55872/461
Decided by the Board January 6, 1943. Reversed by the Attorney General February 1, 1943.
Admission of crime — Perjury — Seventh proviso to section 3, Immigration Act of 1917 — Seven years' domicile.
1. When an alien in applying for admission to the United States falsely testified under oath that she had never practiced prostitution; held, that she committed perjury as her testimony was material to her right of entry.
2. The word "domicile" as used in the seventh proviso to section 3 of the Immigration Act of 1917 contemplates actual residence or place of abode and may be interrupted by deportation or exclusion.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — Immigrant without immigration visa.
Act of 1917 — Admits commission of crime involving moral turpitude — perjury.
Executive Order 8766 — No passport.
BEFORE THE BOARD
STATEMENT OF THE CASE: Appellant arrived at the port of San Ysidro, Calif., on April 27, 1942. A board of special inquiry excluded her on the grounds above stated and from that action she appeals.
DISCUSSION: Appellant is an alien, a native and citizen of Mexico, 37 years of age. She seeks admission for permanent residence and is not in possession of a passport or immigration visa. She is, therefore, inadmissible under the Immigration Act of 1924 and Executive Order No. 8766.
This alien was excluded at San Ysidro, Calif., on September 29, 1933, when she failed to appear for a further hearing, on the ground that she was a person likely to become a public charge. She was excluded on October 31, 1934, and February 7, 1939, as a person who admits the commission of a crime involving moral turpitude, to wit: perjury, and was debarred March 14, 1940, and April 21, 1941, on the same ground and as an immigrant not in possession of an immigration visa. Upon appeal these exclusions were affirmed. The appellant admited the commission of perjury to a board of special inquiry on October 1, 1934. Previously on July 28, 1933, she appeared before a board of special inquiry and testified that she had never practiced prostitution or gone by the name of B---- H----. Before the board of special inquiry in October of 1934, appellant admitted the falsity of her earlier statements and that she had practiced prostitution at times in the years 1928 through 1931 under the name of B---- H----. The false testimony had the effect of precluding the board of special inquiry from inquiring into the appellant's admissibility along lines that naturally would have suggested themselves had the truth been told. The testimony was material, and perjury was committed. The appellant's admission thereof is unqualified.
FINDINGS OF FACT: Upon the basis of all the evidence presented, it is found:
(1) That appellant is an alien, a native and citizen of Mexico;
(2) That appellant seeks admission for permanent residence;
(3) That appellant is not in possession of a passport or immigration visa;
(4) That appellant admitted before a board of special inquiry held on October 1, 1934, that she committed perjury.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 3 of the act of 1917, appellant is inadmissible as an alien who admits the commission of a crime involving moral turpitude, to wit: perjury;
(2) That under section 13 of the act of 1924, appellant is inadmissible as an immigrant not in possession of an immigration visa;
(3) That under Executive Order No. 8766 of June 3, 1941, appellant is inadmissible as not in possession of a passport.
OTHER FACTORS: Appellant was married on September 25, 1933, to J.M.S----, a native citizen of the United States and a resident of Los Angeles, Calif. Appellant and her husband were also married by a church ceremony on December 24, 1939. Appellant seeks admission so that she may live with her husband. He has been supporting her in Tijuana, Mexico, since their marriage and visits her at Tijuana every few weeks. He has been steadily employed as a picture-frame gilder since 1919. The record and the file contain a number of testimonial letters as to the good character of the appellant's husband and as to the appellant during the last several years. The husband asks that the charge of perjury against the appellant be "waived." We construe this as a request that the appellant be admitted under the discretion found in the seventh proviso to section 3 of the act of 1917.
The seventh proviso of section 3 of the act of 1917 reads as follows:
That aliens returning after a temporary absence to an unrelinquished United States domicile of 7 consecutive years may be admitted in the discretion of the Attorney General, and under such conditions as he may prescribe;
Two issues are presented. First, does the appellant qualify for consideration under this proviso, since she physically resided in the United States from March 1929 until July 27, 1933 (with the exception of short absences in Mexico), a period of a little over 4 years; and second, if qualified for consideration under this proviso, is the case one in which favorable discretionary action ought to be taken.
We may dispose of the last question first. The appellant is the wife of a citizen of the United States and is permanently residing in Los Angeles, Calif. Although she admits that for a period of a few months during 1928, 1929, 1930, and 1931 she practiced prostitution in Mexico, she has been a person of good moral character at least since her marriage to her present husband in 1933. The past practice of prostitution is not a basis for exclusion. Inadmissibility is based on the perjury committed by the appellant when she denied that in the past she had practiced prostitution. This testimony was given when she was about to be married to her present husband, and was a very human error. Although beset by the difficulty of maintaining a wife in Mexico while residing and working in Los Angeles, the permanency of the union is unquestioned. One circumstance indicating this to be true is the persistent efforts of both, over a period of 9 years since their marriage, to obtain authorization for the alien's legal admission to the United States. Thus, we think this perjury, committed 9 years ago, should not stand as a perpetual bar to the appellant in her efforts to join her citizen husband in the United States, and favorable discretionary action under the seventh proviso ought to be taken if legally permissible.
