A-5702971
Decided by Board August 1, 1945. Approved by Attorney General August 18, 1945.
Crime Involving Moral Turpitude — False Statements in Registration Application in Violation of Section 36 (c) of the Alien Registration Act of 1940.
Knowingly making false statements in an application for registration as an alien, in violation of Section 36 (c) of the Alien Registration Act of 1940 (8 U.S.C. 457 (c)), is not a crime which involves moral turpitude and is distinguishable from the offense of perjury since it lacks the essential elements of guilty intent and materiality.
CHARGES:
Warrant: Act of 1940 — Conviction within five years after entry of violation of Section 36 (c) of the Alien Registration Act of 1940 (8 U.S.C. 457 (c)).
Act of 1924 — Not a non-quota immigrant as specified in visa.
BEFORE THE BOARD
Discussion: This case relates to a 25-year-old native and citizen of Italy whose only entry to the United States occurred at the port of New York on May 5, 1938. She was then admitted for permanent residence upon the presentation of a section 4 (a) nonquota immigration visa issued to her by the consular authorities at Naples, Italy on April 20, 1938, on the basis of an application made on January 19, 1938, in which she had claimed, and rightly so, such nonquota status by reason of her being the unmarried minor daughter of an American citizen. However, unbeknown to the immigration authorities, the alien, on the evening of the day on which she had been issued her visa in Naples, and prior to her embarkation for the United States, had gone through a marriage ceremony, apparently religious with one O---- or F---- C---- who was the putative father of a child previously born to her out of wedlock. This fact was not disclosed by the alien to the immigrant inspector at the port because of her belief that the marriage was invalid since, as she claimed, she went through the ceremony under duress.
Section 4 (a) of the Immigration Act of 1924 (8 U.S.C. 204 (a)), in part, defines a nonquota immigrant as "the unmarried child under 21 years of age of a citizen of the United States".
About 6 months after the alien's admission to the United States she began to cohabit in Pittsburgh, Pa., with a married man, one G---- S----, who was a naturalized American citizen. On January 11, 1940, Mr. S---- obtained a divorce terminating his then existing marriage and thereafter continued to live with the alien as husband and wife. Two children were born to them, one on July 31, 1939, and the other on September 23, 1940. On December 11, 1940, in accordance with the requirements of the Alien Registration Act of 1940 (8 U.S.C. 451-460), the respondent registered as an alien and in her registration application she stated under oath, among other matters, that her name was F---- R----, this being her maiden name, and that she had not applied for first citizenship papers because her husband was a citizen of the United States. Shortly after registering, her immigration status became the subject of an investigation and on June 6, 1941, a complaint was filed against her in the United States District Court, Western District of Pennsylvania, charging her with knowingly making false statements in her application for registration as an alien in violation of section 36 (c) of the Alien Registration Act of 1940 (8 U.S.C. 457 (c)).
Assuming the invalidity of the alien's first purported marriage, their continued cohabitation might possibly be deemed under Pennsylvania law to have ripened into a valid common law marriage. See Estate of Hughes, 98 Pa. Super. 328 (1930).
While this complaint was pending, the alien instituted proceedings to have her purported first marriage to Mr. C---- annulled. On December 6, 1941, the Court of Common Pleas of Alleghany County found "that the supposed or alleged marriage heretofore attempted to be contracted between the said F---- R----, the libellant, and the said F---- C----, the respondent, was and is wholly null and void to all intents and purposes whatsoever," and decreed "that the said F---- R---- shall be at liberty to marry again, in like manner as if the said supposed or alleged marriage had never taken place." This decree, under Pennsylvania law, in effect, declared that the alien had never been married in Italy. See Commonwealth ex rel. Knode v. Knode, 149 Pa. Super. 503. On December 17, 1941, the alien and Mr. S---- went through a marriage ceremony in Pennsylvania.
23 P.S. section 12 (1929, May 2, P.L. 1237, section 12, as amended by 1935, July 15, P.L. 1013, No. 328, section 1) reads: "In all cases where a supposed or alleged marriage shall have been contracted, which is absolutely void by reason of one of the parties thereto having a spouse living at the time of the supposed or alleged marriage, or, if, for any other lawful reason, the said supposed or alleged marriage was absolutely void when contracted, such proposed or alleged marriage may, upon the application of either party, be declared null and void in accordance with the principles and forms hereinafter prescribed for cases of divorce from the bond of matrimony."
