A-6877582
Decided by Board November 14, 1956
Crime involving moral turpitude — 18 U.S.C. 1542, willfully and knowingly making false statements in an application for a passport.
(1) As fraud and materiality are essential elements of the crime defined by 18 U.S.C. 1542 (willfully and knowingly making false statements in an application for a passport), conviction thereof involves moral turpitude.
Upheld by the U.S. District Court for the District of Hawaii in Bisaillon v. Hogan, Civil No. 1522, June 7, 1957; affirmed Bisaillon v. Hogan, Civil No. 15,749, U.S.C.A., C.A. 9, July 1, 1958.
(2) It is immaterial what charges the prosecuting authorities choose to proceed on so long as the conviction actually obtained is for a crime which meets the tests of moral turpitude.
CHARGES:
Warrant: Act of 1952 — Section 241 (a) (4) ( 8 U.S.C. 1251 (a) (4)) — Convicted of a crime involving moral turpitude committed within 5 years after entry and sentenced to confinement therefor in a prison or corrective institution for a year or more, to wit: violation of 18 U.S.C. 1542 in willfully and knowingly making a false statement in an application for a passport for the use of another, and violation of 18 U.S.C. 911.
Act of 1952 — Section 241 (a) (4) ( 8 U.S.C. 1251 (a) (4)) — At any time after entry has been convicted of 2 crimes involving moral turpitude not arising out of a single scheme of criminal misconduct, to wit: violation of 18 U.S.C. 1542 in willfully and knowingly making a false statement in an application for a passport for her own use, and violation of 18 U.S.C. 911.
Lodged: Act of 1952 — Section 241 (a) (4) ( 8 U.S.C. 1251 (a) (4)) — Convicted of a crime involving moral turpitude committed within 5 years after entry and sentenced to confinement therefor in a prison or corrective institution for a year or more, to wit: violation of 18 U.S.C. 1542 in willfully and knowingly making a false statement in an application for a passport for the use of another.
Act of 1952 — Section 241 (a) (4) ( 8 U.S.C. 1251 (a) (4)) — At any time after entry has been convicted of 2 crimes involving moral turpitude not arising out of a single scheme of criminal misconduct, to wit: violation of 18 U.S.C. 1542 in willfully and knowingly making a false statement in an application for a passport for the use of another, and violation of 18 U.S.C. 1542 in willfully and knowingly making a false statement in an application for a passport for her own use.
BEFORE THE BOARD
Discussion: This case is before us on appeal from a special inquiry officer's order of April 27, 1956, directing the respondent's deportation from the United States in the manner provided by law on the lodged charges only.
The record relates to a 36-year-old female alien, a native and citizen of Canada, who was lawfully admitted to the United States for permanent residence at St. Albans, Vermont, on December 8, 1947. She last entered the United States at San Juan, Puerto Rico, on August 30, 1950. She was then admitted as a lawfully returning resident alien upon presentation of a valid reentry permit.
The respondent's deportability is predicated on two convictions for making false statements in passport applications. The statute involved in each instance is the "Passport Act," 18 U.S.C. 1542. Both convictions were obtained in the United States District Court for the District of Hawaii, as follows:
(a) On October 26, 1955, with sentence of 18 months' confinement, for falsely stating, on or about August 16, 1954, in the passport application of F---- P----, that she was not related to the applicant and that she knew the applicant to be a United States citizen. (b) On December 29, 1955, with fine of $1,000, for falsely stating on or about January 16, 1953, in her own passport application, that she was born in Laurin, Montana, on October 10, 1919.
The language of the charges on which she was convicted conforms to the definition of the statute, 18 U.S.C. 1542, which provides:
Whoever willfully and knowingly makes any false statement in an application for passport with intent to induce or secure the issuance of a passport under the authority of the United States, either for his own use or the use of another, contrary to the laws regulating the issuance of passports or the rules prescribed pursuant to such laws; or
Whoever willfully and knowingly uses or attempts to use, or furnishes to another for use any passport the issue of which was secured in any way by reason of any false statement —
Shall be fined not more than $2,000 or imprisoned not more than five years, or both. June 25, 1948, c. 645, 62 Stat. 771.
