A-2857305
Decided by Central Office October 18, 1951 Decided by Board March 7, 1952
Crime involving moral turpitude — False statements to evade service and induction — Section 11, Selective Training and Service Act of 1940 (50 U.S.C. 311).
The falsification of a Selective Service questionnaire for the purpose of evading military service, in violation of section 11, Selective Training and Service Act of 1940 (50 U.S.C. 311) is an offense involving moral turpitude.
CHARGES:
Warrant: Act of 1917 — Crime within 5 years. to wit: Violation of section 11, Selective Training and Service Act of 1940, false statements
Lodged: Act of 1917 — Convicted of crime prior to entry, to wit: Violation of Section 11, Selective Training and Service Act of 1940, false statements
BEFORE CENTRAL OFFICE
(October 18, 1951)
Discussion: The record relates to a native of China, who claims to be presently stateless and who last entered the United States at Detroit, Mich., on November 11, 1946.
Respondent was convicted in the United States District Court at San Francisco, Calif., on September 10, 1942, on two counts of violation of section 11 of the Selective Training and Service Act of 1940, the first count of which was failure to return questionnaire and the second of which was falsification of the Selective Service questionnaire. This second group forms the basis of the charges mentioned above. He was sentenced on each count for a period of 1 year and 1 day, the sentences to run concurrently.
It has been held that the falsification of a Selective Service questionnaire for purpose of evading service and induction into the Armed Forces of the United States is an offense involving moral turpitude, ( Matter of M----, 1 IN Dec. 619 (B.I.A., 1943)). Counsel for respondent contends that the falsification involved was not for the purpose of evading service and induction into the Armed Forces of the United States and refers to evidence given at the trial. It is well established that in considering whether or not an offense involves moral turpitude, it is not permissible to consider the circumstances under which the crime was committed. The inquiry is limited to the inherent nature of the crimes defined by the statute and established by the record of conviction. The record of conviction means the charge (indictment) plea, verdict, and sentence, ( U.S. ex rel. Zaffarano v. Corsi, 63 F. (2d) 757 (C.C.A. 2, 1933)). The second count of the indictment discloses that respondent was charged with "wilfully, knowingly, and feloniously make, and cause to be made, a false statement in the Selective Service questionnaire to Local Board No. 98, the Selective Board with which he was registered, concerning his liability or nonliability for service under the provisions of the Selective Training and Service Act of 1940 and the rules and regulations made pursuant thereto." The particular provision of section 11 of the Selective Training and Service Act of 1940 which respondent violated as set forth in the second count provides that a violation occurs when "any person who shall knowingly make, or be a party to the making of, any false statement or certificate as to the fitness or unfitness or liability or nonliability of himself or any other person for service under the provisions of this act, or rules, regulations, or directions made pursuant thereto." The record establishes that respondent was convicted on the second count and was sentenced to a year and a day. Consequently in considering the statute and the record of conviction, it must necessarily be concluded that the falsification in the Selective Service questionnaire made by respondent was done for the purpose of evading service and induction into the Armed Forces of the United States. Consequently respondent's case comes squarely within the decision of the Matter of M----, mentioned above and therefore the offense involves moral turpitude.
Upon consideration of the entire record, including the exceptions taken, the recommended order of the officer conducting the hearing is hereby adopted.
In respect to the application for a stay of deportation pending completion of the application for presidential pardon submitted by respondent, deportation will be stayed pending the outcome of such pardon application, inasmuch as the obtaining of a pardon will affect the question of respondent's deportability.
Order: It is ordered that the alien be deported from the United States, pursuant to law, on the lodged charge only.
It is further ordered that deportation be stayed for 30 days from the date hereof, further extensions, if any, to be authorized in the discretion of the officer in charge pursuant to outstanding instructions.
Upon consideration of the entire record: It is ordered that the appeal from the decision of the Commissioner be and the same is hereby dismissed.