In the meantime on December 8, 1941, the alien, after pleading nolo contendere, was convicted of the charge contained in the complaint, and the court ordered her placed on probation for 1 year and to pay the costs of prosecution. Following the alien's conviction, a warrant for her arrest in deportation proceedings on the charges stated above was issued on January 10, 1942. The deportation hearing under the warrant was conducted on February 12, and July 2, 1942, and September 17, 1943, at the conclusion of which the presiding inspector and the Central Office of the Immigration and Naturalization Service made their recommendations as to the disposition to be made of the case.
In accordance with departmental regulations the case was forwarded to this Board for review and on March 8, 1944, we found the alien subject to deportation on the charge based on section 36 (c) of the Alien Registration Act of 1940, but dismissed the documentary ground of deportation for the reason that, in view of the annulment decree entered on November 6, 1941, the alien was a bona fide section 4 (a) nonquota immigrant at the time of entry. In lieu of entering an order of deportation, however, and thus separating the alien from her American husband and children, the Board, after due consideration, directed that she be required to depart voluntarily from the United States and that preexamination be authorized, conditioned upon approval by the Department of State of the alien's preliminary application for an immigration visa. The effect of this order was to permit the alien to take preliminary steps to adjust her residence while here, following which she would proceed to a designated American Consulate in Canada to obtain a visa and then reenter this country to resume her residence in a lawful manner.
A copy of our opinion of March 8, 1944, is attached to the file. (Not here attached.)
The Department of State, however, refused to approve the issuance of an immigration visa to the alien on the ground that she would be inadmissible to the United States upon her return under section 3 of the act of February 5, 1917 (8 U.S.C. 136) as one who had been convicted of a crime involving moral turpitude, the crime being her violation of section 36 (c) of the Alien Registration Act of 1940. The case was accordingly returned to us for consideration as to the desirability of exercising the seventh proviso to section 3 of the 1917 act with respect to this conviction in advance of the alien's departure from the United States.
While this alien, on the basis of the record before us, is deserving of such relief, we believe that the exercise of the seventh proviso is unnecessary since it is our firm conviction that the offense of which she was convicted does not inherently or in essence involve moral turpitude, a view that this Board has constantly maintained following the decision by the then Acting Attorney General on January 16, 1941, in Matter of C---- 56048/346. Therefore, if our view is correct, this alien would not be inadmissible upon reapplication for admission on the basis of this conviction. The Department of State, for the reasons appearing in its memorandum of April 23, 1945, attached to the file, is of the equally firm conviction that the C---- decision does not control the instant case, that moral obloquy is involved in the offense, and implies, as a necessary consequence, that the seventh proviso must be exercised in order for the alien to legalize her residence. In view of the conflict between the State Department and this Board, and since the question presented has over-all application in the administration of the immigration laws, this case is being certified to the Attorney General for review.
In the event of a disagreement between the head of any department and the Attorney General as to the interpretation of any immigration law, the opinion of the Attorney General prevails. See section 1, Reorganization Plan No. V, May 22, 1940 ( 5 F.R. 2223).
The C---- case involved an alien who originally entered the United States in September 1937 as a visitor. Instead of departing from this country at the expiration of his stay, he took up residence here and obtained a position as a junior examiner with a New York bank. During his vacation in the fall of 1940, he went to Canada in order to obtain an immigration visa and thus resume his residence in a lawful manner. In his registration application the alien knowingly falsely stated that he did not have an employer in the United States, doing so because he feared the disclosure of his employment status would result in the denial of his visa application. The Board of Special Inquiry, which considered the alien's application for admission, excluded him on the basis of the foregoing false statement as one admitting the commission of a crime involving moral turpitude, to wit: perjury. On appeal to this Board it was found that the alien had, in substance, admitted the commission of, not the crime of perjury, but the offense defined by section 36 (c) of the Alien Registration Act. The Board took the position that all statements called for in the registration application were material since they went to make up a succinct record of the alien and that the offense defined by section 36 (c) was analogous in nature, though not in all elements, to perjury. It then concluded that a deliberate false oath, where made a crime as in section 36 (c), involved moral turpitude and accordingly affirmed the excluding decision. Because of the difficulty of the question presented and the fact that the case was one of first impression, the matter was certified to the Attorney General for review. On January 16, 1941, the then Acting Attorney General reversed the Board, holding that the alien had not admitted the elements which went to make up the crime of perjury since the false statement with respect to his employment was immaterial so far as his admissibility to the United States was concerned. The alien's appeal was sustained and he was ordered admitted. Because of that decision by the Acting Attorney General, rejecting as it did the Board's theory that deliberate false swearing necessarily and inherently always involves moral turpitude, we have consistently maintained the position, a position acquiesced in by the Immigration and Naturalization Service, that knowingly making false statements in a registration application contrary to section 36 (c) of the Alien Registration Act of 1940 does not in essence comprehend obloquious conduct.
