A-7491912
Decided by Board December 22, 1950 Approved by Acting Attorney General January 17, 1951
Seventh proviso relief — Section 3 of the act of February 5, 1917 — Discretion — Policy — Good moral character.
Whether an alien possesses sufficient good moral character and his case merits the favorable exercise of the discretion of the Attorney General under the seventh proviso to section 3 of the act of February 5, 1917, is determined from all the pertinent factors in the case; due consideration is given to the standards set forth by the Attorney General as well as the circumstances in each case in reaching such determination.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — No immigration visa.
E.O. 8766 — No passport.
Act of 1917 — Convicted of crimes prior to entry, to wit: Violation of Harrison Narcotic Act; and Violation of Jones-Miller Act.
Act of 1917 — Admits crime prior to entry, to wit: Perjury.
BEFORE THE BOARD
(December 22, 1950)
Discussion: This matter is before us by reason of an appeal from the decision of the Acting Assistant Commissioner of Immigration and Naturalization, Adjudications Division, dated September 27, 1950, wherein it was ordered that the excluding decision of the Board of Special Inquiry be affirmed in that at the time of arrival the appellant was an immigrant not in possession of an unexpired consular immigration visa as required under the provisions of section 13 (a) of the Immigration Act approved May 26, 1924 (8 U.S.C., sec. 213 (a)); and, that he admitted the commission of a crime involving moral turpitude; to wit: perjury and is therefore inadmissible because of the provisions of section 3 of the act of February 5, 1917 (8 U.S.C., sec. 136). Subject had no passport.
Section 13 of the act approved May 26, 1924 ( supra), provides that —
no immigrant shall be admitted to the United States unless (1) he has an unexpired immigration visa.
Section 3 of the act of February 5, 1917 ( supra), provides among other things —
That the following classes of aliens shall be excluded from admission to the United States — persons who admit having committed a felony or other crime or misdemeanor involving moral turpitude.
In the decision of the Acting Assistant Commissioner of Immigration and Naturalization, as aforesaid, an application for the favorable exercise of the discretion vested in the Attorney General under the 7th proviso to section 3 of the act of February 5, 1917 (8 U.S.C., sec. 136), was denied. That section provides:
That aliens returning after a temporary absence to an unrelinquished United States domicile of seven consecutive years may be admitted in the discretion of the Attorney General, and under such conditions as he may prescribe.
Counsel urges that the appellant should receive favorable consideration under the 7th proviso to section 3 of the Immigration Act of 1917, because of subject's long residence in the United States and the long unrelinquished domicile to which he is returning after an absence of less than 6 months.
The appellant G---- Y---- G----, also known as J---- Y---- arrived on a plane of the Philippine Airlines at Honolulu, T.H., on January 19, 1949, and he later arrived at San Francisco, Calif. on January 20, 1949, where he applied for admission to the United States as a returning citizen thereof. He alleged that he had been born in The Dalles, Oreg. on November 26, 1901. In support thereof he presented a United States passport issued by the United States Department of State on December 10, 1946 to G---- Y---- G----.
On the occasion of hearing before the board of special inquiry at San Francisco, Calif., on June 5, 1950, the appellant immediately conceded that he was born in Ung Hing Village, Sun Wuey District, China, on November 26, 1901, and that he is a citizen of the country of his nativity. Alienage is thereby established. The alien subsequently stated that when he was 16 or 17 years of age (about 1917 or 1918) he left China for Canada, and, entered the Dominion at Vancouver, British Columbia; that after several months in Canada he proceeded to Seattle, Wash., in an automobile. He further stated that he effected entry into the United States without the inspection as required by law. He thereafter remained in the United States except as hereinafter set forth.
On February 10, 1928, the subject of this proceeding was convicted in the United States District Court for the Northern District of California, Southern Division, for violations of the Harrison Narcotic Act of December 17, 1914, and the so-called Jones-Miller Act of February 9, 1909, as amended by the act of May 26, 1922, in that on or about January 13, 1928, he did knowingly, willfully, unlawfully, and feloniously purchase, sell, dispense, and distribute a certain derivative of opium; to wit, one can of morphine containing 1 ounce; and that he did willfully, unlawfully, knowingly, feloniously and fraudulently receive, conceal, buy, sell, and facilitate the transportation and concealment after importation of morphine as indicated, knowing it to have been imported contrary to law. He was sentenced to 3 months imprisonment and to pay a fine of $1,000.
