A-7985857
Decided by Board August 6, 1952
Juvenile Delinquency Act (Federal 1938): Applicable when offense committed in 1947 — Perjury: Juvenile under 18 in 1947, Federal offense.
(1) Under the provisions of the Federal Juvenile Delinquency Act of 1938, a juvenile is a person who has not attained his 18th birthday.
(2) Perjury before an officer of this Service in 1947 by an alien who had not then attained his 18th birthday is deemed to be an act of juvenile delinquency and not a crime within the meaning of section 3 of the Immigration Act of 1917, as amended.
EXCLUDED:
Act of 1917 — Admits crime involving moral turpitude, to wit: Perjury.
BEFORE THE BOARD
Discussion: The appellant, a 22-year-old single male, native and citizen of Mexico, applied for admission to the United States at Calexico, Calif., on May 28, 1952, as a temporary visitor for a period of 6 weeks. At the time of his arrival, he was destined to College Station, Tex., for the purpose of attending the summer cotton school at the Agricultural and Mechanical College of Texas. He presented for inspection Mexican immigration form 5-C 559558, issued in his name on January 12, 1949, and nonresident alien's border crossing identification card No. 522255, issued in his name at Calexico, Calif., on September 5, 1951, valid until September 4, 1952, bearing the following notation: Limited to Calexico city limits. No admission to exceed 48 hours. There was also attached to the appellant's Mexican immigration form 5-C, nonimmigrant visa No. 442, issued in the appellant's name on May 20, 1952, at the American consulate in Mexicali, Baja California, Mexico, valid for 3 months from date of issue and valid for a single journey to the United States.
After a hearing conducted at Calexico, Calif., on May 28, 1952, a board of special inquiry found the appellant inadmissible to the United States under the provisions of section 3 of the Immigration Act of 1917, in that, he is an alien, who admits the commission of a felony or other crime or misdemeanor involving moral turpitude, to wit: Perjury. This case is now before us on appeal from the excluding decision entered by the board of special inquiry on May 28, 1952.
It appears that the appellant remained in the United States for a period of 3 months, after obtaining admission thereto at Calexico, Calif., early in 1947, by presenting a birth certificate of a citizen of the United States born at Calexico, Calif. On May 24, 1947, he attempted to re-enter the United States by stating under oath to an officer of the Service that he was a citizen of the United States born at Calexico, Calif. The record discloses that the chairman of the board of special inquiry asked the appellant a question based on a prior proceeding, wherein the appellant in sworn statements dated March 26 and March 30, 1951, admitted the foregoing and after allegedly receiving an adequate definition and an explanation of the crime of perjury, admitted the commission of such crime, when he stated under oath to an officer of the Service at Calexico, Calif., on May 24, 1947, that he was a citizen of the United States by virtue of birth at Calexico, Calif.
The question of whether the respondent made a valid admission of the crime of perjury, after having been given an adequate definition and having the elements of such crime explained in understandable terms can only be determined on the basis of the evidence of record. Since, the alleged definition, explanation, and admission of the commission of the crime of perjury on May 24, 1947, are not part of the record, we are unable to determine whether the appellant made a valid admission that he committed the crime of perjury, in connection with his application for admission as a United States citizen on May 24, 1947.
In any event, the record shows that the appellant was 17 years and 1 month of age at the time he sought admission to the United States as a citizen thereof on May 24, 1947, by executing the oath of a returning citizen and stating under oath to an officer of the Service that he was a citizen of the United States by virtue of birth at Calexico, Calif. The applicable statute relating to juvenile delinquents in effect at that time, provided as follows: "A `juvenile' is a person 17 years of age or under, and `juvenile delinquency' is an offense against the law of the United States committed by a juvenile and not punishable by death or life imprisonment" ( 18 U.S.C. 921 (1940 Ed.) June 16, 1938, ch. 486, sec. 1, 52 Stat. 764). The phrase "17 years of age or under" in section 921, title 18 (supra), was generally interpreted to mean those persons who had not reached their 18th birthday. The appellant was a juvenile on May 24, 1947, and his offense must be considered a delinquency and not a crime.
Section 5031, chapter 403 of the revised title 18 U.S.C. (Public Law 772, June 25, 1948, 80th Cong., ch. 645, 52 Stat. 764-766) provides that a juvenile is a person who has not attained his 18th birthday and "juvenile deliquency" is a violation of a law of the United States committed by a juvenile and not punishable by death or life imprisonment. The phrase "who has not attained his 18th birthday" referred to in section 5031 ( supra), was substituted for "17 years of age or under" as more clearly reflecting congressional intent and administrative construction. Hence, it can be seen that the offense committed by the appellant on May 24, 1947, was not a crime, but a juvenile delinquency. Therefore his admission of the commission of a crime involving moral turpitude, to wit: Perjury is a nullity. Accordingly, he is not inadmissible to the United States under section 3 of the Immigration Act of 1917, as amended.
For the reasons stated, the appeal will be sustained and the following order entered.
Order: It is ordered that the appeal be sustained.
It is further ordered that the alien be admitted to the United States as a temporary visitor under section 3 (2) of the act of 1924, as amended, for such period of time and under such conditions as the officer in charge of the district deems appropriate in the premises.