A-8948706
Board decisions July 8, September 28, and December 19, 1955 Service motions August 18, and October 5, 1955 Decided by Attorney General April 2, 1956
Crime involving moral turpitude — Admission of essential elements, section 212 (a) (9), 1952 act — Definition must be furnished — Misrepresentation, section 212 (a) (19), Immigration and Nationality Act.
(1) To sustain a finding of inadmissibility under section 212 (a) (9) of the Immigration and Nationality Act as one who has admitted acts constituting the essential elements of a crime involving moral turpitude, the alien must have admitted all the elements of the crime involved and must have been furnished with a definition of such crime in understandable terms. (Cf. Matter of E---- V----, 1610-9315, 5 IN Dec. 194; See also Matter of K----, A-7922461, Int. Dec. No. 897.)
(2) The charge of "admits the essential elements of perjury" is not sustained where the alien has not admitted that he was sworn, since this is one of the factual elements which constitutes such offense.
(3) Under section 212 (a) (19) of the Immigration and Nationality Act, a misrepresentation is not material if the alien would not have been denied a visa or refused admission had he told the truth. ( Cf. Matter of S---- C----, E-086114, Int. Dec. No. 763.)
EXCLUDED:
Act of 1952 — Admits crime — perjury.
Act of 1952 — Document previously procured by fraud and misrepresentation.
BEFORE THE BOARD
(July 8, 1955)
Discussion: This case is before us on appeal from the decision of the special inquiry officer on April 25, 1955, ordering the appellant's exclusion on the grounds stated above.
The appellant is a 41-year-old male, native and citizen of Mexico, who applied for admission as an immigrant on April 21, 1955. He was in possession of an unexpired nonquota immigrant visa and is exempt from the requirement of a passport. Both asserted grounds of inadmissibility stem from the execution by the appellant of Form I-448 on November 21, 1941, containing certain false statements which will be discussed later.
We have carefully considered the representations of counsel in his brief on appeal. The facts in this case are appealing. The appellant was lawfully admitted to the United States for permanent residence in 1918 with his parents and other members of the family. At that time he was 4 or 5 years of age. He was married to a native-born citizen in 1940 and they have 5 children, 3 of whom were born in the United States.
The appellant resided continuously in this country from 1918 until 1941 when he went to Mexicali, Mexico, for the purpose of bringing his wife back to the United States. He testified that he attempted to return to this country 2 months later but was refused admission at the "outside line." Counsel stated that the appellant has only had approximately 4 years of formal education, and the record indicates that the appellant and his wife were totally unaware of the procedure which he should have followed at the time he was refused admission. Shortly thereafter (November 24, 1941), he secured admission as a nonimmigrant but it is not clear when he resumed his domicle in this country. However, he has resided at Ripley, California, for the last 8 years and he testified that he has lived almost all of his life in the United States. Apparently he has been domiciled in this country since 1918 and his absences have been temporary and of short duration.
The appellant owns his house and other property in Ripley, California, where he operates a farm labor camp for Mexican agricultural workers. He owes approximately $4,000 which he will be able to pay if he remains in the United States but otherwise he will probably suffer a severe loss. He stated that ever since he has been in this country illegally, he has been attempting to adjust his immigration status. He was reporting monthly to the El Centro office of the Service which office provided some assistance and granted him voluntary departure in connection with his recent journey to Mexico to obtain his immigrant visa. Apparently, he was not at any time informed that he might be excludable under the Immigration and Nationality Act because of the false statements in 1941. If the appellant is excluded on either or both of the grounds mentioned above, he will be forever barred from becoming a permanent resident of the United States.
The special inquiry officer held that the appellant was excludable under section 212 (a) (9) of the Immigration and Nationality Act on the ground that he admits the commission of a crime involving moral turpitude (perjury) and admits committing acts which constitute the essential elements of that crime. With the exception of the fact that an alien need no longer admit the legal conclusion that he has committed the specific crime, the rules laid down in Matter of J----, 56038/559, 2 IN Dec. 285 (1945), still prevail. Since the appellant answered affirmatively when asked whether he admitted committing perjury, the distinction between the two types of admissions becomes unimportant here except that we consider it appropriate to state that, inasmuch as the offense was committed prior to the effective date of the Immigration and Nationality Act, the appellant's admission that he committed the essential elements of perjury would apparently be insufficient.
Matter of E---- V----, 1610-9315, 5 IN Dec. 194 (1953).
In reaching his conclusion that the appellant admitted that he had committed perjury, the special inquiry officer relied only on the appellant's false statement in 1941 that he had not previously been in the United States. In a case in which the alien was also seeking temporary admission from Mexico and in which the facts were closely analogous, we said that where the false testimony is material to the ultimate issue of exclusion (or deportation) or material to a ground of exclusion (or deportation), it constitutes perjury, and otherwise, not. We there held that the alien's false testimony that he had not previously resided in the United States was material to a ground of excludability and that he was inadmissible because he admitted the commission of perjury.
Matter of B----, A-3156660, 2 IN Dec. 206 (1944).
Although there is some materiality in the appellant's failure to disclose his prior residence in the United States, we hold that he is not excludable under section 212 (a) (9) of the Immigration and Nationality Act because it is our considered opinion that he has not made a valid admission of the commission of perjury. The record shows that the definition of perjury in 18 U.S.C. 231 was read to the appellant; that he stated that he understood it; that it was also translated into Spanish; and that he again stated that he understood it. In Matter of J----, supra, we said that an adequate definition of the crime, including all essential elements, must first be given to the alien and that it must be explained in understandable terms. That case involved an English-speaking alien who was supposed to have committed perjury under the laws of the United States but we were careful to point out the necessity of explaining the crime in understandable terms. Hence, we do not consider that merely translating 18 U.S.C. 231 into Spanish, especially in view of the technical language of that statutory provision, is a compliance with the rule stated in Matter of J----, supra.
We base our decision, however, on an even more important factor, namely, the appellant's repeated statements that he does not remember whether he was sworn to tell the truth on November 21, 1941, when exhibit 2 was prepared. His attention was called to the fact that exhibit 2 contains the word "sworn" which had been typewritten above the word "manifest" and he was then asked, "Do you deny that you swore to the contents of this application?" and he answered, "No, because it says so there, it's written there so I must have. I don't deny it but I don't remember it." The fact that he would not deny that he had been sworn is not tantamount to an admission that he was sworn, and even in this answer the appellant again said that he did not remember being sworn.
We are willing to assume that the appellant was sworn but the crucial question is not whether he was sworn but whether he admits that he was sworn. As we stated in Matter of J----, supra, the alien must admit all the factual elements which constitute the crime. The administration of an oath is, of course, an essential element of perjury. We take cognizance of the fact that, after the definition of perjury was given, the appellant was asked whether he admitted that he committed perjury on November 21, 1941, when he falsely stated under oath that he had never been in the United States before, and that he answered the question affirmatively. We decline to accept this general summarization, which included the element of the administration of an oath, as binding upon the appellant in view of his previous statements that he could not remember being sworn when asked the specific question. We find, therefore, that the appellant has not admitted that he was sworn on November 21, 1941, and it follows that he has not made a valid admission that he committed perjury.
The special inquiry officer's conclusion that the appellant is inadmissible under section 212 (a) (19) of the Immigration and Nationality Act was predicated on findings of fact numbered (6), (8) and (9) which are to the effect that the border-crossing card, which was issued to the appellant on November 24, 1941, was procured through fraud and misrepresentation because (a) he falsely stated that he had never been in the United States previously, and (b) he had stated that he desired the card for the purpose of making purchases in the United States, whereas he actually desired the card to facilitate his entry into the United States to work. Exhibit 2 contains a notation on the reverse "11/24/41 * * * Adm Bus (3-2) 1 day 686B/646277 issued WARNED WCN." Presumably "686B" represents the form number of the nonresident alien's border-crossing card then in use.
As a preliminary observation, we may say that we consider it unlikely that Congress intended that the severe penalty of section 212 (a) (19) of the Immigration and Nationality Act be visited on one who, over 13 years ago, had obtained only the privilege of entering the United States for 24-hour periods. The procurement of a resident or nonresident alien's border-crossing card, however, appears to come within the terms of section 212 (a) (19) when strictly construed. Nevertheless, for the reasons hereinafter stated, we do not believe that the appellant is excludable under that statutory provision.
When exhibit 2 was executed on November 21, 1941, the pertinent regulations in effect were 8 CFR 107.17 and 8 CFR 110.60 and 8 CFR 110.61, the latter two sections having been added by General Order C-23 of August 23, 1940 ( 5 FR 3195). 8 CFR 107.17 specifically provided for the inspection of aliens seeking to enter the United States from foreign contiguous territory and for the preparation of a manifest (Form I-448). Exhibit 2 is entitled "manifest" and is designated as "Form I-448 (old 548)."
Prior to the order effective January 13, 1941 ( 6 F.R. 229) these sections were designated as 8 CFR 2.17, 3.60 and 3.61, respectively.
Prior to its amendment by General Order C-35 of November 14, 1941 ( 6 F.R. 5870), the regulation had designated Form 548.