Even apart from the decision in the C---- case, however, the Board, as will be seen below, is of the opinion that a violation of that portion of section 36 (c) of the Alien Registration Act of 1940 under consideration does not inherently or in its essence involve moral turpitude.
Under settled judicial principles, the presence or absence of moral turpitude, which has been said to be "an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow man or society" (20 AM. Eng. Encyc. of Law 872; see also U.S. ex rel. Mylius v. Uhl, 203 Fed. 152 (S.D.N.Y., 1913), aff'd 210 Fed. 860 (C.C.A. 2nd, 1914); Ng Sui Wing v. United States, 46 F. (2d) 755, 756 (C.C.A. 7th, 1931), must be determined in the first instance from a consideration of the crime as defined by the statute. If, as defined, it does not inherently or in its essence involve moral turpitude, then no matter how immoral the alien may be, or how iniquitous his conduct may have been in the particular instance, he cannot be deemed to have been guilty of base, vile, or depraved conduct. U.S. ex rel. Zaffarano v. Corsi, 63 F. (2d) 757 (C.C.A. 2nd, 1933); U.S. ex rel. Meyer v. Day, 54 F. (2d) 336 (C.C.A. 2nd, 1931); U.S. ex rel. Mylius v. Uhl, supra; 39 Op. Atty. Gen. 215, 220 (1938); 37 Op. Atty. Gen. 293 (1933). It is only where the statute includes within its scope offenses which do and some which do not involve moral turpitude, and is so drawn that the offenses which do embody moral obloquy are defined in divisible portions of the statute and those which do not in other such portions, that the record of conviction, i.e., the indictment (complaint or information), plea, verdict and sentence is examined to ascertain therefrom under which divisible portion of the statute the conviction was had and determine therefrom whether moral turpitude is involved. See U.S. ex rel, Guarino v. Uhl, 107 F. (2d) 399 (C.C.A. 2nd, 1939); U.S. ex rel. Zaffarano v. Corsi, supra; U.S. ex rel. Valenti v. Karnuth, 1 Fed. Supp. 370 (N.D.N.Y., 1932).
With these considerations in mind, we turn to an examination of the statute in question. The criminal provisions of Section 36 (c) of the Alien Registration Act of 1940 read:
Any alien, or any parent or legal guardian of any alien, who files an application for registration containing statements known by him to be false, or who procures or attempts to procure registration of himself or another person through fraud, shall, upon conviction thereof, be fined not to exceed $1,000, or be imprisoned not more than 6 months, or both; * * *.
The statutory authority for requiring the registrant to answer informational questions, which, under section 34 (c) of the Alien Registration Act, must be under oath, is contained in section 34 (a) of that act which reads:
"The Commissioner is authorized and directed to prepare forms for the registration and fingerprinting of aliens under this title. Such forms shall contain inquiries with respect to (1) the date and place of entry of the alien into the United States; (2) activities in which he has been and intends to be engaged; (3) the length of time he expects to remain in the United States; (4) the criminal record, if any, of such alien; and (5) such additional matters as may be prescribed by the Commissioner, with the approval of the Attorney General."
A reading of the complaint under which the alien was convicted makes it evident that she was found guilty of violating that divisible portion of section 36 (c) which punishes the knowingly making of false statements in a registration application, and we shall accordingly, in accordance with the above stated principles, confine ourselves to the consideration of whether that portion of the statute involves moral obloquy. We need not, and do not here pass upon the question of whether the offense denounced by the latter part of the statute, the procuring of registration by fraud, comprehends that type of conduct.
The answer to the issue before us can be easily resolved if we bear in mind the reasons for the insertion of section 36 (c) in the Alien Registration Act, reasons which are readily ascertainable from an examination of the aims and purposes of the act as a whole. This act is divided into three main subdivisions or, as they are called, titles. The provisions of title I make it unlawful for anyone, alien and citizen alike, to engage in certain prescribed subversive acts against the military forces and the Government of the United States. Title II amends some of the existing immigration laws relating to the exclusion and expulsion of aliens, adds to the deportable and excludable classes, and provides for certain types of discretionary relief that may be granted by the Attorney General to specific classes of deportable aliens. Title III, in which section 36 (c) is found, calls for the fingerprinting and registration of all aliens then resident in and who are to become residents of the United States.