This section is an almost verbatim reenactment of 22 U.S.C. 220, 1940 ed., on which it is based, and we have held that a violation of said former section did involve moral turpitude (unreported Matter of S----, A-5870125, October 22, 1946), using this language:
Section 213, Title 22 of the United States Code, requires that the passport application be under oath. It, therefore, follows that a prosecution under section 220 would fail in the absence of proof that an oath was properly administered. Materiality is not specifically mentioned in the statute and it might be contended that it is not an ingredient of the offense. However, to obtain a conviction, the Government must establish that the false statement was made for the purpose of inducing or securing the issuance of the passport. In other words the applicant must knowingly make a false statement with the specific intent that the false statement should be acted upon by the Government. Fraud, therefore, must be used in connection with the inducing or the securing of the issuance of the passport. In that sense the false statement must be material. Because of this element in the statute, we hold that it involves moral turpitude. Unreported Matter of H----, 595028 (Feb. 16, 1945); see also 37 Op. A.G. 296.
(NOTE. — Present 22 U.S.C. 213 contains the same "oath" requirement as did its predecessor section of the same number.)
There is no significance in the fact, as urged by counsel, that the "oath" requirement appears in 22 U.S.C. 213 rather than in 18 U.S.C. 1542 itself. The fact remains that the execution of the application under oath is required as a matter of law. Hence, no matter what its location in the statutory body, this requirement must be given its legal effect. Such effect is to constitute the crime one of inherent baseness independently of the statute ( Kaneda v. United States, 278 Fed. 694, 699). Actually, however, it is the fact that fraud and materiality are elements essential to the establishment of the crime which forms the foundation for our decision.
The case of United States v. Shoso Nii, 96 F. Supp. 971, app. dism. 342 U.S. 912, does not hold that fraud is not an essential element of the crime, as counsel contends. The limited question before the court there was whether a violation of former 22 U.S.C. 220 involved fraud within the meaning of the "Wartime Suspension of Limitations" statute, 18 U.S.C. 3287, which tolled the statute of limitations in cases involving fraud or attempted fraud against the United States. That said question differs substantially from the issue before us here is made abundantly clear in a decision of the United States Supreme Court in the leading case on the point, Bridges v. United States, 346 U.S. 209 (1953). That case held that the "Wartime Suspension of Limitations" statute only applied where the United States was defrauded in a pecuniary manner. Obviously, there are many types of fraud other than those of a pecuniary nature. We have one such type here.
As a matter of fact, the Supreme Court has clearly indicated that fraud is an essential element of the crime here under consideration. In the case of Browder v. United States, 312 U.S. 335, it affirmed the petitioner's conviction for having used a passport obtained on the basis of a false statement that he had had no previous passport. The court therein said (p. 337):
* * * The crimes denounced (former 22 U.S.C. 220) are not the securing or the use but either of such actions made criminal only by the false statements in the procurement of the passport. If the misrepresentation is withdrawn nothing culpable remains in the use. A condemned use of a passport secured by the fraud seems obviously within the act. [Emphasis supplied.]
The court also said (p. 342):
* * * Once the basic wrong under this passport statute is completed, that is the securing of a passport by a false statement, any intentional use of that passport in travel is punishable.
In view of the foregoing language of the court, we disagree with counsel's interpretation that the following statement of the court (pp. 340, 341) compels the conclusion that fraud is not an essential element of the crime:
* * * But the statute plainly does not purport to punish fraudulent or dishonest use other than such as is involved in the use of a passport dishonestly obtained. None of its words suggest that fraudulent use is an element of the crime. * * *
Counsel has also advanced the argument that materiality is not an essential element of this crime, but he has furnished no pertinent authority in support thereof. He has cited the S---- case ( Matter of S----, A-5702971, 2 IN Dec. 353), involving the making of a false statement in an application for registration as an alien in violation of section 36 (c) of the Alien Registration Act of 1940 (8 U.S.C. 457, 1940 ed.), but there is a clear distinction between the two cases. In the S---- case false statements as to matters not material could have supported the conviction (p. 361) whereas here materiality is essential, for the reasons set forth in our 1946 opinion, ante. Our holding on the point is supported by the judicial decision in the case of Duncan v. United States ( 68 F. (2d) 136, cert. den. 292 U.S. 646), wherein the court held that the evidence supported the alien's conviction under former 22 U.S.C. 220 for falsely stating in his passport application that he was a United States citizen. In paragraph [12] of its opinion (p. 143) the court stated:
With reference to the first count charging the defendant with making false statements in his application for passport, the allegation and proof that he stated that he was born in Camden, N.J., on April 23, 1904, coupled with the proof that the records of Camden, N.J., showed no birth of the appellant other than by the false record caused to be inserted therein by the appellant, was sufficient proof of the falsity of a material statement. [Emphasis supplied.]
