N-A-3156660 (56158/385) B-56158/527 (now A-3156660)
On Reconsideration Decided by Board November 4, 1944.
Crime involving moral turpitude — Perjury — Admission — Materiality of false statement — Section 231, title 18, U.S.C. and section 16 of the Immigration Act of 1917.
1. To constitute the offense of perjury under 18 U.S.C. 231 and section 16 of the Immigration Act of 1917, the element of materiality is essential.
2. The "materiality" specified under section 16 of the Immigration Act of 1917 may be established, even if the alien otherwise be excludable or deportable.
3. False statement as to marital status found not "material," where alien sought temporary admission and was held admissible as such.
4. False statement as to previous residence in the United States found to be "material," where alien sought temporary admission but was held to be an immigrant, and was excludable otherwise too.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1917 — Admits the commission of perjury (only ground reconsidered).
Act of 1917 — Likely to become public charge.
Act of 1917 — Illiterate.
Act of 1924 — No visa.
BEFORE THE BOARD
Statement of the Case: On June 5, 1944, we concluded in the case of M---- N---- that the evidence did not support exclusion on either of the above applicable grounds. In disposing of the perjury charge we said:
This Board has held that misstatements before a Board of Special Inquiry which do not place the applicant within an excludable class of aliens are not material to the issue of his admissibility to the United States and cannot, therefore, constitute the subject of perjury ( Matter of G----, 56041/599 (April 2 1942)). Had the appellant, on the occasion of her hearing on January 10, told the truth regarding her marital status, this information would not have made her inadmissible under the immigration laws of this country, and, accordingly, her false statement in this regard cannot be termed perjury, irrespective of her admission of the commission of that crime ( Matter of G----, 56064/847 (January 14, 1942)). The first ground for exclusion designated above is not, therefore, sustained.
Likewise, on June 5, 1944 in the case of L---- B----, we concluded that he was inadmissible on all three of the above applicable grounds. In commenting on the perjury charge therein, we said:
We have recently held that in an application for admission to the United States prior residence is a material matter and that a false denial of such residence under oath constitutes perjury ( Matter of R----, 56091/636 (November 29, 1943)). In that case the alien was applying for admission for permanent residence and it was reasoned that a denial of prior residence cuts off inquiry into the alien's past record from which may stem grounds of inadmissibility. The language in the decision was not such as to limit its applicability to cases where an alien applies for admission for permanent residence, however. As borne out by the facts of this case, where an alien is seeking to enter as a visitor or border crosser, the question of prior residence has added relevancy since it is material to the issue of whether or not he is a bona fide visitor or is in fact an immigrant.
The appellant, M---- N----, applied for admission as a visitor and when first interrogated by a Board of Special Inquiry on January 10, 1944 testified that she had never been married. Upon reinterrogation on March 25, 1944, and upon being apprised of an investigation conducted in her case which disclosed she was married, she admitted the falsity of her original testimony and explained that her answer to the pertinent question was based on the fact that she had instituted divorce proceedings in Canada and that her husband did not reside with or support her. She thereupon admitted the commission of perjury in falsely testifying at the original hearing that she had never been married.
The appellant, L---- B----, applied for admission as a visitor April 29, 1944, at Laredo, Tex. He lived in the United States from 1914 to December 1943. He thereafter secured a border-crossing card from the American consul in Mexico and was admitted as a visitor on February 18, 1944, on which date he executed a manifest under oath in which he indicated that he had not previously been in the United States. He admits such statements with reference to previous residence to have been false and made an explicit admission of the commission of perjury. He explained that he made that statement since he believed that otherwise he would not have been permitted to enter as a visitor.
Because of the apparent inconsistency between the premises in those cases, and the precedents cited therein, we shall reconsider and clarify the question of perjury.
Discussion: Section 17 of the Immigration Act of 1917 provides that Boards of Special Inquiry "shall have authority to determine whether an alien who has been duly held shall be allowed to land or shall be deported."
8 U.S.C., sec. 153.
Section 16 of said act, which deals with the primary inspection of arriving aliens, provides for the taking of evidence under oath "touching the right of any alien to enter, reenter, pass through, or reside in the United States, * * *." This section further provides that any person under oath —
who shall knowingly or willfully give false evidence or swear to any false statement in any way affecting or in relation to the right of any alien to admission, or readmission to, or to pass through, or to reside in the United States, shall be deemed guilty of perjury and be punished as provided by section 125 of the Criminal Code ( 18 U.S.C.A., sec. 231). All aliens coming to the United States shall be required to state under oath the purpose for which they come, the length of time they intend to remain in the United States, whether or not they intend to abide in the United States permanently and become citizens thereof, and such other items of information regarding themselves as will aid the immigration officials in determining whether they belong to any of the excluded classes enumerated in section three thereof.
