Matter of K- — 3 I&N Dec. 69

Cite as 3 I&N Dec. 69

IN THE MATTER OF K

In DEPORTATION Proceedings A-6092065

Decided by Board November 3, 1947 Perjury-Committed in 1931 by alien under 18 (Federal offense)-Applicability of the Federal Juvenile Delinquency Act (June 16, 1938)-Voluntary departure under section 19 (c) of the Immigration Act of February 5, 1917, as amended- Requisite good moral character.

(1) The alien admitted the commission of perjury before a Board of Special Inquiry in February 1931, when he was not yet 18 years of age (born December 29, 1913) ; he could not have been treated and tried as a juvenile (delinquent) subsequent to the effective date of the Federal Juvenile Delinquency Act (June 16, 1938 ) , when he was over 24 years of age and the statute of limitations had run already on the violation ; it would be unrealistic to apply the above 1938 act retroactively to cover the alien's violation of the Federal perjury statute so that it should be regarded as a juvenile delinquency rather than as perjury.

(2) The alien's conviction on four counts of an indictment charging him with falsely representing himself to be an American citizen (which misrepresentations were noted as part and parcel of his attempt to hide his illegal entry in 1931) related to misconduct which is not condoned; but considering the record in its entirety, his otherwise good character record permits the conclusion that he does have the requisite character to establish his eligibility for voluntary departure under section 19 (c) , act of February 5, 1917, as amended (which was granted, together with seventh proviso relief to cover the perjury offense ) . CHARGES : Warrant : Act of 1924-No immigration visa. Lodged: Act of 1917-Admits crime prior to entry, to wit : Perjury.

BEFORE THE BOARD

Discussion : Respondent is a 33-year-old native and citizen of Greece. He last arrived in the United States at the port of New York on February 14, 1931. He was then brought before a Board of Special Inquiry to determine his admissibility to this country. He testified under oath at that time (February 16-18, 1931) that his name was A- A- and that he had been born in New York City on August 12, 1910. In support of this testimony he presented a birth certificate establishing the facts to which he had testified. The Board of Special Inquiry voted to admit him as an American citizen. In truth and in fact respondent's name was G- T— K. He had actually been born in Greece on or about December 29, 1913.

Cite as 3 I&N Dec. 69

He testified falsely before the Board of Special Inquiry in order to effect entry into the United States. During the deportation hearing respondent was advised of the definition of perjury. He thereupon admitted the commission of the crime of perjury while testifying under oath before the Board of Special Inquiry in February 1931. No issue was raised as to respondent's deportability on the ground that he was not in possession of an immigration visa at the time of his last entry. But counsel does contend that respondent is not subject to deportation on the basis of his admission of the commission of perjury prior to his last entry. Counsel argues that respondent was under 18 years of age at the time he perjured himself. He further argues that the Federal Juvenile Delinquency Act, which became effective June 16, 1938, has retroactive effect and, therefore, respondent's violation of the perjury statute should be regarded as a juvenile delinquency rather than as perjury. Accepting that hypothesis, respondent would not have committed a crime and, therefore, his admission of perjury would not be valid. It is true that the Federal Juvenile Delinquency Act was retroactively applied to violations of the Federal law committed prior to the effective date of the act. In this case, however, the violation occurred in 1931. Respondent could not possibly have been treated and tried as a juvenile subsequent to the effective date of the act, June 16, 1938. He was then 25 years of age and the statute of limitations had already run on the violation. Hence, even if we were so disposed, it would be unrealistic for us to apply the Federal Juvenile Delinquency Act retroactively to cover respondent's violation of the perjury statute. Under the circumstances we hold that respondent did commit perjury when testifying falsely before the Board of Special Inquiry in February 1931 and that his admission of its commission renders him subject to deportation. Turning now to respondent's application for discretionary relief, we agree with the Acting Commissioner that suspension of deportation cannot be authorized because respondent is subject to deportation on one of the grounds set forth in section 19 (d) of the act of February 5, 1917, as amended. We do not, however, agree with the Acting Commissioner that respondent is not eligible for voluntary departure. The record shows that respondent was first married in 1939. Two children were born as issue of this marriage. Because of mutual incompatibility respondent and his first wife were divorced in July 1946. We have been advised that respondent has recently married an American citizen. Under the divorce decree respondent and his wife each have custody of their children for 6 months each year. While the children are in the mother's custody, respondent pays $10 weekly for their support.