Finally, on this point, it is immaterial that the Department of State may recommend prosecution in cases involving false statements which are not material, as counsel suggests. The important thing is that the cases which have been prosecuted to conviction support our holding that materiality of the false statement is an essential element of the crime.
We note that counsel has cited the Duncan case as holding that the crime of making a false statement in the passport application ( 18 U.S.C. 1542) requires less than the crime of making a false representation of United States citizenship ( 18 U.S.C. 911), which latter statute we have held does not involve moral turpitude. It may well be that the case does stand for such a proposition as the courts can properly decide many points in the disposition of one case, but we fail to see the validity of the argument and we need not pass upon the point. Our only concern here is whether the crime of which the respondent stands convicted necessarily and inherently embraces the elements of moral turpitude, and we have found that it does. It is neither necessary nor proper for us to make a comparison between this and other crimes which may be of a somewhat similar nature, such as false swearing in an alien registration application and the false claim of citizenship, as counsel urges. Nor need we concern ourselves with other crimes, e.g., perjury and false swearing, of which the respondent might have been convicted on the basis of the same conduct, as counsel suggests. It is immaterial in this administrative proceeding what charges the prosecuting authorities chose to proceed to conviction on so long as the conviction actually obtained is for a crime which meets the tests of moral turpitude. The one before us does and that ends our inquiry.
On the basis of the foregoing, we concur in the conclusion of the special inquiry officer that the respondent is deportable on the charges lodged at the hearing. But there remains for our consideration the question of whether the respondent was the victim of an unfair hearing. We find that she was not.
The respondent originally retained the services of an attorney who was unable to represent her in the hearing because of his connection with the case while an employee of the Service. Twenty days prior to the hearing she was informed that said attorney would be unable to represent her, but she appeared unrepresented and apparently insisted on her original choice of attorney. She was then offered an opportunity to obtain other counsel, but she finally decided to proceed unrepresented and the hearing was commenced but was subsequently continued. When the hearing was resumed 4 days later, the respondent was again unrepresented, apparently still insisting on original counsel. When she offered no satisfactory explanation for her failure to retain another attorney, the hearing was followed to a conclusion, but we note that she was permitted to contact the original attorney telephonically during the course of the resumed hearing.
Despite the foregoing, it is counsel's contention that we should remand the case for a hearing wherein the respondent will be represented by counsel. The claim is that we should do so as a matter of orderly procedure and to preserve the principal of representation. The case of Handlovits v. Adcock, 80 F. Supp. 425, is cited as requiring such action. We, however, disagree.
We find that the hearing was eminently fair in all respects. The record establishes that she was appropriately informed of her right to representation; that she was given every reasonable opportunity to be represented by eligible counsel; that her refusal to retain same was utterly unjustified; and that she was fully cognizant of that right at the time her eventual waiver was made. In addition, counsel is insisting on a theoretical rule which, concededly, cannot conceivably affect the issue in the case. Moreover, the Handlovits case is not controlling here because it is clearly distinguishable on the facts. That case involved an alien who was advised of her right to representation in a purely perfunctory manner and there was evidence establishing that she did not understand her rights and, in fact, that she insisted on greater rights than she actually had. It is also obvious from the record that her right to pursue possibly additional available remedies is adequately protected.
Order: It is ordered that the appeal be dismissed.