details concerning the entry in 1920 contained in the application were untrue. The charge is therefore sustained that respondent was not entitled to enter the United States at the time of his last entry, since the reentry permit that he presented was not valid because procured by fraud and misrepresentation.
Respondent testified that he has never been admitted to the United States for permanent residence in possession of an immigration visa, and has never paid head tax. Respondent was not entitled to the reentry permit that he presented when he last entered the United States. He was coming to the United States to resume his residence here. He was not within any of the classes set forth in section 4 of the Immigration Act of 1924, which defines the term "nonquota immigrant." Under section 5 of that act, therefore, he was a quota immigrant, and he was required to have a quota immigration visa. The warrant charge is therefore sustained.
At the hearing on November 16, 1940, after respondent identified the reentry permit with which he last entered, he was asked whether the information concerning his last entry contained therein was true, and he admitted that it was not true. He was then asked whether he gave the same false information when he appeared before a board of special inquiry prior to his last entry, and he answered that he had. The examining inspector then said:
Q. Do you now admit that you committed perjury before the board of special inquiry at Ellis Island April 23, 1931, when you testified, in effect, that you had previously entered the United States on October 3, 1920, on the S.S. Imperator?
A. I admit it.
The charge that respondent admits commission of perjury prior to his last entry was not placed against him until the subsequent hearing on August 8, 1941.
Respondent's attorney contends that the two issues in this case are: (1) whether the alien committed perjury before a board of special inquiry in 1931, and (2) whether he admits that he committed such perjury. Counsel cites title 18, U.S.C.A., section 231, which defines perjury as an act by one properly sworn wherein he "* * * willfully and contrary to such oath (shall) state or subscribe any material matter which he does not believe to be true." After summarizing the evidence, counsel concludes that respondent "did not knowingly testify falsely to a material fact." It is contended that respondent did not know that he was giving false testimony amounting to perjury, that he did not know that the statements concerning his last entry were material, and, finally, that he did not know at the time he testified before the board of special inquiry that his statements were untrue. For a person to have committed perjury, it is not necessary that he be aware at the time that his false statements constitute the crime of perjury. Nor is it necessary that he know that his false statements are on material matters. It is sufficient that the statements in fact are material. In other words, the test of materiality is objective rather than subjective. It is necessary, however, that the person making a false statement have known at the time that his statement was untrue.
Respondent has repeatedly claimed that when he testified before the board of special inquiry in 1931 and stated that he arrived in the United States in 1920 on the S.S. Imperator he did not know that these statements were untrue. It is claimed that respondent is illiterate and uneducated. This might explain why he might have been deceived about immigration law. But his lack of education cannot have given respondent the impression that he came to the United States as a passenger on one boat in 1920 when in fact he came as a seaman on another boat in 1926. The record contains a copy of the minutes of the hearing before the board of special inquiry. Respondent's statements concerning the entry in October 1920 on the S.S. Imperator are summarized in the beginning. Then he is asked, "At what port did you embark when you came here on the Imperator in 1920?" A. "At Cherbourg." He was also asked, "Did you come in the third class?" and he answered, "Yes." He also said that at the time of that entry he was brought before a board of special inquiry like the one then sitting. Unless the respondent was suffering from some mental ailment causing hallucinations, he could not have believed these things to be true. The certificate of his entry in 1926 indicates that he was shipped at Ancona and that the vessel arrived from Genoa. Members of the crew, who are admitted only as seamen, are not generally brought before boards of special inquiry, and the certificate of entry indicates that respondent was examined by an inspector as a seaman only. We cannot agree with the contention of respondent and his attorney that when he testified before the board of special inquiry in 1931 respondent did not know that the statements he was making were untrue.
When a person is seeking readmission to the United States, the date, place, and manner of his previous entry or entries are material matters. As we have already stated, for a person to commit perjury it is not necessary that he know that these matters are material. And we are convinced that respondent knew that the statements he made were untrue. We are satisfied, therefore, that respondent did in fact commit perjury before the board of special inquiry on April 23, 1931.