The remaining issue then is whether it is legally permissible to invoke the seventh proviso in this case because the appellant physically resided in the United States for a period of only 4 years, or, in other words, has the appellant actually been domiciled in the United States for 7 consecutive years. The word "domicile" as used in the seventh proviso is defined in section 132.1, title 8, C.F.R., as follows:
Domicile, for the purposes of this section, means that place where a person has his true, fixed, and permanent home, and principal establishment, to which, whenever he is absent, he has the intention of returning.
This administrative interpretation of "domicile" is the adoption of the classic legal definition of that term and is a recognition that Congress in using it in the seventh proviso intended to employ a word of art and to incorporate into the seventh proviso a legal concept of well-recognized scope.
This is particularly significant because in the same section of the 1917 act Congress refers to aliens who have " resided" in the United States when providing for the readmission of illiterates who had previously lived in the United States. The first proviso of section 3 reads as follows:
all aliens who have been lawfully admitted to the United States and who have resided therein continuously for 5 years and who return to the United States within 6 months from date of their departure therefrom; [Italics supplied].
The deliberate use of the word "domicile" in the seventh proviso as contrasted with "residence" in the first proviso emphasizes the fact that Congress must have employed it in light of its well-recognized technical legal definition.
On the facts in this record it is well established that the appellant has had a domicile in the United States since her legal admission for permanent residence on February 4, 1929. She lived with her first husband in San Diego from 1929 to 1932 with the exception of periods of a few months during those years when she returned to Mexico and practiced prostitution. These absences did not break the continuity of her domicile. Upon their conclusion she returned to her home in San Diego. In 1932 she separated from her husband and instituted divorce proceedings. The divorce was granted on June 27, 1932. In the months preceeding her divorce and thereafter she made her residence and worked as a domestic servant in Los Angeles in the house where her present husband was then living. The first exclusion resulted from an application to reenter this country made on July 28, 1933, when she was attempting to return to the United States to her home and employment after visting in Mexico for 2 days. During the pendency of this application and on September 25, 1933, she married Mr. S----. This was 4 days prior to the order of exclusion of the board of special inquiry. Nothing developed in the 1933 proceeding that in any manner gave any indication that domicile in the United States had been terminated. The exact converse is true. Her marriage to Mr. S----, a citizen of the United States and a resident of Los Angeles, serves to emphasive the fact that in the alien's mind she had no intention of relinquishing her domicile in the United States. After her first exclusion there followed constant efforts to gain lawful entry into the United States. The imposition of legal barriers to her several attempts to return have not changed her intention to go back to her home and the home of her husband.
She has had only one domicile. "A person cannot acquire a domicile of choice by any act done under legal or physical compulsion." See Restatement of Conflicts, section 21. "A domicile once established continues until it is superseded by a new domicile." See Restatement of Conflicts, section 23. It is of interest that under Mexican law a married woman has no capacity to acquire a separate domicile in the absence of authorization from the courts. See Wheless, Compendium of Laws of Mexico, 1938, article 196. The fact that the appellant applied for temporary admission on December 29, 1938, we think of no importance since the record in its entirety unmistakably indicates a continuing desire on the part of the appellant to return to the United States for permanent residence.
Thus it is our conclusion that the appellant established a legal permanent domicile in the United States when she was admitted to this country on February 4, 1929, and that that domicile has never been terminated though she has been absent from this country since her exclusion in 1933. The extent of that absence was due entirely to the various orders of exclusion following her attempts to resume her residence in the United States. Under these circumstances her absence in Mexico was and is temporary. We hold, therefore, that she has had a domicile in the United States of more than 7 consecutive years and is returning from a temporary absence abroad.
The conclusion we have reached in this matter is consistent with past action by this Board. Thus, under date of September 17, 1941, in the case of E---- F. H---- (56057/966), we exercised the seventh proviso in the case of an alien who had been admitted to the United States in 1926, returned to Canada in 1930 for economic reasons, and stayed there until 1935, when she again returned to the United States, remaining until shortly before her reapplication for admission in 1941. Neither of her periods of physical residence in the United States was for as long as 7 years. Yet the facts in that case compelled the opinion that her United States domicile had existed unrelinquished for more than 7 years.
