A-5124278
Decided by Central Office, June 6, 1949 Decided by Board, January 9, 1950 Decided by Board, February 7, 1950
Perjury — Admission of the commission thereof, prior to entry — Effectiveness of admission where there has been a judicial adjudication of the cause resulting in the dismissal of criminal proceedings — Deferral of deportaton to permit application for naturalization in case of an honorably discharged veteran who failed to naturalize while serving in the armed forces of the United States
1. An alien was indicted on three counts in a Federal court in December 1948 (1) for false representation of citizenship (8 U.S.C. 746 (a) (18); (2) for illegal use of a United States passport (22 U.S.C. 220); and (3) for perjury before United States vice consul in 1948, for the purpose of facilitating the entry into the United States of his wife and stepson. Where he pleaded guilty to the first count and the other two counts were dismissed, his admission of the commission of perjury in expulsion proceedings ( a) before the vice consul in 1948 and ( b) when he applied for a United States passport here in 1947 is not deemed effective, so as to constitute criminal grounds for deportation i.e., as one who admits the commission of perjury, a crime involving moral turpitude, prior to his last entry in 1948, where there is no showing the court's action was based on purely technical grounds.
2. Where there has been a judicial adjudication of the cause (perjury) before the court in criminal proceedings, resulting in the dismissal of the proceedings, the alien should not be held bound by an independent admission of the commission of the crime (perjury) unless the court's action is based on purely technical grounds, such as the running of the statute of limitations or an acquittal obtained on the basis of perjured testimony.
3. Where the court, aware of all the facts, recommends against deportation in the above situation, and shows an intention to release the respondent from deportation notwithstanding the offenses committed by him as part and parcel of the same pattern, such intention by the court will not be canceled by indirection by finding the alien deportable as to the admission of the offense of perjury in connection with his application for a United States passport in 1947. Although he was not indicted for this specific offense, the court was fully aware of his indictability as to such perjury before a grand jury having jurisdiction (Cincinnati) from the factual situation before the court in count 2, i.e., the illegal use of a United States passport. (See Interim Decision No. 234.)
CHARGES:
Warrant: Act of 1924 — No immigration visa.
Act of 1918 — No passport.
Act of 1917 — Entered by means of false and misleading statements.
Act of 1917 — Admits crime prior to entry, to wit — Perjury.
Lodged: Act of 1917 — Admits crime prior to entry, to wit — Perjury (count 2).
BEFORE THE CENTRAL OFFICE
Discussion: This record relates to a native and citizen of China, age 51, who last entered the United States on October 5, 1948, at which time he claimed to be a United States citizen. He was admitted upon presenting a United States passport. He had previously made three entries into the United States; the first time in 1912 at San Francisco as a student; the second time in 1925 at Seattle as a student (with a nonquota immigration visa); the third time in 1929 at Seattle with a reentry permit.
On December 29, 1948, the respondent was indicted on three counts in the Southern Division of the United States District Court for the Northern District of California. The first count was predicated on a violation of 8 U.S.C. 746 (a) (18) and charged that the defendant:
* * * On or about October 5, 1948, in the City and County of San Francisco, State and Northern District of California, and within the jurisdiction of this court, in connection with his application for admission into the United States of America at the port of San Francisco, California, did knowingly and falsely represent himself to be a citizen of the United States, without having been naturalized or admitted to citizenship, or without being a citizen of the United States.
The second count was predicated on a violation of 22 U.S.C. 220 and charged that:
The said defendant did, on or about October 5, 1948, in the City and County of San Francisco, State and Northern District of California, and within the jurisdiction of this Court, willfully and knowingly use United States passport No. 19702, issued in the name of G---- C----, said passport having been issued by reason of a false statement which he then and there well knew to have been issued by reason of a false statement in that the said defendant knew that the said passport was issued pursuant to a passport application executed by the said defendant at Cincinnati, Ohio, on February 5, 1947, and that the said defendant stated in the said passport application that he was born in San Francisco, California, whereas in truth and fact, as he then and there well knew, the said defendant was not born in San Francisco, California, but was born in the Republic of China.