Under 8 CFR 110.60 a citizen of Mexico who was domiciled there could be admitted for less than 30 days upon presentation of a nonresident alien's border-crossing identification card. 8 CFR 110.61 provided authority for immigrant inspectors at land border ports of entry to issue nonresident aliens' border-crossing identification cards and the following portion of that regulation is pertinent to the appellant's case:
* * * Such aliens shall be required to fill out and sign under oath an application (Form No. 257A) stating the applicant's legal name in full; the place and date of the applicant's birth; the nature of the travel document presented by the applicant; by whom the applicant is accompanied; the applicant's present address; the applicant's address (if any) in the United States; the purpose of the applicant's entry; and the length of the applicant's proposed stay; and stating further the applicant's understanding that he will be required to depart from the United States at the end of his sojourn and that if he remains in the United States for 30 days or longer he will be required prior to the expiration of the 30-day period to register and be fingerprinted in accordance with the provisions of the Alien Registration Act, 1940. * * *
8 CFR 107.17 states the information to be obtained for the manifest (Form I-448) and 8 CFR 110.61 sets forth the information to be obtained in connection with an application for a nonresident alien's border-crossing identification card. While certain items of information are common to both regulations, the question concerning previous residence in the United States appears only in 8 CFR 107.17 and not in 8 CFR 110.61.
We indicated above that the facts in the appellant's case are analogous to those in Matter of B----, (footnote 2, supra), insofar as concerns the question of whether perjury was committed. However, section 212 (a) (19) of the Immigration and Nationality Act was not involved there and the case is also distinguishable because it was unnecessary for B----, to make an application to the Service under 8 CFR 110.61 since he had obtained his nonresident alien's border-crossing card from an American consular officer.
Inasmuch as the regulation relating to the inspection of aliens seeking to enter from foreign contiguous territory (8 CFR 107.17) specifically required that information as to previous residence in the United States be furnished, it appears appropriate to consider a false statement with respect thereto as being material to the question of admissibility. On the other hand, for the purposes of section 212 (a) (19), the fraud or misrepresentation must not only be concerning a material fact, but it must have a direct relationship to the procurement of the documentation itself. It has long been settled that a false statement in an application for an immigrant visa does not invalidate the document if the fact suppressed would not have justified refusal of a visa. Since 8 CFR 110.61, which specifically relates to the procurement of nonresident aliens' border-crossing cards, sets forth certain items of information to be furnished by the alien and is silent as to the matter of prior residence in the United States, we must hold that the latter information is not material in an application for a nonresident alien's border-crossing card or in the procurement of such documentation.
United States ex rel. Iorio v. Day, 34 F. (2d) 920 (C.C.A. 2, 1929), a case in which the alien swore he had never been imprisoned but had been in jail for 30 days for possession of liquor.
8 CFR 110.61 does, of course, require an applicant to state the purpose of his entry and the length of his proposed stay. With respect to this matter, exhibit 2 shows only "B/C PRIVILEGE" (border-crossing privilege). However, in connection with the exclusion hearing, the appellant was asked why he had wanted a border-crossing card in 1941, and he answered "I couldn't go on up into the country so I got it to facilitate my entry to Calexico locally here and I would come over here and work for a week and then go back on the weekend to give the money to my wife who was staying in Mexico and then come back and work again." The remaining pertinent testimony is the appellant's admission that, at the time the card was issued, he was informed that he could not use the card to work in the United States and, when asked "You told the officer that you wanted the card for what purpose?" he answered, "To come and buy stuff."
Assuming that the appellant remembers what transpired over 13 years ago and that at that time he had given the answer last quoted, we believe that he is not inadmissible under section 212 (a) (19) of the Immigration and Nationality Act. 8 CFR 107.17, relating to the inspection of aliens seeking to enter the United States from foreign contiguous territory, specifically provided for the preparation of a manifest on Form I-448 and such a manifest was introduced in evidence as exhibit 2. However, 8 CFR 110.61, quoted in part above, which was the regulation specifically applicable to nonresident aliens' border-crossing cards, was imperative in its command that "Such aliens shall be required to fill out and sign under oath an application (Form No. 257A) * * *." It also contained a provision that the application form must include a statement that the applicant understand that he would be required to register under the Alien Registration Act of 1940 if he remained 30 days or longer.
The preparation of a formal application by the alien, including written notification concerning the provisions of the Alien Registration Act, would have tended toward a more deliberate ascertainment of the facts and would have resulted in a specific answer regarding appellant's purpose in coming to the United States and the length of his proposed stay, thus avoiding the problem which arose in this case of attempting to determine what the appellant had said 13 years ago concerning the matter. Hence, we consider the requirement of the regulation to be one of substance rather than merely a matter of form. In a case of this nature, where the alien would be permanently barred from entering the United States, we cannot accept less than a full compliance with the regulation. Since the record fails to show that the Government complied with the specific provisions of 8 CFR 110.61, requiring a formal application for a nonresident alien's border-crossing card as a condition precedent to the issuance of such documentation, we believe that it cannot now be successfully contended that the appellant procured the documentation by fraud or by willfully misrepresenting a material fact. In view of the foregoing, we will direct that the appeal be sustained.
Order: It is ordered that the appeal be sustained and the appellant admitted for permanent residence.
(August 18, 1955)
Discussion: The special inquiry officer found the appellant excludable on the grounds set forth above. On appeal the Board of Immigration Appeals held that the charges had not been sustained and ordered the appellant admitted for permanent residence. The Service contends that the charges were sustained and the excluding decision of the special inquiry officer should be affirmed.
The appellant resided in the United States continuously from 1918 to 1941. Thereafter he returned to Mexico for brief periods of time and reentered the country illegally. Upon 4 or 5 occasions he was granted the privilege of voluntary departure, but never was deported. To facilitate his entry into the United States he made application at Calexico, California, on November 21, 1941, for a nonresident alien's border-crossing identification card. In that application he stated under oath that he had never previously been in the United States. At the hearing in the exclusion proceedings he testified that he had denied previous residence in the United States because he believed the border-crossing card would not be issued to him if he disclosed the truth. In connection with his application for the border-crossing card, he also told the inspecting officer that he desired the border-crossing privilege "to come in to buy stuff." Actually, he intended to obtain employment in the United States but knew the card would not be issued to him for that purpose.
A definition of perjury as contained in 18 U.S.C. 231 was then given to the appellant and he stated he understood it. Furthermore, he testified there was no need to repeat the definition in Spanish. Nevertheless, out of an abundance of caution and to eliminate any possibility of misunderstanding, the special inquiry officer repeated the definition in Spanish and again the appellant testified that he understood the definition. Despite this testimony, the Board concluded that appellant did not understand the definition. The record is devoid of even a scintilla of evidence to support the conclusion of the Board and such conclusion is wholly unwarranted.
Findings of fact by the officer who saw the witness and heard his testimony are entitled to great weight ( Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474 (1951); United States ex rel. Brzovich v. Holton, 222 F. (2d) 840 (U.S.C.A. 7, 1955)). The special inquiry officer was in a better position than the Board to determine whether or not appellant understood the definition of perjury and he concluded that he did. That finding should not be disturbed.
Furthermore, it is the view of the Service that no definition of the crime need be given an alien in order to sustain a charge under that portion of section 212 (a) (9) of the Immigration and Nationality Act relating to the admission of the commission of acts which constitute the essential elements of a crime involving moral turpitude. Analysis of the judicial authorities on this subject and of the legislative reports in connection with the enactment of the Immigration and Nationality Act clearly supports this view.
The pertinent portion of section 3 of the Immigration Act of 1917 provided as follows:
That the following classes of aliens shall be excluded from admission into the United States: * * * persons who have been convicted of or admit having committed a felony or other crime or misdemeanor involving moral turpiture * * *.
Discussing this provision, the court in Howes v. Tozer, 3 F. (2d) 849 (C.C.A. 1, 1925), stated at page 852, as follows:
We are of the opinion that Congress, by the enactment of this provision, has required the alien's own admission of guilt as proof of the commission of this class of crimes, and has deprived the immigration authorities of the right to try the question of guilt; that the statute contemplates a voluntary admission; and that evidence of facts stated by the alien from which an inference of his guilt might be inferred is not competent. [Emphasis supplied.]
Pronouncements by other courts made it clear that a confession of guilt to a specific crime was required to sustain a charge under this provision ( United States ex rel. Jelic v. District Director, 106 F. (2d) 14 (C.C.A. 2, 1939); Ex parte Rocha, 30 F. (2d) 823 (D.C., S.D. Texas, 1929)). Consequently, the Board formulated the following rules as prerequisites to a valid admission under this section ( Matter of J----, 56038/559, 2, I. N. Dec. 285, 288):
(1) It must be clear that the conduct in question constitutes a crime or misdemeanor under the law where it is alleged to have occurred.
(2) The alien must be advised in a clear manner of the essential elements of the alleged crime or misdemeanor.
(3) The alien must clearly admit conduct constituting the essential elements of the crime or misdemeanor and that he committed such offense. By the latter is meant that he must admit the legal conclusion that he is guilty of the crime or misdemeanor.
(4) It must appear that the crime or misdemeanor admitted actually involves moral turpitude, although it is not required that the alien himself concede the element of moral turpitude.
(5) The admissions must be free and voluntary.
Section 212 (a) (9) of the Immigration and Nationality Act now includes among the excludable classes the following:
Aliens who have been convicted of a crime involving moral turpitude (other than a purely political offense), or aliens who admit having committed such a crime, or aliens who admit committing acts which constitute the essential elements of such a crime * * *. [Emphasis supplied.]
In Senate Report No. 1515, 81st Congress, 2d session, at page 353, there is contained the following comment by the Committee on the Judiciary concerning proposed legislation containing terminology similar to that set forth above:
The principal purpose of the change is to overcome the situation which exists under the present law where an alien admits facts in an examination which clearly indicate commission of such a crime, but does not actually `admit having committed' such a crime as required by the law.