One other matter connected with this question requires consideration. On July 17, 1934, in the case of S---- D---- (55632/163), the former Solicitor of Labor, Judge Charles E. Wyzanski, Jr., held that the deportation of an alien from the United States did not ipso facto break the continuity of his United States domicile. This result was reached basically by concluding that the word "domicile" as used in the seventh proviso had the meaning we attached to it. This opinion has been consistently followed by this Board. In a communication from the Immigration and Naturalization Service to the then Assistant to the Attorney General, Judge Mathew F. McGuire, it was contended that the seventh proviso of section 3 of the 1917 act should be held inapplicable to persons who have been deported from the United States before they have lived in this country for 7 years and that the D---- decision should not be followed. A memorandum on the subject was prepared by Mr. Alexander Holtzoff, Special Assistant to the Attorney General. Mr. Holtzoff discussed the opinion of Judge Wyzanski in the D---- case and pointed out that Judge Wyzanski overlooked the fact that the term "domicile" has two distinct meanings. First, the technical, legal concept of that term, and second, the ordinary or popular acceptation of the term "domicile" which Mr. Holtzoff says means the place where a person actually lives or has his home or place of abode. Mr. Holtzoff's memorandum continues:
The principle to which the Solicitor refers in his scholarly opinion relates to "domicile" used in its technical legal sense. It is obvious, however, that the word "domicile" in the seventh proviso was employed in its popular sense, to wit, as meaning the permanent place of abode. Necessarily, if the term is understood in that sense deportation from the United States terminates a person's domicile in this country.
It is my view that the above-mentioned opinion of the Solicitor of the Department of Labor should be deemed overruled, and that the seventh proviso should be construed as not being applicable to persons who reapply for readmission to the United States after having been deported before they had lived in this country for as long a period as 7 years.
Judge McGuire approved this memorandum and in a communication dated June 4, 1941, to the head of the Immigration and Naturalization Service stated:
Accordingly, you are authorized in the administration of the immigration laws to regard as overruled the opinion rendered by the Solicitor of the Department of Labor in 1934 on this point and to adopt the view that the seventh proviso does not permit the readmission to the United States of aliens who have been deported from this country before they had lived here for as long as 7 years.
The case before us does not involve an arrest and deportation from the United States and to that extent is distinguishable from the matter considered by Mr. Holtzoff. Nevertheless, the reasoning employed by Mr. Holtzoff if adopted would be applicable to the case before us. As above pointed out, we see no basis for imputing to Congress a use of the word "domicile" in other than in its ordinary, accepted technical legal meaning, particularly so when in the same section of the act reference is made to "residence." It is at least questionable whether the term "domicile" has a well-defined popular meaning in contradistinction to its technical legal meaning. An appeal that Congress used "domicile" in such a vague and uncertain manner to us is not convincing.
Although the conclusion we have reached on this issue is in harmony with past action by this Board, in view of the position taken by Judge McGuire, formerly the Assistant to the Attorney General, we feel that the case should be certified to the Attorney General as a question involving difficulty. On the present record, as the alien is lacking the necessary documentation for admission to the United States, it is necessary to affirm the action of the board of special inquiry at this time. However, readmission under the seventh proviso is authorized in reference to the offense of perjury.
ORDER: It is ordered that the excluding decision of the board of special inquiry be affirmed. It is further ordered, That the alien be granted permission to reapply for admission and if upon such reapplication she is found admissible to the United States in all respects except for the admission of the commission of perjury as established in this record, that she be admitted under the seventh proviso to section 3 of the Immigration Act of 1917 if application for reentry is made within 6 months from date of notification of this decision.
That part of the decision and order of the Board of Immigration Appeals that directs that the alien be granted permission to reapply for admission and to be admitted under the seventh proviso of section 3 of the Immigration Act of 1917 is hereby reversed for reasons set forth below.
The alien, a native of Mexico, was lawfully admitted to the United States on February 4, 1929, and resided therein until she voluntarily returned to Mexico a few days prior to July 28, 1933, when she applied for readmission to the United States. While her application for readmission was pending she married an American citizen. On September 29, 1933, she was excluded on the ground that she was a person likely to become a public charge.
She again applied for admission to the United States on several subsequent occasions and in each instance was ordered excluded as a person who admits the commission of a crime involving moral turpitude (perjury). In connection with her latest application the Board of Immigration Appeals affirmed the exclusion order but directed that she "be granted permission to reapply for admission and if upon such reapplication she is found admissible to the United States in all respects except for the admission of the commission of perjury as established in this record, that she be admitted under the seventh proviso to section 3 of the Immigration Act of 1917 if application for reentry is made within 6 months from date of notification of this decision." However, the Board has certified the case to me as involving a question of difficulty, and for review of its decision, in accordance with the provisions of title 8, section 90.12, Code of Federal Regulations.
The so-called seventh proviso to section 3 of the Immigration Act of 1917 (U.S.C., title 8, sec. 136p), reads as follows:
Aliens returning after a temporary absence to an unrelinquished United States domicile of 7 consecutive years may be admitted in the discretion of the Secretary of Labor [now the Attorney General] and under such conditions as he may prescribe.
