A-8949019.
Decided by Board December 16, 1955.
Crime involving moral turpitude — Admission of essential elements of — False statements — 18 U.S.C. 1001.
(1) An alien who testified that she made a false statement to an immigrant inspector on May 11, 1955, but refused to answer the question of whether she admitted violating the provisions of 18 U.S.C. 1001 has admitted the essential elements of a violation of that portion of 18 U.S.C. 1001 which relates to the making of any false, fictitious, or fraudulent statements or representations. However, the false statement made by the applicant did not constitute a crime involving moral turpitude.
(2) Only violations of 18 U.S.C. 1001 which contain an inherent fraud element are crimes involving moral turpitude. Matter of P----, V-324142, Int. Dec. No. 628 (1954), is modified accordingly.
EXCLUDED:
Act of 1952 — Admits essential elements of crime — Violation of 18 U.S.C. 1001.
BEFORE THE BOARD
Discussion: This case is before us on appeal from the decision of a special inquiry officer on August 16, 1955, excluding the appellant on the ground stated above.
The appellant is a 24-year-old female, native and citizen of Mexico, who was in possession of an unexpired immigrant visa and passport at the time of her application for admission. She entered the United States illegally in 1950 and was employed in this country until 1952 or 1953 when she returned to Mexico. On September 23, 1954, she secured a nonresident alien's border-crossing identification card. At the hearing she originally indicated that her purpose in securing the border-crossing card was to make purchases and to return to work in the United States, but she later testified that she did not obtain the border-crossing card in order to resume her employment in this country. Nevertheless, it appears that she returned to her previous employment here shortly after her entry.
The application for the border-crossing card contains a notation that on April 22, 1955, the appellant was "Reported working El Centro." The appellant was questioned by an immigrant inspector at the Calexico office of the Service on May 11, 1955, but no record of the examination was made except that the inspector made a notation on a card that he had placed the alien under oath and that she had denied working in the United States. At the exclusion hearing the appellant testified that on May 11, 1955, she had been asked whether she was working at El Centro and that she had then answered "No." She does not remember whether she was under oath on May 11, 1955. The special inquiry officer informed the appellant concerning the provisions of 18 U.S.C. 1001 but she refused to answer the question of whether she admitted violating this statutory provision. However, the special inquiry officer concluded that she had admitted committing acts which constitute the essential elements of the offense defined in 18 U.S.C. 1001 and that the offense involves moral turpitude.
Counsel contends that, even if there was a violation of 18 U.S.C. 1001, the offense does not involve moral turpitude. That statutory provision is as follows:
Statements or entries generally. Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.
In Matter of P----, V-324142, Int. Dec. No. 628 (1954), we previously considered 18 U.S.C. 1001 and concluded that moral turpitude was involved in that case because of the inherent fraud element. It is clear that, where fraud is an element of an offense, the crime involves moral turpitude ( Jordan v. DeGeorge, 341 U.S. 223 (1951)).
We stated in Matter of P----, supra, that fraud had been defined in United States v. United States Cartridge Co., 95 F. Supp. 384, 395 (E.D. Mo., 1950) as consisting of a misrepresentation of a material fact, made with knowledge of its falsity and with intent to deceive the other party, which representation must be believed and acted upon by the party deceived to his own damage.
Aff'd 198 F. (2d) 456, cert. den. 345 U.S. 910.
While that is an accepted definition of fraud, United States v. United States Cartridge Co. did not involve 18 U.S.C. 1001. It was a civil suit under the fraudulent claims statute (31 U.S.C. 231) which is derived from sections 3490 and 5438 of the Revised Statutes of 1878. R.S. 5438 was superseded by 18 U.S.C. 80 which, in the 1948 revision, was divided into two parts, 18 U.S.C. 287 and 1001. The former relates to false, fictitious, or fraudulent claims against the United States and the decision in United States v. United States Cartridge Co. has some applicability to it but not to offenses under 18 U.S.C. 1001.
In Matter of P----, supra, we referred to the decision in United States v. Buckley, 49 F. Supp. 993 (D.C., 1943), which involved an indictment under former 18 U.S.C. 80. The court granted a directed verdict in favor of the defendants because the prosecution had not proved a wrongful purpose on the part of the defendants. The court concluded that a wrongful purpose was an essential element of the offense because of the use of the words "knowingly and wilfully falsify or conceal." However, in Browder v. United States, 312 U.S. 335, 341 (1941), which involved the phrase "wilfully and knowingly" in another penal provision, the court said that these words could "be taken only as meaning `deliberately and with knowledge and not something which is merely careless or negligent or inadvertent'." In Walker v. United States, 192 F. (2d) 47, 49 (C.A. 10, 1951), where a three-count indictment charged violations of 18 U.S.C. 1001, the court said:
In some penal statutes, the word "wilful" connotes moral turpitude or evil of mind, but in others it means no more than that the interdicted act is done deliberately and with knowledge. We think that clearly is the sense in which the term is used in the statute under which the charges in the three counts of the indictment are laid.
In view of what we have said above, the decisions in United States v. United States Cartridge Co., supra, and United States v. Buckley, supra, do not require a conclusion that every violation of 18 U.S.C. 1001 necessarily involves the element of fraud and we must, therefore, examine the statute to determine whether the crime which the appellant is alleged to have committed involves moral turpitude. 18 U.S.C. 1001 includes three distinct offenses, namely: (1) the offense of falsifying, concealing, or covering up a material fact by any trick or scheme; or (2) the making of any false, fictitious, or fraudulent statements or representations; or (3) the making or use of "any false writing or document * * *."
In the appellant's case the first clause is inapplicable because no trick or scheme was utilized, and the third clause does not apply because no false writing or document was made or used. Hence, only the second clause is material to our consideration. That clause reads, "makes any false, fictitious or fraudulent statements or representations." The fact that the word "fraudulent" appears does not compel the conclusion that every offense under this clause would involve moral turpitude since the offense may have consisted only of a false and not a fraudulent statement. The definition of a crime must be taken at its minimum ( Matter of B----, A-1101248, 4 IN Dec. 493, 496 (1951); Matter of G---- R----, A-3561517, 5 IN Dec. 18, 20 (1953)). Our decision in Matter of P----, supra, was not intended as a definitive ruling that all violations of 18 U.S.C. 1001 necessarily involve moral turpitude, and any statements therein which might indicate such a conclusion are hereby modified accordingly.
It is clear that the appellant has not admitted that there was any fraudulent statement or representation. The full extent of her admission is that on May 11, 1955, she made a false statement that she was not employed in the United States when, in fact, she was so employed. The special inquiry officer's finding of fact (6) and conclusion of law (1) are also to the effect that the appellant admitted that she made a "false statement" to an immigration officer. Under 18 U.S.C. 1001 the false statement is not required to be under oath. We previously held in Matter of S----, A-5702971, 2 IN Dec. 353 (approved by Attorney General August 18, 1945), that moral turpitude was not involved in a conviction under section 36 (c) of the Alien Registration Act of 1940 for knowingly making false statements in the application for registration although such statements had been made under oath. This view was similar to the conclusion reached by the Attorney General on January 16, 1941, in Matter of C----, 56048/346, 1 IN Dec. 14. We conclude, therefore, that the false statement made by the appellant did not constitute a crime involving moral turpitude. Accordingly, the appellant is not inadmissible under section 212 (a) (9) of the Immigration and Nationality Act and her appeal will be sustained.
Order: It is ordered that the appeal be sustained and that the appellant be admitted for permanent residence.