The remaining question is whether respondent has admitted that he committed perjury. The testimony from the November 16, 1940, hearing quoted above indicates that respondent made a clear and unqualified admission. We regard this admission as sufficient to satisfy the doctrine set forth in the case of Howes v. Tozer, 3 F. 2d 849 (C.C.A. 1, 1925). That at a later hearing respondent stated that it was then his honest belief that at no time had he committed perjury before the immigration authorities cannot be regarded as obliterating or detracting from his earlier admission.
Since respondent made no admission of perjury in connection with the written application for a reentry permit, we will not consider whether he committed the offense of perjury in that connection.
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 Italy;
(2) That the respondent last entered the United States on April 29, 1931, at the port of New York as a passenger on the S.S. Augustus in possession of a reentry permit;
(3) That the reentry permit that the respondent presented was obtained on false information concerning the date, place, and manner of respondent's prior entry;
(4) That the respondent entered the United States for permanent residence;
(5) That the respondent has never been legally admitted to the United States for permanent residence;
(6) That at the time of his entry the respondent did not have a quota immigration visa;
(7) That the respondent has admitted that he committed perjury before a board of special inquiry at Ellis Island on April 23, 1931.
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 a quota immigrant who did not have a quota immigration visa;
(2) That under section 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 not entitled to enter the United States, since the reentry permit that he presented was not valid because procured by fraud and misrepresentation;
(3) 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 into the United States, to wit: perjury.
(4) That under section 20 of the Immigration Act of 1917, the respondent is deportable to Italy at Government expense.
OTHER FACTORS: Respondent was married in 1920, and he has a child now 11 years old. His wife and child reside in Italy, and he supports them. He has no relatives in the United States. Respondent has been employed by the same concern since 1926 as a longshoreman, earning $30 a week. He values his total assets in the United States at $1,131.61, and his total assets in Italy at $4,100.
Respondent testified that he has never been arrested in the United States or abroad. Since he has been in this country respondent has never required welfare assistance. The file contains a certification from the chief inspector of the New York City police department, stating that the files of that department show no record of the respondent under name or fingerprints. The record also contains sworn written statements by three persons who are citizens of the United States. The general import of these affidavits is that in the opinion of the writers respondent is a person of good moral character, devoted to this country. At the last hearing two persons, both citizens of the United States who have known the respondent over 10 years, testified that he is a person of good moral character and that in their opinion he would make a good citizen of the United States. We find, therefore, that respondent has been a person of good moral character for the past 5 years.
Inquiry reveals that the Alien Enemy Unit has no record against the respondent.
Were respondent not deportable on one of the grounds set forth in section 19 (d) of the 1917 act, as amended, he would clearly be eligible for the privileges of voluntary departure and preexamination for which he applies. It has been decided, however, that the restriction in section 19 (d) shall not be a bar to authorizing the voluntary departure of an alien qualified for admission under the seventh proviso to section 3 of the Immigration Act of 1917 ( In re B---- (V-292720) [ see page 204, this vòlume]). Respondent satisfies the 7 years' residence requirement of the seventh proviso. The B---- case makes it clear that the rule may be applied whether the case first comes before us in preexamination or deportation proceedings.
This seems a proper case to grant relief. Respondent has lived in the United States since 1926. He has been self-supporting and has no criminal record, and all the evidence indicates that he is a person of good moral character. Respondent, an Italian, may not be permitted to enter Canada until after the war. We shall, therefore, not authorize preexamination at this time.
ORDER: It is directed that the order of September 15, 1941, be revoked, that an order of deportation not be entered at this time, and 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 following the issuance to him of an exit permit, or within 90 days following the date on which exit permits cease to be required in such cases, whichever shall come sooner, on consent of surety. Departure in accordance with the foregoing will be deemed sufficient to cancel the outstanding delivery bond.