House Report No. 1365, 82d Congress, 2d session, at page 48, contains the following statement concerning the terminology of the provisions of the Immigration and Nationality Act as finally enacted:
Under this change, immigration officers charged with administering the law will be able to determine from the information supplied by the alien whether he falls within the `criminal' category of excludables, notwithstanding the fact that there may be no record of conviction or admission of the commission of a specific offense.
A like comment is contained in Senate Report No. 1137, 82d Congress, 2d session, at page 9. Bearing in mind that a basic purpose of the revised legislation was to broaden the grounds for exclusion and deportation of criminal aliens (see page 28 of House Report No. 1365, supra), it becomes apparent that the present wording of the statute was intended to overcome the court decisions requiring the alien to admit the commission of a specific crime and preventing the immigration authorities from drawing an inference of guilt from the statement of facts supplied by the alien. That this was the object of the statute has been conceded by the Board (see footnote 2 on page 196 of the decision in the Matter of E---- V----, 1610-9315, 5 IN Dec. 194 (1953)). But if the immigration authorities may draw an inference of guilt from the statement of facts supplied by the alien and the alien no longer need admit the commission of a specific crime, then the definition serves no useful purpose. The only conceivable purpose of the definition is to provide the basis for the admission of the legal conclusion of guilt of a specific offense. Certainly we should not impute to Congress an intent to require a useless gesture (Sutherland on Statutory Construction, Third Edition, section 4705). The Service, therefore, maintains that under section 212 (a) (9) of the act a definition is no longer required to sustain a charge that an alien is excludable on the ground that he admits committing acts which constitute the essential elements of a crime involving moral turpitude. Should the Board adhere to its decision that a definition is required, the very purpose of the revision will have been defeated.
This case related to the effect of the expungement of the record of conviction pursuant to section 1203.4 of the California Penal Code and not to the requirement for a definition.
Contrary to the statement of the Board, the charge may be sustained even though the offense was committed prior to the effective date of the Immigration and Nationality Act ( Matter of R---- R----, A-4444509, 6 IN Dec. 55 (Atty. Gen., July 29, 1955)). Issue is also taken with the Board's conclusion that the alien did not admit that he had been under oath at the time he made the false statements in the application for the border-crossing card. The alien testified that he must have been under oath when he made the application because the application form showed that he was under oath. Furthermore, he admitted the commission of perjury by falsely stating under oath in the application for a border-crossing card that he had never been in the United States. This is an adequate admission that he had been sworn. As heretofore mentioned, Congress intended to broaden the grounds for exclusion and deportation of criminal aliens. By insisting upon a degree of proof that was never contemplated by Congress, the Board is circumventing the objective of this legislation.
The Board has also held that the record does not sustain the charge that the alien is excludable under section 212 (a) (19) of the Immigration and Nationality Act as one who obtained a document by fraud or willful misrepresentation. In 1941 the alien executed an application for a nonresident alien's border-crossing identification card in which he stated he had never previously been in the United States. Actually he had resided in this country from 1918 to 1941. In connection with this application he also testified that he was coming to the United States temporarily for the purpose of making purchases, whereas actually he intended to resume his residence in this country and to obtain employment. Had the true facts been known he would have been considered an immigrant and not a nonimmigrant and the nonresident alien's border-crossing identification card never would have been issued to him ( United States ex rel. Feretic v. Shaughnessy, 221 F. (2d) 262 (U.S.C.A. 2, 1955); Matter of Z----, A-3533233, 3 IN Dec. 379, Atty. Gen., 1948; Matter of B----, 0300-466229, 6 IN Dec. 234). False statements concerning prior residence in the United States have always been considered material in an application for a visa ( Matter of B----, A-3156660, 2 IN Dec. 206 (1944); Matter of R----, 56091/636, 1 IN Dec. 613 (1943)). This is particularly true where disclosure of the prior residence in the United States would have revealed the fact that this alien was an immigrant and not entitled to the issuance of a document for admission as a nonimmigrant ( Matter of Z----, A-3533233, 3 IN Dec. 379 (Atty. Gen., 1948)). Consequently, the statement that the concealment of prior residence in the United States had no direct relationship to the procurement of the document itself, as stated by the Board, is wholly without foundation.
The Board attempts to distinguish Matter of B----, supra, on the ground that perjury was there involved and not the fraudulent procurement of a document. However, a statement that is material to support a charge of perjury is also material to support a charge of fraud in the procurement of a document ( Matter of C----, A-4852428, 3 IN Dec. 662, 666 (1949)). Another distinction attempted to be drawn is that B---- obtained his document from an American consular officer. This distinction, too, is without substance. The same misrepresentation to obtain the same type of document should not be given a different effect merely because made to an immigration officer rather than a consular officer. A misrepresentation deemed material when made to one is just as material when made to the other.
The Board further contends that the charge under section 212 (a) (19) cannot be supported because the regulations then in existence, 8 CFR 110.61, did not require the disclosure of prior residence in the United States in connection with an application for a nonresident alien's border-crossing card and that, secondly, the application was executed on a form other than the one specified in the regulations. Neither contention is tenable.
The regulations required that the applicant for a nonresident alien's border-crossing identification card disclose his address, if any, in the United States; the purpose of his entry; and the length of his proposed stay. Manifestly, an inquiry as to prior residence in the United States would be relevant to the determination of those facts. In addition, the regulations required the immigration officer to ascertain whether the applicant was applying for temporary admission and permitted issuance of the border-crossing card only to aliens domiciled in certain countries. Inquiry concerning prior residence of the applicant would be most pertinent to the issuance of the document under these regulations. By its decision, the Board is, in effect, holding that an immigration officer is precluded from interrogating the applicant except to obtain the specific information required by the regulations, even though such interrogation would establish ineligibility to receive the document applied for. Such a restriction upon the authority of an officer charged with the administration of the immigration laws is wholly unwarranted.
In section 110.61 of Title 8, CFR, the regulations in effect at the time of the issuance of the border-crossing card, the only reference to a form number was contained in parentheses after the word "application." Manifestly, the reference was intended only as a suggestion and not a requirement. Had it been intended that the Form 257A be exclusively used, the regulations would have specifically so provided. In any event, no authority has been cited and none has been found to support the conclusion of the Board that an alien may, with impunity, commit fraud and perjury before an officer charged with the enforcement of the immigration laws so long as the fraudulent and perjurious testimony is recorded on one form rather than another. The applicant willfully concealed material information and willfully misrepresented material facts to an immigration officer. He thereby obtained a document to which he was not entitled and the charge under section 212 (a) (19) of the Immigration and Nationality Act is clearly sustained.
In view of all the foregoing, it is believed that the excluding decision of the special inquiry officer should be affirmed.
Motion is hereby made that the Board of Immigration Appeals reconsider and withdraw its order of July 8, 1955, and enter an order affirming the excluding decision of the special inquiry officer.
(September 28, 1955)
Discussion: This case is before us on the Assistant Commissioner's motion for reconsideration dated August 18, 1955.
A special inquiry officer excluded the appellant on the ground that he admitted the commission of perjury or the essential elements thereof and on the ground that he had previously procured documentation by fraud and misrepresentation. On July 8, 1955, after concluding that the appellant was not excludable on either of the grounds mentioned, we sustained his appeal and directed that he be admitted for permanent residence. The Service contends that our decision was erroneous and it has requested that we affirm the excluding decision of the special inquiry officer.
The appellant is a 41-year-old male, native and citizen of Mexico. For the last 8 years he has resided at Ripley, California, where he owns his home and other property. He was married to a native-born citizen in 1940 and they have 5 children, 3 of whom were born in the United States. The appellant's parents brought him to the United States in 1918 with other members of the family when he was 4 or 5 years of age and all of whom were then lawfully admitted for permanent residence. Neither of his parents returned to Mexico. His father is deceased but his mother still resides in this country and is now a United States citizen.
The appellant remained continuously in the United States from 1918 until 1941 when he went to Mexicali, Mexico, for the purpose of bringing his wife back to the United States. As a legal resident, he presumably would have been able to secure a resident alien's border-crossing identification card prior to his departure which would have permitted his reentry in 1941 without difficulty. However, he was entirely unfamiliar with this procedure. About 2 months after he left the United States, he appeared before an immigrant inspector at the border requesting readmission to the United States. At that time he exhibited his card showing registration under the Selective Training and Service Act but was rejected at the "outside line." The appellant testified that he was not asked any questions and that no information was furnished to him as to what was required for entry into the United States.
The appellant testified that he had completed only 4 or 5 grades of school when it was necessary for him to start to work; he had not previously departed from the United States; and apparently he was completely unaware that he should have obtained a resident alien's border-crossing card before proceeding to Mexico in 1941.
The appellant's reference to "outside line" indicates that the rejection was by a primary inspector and that he was not held for the action of a board of special inquiry. Under section 16 of the Immigration Act of 1917, a primary inspector could admit an alien but, if there was a doubt as to his admissibility, he was required to hold the alien for examination by a board of special inquiry.
8 CFR 132.1, then in effect, specifically required a complete report to the Attorney General through official channels in every case of exclusion, for any cause, in which the alien submitted proof that he was returning, after a temporary absence, to an unrelinquished United States domicile of 7 consecutive years. It was not even necessary that the 7 years' domicile must have been acquired pursuant to a lawful admission. At the time he was rejected in 1941, the appellant had been a legal resident of the United States for 23 years. If the Service officer had furnished appropriate advice to the appellant when he first applied for readmission to the United States in 1941, he could have been readmitted through a waiver of documents under the 1924 and 1940 acts and his present difficulty would not have arisen.
