V-292720
Decided by the Board March 27, 1942. Approved by the Attorney General August 5, 1942.
Seventh proviso to section 3, Immigration Act of 1917 — Voluntary departure — section 19 (c), Immigration Act of 1917, as amended.
If upon an alien's reapplication for admission the seventh proviso to section 3 of the Immigration Act of 1917 should be exercised in his favor in regard to a ground of inadmissibility, such as a conviction or admission of a crime involving moral turpitude, he may in a deportation proceeding be granted voluntary departure notwithstanding the provisions of section 19 (d) of the Immigration Act of 1917, as amended.
FOUND INADMISSIBLE BY BOARD OF SPECIAL INQUIRY:
Act of 1917 — Admits commission of crime involving moral turpitude — perjury.
BEFORE THE BOARD
STATEMENT OF THE CASE: Pursuant to authority contained in Central Office Circular Letter dated February 8, 1935 (file 55819/402), the applicant appeared before a board of special inquiry at Detroit, Mich., on October 24, 1940, for the purpose of having his admissibility determined were he to depart from the United States and reapply for admission in possession of an appropriate immigration visa. The board of special inquiry found that the applicant would be inadmissible to the United States though in possession of an immigration visa, under section 3 of the Immigration Act of February 5, 1917, because he admits the commission of a crime involving moral turpitude, to wit: perjury. From this action the alien appeals.
DISCUSSION: The appellant, a British subject, was born in London, England, March 31, 1905, of Irish parents. In the fall of 1927, when 22 years of age, he emigrated to Canada, arriving in Quebec on September 24, 1927. During the first week of October 1928 B---- entered the United States at Detroit, Mich., by representing that he wished to visit in that city. However, he at once proceeded to Philadelphia, Pa. On October 27, 1928, a few weeks after he entered this country he enlisted in the United States Army and served until June 12, 1939. Four army honorable discharges were exhibited to the board of special inquiry to substantiate this testimony.
During the time he was in the army and while on furlough B---- went to Canada for a visit of a week. When he attempted to reenter the United States at Detroit, Mich., he testified under oath at a board of special inquiry hearing that he was born in Detroit, Mich., and was a citizen of the United States. At the same time he also swore to a written statement claiming birth in Detroit, Mich. Notwithstanding his testimony, the board of special inquiry refused to recognize the appellant's claim to United States citizenship and excluded him as an immigrant without the required visa. About a week later appellant again sought admission at Detroit and this time was successful. The question of his birth was not then inquired into. It is clear, however, that the appellant was not admitted to the United States as an immigrant on the basis of an immigration visa. In explaining why he claimed United States citizenship when testifying before the board of special inquiry, B---- says he was fearful of being a deserter from the United States Army if denied admission to the United States.
The appellant admits that he committed perjury before the board of special inquiry. Clearly the false testimony he gave was on a matter material to his admissibility to the United States. Perjury is a crime that involves moral turpitude ( United States ex rel. Boraca v. Schlotfeldt, 109 F. 2d 106). It follows, therefore that the board of special inquiry in the preexamination hearing we are now considering was correct in finding that the appellant would be inadmissible to the United States because he has admitted committing a crime involving moral turpitude, to wit: perjury.
FINDINGS OF FACT: Upon the basis of all the evidence adduced at the hearing it is found:
(1) That the appellant is a native of England and subject of Great Britain;
(2) That the appellant knowingly testified falsely under oath before a board of special inquiry at Detroit, Mich., on September 12, 1933, that he was a native of Detroit, Mich., and citizen of the United States;
(3) That the appellant has admitted that in so testifying he committed perjury.
CONCLUSION OF LAW: On the basis of the foregoing findings of fact, it is concluded:
That under section 3 of the Immigration Act of February 5, 1917, the appellant is inadmissible to the United States as one who has admitted committing a crime involving moral turpitude, to wit: perjury.
DISCRETIONARY ACTION: On the basis of the foregoing findings and conclusions, B---- will be barred forever from legal, permanent residence in the United States, unless the discretionary power to admit contained in the seventh proviso of section 3 of the Act of February 5, 1917, may be exercised favorably in his behalf.
B---- is married to a native-born citizen of the United States. One child has been born of this marriage, now about a year and a half old. The appellant is gainfully employed by Parke Davis Co. in Detroit and is adequately supporting his family. The only mar on his record is the perjury committed in 1933. If there be power to admit, the facts in this case call for such action. The perjury committed by this man is not an offense so heinous as to require that he be separated from his American family after 13 years of otherwise unblemished residence in this country.
The issue then narrows to the question of whether relief is permissible under existing law. The seventh proviso of section 3 of the Immigration Act of February 5, 1917, is as follows:
Provided, further, That aliens returning after a temporary absence to an unrelinquished United States domicile of 7 consecutive years may be admitted in the discretion of the Attorney General, and under such conditions as he may prescribe.
