A-6450477
Decided by Board December 13, 1949
Perjury — When offense completed — Correction of misstatement, voluntarily and timely.
An alien, in an immigration proceeding, who testifies falsely under oath as to a material fact, but who voluntarily and without prior exposure of his false testimony, comes forward and corrects his testimony, has not committeed the offense of perjury, under the circumstance in this case.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — No immigration visa.
Act of 1917 — Admits crime prior to entry, to wit: Perjury.
BEFORE THE BOARD
Discussion: Appellant is a native and citizen of Mexico, age 23. He seeks entry to the United States for permanent residence. He was excluded from admission to this country at San Ysidro, Calif., on May 6, 1948, by a Board of Special Inquiry on the grounds set forth above. The Assistant Commissioner affirmed the finding of the Board of Special Inquiry. His appeal to this Board followed.
Appellant applied for an immigration visa at the American consulate, Tijuana, Mexico, and was rejected by reason of his exclusion by the Service because of perjury. The record covering his prior exclusion is incorporated in the present record.
Appellant was born in Mexico, November 1, 1924, and was brought to the United States during approximately 1926. He resided here until 1931, when he returned to Mexico with his parents. He returned to the United States in November 1943, being admitted as an agricultural laborer, remaining until June of 1945. On October 30, 1945, he attempted to reenter the United States as a citizen, representing that he was born in this country. The alleged misrepresentations he made to the primary inspector at that time constitute the basis of the present perjury ground of exclusion. He was not admitted by said primary inspector but was held for a Board of Special Inquiry. On the following morning, namely, October 31, 1945, he appeared before a Board of Special Inquiry and before being placed under oath, he admitted the false statements of the previous day. His exclusion in 1945 was based solely on documentary grounds. It appears that he was convicted on his plea of guilty to a violation of section 220 (b), United States Code Annotated, on the basis of the misrepresentations in question.
On November 1, 1946, appellant was again excluded by a Board of Special Inquiry at San Ysidro, Calif., on documentary grounds, and as one who admitted the commission of perjury, namely, the statement he made before the primary inspector on October 30, 1945, as to his citizenship. The Commissioner affirmed such exclusion, as did the Board pro forma on December 9, 1946.
The Commissioner's affirmance stated, in part:
* * * He states that when he departed to Mexico on June 30, 1945, he wanted to come back to the United States to work; and that he took the birth certificate of his brother, L---- R---- R----, who was born in Grand Prairie, Tex., on June 16, 1923, and changed the date of his birth on the certificate to show the date of his birth. He further states that he applied for admission at Calexico, Calif., on October 30, 1945, by using the name of his brother and presenting his brother's birth certificate and representing that he was the person whose name appeared on such certificate. He admits that in connection with his application for admission on October 30, 1945, he falsely gave facts under oath, relative to his name, time, and place of birth and residence in the United States. He admits making the false statements, the falsity thereof, and admits the commission of perjury. The record shows that he was excluded by a Board of Special Inquiry on October 31, 1945, and did not appeal from the decision.
The Service continued:
A de novo examination of the merits of this case lead to the conclusion that the appellant was properly excluded under the Immigration Act of February 5, 1917, in that he admits the commission of a crime involving moral turpitude prior to entry, to wit: Perjury. There can be no question at this time that the statements made by the appellant under oath were material, or that he knew them to be false, or that he admitted that they were false, or that after being advised of the definition of the crime of perjury, he admitted its commission. In United States v. Norris, 300 U.S. 564 (1937), Mr. Justice Roberts stated for the Supreme Court:
"Perjury is an obstruction of justice; its perpetration well may affect the dearest concerns of the parties before a tribunal. Deliberate material falsification under oath constitutes the crime of perjury and the crime is complete when a witness' statement has once been made. It is argued that to allow retraction of perjured testimony promotes the discovery of truth, and if made before the proceeding is concluded, can do no harm to the parties. The argument overlooks the tendency of such a view to encourage false swearing in the belief that if the falsity be not discovered before the end of the hearing, it will have its intended effect, but, if discovered, the witness may purge himself of a crime by resuming his role as a witness and substituting the truth for his previous falsehood. It ignores the fact that the oath administered to the witness calls on him freely to disclose the truth in the first instance and not to put the court and the parties to the disadvantage, hinderance, and delay of ultimately extracting the truth by cross-examination, by extraneous investigation, or other collateral means.
"* * * The plain words of the statute and the public policy which called for its enactment alike demand we should hold that the telling of a deliberate lie by a witness completes the crime defined by law. This is not to say that the corrections of an innocent mistake, or the elaboration of an incomplete answer, may not demonstrate that there was not wilfull intent to swear falsely."
Here there was no "innocent mistake" or "incomplete answer" to be elaborated, and the case, therefore, cannot fall within the saving clause of the last paragraph above. Nor can it fall within the qualifications which have been established by the Board of Immigration Appeals in Matter of S----, 56113/807 (1944); Matter of R----, 56172/721 (1945); or more recently, Matter of M---- P----, A-6908837 (July 7, 1948), for his testimony clearly indicates that the reason that he has admitted the falsity of his statements was that he thought that his ruse had been detected. Thus at page 4 of the hearing of November 1, 1946:
Q. What was your object in falsely claiming to be L---- or L---- R---- R---- at Calexico, Calif., on October 30, 1945?
A. Because I had not papers to get into the United States to live and to work again, so I took the birth certificate of my youngest brother, L----, and changed the birthdate from 1929 to 1925, so that it would be more nearly my own age, and presented it and applied for admission. I thought that I could get by on that certificate but I was caught when the inspector noticed the birth date had been changed on the certificate.