Section 231, Title 18, U.S.C.A. (Section 125 C.C.) provides that-"Whoever, having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate before him subscribed, is true, shall willfully and contrary to such oath, state or subscribe any material matter, which he does not believe to be true, is guilty of perjury, and shall be fined not more than $2,000 and imprisoned not more than 5 years (act of March 4, 1909, ch. 321, § 125, 35 Stat. 1111)."
The test of the materiality of false statements as affecting an applicant's right to admission (or deportation) has not always been uniformly applied in determining the presence or absence of perjury. In some cases the language has been too broad and in others the language has not been too clear. The result has been a variance in the conclusions reached. This amorphousness in the approach to this problem appears to have stemmed from a lack of uniformity in proceeding from a correct and constant major premise. A clarification of this legal principle will obviate inconsistencies in cases of this nature and will bring about a much desired compatibility in determining the issue of perjury arising under section 16, Immigration Act of February 5, 1917, as amended.
Matter of M----, 56068/256 (September 8, 1941). Matter of R----, 56043/929 (December 2, 1942). Matter of de S----, 56872/461 (January 6, 1943). Matter of R----, 56091/636 (November 29, 1943).
True enough, the inquiring body is entitled to have before it all necessary facts to properly pass upon the question of admissibility. In determining that question, all pertinent, relevant, and competent testimony becomes material. The testimony must not be such as to influence, impede, or dissuade the inquiring body on the issue before it. It so happens that applicants for admission are not always truthful when testifying under oath. (The point which arises, and with which we are here concerned, is — Does all false testimony, whether material or not, other essential elements being present, constitute perjury. Palpably such a principle would be contrary to all legal precept where materiality is a statutory requirement and, hence, incompatible with the language of Section 16 of the Immigration Act of 1917 and section 231 of title 18, U.S.C.A.)
An oath administered to witness calls on him freely to disclose the truth in the first instance and not to put inquiring body to disadvantage, hindrance and delay of ultimately extracting the truth by needless examination and extraneous investigation or other collateral means ( U.S. v. Norris, 300 U.S. 546).
Section 231, the general perjury statute, embraces all cases of false swearing whether in a court of justice or before administrative offices acting within their power ( Bohm v. U.S., 123 F. (2d) 791 (C.C.A. Mo., 1941)).
False testimony actually tending to influence a fact finding agency will support conviction for perjury ( Woolley v. U.S., 97 F. (2d) 258 (C.C.A. Calif., 1938)). Cert. Den., 305 U.S. 614.
Whether testimony is on a "material matter" within section 231 (the general perjury statute — see footnote 2) is dependent upon whether the false testimony is capable of influencing the tribunal on the issue before it ( Blackman v. U.S., 108 F. (2d) 572 (C.C.A. La., 1940)).
The phrase "material matter" as used in the Federal perjury statute means one that is legally capable of being proved in the cause and does not mean necessarily a matter that directly affects the issue of the trial ( U.S. v. Slutzky, 79 F. (2d) 504 (C.C.A. Pa. 3d, 1935)).
In Commonwealth v. Grant ( 116 Mass. 117), which involved a conviction for perjury, in considering the question of materiality, the court said: "That is material which tends to prove or disprove any fact in issue, although it may be an incidental fact."
That problem has not been dealt upon without some confusion or misunderstanding. In several cases we have held to the requirement that the false testimony must be material to the issue of admissibility — that is, the testimony withheld must afford factual basis upon which some ground of exclusion (or deportation) can be determined. As stated, the language of others was either too broad or nebulous and therefore tended to confuse that principle. That principle is supported by judicial precedent. The contrary position, however, has also been taken.
Matter of G----, 55924/957 (April 22, 1941). Matter of B----, 56071/391 (June 24, 1941). Matter of G----, 56041/599 (April 23, 1942). Matter of R----, 56080/289 (June 17, 1942). Matter of K----, 56073/783 (November 18, 1942). Matter of A----, 56079/380 (December 11, 1942). Matter of R---- N----, 56127/785 (now A-7715810) (April 17, 1943). Matter of K----, 56156/945 (March 1, 1944). Matter of L----, 56158/242 (April 13, 1944).
U.S. ex rel Iorio v. Day, 34 F. (2d) 920 (C.C.A. 2d, 1929). Ex parte Chin Chan On et al, 32 F. (2d) 828 (W.D. Washington, 1929). U.S. ex rel Karpay v. Uhl, 70 F. (2d) 792 (C.C.A. 2d, 1934).
Kaneda v. U.S., 278 F. 694 (C.C.A. 9th, 1922). Masaichi Ono v. Carr, 56 F. (2d) 773-4 (C.C.A. 9th, 1932).
Perjury at common law is defined as "the willful giving, under oath, in a judicial proceeding or court of justice, of false testimony material to the issue or point of inquiry."