After the appellant had thus been summarily refused admission to the United States, he called at the Calexico office and the Service contends that on November 24, 1941, he procured a nonresident alien's border-crossing identification card by falsely stating that he had not previously resided in the United States and that he was coming to the United States to make purchases, whereas it was his purpose to work in the United States. It appears that for the last several years he has been attempting to adjust his immigration status. In 1945, he applied for an immigration visa at an American consulate in Mexico but met with no success. For some time, the appellant has been reporting monthly to the El Centro office of the Service which provided some assistance in his desire to legalize his status. After he had submitted various papers requested by an American consular officer in Mexico and received an appointment to call there, he was granted voluntary departure through San Ysidro, California, on April 15, 1955, in order that he might proceed to Mexico to obtain an immigrant visa. Apparently there was no intimation to him at any time that he might be excludable under the Immigration and Nationality Act because of the statements which he had made in 1941.
Now that the appellant has been encouraged to supply the various documents required by the consul, has traveled to the American consulate in Mexico, and has procured an immigrant visa after satisfying that officer as to his eligibility therefor, it seems unfortunate that it was considered necessary to dig up out of the past a 14-year-old incident in order to prevent the appellant from returning to his home in the United States. Were we to affirm the excluding decision on either of the grounds urged, the appellant would be forever barred from becoming a permanent resident of the United States. Of course, if we had found the appellant inadmissible, we would have had no alternative but to dismiss his appeal regardless of the appealing factors.
Upon perusal of the Assistant Commissioner's motion of August 18, 1955, we deem it appropriate to comment on certain misconceptions of our previous order. We did not conclude that the appellant did not understand the definition of perjury but we said that the rules set forth in Matter of J----, 56038/559, 2 IN Dec. 285 (1945), had not been complied with since the record did not indicate that the offence had been explained in understandable terms. Likewise, there was not justification for the intimation that we had overlooked the Attorney General's decision of July 29, 1955, in Matter of R---- R----, A-4444509, 6 IN Dec. 55, since our decision in the appellant's case was made on July 8, 1955.
We note that the Service motion contains the statement "it is the view of the Service that no definition of the crime need be given an alien in order to sustain a charge under that portion of section 212 (a) (9) of the Immigration and Nationality Act relating to the admission of the commission of acts which constitute the essential elements of a crime involving moral turpitude." For convenience, we will speak of this as the third clause of that statutory provision and we will refer to the preceding clause, relating to aliens who admit having committed a crime involving moral turpitude, as the second clause. A major portion of the Service motion is devoted to an argument to support the proposition mentioned. We do not understand, however, how this can be the view of the Service since it would be contrary to our decision in Matter of E---- V----, 1610-9315, 5 IN Dec. 194 (Apr. 6, 1953), and the provisions of 8 CFR 6.1 (g) that, except as modified or overruled by the Board or the Attorney General, the decisions of the Board shall be binding on all officers and employees of the Service.
In Matter of E---- V----, supra, we held that under the third clause of section 212 (a) (9) the alien is no longer required to admit the legal conclusion that he has committed the specific crime but that, in all other respects, the requirements set forth in Matter of J----, supra, still prevail. Many cases involving that point have arisen in the two and one-half years since Matter of E---- V---- was decided, during which we have consistently followed that decision without previous disagreement on the part of the Service.
In our decision of July 8, 1955, in the appellant's case, we commented on the fact that the definition of perjury in 18 U.S.C. 231 was read to the appellant and that it was also translated into Spanish. Our criticism was solely that the crime of perjury had not been explained in understandable terms as required. However, we were careful to point out that our decision was not based on that defect but on the fact that the appellant had not admitted one of the essential elements of perjury. We also stated that the distinction between the two types of admissions (admissions under the second clause of section 212 (a) (9) of the Immigration and Nationality Act and those under the third clause) was unimportant in the appellant's case since he had answered affirmatively when asked whether he admitted committing perjury. Since the one additional element required under the second clause was present, we decided the case on that basis and it was not necessary to give consideration to the third clause. For that reason, as well as the fact that the appellant was given a definition of perjury, we doubt the propriety of the extended argument of the Service in this case for the proposition that no definition of the crime need be given to an alien to sustain a charge under the third clause. Nevertheless, we have considered the argument of the Service and we adhere to our decision in Matter of E---- V----, supra.
We have carefully considered the remainder of the Assistant Commissioner's motion and counsel's brief in opposition. We do not find the argument of the Service to be persuasive. Since our views were clearly expressed in our previous order, it is not our intention to engage in a renewed discussion of the legal reasons for our conclusion that the appellant was not inadmissible. However, we will briefly restate our position with amplification of some points.
The first ground on which the alien was found inadmissible was that on April 21, 1955, he admitted having committed perjury (or the essential elements thereof) on November 21, 1941. The appellant testified that he does not remember whether he was sworn in 1941. Exhibit 2 contains the typewritten word "sworn" above the word "manifest." There is no other evidence that the alien was sworn. When Matter of J----, supra, was decided in 1945, the rules governing admissions of crimes were restated. One of the rules was that the alien must admit all of the factual elements which constitute the crime. In our previous order we said that we were willing to assume that the appellant was sworn but that the crucial question was not whether he was sworn but whether he admits that he was sworn. Since the appellant has not admitted that he was sworn, it follows that he has not made a valid admission of the crime under either the second or the third clause of section 212 (a) (9) of the Immigration and Nationality Act.
The other ground on which the alien was excluded was section 212 (a) (19) of the Immigration and Nationality Act relating to an "alien who * * * has procured a visa or other documentation, * * * by fraud, or by willfully misrepresenting a material fact." As previously indicated, the Service asserts that the documentation in this case was a nonresident alien's border-crossing card which was issued on November 24, 1941. Exhibit 2 shows that a Form 686B was issued on November 24, 1941, and we have no doubt that this means, as the Service says, that a nonresident alien's border-crossing card was issued at that time. However, the border-crossing card itself is not in evidence.
Exhibit 2 is a manifest which was prepared by an immigrant inspector on November 21, 1941. The Service refers to this form as an application for a nonresident alien's border-crossing identification card. We hold that it is not, but if it were so regarded, there would be only the two following items on which the Service could rely:
Ever in U.S. — No.
Purpose in coming and time remaining — B/C PRIVILEGE.
The only other evidence which has a bearing on the question of whether the appellant is excludable under section 212 (a) (19) of the Immigration and Nationality Act is his own testimony at the hearing on April 25, 1955. This is to the effect that at the time the card was issued he was informed that he could not use it to work in the United States; that he did, in fact, work in this country; and that he got it to facilitate his entry. The only testimony which indicates that he made an actual false statement in 1941 as to the purpose for which he desired the nonresident alien's border-crossing identification card is contained in this question and answer at page 9, "You told the officer that you wanted the card for what purpose?" to which he answered "To come and buy stuff." The alien waived representation by counsel at the hearing on April 25, 1955, and no interpreter was used. The special inquiry officer stated that, if the appellant were unable to express himself in English, he could give his answer in Spanish and the special inquiry officer would put it in the record in English. Under these circumstances, we believe the appellant's admissions, concerning what had transpired 14 years prior thereto, must be viewed with great caution.
The Service, in its motion, not only consistently refers to the manifest as being an application for a nonresident alien's border-crossing identification card but also contends that it is immaterial that "the application was executed on a form other than the one specified in the regulations." In order to dispel the apparent misapprehension, we desire to make it crystal clear that this case does not involve an application merely executed on the wrong form; it is a case in which there was no execution whatever of an application for a nonresident alien's border-crossing identification card.
Exhibit 2 is entitled "manifest." Former 8 CFR 107.17 provided for the inspection of aliens seeking to enter the United States from foreign contiguous territory and for the preparation of a manifest on a specified form (Form I-448) which was the form used in this alien's case. The regulation was applicable equally to immigrants and nonimmigrants. It contained a provision that the inspecting officer sign the manifest when completed but there was no specific requirement that the alien sign it nor even that he be sworn.
When we examine exhibit 2, it is equally devoid of any characteristics of an "application." As we have stated above, the typewritten word "sworn" appears immediately above the word "manifest" which is an indication that the alien was questioned under oath. There is also the alien's signature on the reverse of exhibit 2. However, the usual statements of an applicant that he has read an application or heard it read and that his answers are true are lacking. There is no specific statement on exhibit 2 that it is an application for a nonresident alien's border-crossing identification card or that it is an application for anything. We must, therefore, regard it, as the form itself indicates, as a manifest prepared in accordance with former 8 CFR 107.17.
When the nonresident alien's border-crossing identification card was issued on November 24, 1941, there was a specific provision in former 8 CFR 110.61 that applicants for such cards "shall be required to fill out and sign under oath an application (Form No. 257A) * * *." The requirements that there be a formal application and that it be subscribed and sworn to were clearly mandatory. It is our considered opinion that these requirements are not met by mere preparation of a manifest in accordance with the provisions of an entirely different regulation.
On page 5 of the Service motion it was stated that this Board attempted to draw a distinction in Matter of B----, A-3156660, 2 IN Dec. 206 (1944), because that individual had obtained his nonresident alien's border-crossing identification card from an American consular officer. Clearly there is a vital distinction between that case and the case of this appellant because former 8 CFR 110.61, which required an application on Form 257A, related solely to nonresident aliens' border-crossing identification cards issued by officers of the Service and not to the similar cards issued by American consular officers.