If the appellant were now out of the United States and were applying for admission with a valid immigration visa to rejoin his family he could be admitted under this proviso. He would have had a domicile in the United States of more than 7 consecutive years and would be returning from a temporary absence abroad. The fact that the appellant had not previously been legally admitted for permanent residence would be immaterial (decision of Attorney General In re J---- H---- (56038/883) [ see page 166, this volume]. Prior to the Alien Registration Act of 1940, admission under the seventh proviso when in possession of the required immigration visa would be authorized and the alien allowed to depart from the United States voluntarily.
Now, a complication has arisen because of a provision of the Alien Registration Act of 1940 which amends section 19 of the Immigration Act of 1917. As amended (and so far as pertinent to this case) section 19 authorizes the Attorney General to permit an alien in the United States who is deportable under any law to depart from the United States in lieu of deportation if the alien proves good moral character for the past 5 years and is not deportable on any of the grounds set forth in subsection (d) of section 19. This subsection, in clause (4), lists as one of the classes of aliens who may not be permitted to leave the United States in lieu of deportation those deportable under "so much of subsection (a) [of sec. 19] as relates to criminals * * *." Within this group are aliens "who admit the commission prior to entry of a felony or other crime or misdemeanor involving moral turpitude."
To dispose of one preliminary issue: The appellant's good moral character for the past year is adequately established.
Because the perjury was committed prior to his last entry into the United States B---- is now subject to be taken into custody and deported under that part of section 19 (a) just quoted. This being so, a literal reading of the statute requires deportation and as a necessary and apparent corollary denies to the appellant consideration for readmission to the United States under the seventh proviso.
We, therefore, believe that a literal reading of the statute does not result in a correct application of these provisions of law. We must consider the problem in the light of a well-established administrative practice. Preexamination procedure originated in 1935 (file 55819/402). It was designed to aid aliens in the United States on other than a permanent resident status to qualify for legal admission. The hearing in preexamination paralleled that in admission cases. All discretionary action permissible in the case of an alien applicant for admission was exercised in preexamination. Prior to the Alien Registration Act of 1940 the seventh proviso was frequently utilized in preexamination cases. Often its utilization involved crimes of a less serious nature. This was well known to Congress (Hearings before the Subcommittee of the Committee on Appropriations, House of Representatives, 76th Congress, 3d Session, Part I, pages 212-228). If Congress had intended to abolish this well-established practice it could have done so easily by narrowing the cases eligible for relief under the proviso. This it did not do, and thus there is sound basis for the deduction that Congress intended the seventh proviso to be used in the future as it had been in the past and that Congress still believed that aliens who had been domiciled in the United States for as much as 7 years were entitled to consideration over and above those accorded other aliens.
If this be not the proper conclusion, capricious absurdities may result. In this case if the appellant had left the United States even without obtaining permission to do so, there would be no obstacle to utilizing the seventh proviso upon a subsequent application for admission. Section 19 (d), so far as it relates to this problem, is a prohibition against voluntary departure and nothing else.
Prior to the present war-time restrictions on the departure of aliens from the United States, any alien not under deportation proceedings who could gain entry to another country was free to go.
Again, a reentry after a short absence might make an alien deportable as a criminal based upon some minor offense committed in the United States prior to the reentry. Under the literal view, here the seventh proviso could not be exercised. But if the same alien remained in the United States from the date of his first entry, it would be permissible to invoke the proviso. The distinction is that in the first case the alien would be deportable on a ground stated in section 19 (d), although not in the latter. Thus, to a great extent, chance might be the factor determining substantive rights.
The two provisions may be reconciled in a reasonable and practical manner by holding that where an alien in preexamination has been found qualified for admission under the seventh proviso, the restriction in section 19 (d) shall not be a bar to authorizing his voluntary departure from the United States so that he may take advantage of the relief granted him. This view we adopt. It will make possible a correction of immigration status in many worthy cases, and in such instances will not require deportation with its concomitants of economic and social distress to many American citizens, members of the families of the deportees.
As we are primarily concerned with substantive rights and disabilities, not with form or procedure, we believe this reasoning equally applicable to cases of aliens who may first come before us as the result of the institution of deportation proceedings and but for section 19 (d) would be entitled to preexamination. Prior to the Alien Registration Act of 1940, the benefits of the seventh proviso were conferred in cases that had their origin in deportation proceedings as well as in those initiated by a request for preexamination. Basically, if in the latter cases approval may be given to voluntary departure notwithstanding deportability on a section 19 (d) ground, consonant action is permissible in the former.
Administrative action in cases of this character has not always been consistent with the view we have here adopted. We believe the matter is of such importance that our decision should be certified to the Attorney General for his review.
ORDER: It is ordered that if the alien applies for admission to the United States he be admitted under the seventh proviso to section 3 of the Immigration Act of 1917, solely with respect to the ground of exclusion arising from his admission of the commission of the crime of perjury in Detroit, Mich., on December 12, 1933.
The foregoing decision and order of the Board were certified to and approved by the Attorney General.