Cite as 3 I&N Dec. 69

Counsel has advised us, however, that because of the wife's lack of finances, respondent has actual custody of the children for 10 months out of each year. The mother has custody for the two summer months. On July 8, 1946, respondent was convicted on four counts of an indictment charging him with falsely representing Himself to be an American citizen. The court suspended a 2-year sentence and fined respondent $1,000. Two of the counts of the indictment charge respondent with falsely claiming to be a citizen in order to obtain employment. Another count charged him with a similar claim when registering under the Selective Training and Service Act of 1940. The fourth count charged him with falsely claiming citizenship in registering to vote. We note that the misrepresentations set forth in the indictment were all part and parcel of respondent's attempt to hide his illegal entry in 1931. They were not motivated by any venal purposes. While the offense is no doubt serious, we note that the court suspended sentence. Respondent has no other criminal record. He has submitted affidavits from friends and acquaintances certifying to his good character. An investigation conducted by the Immigration and Naturalization Service has proved very favorable to him. While we do not condone respondent's illegal actions in misrepresenting himself as a citizen, we nevertheless do not think that he is precluded from establishing his good moral character. Considering the record in its entirety, we think that he does have the requisite character to establish his eligibility for voluntary departure. In view of his close family ties, his long residence and his good moral character record except for his false claims to citizenship, we shall grant his application for voluntary departure and exercise the seventh proviso to section 3 of the act of February 5, 1917, as amended, with respect to his admission of the commission of perjury in February 1931. The seventh proviso will not be exercised with respect to his recent conviction of violating section 346 ( a) of the Nationality Act of 1940, since we have held that this crime does not involve moral turpitude. * Again, preexamination will not be authorized since the Greek quota is oversubscribed.

* Editor's note. While a violation of section 346 ( a) (18) of the Nationality Act of 1940 (see new title 18, section 911) has been held not to involve moral turpitude ( Matter of G—, 56088/778, August 26, 1941) , a violation of section 346 (a ) ( 1 ) of that act (see new title 18, section 1015) has been held to involve moral turpitude. In the Matter of S-, unpublished, A-5659971, June 6, 1947, the following appears : "This Board has taken the position that a violation of section 346 (a) (1) of the Nationality Act of 1940 involves moral turpitude. See memorandum from the Chairman of the Board to Mr. Washington, Assistant Solicitor General, March 11, 1947, reviewing Matter of O—, 5326517, March 28, 1945." The date of the memorandum is March 20, 1947. The O file mentioned above, contains a February 14, 1947 memorandum opinion of the legal adviser (State Department) and forwarding letter of February 19, 1947, indi

Cite as 3 I&N Dec. 69

Order : It is ordered that the alien's application for suspension of deportation and preexamination be denied. It is further directed that an order of deportation be not entered at this time but that the alien be required to depart from the United States, without expense to the Government, to any country of his choice, within 6 months after notification of decision, on consent of surety. Departure in accordance with the foregoing will be deemed sufficient to cancel the outstanding delivery bond. It is further directed that if the alien reapplies for admission and is found to be a returning resident of the United States and otherwise admissible than as one who admits the commission of the crime of perjury before a Board of Special Inquiry in February 1931, his admission under the seventh proviso to section 3 of the act of February 5, 1917, is hereby authorized, subject to revocation in the discretion of the Attorney General, after hearing, if the alien commits any other offense.

cating the State Department view that section 346 ( a) ( 1 ) , supra, does involve moral turpitude. (Also Matter of B- , A-3795206, B. I. A. April 25, 1947.) Section 346 ( a) ( 1) , supra, was derived in substance from section 80 of the Criminal Code, (old) 18 U. S. C. 142) , in turn derived from R. S. 5395. U. S. v. Bressi, 208 Fed. 369, 370 is authority for the view that section 80, supra, required "materiality."