When the nonresident alien's border-crossing identification card was issued to the appellant in 1941, there was no provision in the immigration law that fraud or misrepresentation in the procurement of such documentation would constitute a future ground of exclusion. It was not until the Immigration and Nationality Act of 1952 that such a provision was added. As we have indicated above, the equities in this case are strongly in favor of the appellant and his present difficulty appears to have resulted from the failure of a Service officer to furnish proper advice to him when he first applied for readmission in 1941. Under these circumstances, and in view of the fact that exclusion of the appellant would result in his perpetual banishment from the country in which he has resided almost all his life, we must hold the Service to a strict observance of its own regulation. Since the record fails to show that the Government complied with the specific provisions of former 8 CFR 110.61, requiring a formal application for a nonresident alien's border-crossing card as a condition precedent to the issuance of such documentation, we conclude that the Government is in an untenable position to assert that the documentation was obtained by fraud or by willfully misrepresenting a material fact. For the reasons stated herein, as well as those stated in our previous order, we will deny the Service motion.
Order: It is ordered that the Assistant Commissioner's motion of August 18, 1955, be and the same is hereby denied.
(October 5, 1955)
Discussion: By decision dated July 8, 1955, the Board of Immigration Appeals sustained an appeal from the order of the special inquiry officer excluding the alien under section 212 (a) (9) of the Immigration and Nationality Act for the admission of the commission of perjury and for the admission of the commission of acts which constitute the essential elements of such crime, and under section 212 (a) (19) for procuring a document by fraud and misrepresentation. The Board ordered admission of the alien for permanent residence. A motion for reconsideration was filed by the Service in which it was contended that the decision of the special inquiry officer should be affirmed. This motion has been denied although to some extent the Board has changed the basis for its decision.
The Board states that the appellant was "summarily refused admission" and that he could have been readmitted on a waiver of documents if the Service officer had furnished appropriate advice to the alien. Under repealed section 16 of the Immigration Act of 1917 and 8 CFR 110.4 an examining immigrant inspector was required to refer to a board of special inquiry any applicant for admission who did not appear clearly and beyond a doubt entitled to enter. Because of the schedule of the board of special inquiry at border ports, applicants were frequently required to return at a later time for a hearing. The charge that the Service officer violated the law and the regulation is not only wholly unsupported by the record but was completely unwarranted and uncalled for. If the alien had explained the true facts to the Service officer before whom he made application for a nonresident alien's border-crossing identification card instead of perjuring himself, consideration could then have been given to a waiver of documents. The unfortunate situation in which the appellant now finds himself is one of his own making. 8 CFR 132.1 had no application to this situation since the appellant had not been excluded from the United States.
In the decision reversing the special inquiry officer the Board stated that the definition of perjury was not explained in understandable terms, but now contends that it did not say the appellant did not understand the definition. Whatever may be the distinction between the two phrases, the fact remains that the Board has now receded from its position that no adequate definition of the crime of perjury was given. Nevertheless, the Board adheres to its view that a definition of the offense must be given in order to sustain a charge under section 212 (a) (9) that an alien admits the commission of acts constituting the essential elements of a crime involving moral turpitude.
The Board contends that this issue was concluded by Matter of E---- V----, 1610-9315, 5 IN Dec. 194. The necessity for a definition was not even considered in that case. Certainly the Board does not mean to imply that the Service is bound by broad or general statements which are only dicta in a case. Furthermore, it was held in that case that the alien no longer need admit the legal conclusion that he committed the specific crime and it is the contention of the Service that the elimination of this requirement eliminates the necessity for a definition. In any event 8 CFR 6.1 (g) has never been interpreted to mean that the Service is prohibited from requesting the Board itself or the Attorney General to reconsider a position once taken.
The record clearly established that a nonresident alien's border-crossing identification card was issued to appellant upon the basis of statements contained in exhibit 2 and made orally to the issuing officer. The appellant concealed prior residence in the United States and misrepresented the purpose for which he was seeking entry into this country. Section 212 (a) (19) contains no provision that the fraud or misrepresentation be made in an application or in any particular form. Consequently, it is immaterial whether we consider exhibit 2 as an application or as evidence of the material misrepresentations made to procure the document. In either event the charge is sustained.
For the reasons set forth in the Service motion dated August 18, 1955, it is believed that the excluding decision of the special inquiry officer should be affirmed. Vital issues are raised in this case and such issues must be resolved so that the Service may properly perform its functions. In view of the foregoing, the following questions should be certified to the Attorney General:
(1) Must a definition of the specific offense be given an alien in order to sustain a charge under section 212 (a) (9) of the Immigration and Nationality Act that he admits committing acts which constitute the essential elements of a crime involving moral turpitude?
(2) Was the finding of fact by the special inquiry officer that the alien admitted being under oath at the time he made his false statements in order to obtain a border-crossing identification card based upon reasonable, substantial and probative evidence so that the action of the Board in setting the finding aside was improper?
(3) Is the appellant excludable from the United States under the provisions of section 212 (a) (19) of the Immigration and Nationality Act by reason of the willful concealment of material information and the willful misrepresentation of material facts contained in the signed form (exhibit 2) and made orally to the issuing officer?Request is hereby made to the Board of Immigration Appeals that this case be referred to the Attorney General for review in accordance with the authority contained in 8 CFR 6.1 (h) (1) (iii).
(December 19, 1955)
Discussion: This matter is before us pursuant to the Acting Assistant Commissioner's request of October 5, 1955, that the case be referred to the Attorney General for review in accordance with 8 CFR 6.1 (h) (1) (iii) and that 3 questions be certified to the Attorney General. While the regulation mentioned provides that, at the request of the Assistant Commissioner, the Board shall refer a case to the Attorney General for review of its decision, we find no provision in the regulations which authorizes or requires this Board to certify questions to the Attorney General. Nevertheless, we will comment on the questions propounded by the Service in connection with our discussion of the case.
On April 20, 1955, the appellant secured an immigrant visa at an American consulate in Mexico after furnishing the necessary documents to that officer and satisfying him as to his eligibility for admission to the United States. He then applied for admission and was excluded by a special inquiry officer on the ground that he admitted the commission of perjury or the essential elements thereof and on the ground that he had previously procured documentation by fraud and misrepresentation. There is no contention that there was any fraud or misrepresentation in connection with the procurement of the present immigrant visa on April 20, 1955, nor that any other grounds for exclusion exist than the two mentioned, both of which stem from an incident which occurred during November 1941. On July 8, 1955, we entered an order sustaining the appellant's appeal in which our reasons for that action were clearly set forth. Subsequently, the Service filed a motion for reconsideration which we denied on September 28, 1955, after a further discussion of the issues involved. Thereafter, the present motion was filed.
The appellant was born in Mexico in 1913. His parents brought him and other members of the family to the United States in 1918 at which time he was lawfully admitted for permanent residence. Apparently he has lived in this country almost continuously since 1918 and his absences have been temporary and of short duration. In 1940 he married a native-born citizen and they have 5 children, 3 of whom were born in the United States. For the last several years he has resided at Ripley, California, where he owns his home and other property.
In 1941 the appellant crossed the border into the adjoining town of Mexicali for the purpose of bringing his wife back to the United States. He did not realize that he should have obtained a resident alien's border-crossing identification card before entering Mexico. About 2 months later he appeared before an immigrant inspector and requested readmission to the United States. He exhibited his card showing registration under the Selective Training and Service Act but was rejected without being given any information as to what was required in order that he might be readmitted.
Under the statutory provisions then in effect (section 16 of the Immigration Act of 1917) the primary inspector could admit an alien but if there was a doubt as to his admissibility he was required to hold the alien for examination by a board of special inquiry. While it was stated in the Service motion that applicants for admission at border ports were frequently required to return at a later time for a hearing before a board of special inquiry, we doubt that arrangements were made for such a hearing in the appellant's case since he testified he was furnished no information as to how to proceed and, if he had been notified to appear before a board of special inquiry, presumably that would have resulted in his readmission to the United States within a reasonable time through a waiver of documents under the 1924 and 1940 acts. At that time he had been a legal resident of this country for 23 years and was then the husband of a United States citizen. Even if the primary inspector had informed the alien that he should apply to an American consular officer in Mexico for an immigration visa, he would have been entitled to nonquota status under either subsections (b) or (c) of section 4 of the Immigration Act of 1924.
Section 13 (b) of the Immigration Act of 1924, 43 Stat. 161; section 30, Alien Registration Act of 1940, 54 Stat. 673.
The Service stated in its motion that we charged the immigrant inspector with violating the law and regulation. On the contrary, he rigidly enforced the law by refusing entry to the appellant because he did not have the necessary documents. What we consider to be the dereliction of the officer was that he did not display reasonable consideration for the rights of the alien because of the failure to render any assistance or to furnish any information to the alien.
Sometime after the appellant's attempt to reenter the United States lawfully had thus been defeated because of the summary rejection of the Service officer, the alien during November 1941 called at the Calexico office of the Service, was questioned by an immigrant inspector, and a nonresident alien's border-crossing identification card was issued to him. The Service contends that he made untruthful answers to 2 questions which he had been asked on November 21, 1941, that is, he said (1) that he had not previously resided in the United States, and (2) that he was coming to the United States to make purchases; whereas, it was his purpose to work in the United States. One exclusion charge stems from the 2 answers and the other charge is predicated on one of the answers.
We will first consider whether the appellant is inadmissible under section 212 (a) (9) of the Immigration and Nationality Act. This statutory provision provides for the exclusion of (1) "Aliens who have been convicted of a crime involving moral turpitude (other than a purely political offense)," or (2) "aliens who admit having committed such a crime," or (3) "aliens who admit committing acts which constitute the essential elements of such a crime; * * *." The numerals have been added for convenience, and we will speak of these provisions hereafter in this decision as the first, second and third clauses. Since the appellant was not convicted of perjury, the first clause has no application. The second clause contains language almost identical with that appearing in the prior legislation (section 3 of the Immigration Act of 1917; 39 Stat. 875-878). The third clause represents new legislation.