The third count was predicated on a violation of 18 U.S.C. 231 and charged that:
The said defendant did on or about July 9, 1948, at the United States consulate in the city of Canton, Republic of China, after being duly sworn by William B. Dunn, consular officer of the United States, to wit, a vice consul of the United States, authorized by law to administer oaths in the performance of his duties, unlawfully, knowingly, wilfully and corruptly state under oath for the purpose of facilitating the entry into the United States of L---- M---- Y----, wife of said defendant and L---- Y---- S----, stepson of said defendant, that said defendant was born in San Francisco, California, whereas in truth and fact as he then and there well knew, he was not born in San Francisco, California, but in truth and fact was born in the Republic of China.
On January 21, 1949, the respondent pleaded guilty to the first charge in the indictment, was fined $500, and was placed on probation for 2 years. Counts two and three of the indictment were dismissed.
After being furnished with the definition of perjury the respondent admitted that he committed this crime when he falsely stated under oath in his application for an American passport before the deputy clerk, United States District Court, Cincinnati, Ohio, on February 5, 1947, among other things, that he was born in San Francisco on January 7, 1903; that he had not resided outside of the United States; and that he was a citizen of the United States. He also admitted that he committed perjury when he made an affidavit on July 9, 1948, before the American vice consul William B. Dunn at Canton, China, setting forth that he was a citizen of the United States, having been born in San Francisco.
Counsel is of the opinion that no order of deportation can be entered against the respondent on the ground of admission of the commission of a crime. He states:
All of the respondent's conduct was subjected to full inquiry by the prosecutive authorities of our Government, and the judicial action taken against him constitutes a full definition of any criminal offense with which appellant may be charged. There is no jurisdiction, administratively, to go outside of such judicial action in an endeavor to spell out other crimes. This would especially cover any alleged Federal offense committed abroad, since the place for prosecution would be the place into which the defendant was first brought into the United States, or the place where he was found ( 28 U.S.C. 102); in this instance jurisdiction would lie solely in the Northern District of California. Hence, the grand jury in that district which considered the charges against C---- had sole authority to indict him for any and all offenses which he may have committed, and did indict him, as above mentioned, all charges being dismissed except the false claim of citizenship. This, of course, does not involve moral turpitude. Hence, the effort to examine the facts and determine anew the question of any criminal offense committed by the respondent is error, as a matter of law ( Matter of G----, 55917/390; Matter of H----, 55944/933).
The only possible exception might be the question of any offense committed by C---- at Cincinnati, in connection with his passport application. Even this would seem to be covered by the fact that he was indicted for violation of 22 U.S.C. 220, the passport fraud statute, and that charge was dismissed by the District Court at San Francisco. However, even if it be considered that the respondent could make any satisfactory admission relative to his conduct at Cincinnati, the record in his case (R. 16) shows that he did not make an unqualified admission, since the effect of his statement that he did not know the meaning of perjury, what "perjury" was, at the time of commission of the act is to say that he had no criminal intent; and his subsequent enforced education as to the crime of perjury hardly fills the gap. The admission not being absolutely unqualified, can avail nothing ( Matter of J----, 56038/559, Howes v. Tozer, 3 F (2d) 849).
Of course, the recommendation of the district judge in proper time prevents deportation for the crime of which he was convicted; and it might be stated that that court might find difficulty in understanding how the appellant could be deported for other conduct arising out of all of the circumstances, of which the court was fully aware, and which had been foreclosed by the action of the grand jury and the dismissal of all offenses except for the one as to which respondent interposed the plea of guilty.
This Service has recently passed on a similar contention made by counsel in Matter of C---- H---- T----, A-6813481, November 24, 1948, and we found that the independent admissions of the crime of perjury could be sustained in a situation of this kind. There is no necessity for repeating what we said in that case because counsel was furnished a copy of that opinion. Although the perjury charge was not sustained in Matter of C---- H---- T---- when it came before the Board of Immigration Appeals, that was because the alien was not furnished an adequate definition of the crime. In the instant case, before obtaining the respondent's admission, the crime of perjury was properly defined for him.