We are unable to accept the conclusion of the Service, nor do the authorities cited support the reasoning and conclusion adopted.
Perjury at common law is defined as "the wilfull giving, under oath, in a judicial proceeding or court of justice, of false testimony, material to the issue or point of inquiry" (Bishop Criminal Law, 9th Ed., sec. 1015, see also Corpus Juris 820; and B.C.L. 254). It has been extended by Federal statute and by statutes of many States to include false swearing not connected with judicial proceedings (U.S. Criminal Code, sec. 125, U.S.C., title 18, sec. 231; Clark Marshall, Law of Crimes, 2d Ed., p. 653; 21 B.C.L. 255-256; 48 Corpus Juris 820-1). The charge in the present proceedings, of course, rests on the applicability of sections 16 and 17, Immigration Act of 1917.
Section 17 of the Immigration Act of 1917 provides that Boards of Special Inquiry "shall have authority to determine whether an alien who has been duly held shall be allowed to land or shall be deported."
Section 16 of said act, which deals with the primary inspection of arriving aliens, provides for the taking of evidence under oath "touching the right of any alien to enter, reenter, pass through, or reside in the United States, * * *." This section further provides that any person under oath —
who shall knowingly or wilfully give false evidence or swear to any false statement in any way affecting or in relation to the right of any alien to admission or readmission to, or to pass through, or to reside in the United States, shall be deemed guilty of perjury and be punished as provided by section 125 of the Criminal Code ( 18 U.S.C.A., sec. 231). All aliens coming to the United States shall be required to state under oath the purpose for which they come, the length of time they intend to remain in the United States, whether or not they intend to abide in the United States permanently and become citizens thereof, and such other items of information regarding themselves as will aid the immigration officials in determining whether they belong to any of the excluded classes enumerated in section three thereof.
Thus, the inquiring body is entitled to have before it all necessary facts to properly pass upon the question of admissibility. All pertinent, relevant, and competent testimony becomes material. And the testimony must not be such as to influence, impede, or dissuade the inquiry body on the issue before it. Matter of W----, 56158/385 (Nov. 4, 1944) and cases cited therein.
Hence, to find the perjury charge supported herein, it must meet the test in all its essential elements, that is, the false statement(s) must be material, under oath and the offense must be otherwise complete ( Howes v. Toz( i) er, 3 F. (2d) 849; Matters of B----, 7513193 (1947); T----, 5301016 (1947); S---- M----, 6105583, (1946); G----, 56041/599 (1942); K----, 56073/783 (1942); V----, 56154/764 (1943); R----, 56030/974 (1941)).
The appellant's case does not show all the essential requirements to constitute perjury. When applying for admission to the United States on October 30, 1945, he claimed to be a citizen of the United States and exhibited a birth certificate of a younger brother, the dates on the certificate having been altered. He executed a certificate before the inspector alleging he was his brother and a citizen by birth in the United States. Right after executing this affidavit appellant admitted to the primary inspector that he had lied. On page 8 of the Board of Special Inquiry hearing of October 31, 1945, the following appears:
Q. How did the inspector who examined you yesterday learn that you had lied to him?
A. He asked me for identification and I showed him the papers that you have entered in the record as exhibits. They were all in my wallet. After he saw these papers, he asked if I had told him any lies and I admitted that I had. I admit that I have done something wrong but my intentions are good. I want to come here and be a citizen. I wanted to go to the consul as suggested by my mother-in-law but I couldn't see him. Then I tried to get into the United States this way.
At the Board of Special Inquiry hearing the appellant told the truth at all times. Reading the question and answer quoted above, it would appear that the appellant voluntarily and without knowledge coming to the inspector through other means admitted the falsity of his prior assertion of birth in the United States. The Service pointed to the fact that appellant is not entitled to plead reasonable retraction because of testimony given by appellant at a Board of Special Inquiry on November 1, 1946. There appellant testified that the inspector noted that the birth date on the certificate of birth presented in the 1945 hearing had been altered, and, as a consequence, the appellant admitted the falseness of his claim. It would seem, then, that the issue becomes rather close.
However, we feel that the hearing accorded appellant in 1945, at the time the false swearing occurred, might well be accepted as representing what transpired at that time, and according to the 1945 hearing, the retraction of the false swearing by appellant was purely voluntary. Even in connection with the testimony at the hearing on November 1, 1946, we have no evidence that the primary inspector had, in fact, detected a fraud. It is noted that the Board of Special Inquiry in 1945 did not see fit to charge appellant with the admission of the commission of perjury.
We have held that where an alien, in an immigration proceeding, testifies falsely under oath as to a material fact, but voluntarily and without prior exposure of his false testimony, comes forward and corrects his testimony, perjury has not been committed. This ruling follows that in the Matter of W----, 56107/923 (1942). In the Norris case he attempted to correct his testimony only after the falsity of his statements was exposed through the testimony of a Government witness. We are inclined to hold that the testimony in the case now before us falls squarely within the purview of previous holdings cited by the Service. It seems clear to us that appellant voluntarily and prior to the exposure of the attempted fraud, corrected any statements or impression he may have given the primary inspector with respect to his place of birth and the birth certificate ( Matter of G----, 6591236 (Apr. 10, 1947)). Applying these holdings to this case, we conclude that the offense of perjury, not being completed, appellant is not inadmissible as one who admits the commission thereof.
Order: It is ordered that the appeal be dismissed and the excluding decision affirmed solely with respect to the ground that the alien is not in possession of an immigration visa.