The special inquiry officer relied on the second and third clauses in excluding the appellant under section 212 (a) (9). We have indicated in our 2 previous decisions why the distinction between the second and third clauses is unimportant in the appellant's case. However, the Service is insistent that we base our decision on the third clause rather than the second clause and our discussion herein will, therefore, cover both clauses.
The question of whether the appellant is inadmissible on this first ground resolves itself into a determination of whether he committed perjury on November 21, 1941, and whether he has made the admissions required by section 212 (a) (9) of the Immigration and Nationality Act. The special inquiry officer based his conclusion that perjury had been committed on only one statement of the appellant, that is, his statement that he had not previously resided in the United States, whereas he had been a lawful resident of this country from 1918 until 1941. The statement seems to be relatively innocuous but we have held that a statement falsely denying prior residence in the United States has materiality.
Matter of B----, A-3156660, 2 IN Dec. 206 (1944).
In Matter of J----, 56038/559, 2 IN Dec. 285 (1945), we stated the requirements for a valid admission of crime under the Immigration Act of 1917, one of the rules being that the alien must admit all the factual elements which constitute the crime. The same rule must be applied to admissions under the second clause of section 212 (a) (9) of the Immigration and Nationality Act since, as we have indicated above, it is framed in language almost identical with that in the 1917 act. This rule is also applicable to admissions under the third clause because there the statutory language that the alien "admit committing acts which constitute the essential elements of such a crime" conveys exactly the same import as the rule mentioned. Consequently, in order to hold that this appellant is inadmissible under either the second or third clause, it would be necessary to first conclude that he has admitted committing acts which constitute the essential elements of perjury.
The appellant repeatedly stated that he does not remember whether he was sworn to tell the truth on November 21, 1941, when the false statement was made. The only evidence indicating that he was sworn is the typewritten word "sworn" which appears above the word "manifest" on exhibit 2. Nevertheless, as we stated in our first decision in this case on July 8, 1955, we are willing to assume that the appellant was examined under oath on November 21, 1941, but the crucial question is not whether he was sworn but whether he admits that he was sworn. Since the appellant does not remember whether an oath was administered to him, he has not admitted committing one of the acts (that he swore to tell the truth) which constitutes an essential element of perjury. This defect is equally present whether the case be considered under the second clause or under the third clause. Accordingly, the appellant has not made the admissions required by section 212 (a) (9) of the Immigration and Nationality Act and is not excludable under that provision.
Although the first ground of exclusion is actually a simple one and should require no further discussion, the Service has injected with respect to it certain collateral and subordinate issues which we consider it necessary to discuss. One of these is the second question stated in the motion of the Service. It reads as follows:
(2) Was the finding of fact by the special inquiry officer that the alien admitted being under oath at the time he made his false statements in order to obtain a border-crossing identification card based upon reasonable, substantial and probative evidence so that the action of the Board in setting the finding aside was improper?
While it would have been appropriate for the Service to refer to the specific finding by number, we believe it is clear that the reference is to finding of fact number 7 which is the sole finding on which the special inquiry officer predicated his conclusion that appellant was inadmissible under section 212 (a) (9) of the Immigration and Nationality Act. That finding of fact is as follows:
(7) That the applicant admits that he committed the crime of purjury at Calexico, California, on November 21, 1941, when he falsely stated under oath to an Immigration Officer that he had never been in the United States previously in order to obtain a border-crossing identification card.
As we have indicated above, the question of whether the appellant is excludable under section 212 (a) (9) hinges upon whether he has admitted that he was under oath at the time the false statement was made. The special inquiry officer's finding appears to be (1) that the appellant admitted that he committed purjury, and (2) that the appellant was under oath at that time, but we doubt that it can be considered a specific finding that the appellant admitted that he was under oath. We disregard this possible defect in the finding, however, and proceed to more substantial considerations.
The question propounded by the Service assumes, without discussion, that it would be improper for us to set aside a finding of a special inquiry officer if the finding was based upon reasonable, substantial and probative evidence. We hold that we have authority to reverse the special inquiry officer even though his findings are not clearly erroneous ( Federal Communications Commission v. Allentown Broadcasting Company, 349 U.S. 358, 364 (1955); Universal Camera Corporation v. National Labor Relations Board, 340 U.S. 474, 492 (1951)).
The contention that we have only a limited authority to review factual issues was advanced by the Service in the case of T---- B----, file A-4284259. This Board rejected the contention and the case is pending before the Department, our decision having been certified to the Attorney General for review on November 22, 1955. (EDITOR'S NOTE.-On June 6, 1956, a decision was rendered by the Attorney General holding that the Board has power to determine factual issues, subject to such limitations as the Attorney General may from time to time impose. See Matter of B----, A-4284259, Int. Dec. No. 785.)
The question of fact to be determined in this case is not whether the appellant was under oath when he gave the false answer on November 21, 1941, but whether he admits that he was under oath. This question must necessarily be determined solely on the record of the appellant's testimony on April 25, 1955. We discussed that testimony in our first decision in this case on July 8, 1955, and our analysis was as follows. The appellant insisted that he did not remember whether he was sworn to tell the truth on November 21, 1941. His attention was called to the fact that exhibit 2 contained the typewritten word "sworn" and he was then asked whether he denied that he had been sworn and answered "No, because it says so there, it's written there so I must have. I don't deny it but I don't remember it." The fact that he would not deny that he had been sworn is not tantamount to an admission that he was sworn, and even in this answer the appellant again said that he did not remember being sworn. At that time we took cognizance of the fact that, after the definition of perjury was given, the appellant was asked whether he admitted that he committed perjury on November 21, 1941, when he falsely stated under oath that he had never been in the United States before, and that he answered the question affirmatively. We declined to accept this general summarization, which included the element of the administration of an oath, as binding upon the appellant in view of his previous statements that he could not remember being sworn when asked the specific question. Upon reviewing the matter again, it is our considered opinion that our previous analysis of the testimony was correct and that the appellant has not admitted one of the essential elements of perjury, namely, the administration of an oath. Assuming that the special inquiry officer had made a specific finding that the appellant admitted that he was sworn, we would regard such a finding as not supported by reasonable, substantial and probative evidence.
The reliance of the Service on the third clause of section 212 (a) (9) of the Immigration and Nationality Act appears to have been a necessary preliminary to the first question which it wishes certified to the Attorney General. That question is whether a definition of the specific offense must be given to an alien in order to sustain a charge under the third clause. The Service takes the position that a definition is not necessary. It does not express any opinion as to whether a definition must be given to sustain a charge under the second clause and apparently it concedes that there the crime must be defined to the alien in accordance with the practice which has prevailed heretofore. The question of whether a definition of the crime was necessary under the third clause was set forth at some length in the Service motion of August 18, 1955, although it should have been clear that the matter was not related, in any way, to the conclusion we had reached in the appellant's case. In our decision of July 8, 1955, we had made the comment that there was a failure to explain the crime in understandable terms, but we specifically stated that we were basing our decision on another factor, that is, the fact that the appellant had not admitted one of the factual elements of the offense of perjury (the administration of an oath). Notwithstanding that question (1) propounded by the Service is not germane to this appellant's case, we will later herein set forth our views concerning the matter.
Before discussing question (1), we consider it necessary to clarify 2 subordinate matters regarding which the Service has not grasped our position. First, in its motion of October 5, 1955, the Service asserted that on July 8, 1955, we said that the definition of perjury was not explained in understandable terms; that on September 28, 1955, we said that we had not previously stated that the appellant did not understand the definition; and that we have receded from our position that there was no adequate definition of perjury. As indicated in the preceding paragraph, the question of whether a definition is necessary is not relevant in the appellant's case; similarly, whether the definition was adequate or inadequate is not pertinent to any issue involved in this case.
In its motion of August 18, 1955, the Service stated, "* * * the Board concluded that appellant did not understand the definition." We had not reached such a conclusion in our decision of July 8, 1955, nor did we express any opinion as to whether the appellant did or did not understand the definition of perjury, nor was there any necessity for such a determination since our decision was not based on any inadequacy of the definition. In our original decision of July 8, 1955, we said that the definition of perjury in 18 U.S.C. 231 had been read to the appellant in English and that it had been translated to him in Spanish and we specifically said that the appellant had stated that he understood the definition of perjury. Our criticism of the procedure was solely that there had been a failure to comply with one of the rules set forth in Matter of J----, supra, that is, that there must be an adequate definition of the crime and that it must be explained in understandable terms. In other words, the offense of perjury should have been explained to the appellant in simple language and this was particularly important in view of the technical phraseology of 18 U.S.C. 231. Our view concerning this matter today is the same as it was when we first decided this case on July 8, 1955, and, contrary to the statement in the Service motion, we have not receded from our original position.
Secondly, we believe that some comment is appropriate concerning certain statements of the Service regarding our decision in Matter of E---- V----, 1610-9315, 5 IN Dec. 194. We had cited that decision in our original order of July 8, 1955, in support of the following statement: "With the exception of the fact that an alien need no longer admit the legal conclusion that he has committed the specific crime, the rules laid down in Matter of J----, 56038/559, 2 IN Dec. 285 (1945), still prevail." Two of these rules are that an adequate definition of the crime, including all essential elements, must first be given to the alien and that he must then admit all the factual elements which constitute the crime.