Merely because the respondent did not know the meaning of perjury at the time of the commission of the act does not negative the factor of criminal intent. "The idea of criminal intent * * * usually partakes of deliberateness, knowledge, object, and the like; the absence is often indicated by the idea of mistake, good faith, reasonable belief, and the like" (Wigmore On Evidence, sec. 242). Here, the respondent knowingly and wilfully performed acts which constituted a criminal offense, and his ignorance is no excuse. Matter of J----, supra, and Howes v. Tozer, supra, have no application to the case.
Attached to counsel's brief is a recommendation against deportation executed by the presiding judge because of the respondent's conviction of violating 18 U.S.C. 911 (formerly 8 U.S.C. 746 (a) (18)). This recommendation has not been made part of the record. However, this recommendation covers only the count upon which the alien was convicted. What its effect would be if the alien had been convicted of the other two counts and the recommendation extended to cover them need not be considered, since it is purely conjectural whether the judge would have made such a recommendation if the alien had been convicted of the other counts. Accordingly, since such recommendation will not affect the criminal grounds of deportation, the record will not be reopened in order that it might be introduced into the hearing.
It is found that all of the charges in the warrant of arrest and the charge lodged at the hearing are sustained.
In concluding his brief, counsel has requested that the respondent's deportation be deferred to permit him an opportunity to petition for naturalization; and that action in the cases of his wife and child, be held in abeyance pending the outcome of the naturalization proceedings. In connection therewith he states that the respondent is decidedly not of the criminal class, that the multiplication of offenses because of his false claim of citizenship which began in connection with his Selective Service and Army records, in no sense makes him a recidivist, since he has been in this country continuously since 1912 without once before getting into any trouble; that the judicial department of our Government has meted out what it considered an adequate penalty for the false claim of citizenship; and that this basically decent and honest man, who served this country to the best of his ability during the war, should not be further punished by the extreme penalty of deportation or separation from his family since such decision would violate every humanitarian principle.
The respondent is an honorably discharged veteran. He served in the United States Army from August 31, 1942 until March 29, 1943, when he was discharged by reason of convenience of the Government. His wife and stepchild applied for admission uned Public Law 271, but were excluded when it was ascertained that the husband/stepfather was not a citizen of the United States. Their appeals are presently pending before the Service.
Counsel cited the cases of W---- B---- W----, A-6755973, and C---- S---- H---- and wife, L---- S---- Y----, A-6846154 and A-4799866 as precedents for taking favorable action in the instant case. In the W---- B---- W---- case no fraud was involved in the husband's claim of United States citizenship. In the case of C---- S---- H---- and his wife, L---- S---- Y----, a private bill was introduced in behalf of the male alien who was serving a prison sentence and this Service directed that his deportation be deferred until such time as he was released from imprisonment or until April 1949, which ever occurred later. His wife's parole was extended for the same period of time. Accordingly, those cases can hardly be considered as precedents for any action to be taken here. Irrespective of those decisions, however, the respondent in the instant case deliberately and fraudulenty violated the immigration laws and attempted to do so in the cases of his wife and stepchild. To give favorable consideration to cunsel's request would in effect, be aiding and abetting this attempted violation of the immigration laws. Furthermore, it is to be noted, that even if he were able to become a citizen, his wife would no longer be admissible under Public Law 271 since that law has expired. His stepchild was never admissible without documents. Counsel's request should be denied.
Recommendation: It is recommended that the alien be deported to China at Government expense on the charges stated in the warrant of arrest and on the following additional charge:
The act of February 5, 1917, in that he admits having committed a felony or other crime or misdemeanor involving moral turpitude prior to entry into the United States, to wit: Perjury (count 2).It is further recommended that counsel's request that the alien's deportation be deferred to afford him an opportunity to petition for naturalization be denied.
So ordered.