Although the appellant was excluded because of the foregoing offenses which offenses were held by the board of special inquiry to be crimes involving moral turpitude, this Board has consistently held that such violations do not involve moral turpitude. Consequently, the Acting Assistant Commissioner of Immigration and Naturalization, Adjudications Division, properly dismissed those causes from consideration, and, with such action we are in accord. (See U.S. ex rel. Andreacchi v. Curran, 38 F. (2d) 498; also Matter of V----, 56096/451, decided July 21, 1942, 1 IN Dec. 293.)
The subject also stated that he was arrested on two or three occasions in San Francisco, Calif., but a search of the records disclosed that the charges against him which were of a minor nature were all dismissed in 1939 and 1942. While we do not seek to condone any of his offenses they were not serious in the light of the circumstances under which committed.
On June 18, 1928, the subject hereof married T---- K---- N---- who was admitted to this country on November 30, 1919, as the daughter of a citizen of the United States. It is uncontroverted she is a citizen of this country. Of that union 4 children were born in the United States, 3 daughters and 1 son. Two daughters and 1 son are still living. One daughter is married and the 2 remaining children, as well as the wife, are dependent upon the appellant.
On August 27, 1948, the appellant departed from the United States on the S.S. General Gordon from San Francisco, Calif., for Hong Kong, China. Prior to this departure he filed an application for a United States passport alleging in the said application, among other things, that he was born in The Dalles, Wasco County, Oreg. At the same time in connection with this application for a United States passport he presented affidavits of G---- S----, L---- M----, and J---- S---- S----. The subject alleges that the affidavits were obtained in his behalf by one W---- T---- or W---- T----, also known as H---- B---- B----.
Of greater moment in the case at bar is the admission by the alien of the commission of perjury. Perjury has been held to be a crime involving moral turpitude (see Carella v. Karnuth, 2 F. Supp. 998 (D.C.N.Y., 1933); U.S. ex rel. Karpay v. Uhl, 70 F. (2d) 792 (C.C.A.N.Y., 1934), cert. den. 1934, 55 S. Ct. 85, 293 U.S. 573, 79 L. Ed. 671; and Boraca v. Schlotfeldt, 109 F. (2d) 106 (C.C.A. Ill. 1940). U.S. ex rel. Majka v. Palmer, 67 F. (2d) 146 (C.C.A. Ill. 1933).
Referring to the admission of the commission of the offense of perjury the record shows; the alien admits that he registered as a voter in San Francisco, Calif., and in connection with such registration the subject executed an affidavit wherein he claimed to be a citizen of the United States by reason of birth in Oregon. He knew at that time that the facts asserted on the registration were false.
Section 118 of the Penal Code of the State of California provides as follows:
Having taken an oath that he will testify, declare, depose, or certify, truly before any competent tribunal, officer, or person, in any of the cases in which such an oath may by law be administered, willfully and contrary to such oath, states as true any material matter which he knew to be false, is guilty of perjury.
Part 120 provides that:
No person shall be registered as a voter except by affidavit of registration. The affidavit shall be made before the County Clerk and shall set forth all of the facts required to be shown by this chapter.
Part 126 provides that:
A foreign born person shall not be registered unless he proves in the manner set forth in this Article, that he is a citizen.
Part 230 sets out the substantial form of the body of the affidavit of registration. The pertinent portion thereof reads:
The undersigned affiant, being duly sworn, says: I will be at least twenty-one years of age at the time of the next succeeding election, a citizen of the United States ninety days prior thereto, and a resident of the State one year, of the county ninety days, and of the precinct forty days next preceding such election, and will be an elector of this county at the next succeeding election.
* * * * * * *
Subscribed and sworn to before me this ---- day of ------------, 19----.