It has been extended by Federal statute and by statutes of many States to include false swearing not connected with judicial proceedings. In some jurisdictions it appears that perjury or false swearing even may be premised upon false swearing to a matter not material to the issue or point of inquiry.
U.S. Criminal Code, sec. 125; U.S.C., title 18, sec. 231. State v. Smith, 63 Vt. 201. Clark Marshall, Law of Crimes, 2d ed., p. 653; 21 R.C.L. 255-6. 48 C.J. 820-1.
State v. Byrd, 28 S.C. 18. State v. Miller, 26 R.I. 282. Milstead v. Commonwealth, 21 Ky. Law. Rep. 358.
The Federal statute, however, includes "declarations" and "certificates," but to constitute a violation the false testimony or statement must be of a material matter. Under this statute conviction was sustained for false swearing in a land contest before a local land office.
Caha v. U.S., 152 U.S. 211.
An indictment for perjury was upheld upon a false sworn statement in a homestead application, and for making the false statement under oath to the Civil Service Commission. A conviction of perjury was affirmed for making a false statement under oath to the Selective Service draft board.
United States v. Smull, 236 U.S. 405.
United States v. Crandol, 233 F. 331, (E.D. Va., 1916).
Hardwick v. United States, 257 F. 505 (C.C.A. 9th, 1919.) See also U.S. v. Morehead, 243, U.S. 607, 610 (1917).
However, section 16 of the Immigration Act of 1917, which is the statute involved herein, specifies its own materiality, for there would seem to be no purpose in contending that the materiality required is that usually attaching to that term in section 125 of the general perjury statute merely because the former section goes on to provide that any person under oath "who shall knowingly or willfully give false evidence or swear to any false statement in any way effecting, or in relation to the right of any alien to admission to, or readmission to, or to pass through, or to reside in the United States shall be deemed guilty of perjury and be punished as provided by section 125 of the Criminal Code." In other words, the phrase "and be punished as provided by section 125 of the Criminal Code" means just that and has no relation to the clear, self-meaning language which precedes that phrase. An insight into what may be material thereunder is found in the same section 16 which requires such aliens to furnish such information as may be required regarding themselves as will aid the immigration officials in determining whether they belong to any of the excluded classes enumerated in section 3 of the same act.
It is clear then that under the general perjury statute to constitute the offense of perjury one of the essential elements is that of materiality. It is equally clear that under section 16 the materiality specified therein also must be established. But, must the materiality required under this latter section be to the ultimate issue — that is, admissibility? Our position is that the following two principles should be observed:
(1) False testimony which is material, although not decisive of the ultimate issue of admissibility, constitutes perjury. For example: An applicant for admission admits a previous arrest and deportation, but gives false testimony which would have justified an additional ground of exclusion (or deportation). Such false testimony is, of course, material, but it is not decisive of the ultimate issue of admissibility since the alien is already amenable to exclusion without the addition of another possible charge.
Kaneda v. U.S., 278 F. 694 (C.C.A. 9th, 1932) cited note 7, supra. Masaichi Ono v. Carr, 56 F. (2d) 773-4 (1932) cited note 7, supra.
(2) False testimony not material to an issue in the case does not constitute perjury. For example: Where the false testimony is material to the ultimate issue of exclusion (or deportation), or material to a ground of exclusion (or deportation) it is perjury; otherwise not. In other words, where the false testimony does not establish a factual basis upon which to ground a charge of exclusion (or deportation), it is not perjury.
U.S. ex rel. Iorio v. Day, 34 F. (2d) 920 (1929) cited note 6, supra. Ex parte Chin Chan On et al., 32 F. (2d) 828 (1929) cited note 6, supra. U.S. ex rel. Karney v. Uhl, 70 F. (2d) 792 (1934) cited note 6, supra.
It is not intended to imply that the effect of false testimony may not be negatived by the absence of wilfulness or misunderstanding on the part of an alien, or by correction prior to exposure of the falsity of the testimony.
Matter of W----, 56107/923 (1942). Matter of S----, 56113/807 (now A-1519545) (1944). But cf. U.S. v. Norris, 300 U.S. 564 .
We find that the false testimony in the case of Mr. B---- constitutes perjury. Such testimony was material, although not decisive of the ultimate issue of admissibility, in that it resulted in excludability as an immigrant contrary to the status of nonimmigrant which he attempted to secure.
In the case of Mrs. N----, we find that perjury has not been established, for the reason that, aside from the fact that she stated that false testimony was given under misapprehension, it was not material to any issue in her case.
Accordingly, no change will be made in the results previously arrived at in the cases of Mrs. N---- and Mr. B----, although such portion of the discussion therein, inconsistent with the present decision should be considered as correspondingly modified.
Order: It is directed that no change be made in the orders previously entered in the cases of Mrs. N---- and Mr. B----.
It is further directed, That all previous contrary expressions be considered as modified in accordance herewith.