Discussion: This record is before us on appeal from an order entered by the Assistant Commissioner on June 6, 1949, directing the respondent's deportation to China on the charges stated above. Counsel's plea that the respondent's deportation be deferred to afford him an opportunity to petition for naturalization was denied. Counsel excepts to the foregoing order of the Assistant Commissioner on the ground that there has been no admission of a criminal offense by the respondent as a matter of law. Counsel, insofar as the documentary charges are concerned, urges that the respondent's deportation be held in abeyance to permit him to file for naturalization under the provisions of 8 U.S.C. 724 (a).
The respondent, a native and citizen of China, male, 51 years of age, last entered the United States at the port of San Francisco, Calif., on October 5, 1948, as a citizen. On this occasion he presented a United States passport issued pursuant to a passport application executed by the respondent at Cincinnati, Ohio, on February 5, 1947.
The respondent was originally admitted to the United States as a student in 1912. Thereafter he returned to China and reentered the second time in 1925 at the port of Seattle, Wash., with a nonquota (student) immigration visa. His third entry occurred at the port of Seattle, Wash., during 1929 in possession of a reentry permit. The record affirmatively establishes that the respondent last entered by means of false and misleading statements (his claim to United States citizenship) without immigration documents. The documentary charges stated above are sustained.
The respondent served honorably in the armed forces of the United States during World War II from August 31, 1942, to March 29, 1943. Concerning his false claim to citizenship, the respondent testified, "When the Japanese bombed Pearl Harbor, I wanted to enter the United States Army very bad, but in order to do so I had to become an American citizen, so I claimed birth in San Francisco before the fire in order to facilitate my entrance into the United States Army. While in the Army I had some opportunity to be naturalized but I never did get around to it, and when the time came for me to go to China I continued to claim that I was born in San Francisco as I had done so previously while in the Army. That is the reason why I claimed that I was born in San Francisco and used that as a basis for my application for a United States passport. That is also the reason why I did not apply for a reentry permit to return to China."
The respondent on December 29, 1948, was indicted on three counts in the Southern Division of the U.S. District Court for the Northern District of California. The pertinent provisions of the indictment are set forth in the Assistant Commissioner's opinion of June 6, 1949. The three counts charge violations of 8 U.S.C. 746 (a) (18), false representation of citizenship, 22 U.S.C. 220, illegal use of a United States passport, and the third count a violation of 18 U.S.C. 231 in that the respondent committed perjury before the United States vice consul at Canton, China, on or about July 9, 1948, for the purpose of facilitating the entry into the United States of his alleged wife and stepson. The respondent pleaded guilty to the first count of the indictment referred to above on January 21, 1949, was fined $500 and was placed on probation for 2 years. Counts 2 and 3 of the indictment were dismissed.
The Assistant Commissioner sustains the respondent's admission of the commission of perjury when he falsely stated, inter alia, under oath in his application for a United States passport in Cincinnati, Ohio, on February 5, 1947, that he was born at San Francisco, Calif., on January 7, 1903, and was a citizen of the United States, and also his admission that he committed perjury when executing an affidavit on July 9, 1948, before the vice consul at Canton, China, claiming United States citizenship. The Assistant Commissioner concludes that independent admissions of the crime of perjury can be sustained in a situation of this kind notwithstanding the fact that the alien was indicted on several counts, one of which included the offense of perjury, was tried on the issues, was convicted on a count stating a lesser offense, and the indictment insofar as the count of perjury was concerned was dismissed. With this we do not agree.
Under the authority of decided cases the respondent cannot now effectively admit the commission of the offense embraced in count 3 of the indictment (perjury count) which was dismissed by the court. Cf. Matter of G----, 56064/847 (June 6, 1941); Matter of W----, 56033/701 (April 10, 1943); Matter of T----, 56018/720 (December 16, 1942); Matter of A----, 55862/748 (October 28, 1943); Matter of M----, 56120/790 (July 3, 1943); Matter of H----, 55944/993 (July 13, 1946). This Board is of the opinion that where there has been an adjudication of the cause resulting in dismissal of the proceedings, we should not hold the alien bound by an independent admission of the commission of the crime unless the court's action is based on purely technical grounds, such as the running of the statute of limitations, or an acquittal obtained on the basis of perjured testimony. We are persuaded in this conclusion by reason of the fact that Congress has expressed its intention in immigration matters to give due regard to executive as well as judicial clemency and not hold aliens responsible for crimes which have been "forgiven" by the locality having jurisdiction over their punishment. Cf. Matter of M---- ( supra); Matter of H---- ( supra). In the case before us there is no showing that the court's action was based on purely technical grounds.
