Matter of G-

Discussion: The Assistant Commissioner, Investigations, requests that this Board reconsider its order of February 10, 1959, which held that respondent was not deportable on the charge stated above. The facts are fully set forth in previous orders. The issue is whether mural turpitude is involved in a conviction under the second part of 18 U.S.C. 1001 which, in brief, concerns the making of false writings knowing them to contain false statements in a matter in which the United States is involved. In similar laws, even as to statements made under oath, moral turpitude is not found unless materiality is an element (Matter of S—, 2 I. & N. Dec. 353, 361, footnote 15; Matter of G , 1 I. & N. Dec. 73). Section 1001 does not require that the statement in-. volved be under oath, and there is a "sharp conflict" between circuits as to whether materiality is required (United States v. Quirk, 167 F. Stipp. 462. 464 (Ell. Pa., 1958) ). (The cases supporting the different positions are listed in footnote 3 on page 464 of Quirk. Four circuits require materiality (4th, 5th, and 6th) ; the Second and Third Circuits hold that materiality is not an element.) The conviction in the instant case occurred in the Fifth Circuit where materiality is required to obtain a conviction under the second

part of section 1001. The Service is of the opinion that since

materiality is an element of the conviction involved here, we must rule that moral turpitude is involved. As far as the immigration

laws go, it is immaterial that conduct of the respondent may have

involved moral turpitude, if the law under which he was convicted does not inherently involve moral turpitude (Matter of S , supra,

pp. 360-362). So, it is with the law itself, not the respondent's

conduct, that we are concerned. Without materiality, we cannot

find that the law involves moral turpitude. There is a conflict in the jurisdiction as to whether materiality is involved. A substantial

doubt exists as to whether the law does require materiality. Such

a doubt will exist until the matter is clarified by either the Supreme Court or by legislation. Doubt must be resolved in favor of the

alien. Until clarification comes, we cannot hold that the Service

has borne its burden of establishing that the alien has been con-

victed of a crime involving moral turpitude.

Moreover, let us see where the Service view will lead. We shall

assume for the purpose of this discussion that moral turpitude is

involved if the law requires materiality. If the conviction oceure in a jurisdiction requiring materiality, the alien will he deportable.

What should be done as to a person who had been convicted in the

jurisdiction where materiality is not required? Could it be held that such a person has been convicted of a crime involving moral

turpitude? We think not. In the court where he was convicted

materiality is not an element; it need not be alleged nor proven.

This person has been convicted under a law which does not inher-

ently involve moral turpitude. We would be required to find that

he was not deportable. Then we would be faced with the situation

that persons convicted of identical ulTelist0 under identical la wa would be deportable if convicted in one jurisdiction but not deport-

able if convicted in another jurisdiction. This cannot be. A Fed-

eral law must be given a uniform interpretation for immigration

purposes. Until the conflict is resolved, the law can be interpreted

uniformly only by holding that a person convicted under the portion

with which we are concerned has not been convicted of a crime'

involving moral turpitude.

Order : It is ordered that the motion be and the same is hereby

denied.