A-2826150
Decided by Board December 23, 1952.
Evidence: Admission of commission of crime: Use of admission made in prior invalid hearing.
(1) Admission of a crime made by an alien during his testimony at a prior hearing considered invalid because of failure to comply with the requirements of the Administrative Procedure Act then in effect is nevertheless admissible in evidence at a subsequent hearing.
CHARGES:
Warrant: Act of 1924 — No immigration visa.
Lodged: Act of 1917 — Admits crime before entry: Perjury, bigamy.
BEFORE THE BOARD
Discussion: This case is before us on certification in accordance with 8 C.F.R. 90.3 (b). The Acting Assistant Commissioner by order dated June 11, 1953, found the alien deportable on the grounds stated above.
Written exceptions were filed to the finding of the Acting Assistant Commissioner.
Counsel contends that the admissions of the commission of the crimes stated above are not satisfactory for the purpose of sustaining the lodged charge; and it is further urged that the alien's absence from the United States for a period of 2 years and 7 months ending in 1935 should be considered a temporary absence from the United States so that the alien upon his return to the United States in 1935 should be considered a returning resident rather than a person immigrating into the United States.
Respondent is a 59-year-old married male, a native and citizen of Mexico, who last entered the United States on May 24, 1944, as a returning resident upon the presentation of a resident alien's border crossing identification card. At the time of entry, the respondent was not in fact a returning resident since he had been admitted to the United States as a visitor in 1935 and had remained unlawfully in this country from that date.
The respondent's claim that he was a returning resident in 1935 and his entry should be so regarded, is based upon the fact that he was a lawfully resident alien of the United States from 1917 until 1933 when he was repatriated to Mexico at the expense of the county of Los Angeles. While there is some conflict in the evidence as to what his intention was at the time of departing from the United States in 1932, we find from the fact that he sold his home and took his wife and children with him and was returned at public expense, that there was an abandonment of residence in the United States, and that he has been in the United States illegally since he overstayed the period for which he was admitted as a visitor in 1935. The charge in the warrant of arrest is sustained.
Counsel's first contention concerning the lodged charge is that the alien's admission of the commission of the crimes stated therein, made at a hearing in 1949, cannot be used against him in the present hearing (1950) because the admissions were made in a hearing which was invalid in failing to comply with the requirements of the Administrative Procedure Act. This contention must be rejected. Counsel cites no authority for his contention. If the technical rule of evidence were as he contends, we would not bind ourselves with it in this administrative proceedings; for we conceive the problem to be determined in such a proceeding is not whether the matter offered violates a technical rule of evidence, but whether it is probative.
Moreover, if any rule may be drawn from the few cases we have found on the subject, it would appear that an admission may be used against a person even though it was made by him in proceedings tainted with invalidity. So, in Redwater Land Canal Co. v. Reed, 26 S.D. 466, 128 N.W. 702, 708, the court stated that an admission of the parties was properly put into evidence as such whether or not the forms in which it was made had jurisdiction of the action in which the admission was filed. So too, admissions or declarations against interest when properly proven are admissible in evidence although such evidence may be contained in a deposition which is suppressed at trial because not taken strictly in accordance with the statutes ( McLean v. Hargrove, 162 S.W. (2d) 954). We therefore rule that if valid admissions of the commission of the crimes stated above were made at the hearing in 1949 they were validly received in evidence in the present proceedings.
In the present hearing, the alien refused to acknowledge the commission of perjury or bigamy. The record of the hearing in 1949 was properly introduced into evidence at the present proceeding. It contains an admission of the commission of perjury. Where an alien has made an unqualified admission that he committed a crime involving moral turpitude, and the record establishes that such crime was in fact committed, his statement at a later hearing that he does not believe he committed that crime does not obliterate the earlier admission ( Matter of R----, 1 IN Dec. 359). We find the alien's deportability on the lodged charge concerning the commission of perjury, to be sustained on the record.
The second lodged charge which concerns the commission of bigamy, is based on the fact that the respondent in 1928 married without definite knowledge that the first marriage entered into in 1921 had been terminated. Since we have found the alien deportable on a criminal ground which bars him from obtaining suspension of deportation; whether or not he is also deportable on a criminal ground relating to bigamy will add nothing to a determination as to his deportability or his statutory eligibility for discretionary relief. We will not therefore further discuss the bigamy charge.
As an alternative relief, respondent has applied for voluntary departure and advance exercise of the 7th proviso to section 3 of the Immigration Act of 1917, as amended, waiving the grounds of inadmissibility arising out of his commission of perjury and the ground of inadmissibility arising out of his possible admission of the commission of bigamy. We believe such relief should be granted.
Respondent was a permanent resident of the United States from 1917 to 1933. His departure to Mexico in 1933 was occasioned by the depression conditions which existed in the United States. He returned to the United States in 1935 and has resided continuously in this country since then with the exception of short visits to Mexico. It appears that he made an effort to obtain a visa before reentering the United States in 1935 but that he was unsuccessful. His residence in the United States for over 30 years and his possession of an unrelinquished domicile of 7 or more years in the United States is established by the record.
On February 18, 1928, the respondent married E---- D----. He had previously married in 1921 a person from whom he separated in 1922. He was of the opinion that his first wife had secured a divorce and remarried, although he could not be certain of this since he was unable to locate her. When his marital status was questioned in deportation proceedings, to clarify his status, he filed action for a divorce against his first wife and on March 1, 1951, obtained an interlocutory decree which became final on May 13, 1952. On June 23, 1952, the alien remarried his second wife. Respondent's wife is illegally in the United States and is an applicant for suspension of deportation (A-3961799, A-6199672). There are seven children of the union. All but one of the children were born in the United States. The alien child is likewise an applicant for suspension of deportation. Four of the native-born children are citizens and are dependent upon respondent for support. The oldest of these four is 16 and the youngest 8 years of age. Respondent is employed as a builder. His wife and the four minor children are entirely dependent upon him for support. The family assets total about $6,000. Respondent earns about $75 per week. The family assets consist of the family dwelling and other houses which respondent rents out. Respondent's mother is a legal resident alien. His father is deceased.
Respondent's good moral character is established by the record. Affidavits from two persons who have known him since 1937 reveal that he is considered a person of good moral character and one who is attached to the principles of the Constitution of the United States. Investigation conducted by the Service reveals that the alien has "an excellent reputation"; and that he "has no relief record." A business firm with whom he has dealt since 1944 furnished a letter of recent date stating that respondent has been honest and responsible in his dealings with them and is a person who would make a fine citizen. Service investigation failed to disclose any arrest record or connection with subversive activities. Respondent denied that he had ever been arrested or that he belonged to any subversive group. He registered for service in the Armed Forces in World War I and World War II and has registered under the Alien Registration Act. In view of all the favorable factors of record, and the serious economic detriment his native-born citizen children would suffer if he were deported, discretionary relief is proper.
Order: It is ordered that the outstanding order of deportation be withdrawn and the alien be permitted to depart from the United States voluntarily without expense to the Government, to any country of his choice within such period of time and under such conditions as the officer in charge of the District deems appropriate.
It is further ordered that if the alien applies for admission into the United States when in possession of a valid immigration visa, he be admitted under the discretion contained in the 7th proviso to section 3 of the Immigration Act of 1917, as amended, if otherwise admissible than as one who admits the commission of a crime involving moral turpitude, to wit: Perjury (1941; 1944) and bigamy (1928), subject to revocation in the discretion of the Attorney General after hearing, if the alien subsequently commits any offense.