The dominant purpose of title III was to obtain complete records of all aliens in the United States in order to provide a basis upon which the authorities could intelligently act with respect to the alien population of this country. As an aid to this purpose, criminal sanctions were provided for in section 36 (c) in the cases of those who effected a fraudulent registration, or who, as in this case, made false statements in their registration application forms.
Because section 36 (c), which has been appropriately called a "quasicriminal" provision, was inserted in the Alien Registration Act as ancillary to the main purpose of title III, all false statements, knowingly made, were deemed a violation of the statute. No distinction was drawn between those that were material and those that were immaterial. Furthermore, mens rea, or a guilty intent, was not made an element of the offense. The intent or motive of the registrant in making misstatements, whether innocent or base, was wholly irrelevant.
Federal Legislation — Alien Registration, 29 Geo. L.J. 187, 191.
Obviously, then, the offense denounced by that indivisible portion of section 36 (c) under consideration is not tantamount to, and indeed falls far short of constituting the crime of perjury, a crime which concededly involves moral turpitude. For, in contradistinction to the offense here involved, mens rea, (or a corrupt or evil intent), and materiality are essential elements of the crime of perjury. Accordingly, if we confined ourselves to the consideration of the offense as defined by that indivisible part of section 36 (c) under consideration and refrain from examining the particular conduct and motivations of the alien, from wheresoever such conduct and motivations are ascertained, as we must under the principles set forth above, we cannot say, as does the State Department, that the offense committed by the alien was tantamount to perjury, and therefore must be held to involve moral turpitude. To take this position would mean that we would be reading into the offense defined by section 36 (c) elements not there present and would further mean that we would be retrying the alien and finding her guilty, not of violating the provisions of the Alien Registration Act, but of committing the much more serious crime of perjury. Obviously those are not functions of the Board, and so to do would be contrary to all established judicial holdings. See U.S. ex rel. Mylius v. Uhl, supra; 39 Op. Atty. Gen., supra.
At common law, perjury is defined as "the wilful assertion as to a matter of fact, opinion, belief, or knowledge, made by a witness in a judicial proceeding as part of his evidence, either upon oath or in any form allowed by law to be substituted for an oath, whether such evidence is given in open court, or in an affidavit, or otherwise, such assertion being known to such witness to be false, and being intended by him to mislead the court, jury, or person holding the proceeding". Wharton's Criminal Law (12th Ed.) section 1510. This definition has been somewhat broadened by section 125 of the Criminal Code ( 18 U.S.C. 231) which reads, "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 wilfully 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 $2000 and imprisoned not more than five years." (Act of March 4, 1909, Ch. 321, section 125; 35 Stat. 1111).
U.S. ex rel Karpay v. Uhl, 70 F. (2d) 792 (C.A.A. 2nd, 1934); U.S. ex rel Boraca v. Schlotfeldt, 109 F. (2d) 106 (C.C.A. 7th, 1940).
In addition to having knowledge of the falsity of the statement, the alleged perjurer must have made the statement deliberately with a fraudulent, evil, or corrupt intent to do mischief. Wharton's Criminal Law (12th Ed.), section 1512. See also Goins v. United States, 99 F. (2d) 147 (C.C.A. 4th, 1938); Butler v. McKey, 138 F. (2d) 373 (C.C.A. 9th, 1943); Epstein v. United States, 271 Fed. 282 (C.C.A. 2nd, 1921).
It is to be noted that the language of section 36 (c) does not specifically require that the false statement be under oath. If indeed an oath is not an element of the offense, all the more reason exists for saying that this crime falls far short of constituting the crime of perjury.
Even if we examine the alien's conduct as revealed by the complaint and the record evidence, there is no basis for saying that she actually committed the crime of perjury in making false statements in her registration questionnaire. The complaint reads, "that she did * * * knowingly register as F---- R----, this being her maiden name, whereas, she was, as a matter of fact, married to one O---- C---- in Italy on April 20, 1938 * * *; that such marriage has not been dissolved; and that she is * * * still the legal spouse of O---- C----. * * * that she stated * * * that she had not applied for first citizenship paper in the United States because her husband was a citizen of the United States, when, as a matter of fact, he was not, and is not a citizen of the United States and has never resided in the United States; that the statement that her husband was a citizen of the United States was wilfully and knowingly made for the purpose of concealing the illicit relationship existing between herself and one G---- S----, with whom she admits living in adultery * * *". Actually, of course, as we pointed out above, the alien was never legally married to Mr. C---- and if she were married at the time of her application, it was to Mr. S----, her present husband, then and now a naturalized citizen, with whom she was living in a common law relationship. Even if some of these statements were false, we fail to see what their materiality was-certainly they were not material to any deportation proceeding. Moreover, the record does not show that the false statements were made with any corrupt or evil intent; in fact the contrary appears to have been the case.