The respondent was not indicted at San Francisco for the offense of perjury committed at Cincinnati, Ohio, in connection with his passport application since the grand jury did not have jurisdiction. However, it is clear from count 2 of the indictment that the Government and the court had full knowledge of this offense. Despite this fact, the respondent was never indicted at Cincinnati. The underlying facts which constitute the offense committed in connection with the respondent's application for a passport are part and parcel of the same pattern set forth in the indictment handed down at San Francisco. If we reached a conclusion that the criminal admission based on this offense is sustained, we would place in a preferred position an alien against whom an indictment had been returned and subsequently dismissed without plea or trial as compared to one against whom no indictment had been filed, all the facts being before the proper authorities and the court. Since the court recommended against deportation, it is clear that it was the intention of the prosecution and the court to release the respondent from all culpability and taint for the offenses committed by him which were part and parcel of the same pattern. Such intention should not be canceled by indirection. The criminal charges stated above will not be sustained. Cf. Matter of H----, 55933/993 (A-5180309), July 13, 1946.
Counsel concedes that the documentary charges laid under the 1924 act are sustained. He requests that the respondent's deportation be held in abeyance to provide him with an opportunity to petition for naturalization under the preferences granted discharged veterans of World War II in the amendments to the Nationality Act of 1940. The respondent has resided in the United States for 37 years. He has served honorably in the Armed Forces. His claim to citizenship for the purpose of getting into the Army merely added a liability for which he was not otherwise obligated. It is apparent that he did not realize the value of his naturalization rights while in the service, otherwise he would have filed for citizenship. The respondent's record other than this single dereliction is excellent. This Board on occasion has deferred the deportation of an honorably discharged veteran who failed to naturalize while serving in the Armed Forces. Matter of W----, 6755973; Matter of C---- and wife L----, 6846154 and 4799866. Inasmuch as the respondent has resided in the United States for 37 years, he has a good record other than the single conviction referred to in this opinion, and the offenses committed by him were inspired by his zeal to serve the country of his adoption, we conclude that the relief requested by counsel is warranted.
Order: It is directed that the appeal be and the same is hereby dismissed, the respondent to be deported solely on the documentary charges stated in the warrant of arrest. It is further directed that the respondent's deportation be deferred for a period of 6 months to permit his application for naturalization under the provisions of 8 U.S.C. 724 (a).
Discussion: This case is before us on memorandum to amend an order entered by this Board on January 9, 1950. When we considered the case on that date; we found in the body of our opinion that the record affirmatively established that the above-captioned respondent last entered the United States by means of false and misleading statements, namely, his claim to United States citizenship. We found him subject to deportation on documentary charges laid under the acts of 1918 and 1924 as well as the charge laid under the act of 1917, to wit: Entered by means of false and misleading statements. However, in dismissing the appeal, the order entered at that time directed the respondent's deportation solely on the documentary charges stated in the warrant of arrest. Since the order of January 9, 1950, defers the respondent's deportation for a period of 6 months to permit his application for naturalization under the provisions of 8 U.S.C. 724 (a), we will amend the order without the usual notice to counsel since it does not appear that the alien will be prejudiced in any way by this action.
Order: It is directed that the order entered by this Board on January 9, 1950, in the above-captioned case be and the same is hereby amended to provide for the alien's deportation on the charge stated in the warrant of arrest, to wit: the Immigration Act of 1917, in that he entered by means of false and misleading statements, thereby entering without inspection, as well as the documentary charges stated in the warrant of arrest.