In its motion, the Service asserted that the statement quoted above was only a dictum in Matter of E---- V----, supra. However, we note that the proposition for which we cited that case was stated in a substantially similar manner in headnote 2 of that decision, such headnotes being prepared by the Service and not by this Board. The Service does not give any reason for its opinion that the statement is dictum except that it says that the necessity for a definition was not even considered in that case. That is true, but it does not follow that the statement was dictum merely because the case of the appellant and Matter of E---- V----, differ factually. In our two previous decisions concerning the appellant we did not, of course, say that the facts in his case were analogous to the facts in Matter of E---- V----.
In Matter of E---- V----, supra, there had been a conviction for petty theft in 1947, an "expungement" of the record in 1953 having the effect of a pardon, and an attempt by the special inquiry officer to utilize the third clause of section 212 (a) (9) of the Immigration and Nationality Act as a basis for excluding the alien. The special inquiry officer in that case acknowledged that the alien's admission of the crime (under the second clause) would not have rendered him inadmissible in view of the prior administrative precedents that a pardon obliterates the conviction as well as an admission of the commission of the same crime.
Our decision in Matter of E---- V----, supra, that the alien was not inadmissible under the third clause was specifically predicated on the proposition that the only change which had been made in the prior law through the addition of the third clause was that the alien was not required to admit the legal conclusion that he committed the specific crime but that, in all other respects, the rules and precedents which had governed admissions of crimes under the 1917 act were still in effect. Hence, the statement in Matter of E---- V----, supra, was not dictum. In addition, during the two and one-half years since April 6, 1953, when Matter of E---- V---- was decided, many other cases involving the same point have arisen in which we have consistently followed that decision without previous disagreement on the part of the Service.
In the Assistant Commissioner's motion of August 18, 1955, the statement was made that it was the view of the Service that no definition of the crime need be given to an alien in order to sustain a charge under the third clause of section 212 (a) (9) of the Immigration and Nationality Act. We stated in our decision of September 28, 1955, that such an administrative view would be contrary to our decision in Matter of E---- V----, supra, and the provisions of 8 CFR 6.1 (g). We also pointed out why the case of the appellant did not involve the question of whether or not a definition of the crime was necessary under the third clause. Nevertheless, we specifically stated (decision of September 28, 1955) that we had considered the argument of the Service but concluded that we should adhere to our decision in Matter of E---- V----. In view of our reconsideration of the matter on September 28, 1955, there was no justification for the statement of the Service in its motion of October 5, 1955, that the "Board contends that this issue was concluded by Matter of E---- V----," and that "8 CFR 6.1 (g) has never been interpreted to mean that the Service is prohibited from requesting the Board itself or the Attorney General to reconsider a position once taken."
Notwithstanding the fact that the first question propounded by the Service is actually not relevant to the appellant's case and the fact that on September 28, 1955, we reconsidered the position we had taken in Matter of E---- V----, supra, we will again consider the question. In its present motion, the Service makes only one statement to support its position that an alien need not be given a definition of the specific offense in order to sustain a charge under the third clause of section 212 (a) (9) of the Immigration and Nationality Act. That statement is that the elimination of the requirement that an alien admit the legal conclusion that he committed the specific crime also dispenses with the necessity for a definition of the offense. It is not stated why that conclusion must necessarily follow and there is no elaboration of the point whatever. We have, however, again considered the full argument of the Service as set forth in its motion of August 18, 1955.
The first part of the Service discussion of the foregoing question consists solely of various quotations which add up to 2 facts of which we are well aware, namely, (1) that because of court decisions nothing less than the alien's admission of the legal conclusion that he had committed the specific crime was sufficient under the Immigration Act of 1917, and (2) that the congressional purpose in adding the third clause to section 212 (a) (9) of the Immigration and Nationality Act was to eliminate this judicially imposed requirement. Upon the basis of the quotations in the motion of August 18, 1955, the Service reached a conclusion which it states we had previously reached in Matter of E---- V----, supra (footnote 2, page 196). Under the circumstances, it would seem that the Service could have commenced its argument at that point and that the quotations were superfluous. In the footnote mentioned by the Service we had made the following comment concerning a report of the Committee on the Judiciary (Senate Report No. 1515, 81st Congress, 2nd session, pages 352-354):
The report makes it quite clear that the objection sought to be overcome was the court decisions holding that to sustain a charge of admission of the commission of a crime it was necessary for the alien to admit the commission of the specific crime and that the mere admission of facts from which an inference of guilt might be drawn was not competent, citing United States ex rel. Jelic v. District Director, 106 F. (2d) 14; Ex parte Rocha, 30 F. (2d) 823; Howes v. Tozer, 3 F. (2d) 849.
The congressional purpose is even more clearly stated in a direct quotation from the same report which quotation appears in the body of our opinion in Matter of E---- V----, supra, at page 196. That statement is as follows:
The principal purpose of the change is to overcome the situation which exists under the present law where an alien admits facts in an examination which clearly indicate commission of such a crime, but does not actually `admit having committed' such a crime as required by the law.
The Service asserted that, if we hold that a definition is required, the very purpose of the revision will have been defeated. We regard that contention as being without merit because we are convinced that the purpose of adding the third clause to section 212 (a) (9) of the Immigration and Nationality Act was solely to eliminate the requirement that the alien must admit the legal conclusion that he had committed the particular crime. In other words, taking the appellant's case as an example, he would have to admit the legal conclusion that he committed perjury in order to constitute a valid admission under the act of 1917 or under the second clause of section 212 (a) (9) of the Immigration and Nationality Act; under the third clause of the latter provision, he would not have to admit that he committed perjury but he would have to "admit committing acts which constitute the essential elements" of perjury. The addition of the third clause had nothing to do with the definition of the crime and there is nothing in the act of 1917 or the second or third clause of section 212 (a) (9) of the Immigration and Nationality Act which specifically states that the alien must be given a definition of the crime. That was a practice which grew up administratively and was one of the rules specifically stated in Matter of J----, supra.
The Service, in its motion of August 18, 1955, argued that the immigration authorities may now draw an inference of guilt from the statement of facts supplied by the alien; that the "alien no longer need admit the commission of a specific crime"; and that, therefore, the definition serves no useful purpose since the "only conceivable purpose of the definition is to provide the basis for the admission of the legal conclusion of guilt of a specific offense." That constitutes the complete argument of the Service. With reference to the statement that an inference of guilt may be drawn, we observe that the Service, in quoting from Howes v. Tozer, supra, emphasized a statement reading, "and that evidence of facts stated by the alien from which an inference of his guilt might be inferred is not competent." The statement of the Service relative to drawing an inference of guilt may mean only that, when the alien has made the admissions contemplated by the third clause of section 212 (a) (9) of the Immigration and Nationality Act, the Service is no longer required to secure from the alien a further admission that he committed the particular crime. If so, the statement coincides with our view as stated above. On the other hand, we disagree if the Service is contending that an inference of guilt may be drawn notwithstanding that the admissions made by the alien fall short of the requirements stated in the third clause.
Insofar as the remainder of the Service argument is concerned, the alien does not have to admit the legal conclusion that he committed the specific crime but his admissions of the acts which he committed must be such as will constitute the essential elements of some specific crime which involves moral turpitude. We do not agree with the Service that the "only conceivable purpose of the definition is to provide the basis for the admission of the legal conclusion of guilt of a specific offense." If that were so, the courts which had considered the validity of admissions under the 1917 act would undoubtedly have laid down that requirement. Instead, the requirement which was imposed judicially was that the admission of the crime must be tantamount to a voluntary confession of guilt.
The requirement of a definition evolved as an administrative practice. In Matter of J----, supra, this Board stated certain rules to be observed in deciding whether there had been a valid admission of crime under the 1917 act, and there is appended to that decision a copy of the Solicitor General's memorandum of May 29, 1945, containing another statement of the rules. The rules, as stated by the Solicitor General, were as follows:
(1) It must be clear that the conduct in question constitutes a crime or misdemeanor under the law where it is alleged to have occurred.
(2) The alien must be advised in a clear manner of the essential elements of the alleged crime or misdemeanor.
(3) The alien must clearly admit conduct constituting the essential elements of the crime or misdemeanor and that he committed such offense. By the latter is meant that he must admit the legal conclusion that he is guilty of the crime or misdemeanor.
(4) It must appear that the crime or misdemeanor admitted actually involves moral turpitude, although it is not required that the alien himself concede the element of moral turpitude.
(5) The admissions must be free and voluntary.
With respect to the second rule, we had stated that requirement in Matter of J----, supra, as follows:
(2) An adequate definition of the crime, including all essential elements, must first be given to the alien. This must conform to the law of the jurisdiction where the offense is alleged to have been committed, and it must be explained in understandable terms.
It has been the practice of the Service to give either the statutory definition of the particular crime, as was done in this appellant's case, or to give a simplified definition of the crime. We believe that the obvious purpose for doing so was to insure that the alien would receive fair play and to preclude any possible later claim by the alien that he had been unwittingly entrapped into admitting the commission of a crime involving moral turpitude. This is apparent from the rules, as stated by the Solicitor General and this Board, which clearly indicate that the alien must be advised in a clear manner of the essential elements of the alleged crime ( i.e., must be given an adequate definition of the crime, including all essential elements, explained in understandable terms) before he is called upon to admit committing the acts which constitute the essential elements of the crime, the latter being the admission required under the third clause of section 212 (a) (9) of the Immigration and Nationality Act. We can perceive no logical reason why the elimination of the requirement that the alien admit the legal conclusion that he committed some particular crime should change the rule of fair play that, before the alien is called upon to admit the acts which constitute the essential elements of a particular crime, the crime should be defined and explained in simple terms. We hold that is still a requirement and we adhere to our position in Matter of E---- V----, supra, that the rules stated in Matter of J----, supra, prevail under the third clause of section 212 (a) (9) of the Immigration and Nationality Act except that the alien is not required to admit the legal conclusion that he committed the specific crime.