In the other case, Matter of V----, AR-3081059, referred to in the State Department's memorandum, and attached hereto for ready reference, the false statements made by the alien as to the time and manner of his entry may have been material so far as his deportability from the United States was concerned. Again, however, there may be some question as to whether the requisite criminal intent was present.
Perjury is made an offense to prevent the obstruction of, and to insure justice. Because of its serious nature, severe punishment is ordinarily meted out to perjurers. In keeping with the seriousness of the offense and the severity of the punishment, the Federal courts have always insisted that the crime must be proved by the testimony of two independent witnesses or one witness and corroborating circumstances. The uncorroborated oath of one witness is insufficient to establish the commission of the crime. Weiler v. United States ( 323 U.S. 606), 13 LW 4165 (decided by the Supreme Court January 29, 1945). The purpose of section 36 (c) of the Alien Registration Act, on the other hand, is ancillary to obtaining a complete statistical record of the alien population. The punishment for its violation cannot be compared with that provided for in the case of perjurers. The elements to be proved and the manner of proof are likewise noncomparable. Had the prosecuting officials believed that this alien had in fact committed the crime of perjury, proceedings could have been instituted to try her for that crime rather than for the offense defined by section 36 (c) of the Alien Registration Act of 1940. See United States v. Doshen, 133 F. (2d) 757 (C.C.A. 2nd, 1942). The fact that they did not do so is rather strong evidence that perjury had not been committed.
Considering the offense of which this alien was convicted in the light of its definition, can we say that it inherently or in its essence involves moral turpitude? Or, in other words, is it possible to say that the type of conduct proscribed by that part of section 36 (c) of the Alien Registration Act before us is always and necessarily to be deemed base, vile, or depraved? Ordinarily the one vital test that has found almost universal application in the determination of moral turpitude is the requirement that an evil intent be an element of the offense. Since, as we have seen, a criminal intent need not be proved to sustain a conviction under section 36 (c), we would be justified on this basis alone in finding that obloquious conduct is not inherently involved in the offense in question. However, we need not and do not rest our conclusion solely on this ground. For, as we have also seen, the false statements punished need not be material. They may be wholly irrelevant to any possible issue; yet, if they are knowingly made, regardless of the intent, they are punishable. When we take into account the absence of these elements from the offense defined by the statute, all of which must be present to constitute the crime of perjury, we believe no other conclusion can be reached than that moral turpitude is not involved in the offense under consideration. Otherwise, we would be forced to say that a registrant knowingly making a misstatement as to age, weight, height or other like immaterial matters, all of which are called for by the registration application, motivated by the most innocent considerations and unaccompanied by an evil or corrupt intent would be guilty of base, vile, and depraved conduct. This we cannot say.
This test was adopted by the Solicitor of the Department of Labor in an opinion dated December 5, 1922, and thereafter reaffirmed on March 1, 1923, when he said that the crime must not be the "outcome of natural passion, of animal spirits, of infirmity of temper, of weakness of character, of mistaken principles, unaccompanied by a vicious motive or a corrupt mind". In U.S. ex rel Meyer v. Day, 54 F. (2d) 336, 337, (C.C.A. 2nd, 1931), the court said, "It is in the intent that moral turpitude inheres". The United States District Court for the Eastern District of Pennsylvania used almost similar language in saying, "The moral turpitude of the offense springs from the intent." U.S. ex rel Shladzien v. Warden, 45 F. (2d) 204, 205 (1930).
See 37 Op. Atty. Gen. 293, 295, 296 (1933) where it was said that false swearing amounting to perjury involved moral turpitude, the necessary implication being that where such swearing was not tantamount to perjury, no moral obloquy was involved.
Accordingly, whether we base our decision on the C---- case or on a de novo consideration of the issue, the conclusion reached is the same; knowingly making false statements in a registration application in violation of section 36 (c) of the Alien Registration Act of 1940 does not inherently or in its essence involve moral turpitude.
Order: Consideration under the seventh proviso to section 3 of the act of February 5, 1917, is hereby denied.
As the decision of the Board is contrary to the view of the Department of State and since a question of difficulty is involved, pursuant to the provisions of section 90.12, Title 8, Code of Federal Regulations, the Board refers the case to the Attorney General for review of its decision.
The decision of the Board of Immigration Appeals of August 1, 1945, approved.