In support of its decision the Board relies largely upon an opinion of July 17, 1934, of the Solicitor of the Department of Labor, construing the seventh proviso in the case of S---- D----, which concluded that domicile when once established continues until voluntarily relinquished and that deportation of the alien from the United States does not break the continuity of the domicile. This conclusion of the Solicitor was rejected by this Department in a memorandum of June 4, 1941, in the case of A---- E---- M---- P---- (55973/653).
The Board points out that the present case does not involve an arrest and deportation and to that extent is distinguishable from the one dealt with in the memorandum of June 4, 1941, but that, nevertheless, the reasoning employed in that memorandum, if adopted, would be applicable to this case. The reasoning mentioned largely concerned the proper interpretation of the word "domicile" as used in the seventh proviso.
I have submitted the matter to the Assistant Solicitor General for his consideration as to the meaning to be attributed to the word "domicile." His conclusion coincides with that adopted in the P---- case; that is, the word "domicile" contemplates actual residence or place of abode which may be interrupted by a deportation (as in the P---- case), or by an exclusive order (as in the present case), notwithstanding any contrary desire or intention on the part of the alien. I concur in this conclusion. Copies of the several memoranda herein mentioned, including the Assistant Solicitor General's memorandum of January 22, 1943, are annexed hereto.
MEMORANDUM OF OSCAR COX, ASSISTANT SOLICITOR GENERAL, DATED JANUARY 22, 1943
You have asked my opinion concerning the meaning of the word "domicile" as used in the seventh proviso of the Immigration Act of 1917.
The word "domicile" has different meanings in different connections. As used in that proviso I think it is synonymous with actual residence or place of abode. Consequently, I disagree with the position taken by the Board of Immigration Appeals in this case. The view I take was followed by this Department in the case of A---- E---- M---- P----, June 4, 1941. In that case the contrary view theretofore taken by the Department of Labor in its administration of the immigration laws was rejected by this Department.
The first proviso of section 3 refers, in another but somewhat related connection, to "aliens * * * who have resided" in the United States for a certain period of time. This raises a presumption that in using the word domicile in the seventh proviso the Congress intended it to have a meaning different from "residence." But I think this presumption is rebutted by the purpose of the proviso and by its history. In reporting to the Senate the bill containing the proviso, the Committee on Immigration said (S. Rept. 352, 64th Cong., 1st sess., p. 6):
The proviso (p. 11, line 22, to p. 12, line 2) conferring discretion upon the Secretary of Labor to readmit aliens who had gone abroad temporarily after declaring their intention to become citizens had been extended to include aliens not declarants who, after residing here for 7 consecutive years, go abroad temporarily, the purpose undoubtedly being the same the Senate had in view when it incorporated in H.R. 6060 a similar provision ( see S. Rept. 355, 63d Cong., 2d sess., p. 6), which was dropped in conference, to wit, as a "humane" provision to permit the readmission to the United States (under proper safeguards) of aliens who have lived here for a long time and whose exclusion after a temporary absence would result in peculiar or unusual hardship. [Italics supplied.]
The language of Senate Report 355, 63d Cong., 2d sess., mentioned in the above Senate Report, reads:
Page 11, line 21, following the words "Canal Zone," insert " Provided further, That aliens who have declared their intention to become citizens and aliens returning after temporary absence to an unrelinquished United States domicile may be admitted in the discretion of the Secretary of Labor, and under such conditions as he may prescribe." As the term "alien" has been defined in section 1 of the act (p. 1, line 3), and construed with reference to the acts of 1903 and 1907 by the Supreme Court ( Lapina v. Williams, 232 U.S. 78), it seems only just and humane to invest the Secretary of Labor with authority to permit the readmission to the United States of aliens who have lived here for a long time and whose exclusion after a temporary absence would result in peculiar or unusual hardship. [Italics supplied.]
This shows, I think, that the purpose of the Congress in enacting the seventh proviso was to relieve peculiar and unusual hardships that would result from the severing of ties and connections, domestic or otherwise, which probably, if not inevitably, would be formed by an alien living here for a long period of time. This purpose would be fully accomplished by giving the word domicile the same meaning as residence. On the other hand, giving it the technical legal meaning ascribed to it in the Wyzanski opinion would permit the benefits of the proviso to be claimed by and extended to a person who actually lived here for only a few days or weeks, without the formation of any such ties or connections, and who then left the country (or was deported) and lived elsewhere for the remainder of the 7-year period. I do not believe the Congress intended any such result, nor do I believe the word "domicile" should be construed in such a way as to permit it.
True, there are hardships in this case. And 7 years is, of course, arbitrary. But it is the period fixed by the Congress.