In Galvan v. Press, 347 U.S. 522, 530 (1954), the Court said that fair play is the essence of due process.
The third question propounded by the Service relates to the one remaining issue in this case. The Service has stated the question as follows:
(3) Is the appellant excludable from the United States under the provisions of section 212 (a) (19) of the Immigration and Nationality Act by reason of the willful concealment of material information and the willful misrepresentation of material facts contained in the signed form (exhibit 2) and made orally to the issuing officer?
Section 212 (a) (19) of the Immigration and Nationality Act is as follows:
Sec. 212. (a) Except as otherwise provided in this Act, the following classes of aliens * * * shall be excluded from admission into the United States: * * * (19) Any alien who seeks to procure, or has sought to procure, or has procured a visa or other documentation, or seeks to enter the United States, by fraud or by willfully misrepresenting a material fact.
We have emphasized the particular words in subsection (19) above which are relied upon by the Service to support the alien's exclusion under that statutory provision. The question propounded by the Service would have been more precisely framed if it had been simply whether the appellant is excludable under section 212 (a) (19). In other words, he is not excludable under that statutory provision by reason of willful concealment of material information or willful misrepresentation of material facts but is excludable if he "procured documentation" by fraud or by willfully misrepresenting a material fact. The "documentation," which the Service contends that the appellant procured by fraud and misrepresentation, was a nonresident alien's border-crossing identification card. The card itself is not in evidence but we are satisfied that a nonresident alien's border-crossing card was, in fact, issued to the appellant on November 24, 1941. If we hold that the appellant procured documentation by fraud or misrepresentation, he will be perpetually barred from returning to the United States to resume his residence because of the provisions of section 212 (a) (19) of the Immigration and Nationality Act. As we stated in our original decision of July 8, 1955, it appears unlikely that Congress intended that this severe penalty should be visited on one who, 14 years ago, had obtained only the privilege of entering the United States for 24-hour periods. Nevertheless, we were of the opinion that the word "documentation" in section 212 (a) (19), when strictly construed, was sufficiently comprehensive to include the border-crossing cards of resident aliens and of nonresident aliens.
In the third question of the Service, there is a reference to concealment or misrepresentation of material facts at the time exhibit 2 was prepared by an immigrant inspector on November 21, 1941. As we stated in our order of September 28, 1955, there are only the two following items to which the Service can point:
Ever in U.S. — No.
Purpose in coming and time remaining — B/C PRIVILEGE.
Insofar as concerns the reference in question (3) to oral misrepresentations to the officer who questioned the appellant on November 21, 1941, it is true that the appellant knew that the issuance of the nonresident alien's border-crossing card did not permit him to work in the United States and that he did, in fact, work in the United States. However, the only evidence we have been able to find of any actual oral misrepresentation in 1941 is contained in one question and answer at the hearing on April 25, 1955, when the appellant was asked what he told the immigrant inspector on November 21, 1941, as to the purpose for which he wanted the card and answered, "To come and buy stuff." When viewed in retrospect, these misrepresentations which the appellant made in 1941 seem hardly a sufficient cause for now barring him permanently from returning to his home in the United States. This is particularly so when we take into consideration the fact that, prior to December 24, 1952, when the Immigration and Nationality Act became effective, no ground of exclusion would have arisen from these same misrepresentations. Entirely apart from any equitable considerations, however, there is one reason which necessitates the conclusion that the appellant is not inadmissible under section 212 (a) (19) of the Immigration and Nationality Act. We mentioned this in our two previous decisions.
The question of the appellant's excludability under the statutory provision mentioned above is not dependent merely on a determination of whether he made misrepresentations on November 21, 1941. The important question is whether he procured "documentation," that is, whether he procured the nonresident alien's border-crossing identification card by "fraud or by willfully misrepresenting a material fact." In order to determine the legal validity of the "procurement," we must consider the pertinent regulations which were effective in 1941. These were former 8 CFR 110.60 and 110.61 ( 5 F.R. 3195; 6 F.R. 229). Under former 8 CFR 110.60 a citizen of Mexico who was domiciled there could be admitted for less than 30 days upon presentation of a nonresident alien's border-crossing identification card. Former 8 CFR 110.61 provided authority for immigrant inspectors at land border ports of entry to issue nonresident aliens' border-crossing identification cards but, as a condition precedent to the issuance of the document, the regulation specifically provided, "Such aliens shall be required to fill out and sign under oath an application (Form No. 257A) * * *." The regulation then spelled out the various items of information which the alien was required to furnish including the purpose of his entry and the length of his proposed stay. The regulation provided that the application was to state "the applicant's understanding that he will be required to depart from the United States at the end of his sojourn and that if he remains in the United States for 30 days or longer he will be required prior to the expiration of the 30-day period to register and be fingerprinted in accordance with the provisions of the Alien Registration Act, 1940."
The special inquiry officer referred to exhibit 2 as an application for a nonresident alien's border-crossing identification card, as did also the Service originally. We pointed out, in our two previous decisions, that exhibit 2 is not an application but a manifest prepared under former 8 CFR 107.17, which regulation did not require that the manifest form (I-448) be signed or sworn to by the alien. The Service, in its motion of October 5, 1955, says that it is immaterial whether exhibit 2 is considered to be an application or to be evidence of the misrepresentations which were made because section 212 (a) (19) of the Immigration and Nationality Act does not require that the fraud or misrepresentation be made in an application or in any particular form. We did not say, in our previous decisions, that the application was required by section 212 (a) (19); we said that the regulation, which specifically related to nonresident aliens' border-crossing identification cards, required a formal application.
If the Service had complied with its own regulation that a written application be prepared, signed and sworn to by the alien, the very formality of the matter would have tended to insure truthfulness and accuracy and would have diminished the possibility of misunderstanding between the alien and the officer who questioned him in 1941. Furthermore, instead of the paucity of information which we now have, we would have a written application showing exactly what representations were made to procure the nonresident alien's border-crossing card. We would not be asked to bar the appellant permanently from the United States on the basis of the 2 items quoted above from exhibit 2 plus the appellant's testimony that 14 years ago he had stated the purpose of his trip as "To come and buy stuff."
We believe that before there can be said to have been a procurement of documentation, there must be an issuance of documentation. Since the issuance of the documentation was unlawful, because the Service violated its own regulation, we hold that the alien's acceptance thereof did not constitute a valid "procurement of documentation" within the meaning of section 212 (a) (19) of the Immigration and Nationality Act. In any event, we believe that the Government would be in a completely untenable position to assert that the alien "procured documentation" by fraud or misrepresentation under the circumstances which are present in this case. Upon reconsideration, we conclude that no change should be made in our previous orders.
Order: It is ordered that the orders of this Board dated July 8, 1955, and September 28, 1955, be affirmed.
As requested by the Acting Assistant Commissioner on October 5, 1955, and in accordance with 8 CFR 6.1 (h) (1) (iii), this case is referred to the Attorney General for review of the Board's decision.
(April 2, 1956)
This case is before me for review of a decision of the Board of Immigration Appeals, sustaining the petitioner's appeal from an order, dated April 25, 1955, by a special inquiry officer of the Immigration and Naturalization Service.
The issues presented are: (1) whether the alien has admitted committing a crime involving moral turpitude or has admitted committing acts which constitute the essential elements of such a crime, and (2) whether the alien obtained a visa or other documentation by fraud or by willfully misrepresenting a material fact.
On the basis of the record in this case, and the law relevant to the facts, it is my opinion that, pursuant to subsections (a) (9) and (a) (19) of section 212 of the Immigration and Nationality Act of 1952, A---- G---- M---- is not subject to exclusion from entering the United States for permanent residence.
In regard to subsection (a) (19) of section 212 of the 1952 act, the strongest reason for holding the alien admissible is that the misrepresentation in question did not relate to a material fact nor amount to fraud within the meaning of the subsection. The courts have consistently held that a misrepresentation is not material, when made during proceedings for admission into the United States, if the alien would not have been denied a visa or excluded had he told the truth ( United States v. Day, 34 F. (2d) 920 (C.C.A. 2, 1929); United States ex rel. Leibowitz v. Schlotfeldt, 94 F. (2d) 263 (C.C.A. 7, 1938); United States ex rel. Fink v. Reimer, 96 F. (2d) 217 (C.C.A. 2, 1938); United States ex rel. Percas v. Karnuth, 28 F. Supp. 597 (D.C., W.D.N.Y., 1939); United States ex rel. Teper v. Miller, 87 F. Supp. 285 (U.S.D.C., S.D.N.Y., 1949)). From an examination of the statutes and regulations in effect in 1941, it appears that if A---- G---- M---- had told the truth when he applied for border-crossing privileges on November 21, 1941, he would have been entitled to more than the limited privileges granted by a nonresident alien's border-crossing identification card The alien would have been given the right to return to the United States for permanent residence. See sections 10, 13 (b), and 4 (b), (c) of the Immigration Act of 1924 ( 43 Stat. 158, 162, 155); section 30 of the Alien Registration Act of 1940 ( 54 Stat. 673); 8 CFR 13.1 (1938 ed.), and 8 CFR 132.1 (1943 Cum.Supp.).
For the reasons herein discussed, the order of the Board of Immigration Appeals sustaining the appeal of the alien is approved.