----------------------------, County Clerk. By----------------------------------, Deputy County Clerk.
Following the foregoing California definition the alien unqualifiedly admitted the commission of the offense of perjury in registering as a voter in California. (See Howes v. Tozer, 3 F. (2d) 849). That the alien is subject to exclusion for the three reasons hereinabove set forth, to wit, the 1st, 2d, and 4th is adequately established by the evidence of record, including the alien's own admission of the commission of perjury.
The appellant resided in the United States from either 1917 or 1918 when he was 16 or 17 years of age continuously until the date of his departure on August 27, 1948. On the occasion of his last arrival he was seeking to return to this country to his wife and children, all citizens of the United States, and to continue operating his barber shop at 872 Washington Street, San Francisco, Calif. The wife and two children are dependent upon the subject for their support and maintenance.
The Attorney General in a communication of October 16, 1950, indicated the policy of the Department in connection with the exercise of the discretion vested in him under the 7th proviso to section 3 of the Act of February 5, 1917 ( supra). He stated:
That the discretion thus vested should be exercised only in exceptionally meritorious cases. "Except in unusual circumstances the proviso should be exercised only where the alien involved has proved good moral character for at least the preceding five years, and it appears that the exclusion of the alien would result in serious economic detriment to a citizen * * * who is the spouse * * * or dependent child of such alien."
The principal question is whether the alien possesses sufficient good moral character to exercise favorably the discretion vested in the Attorney General.
The offenses of perjury committed by the alien during the year of 1946 when he registered as a voter in California and also when he applied for a United States passport alleging in both instances that he was a native-born citizen of the United States would seem to exclude him from favorable consideration because these offenses were committed within the past 5 years. All of the perjurious statements, however, fall into one pattern; namely, the effort to remain in this country and to reside here. The narcotic violations, while not to be condoned were committed over 22 years ago and they were of a rather technical nature. The alien has resided in the United States for approximately 32 or 33 years prior to his temporary departure for China in 1948, and at the time of his application for permission to reenter he was returning to his wife and children who are all citizens of the United States. To exclude this alien would certainly banish him from this country forever, and at the same time a serious permanent family separation would obtain.
We recognize that this case is one not immediately within the standards set forth by the Attorney General, yet the appellant's long residence here, plus the family separation involved and the consequent hardships thus presented cannot be lightly considered, and we feel they outweigh the irregularities to which this alien resorted. Good moral character is such character as measures up to the standard of the average citizen of the community where the person resides. ( In re Hopp, 179 Fed. 561 (D.C. Wis., 1910)). It means what the person really is, not what he is supposed to be. ( United States v. Hrasky, (1909) 88 N.E. 1031, 240 Ill. 560.)
It is our opinion that the alien possesses sufficient good moral character, and that the case has such merit as to exercise the discretion of the Attorney General favorably, but in so doing we feel that the matter should be referred to him for a review of our action.
The alien is inadmissible because he requires an unexpired immigration visa, and he also requires a passport. The appeal must therefore be dismissed.
Order: It is ordered that the appeal from the decision of the Acting Assistant Commissioner of Immigration and Naturalization, Adjudications Division, dated September 27, 1950, be and the same is hereby dismissed solely because of documentary grounds.
It is further ordered that the alien be permitted to depart from the United States, without expense to the Government, within 60 days from the date of this decision, such departure to be considered sufficent compliance with the excluding decision as above.
It is further ordered that in the event the alien reapplies to the United States in possession of appropriate documents within 3 months after departure, that admission be authorized under the 7th proviso to section 3 of the act of February 5, 1917 notwithstanding the admission of the commission of perjury in connection with false registration as a voter in the State of California, and in connection with obtaining a United States passport, subject to revocation by the Attorney General upon hearing in the event the alien should commit an offense of any kind whatsoever. Preexamination is authorized.
In accordance with the provisions of 8 C.F.R., section 90.12 (c), this case is certified to the Attorney General for review of the Board's decision.
The decision and order of the Board of Immigration Appeals dated December 22, 1950, are hereby approved.