IN THE MATTER OF P

In DEPORTATION Proceedings

A-4068102

Decided by Board May 9, 1951

Crime involving moral turpitude-Wilful false swearing to a material fact in a naturalization proceedings (8 U. S. C. 414)—Admission of the commission thereof prior to entry-Deportability, if at time of last entry subject had status of a "naturalized” citizen, but whose naturalization was canceled, ab initio, later for fraud-Application of doctrine of “relation back” in the case of a returning legal resident (a) as to documentary charge, (b) as to other charges.

(1) The construction of the Immigration Act of 1924 to require an immigration visa at the time of last entry in the case of a returning legal resident, having the status of a "naturalized" citizen at the time of last entry but whose "naturalization" was later canceled for fraud, was rejected in Matter of CA-5982828, Atty. Gen., January 6, 1950, 3, I. & N. Dec. 275.

(2) Insofar as the above documentary charge alone is concerned, there is not applied the doctrine of "relation back" to wipe out the naturalization ab initio so that the person might be deemed to have never become a citizen by a "naturalization" procured by fraud (in the case of a returning legal resident). But this is not the case as to other charges which are involved, like criminal charges under the Immigration Act of February 5, 1917, as amended (even though the alien was legally admitted for permanent residence in the first instance).

(3) Wilful false swearing to a material matter in a naturalization proceeding in violation of 8 U. S. C. 414 (of which the subject was convicted after entry) is an offense involving moral turpitude, and a plea of guilty during the course of prosecution is a confession of guilt sufficient to justify deportation, as one who admits the commission of such offense prior to entry and thus inadmissible as an alien at the time of last entry.

CHARGES:

Warrant: Act of 1924-No visa.

Act of 1917-Admits commission of crime prior to entry-"perjury."

BEFORE THE BOARD

Discussion: This matter is before us by reason of a motion filed by counsel wherein he asks that the hearing be reopened and the matter reconsidered by reason of errors of law in the prior determination. The subject of this proceeding testified that he was born in Brudnice,

Poland (then Russia), on August 13, 1892, and that he was a citizen of the country of his nativity. The record discloses that the petitioner first arrived in the United States at Baltimore, Md., on August 23, 1905, as a passenger on the S. S. Cassel subsequent to which arrival he was lawfully admitted to the United States for permanent residence. On December 23, 1932, this person was naturalized as a citizen of the United States in the Supreme Court of the State of New York, county of Queens. He remained in this country until June 6, 1936, when he proceeded abroad for a visit and his last arrival occurred at New York on September 11, 1936, as a passenger ex-S.S. Europa at which time he was admitted as a citizen of the United States.

Following his last arrival to this country the certificate of naturalization hereinabove referred to was canceled on July 28, 1938.

The petitioner was married on July 17, 1912. That marriage was dissolved on March 14, 1932, by divorce.

Two children were born of that union who are now adults. On June 29, 1932, this individual was again married to one who obtained a mail order dissolution of her marriage in Mexico. He is separated from the second wife. However, the marital situation has no material bearing on the determination of this case.

On July 25, 1940, the petitioner was ordered deported to the U. S. S. R. for the reason that at the time of his last entry he was an immigrant who required an unexpired immigration visa pursuant to the provisions of section 13 of the Immigration Act approved May 26, 1924 (8 U. S. C., sec. 213 (a)); and for the further reason that he admitted the commission of perjury, a crime involving moral turpitude, prior to his last entry (sec. 19, act of February 5, 1917) (8 U. S. C., sec. 155).

Counsel contends first that the documentary cause for deportation is not supported in law because the theory of relation back is no longer a valid one. This condition is predicated on the decision in the Matter of C, file A-5982828, decided August 10, 1948, and approved by the Attorney General on January 6, 1950 (3, I. & N. Dec. 275). In that case it was said, among other things:

The theory of the Service, adopted by us in our last decision, can be supported only through the use of the doctrine of relation back, a legal fiction at best. We do not think this legal fiction must be universally applied in every situation regardless of the particular circumstances involved. For example, we hardly think that a man in respondent's position who exercised his rights of citizenship prior to the cancellation of his certificate of naturalization could be punished for so acting even though, through the operation of the doctrine of relation back, he was an alien at the time he exercised those rights and even though his acts might be said to have been illegal. To us it seems unfair to seize upon a fiction to require respondent to have done that which was impossible of performance, namely, to present an immigration document at the time of his 1931 entry. "Respect for law does not thrive on captious interpretations." Delgadillo v.

Carmichael, 92 L. Ed. Adv. Op. 69, 71 (332 U. S. 388 (1947)). To construe the 1924 Act to require the impossible strikes us as a captious interpretation, an interpretation that we do not think Congress could have intended.

As to the first cause for deportation, counsel would appear to be correct on the basis of the precedent hereinabove cited. However, there is involved in the present case an allegation of the admission of the commission of a crime involving moral turpitude prior to entry, to wit, perjury, in connection with certain false statements made by him during the course of the naturalization proceeding.

If the admission of the commission of the crime of perjury, which offense has been held to involve moral turpitude, is sustained then the decision of this Board of April 25, 1950, in the Matter of AA-2119655 would apply. In that case this Board said, among other things, that the Matter of C—, decided August 10, 1948 (supra), relates back merely to the documentary charge but does not eliminate criminality. In the Matter of A, A-2119655 this Board said, among other things:

The recent decision of the Supreme Court in U. S. ex rel. Eichenlaub v. Shaughnessy and U. S. ex rel. Willumeit v. Shaughnessy, 338 U. S. 521 (January 16, 1950), is applicable here. These cases relate to naturalized United States citizens convicted of conspiracy to violate the Espionage Act of 1917. Subsequently citizenship was canceled on the ground of fraud in the procurement; and after hearings, deportation was ordered under the Act of May 10, 1920. The court there held that the provision in the act, May 10, 1920, which subjects to deportation "aliens who since August 1, 1914, have been or may hereafter be convicted of a violation, or conspiracy to violate, any of the acts specified therein" does not require that the offenders must have had the status of aliens at the time they were convicted but is applicable to those denaturalized before or after their convictions as well as those who have never been naturalized. The court stated that the convictions for designated offenses were important conditions precedent to being found undesirable residents, the status as aliens being a further condition of deportability. Upon the meeting of both conditions, and after hearing, the requirements of the Act were satisfied.

The cancellation of the respondent's naturalization related back to the date of its grant, and hence in contemplation of law he was never a citizen of the United States. Even though when the respondent last entered as a citizen, he was, in accordance with subsequent adjudication, an alien. As an alien, he was within an inadmissible class, to wit: An alien who has been convicted of and admits the commission of a crime involving moral turpitude. In view of these facts and U. S. ex rel. Eichenlaub v. Shaughnessy (supra), and U. S. ex rel. Willumeit v. Shaughnessy (supra), we find that the alien is subject to deportation on the criminal charges.

In the case under consideration the petitioner did not plead guilty to the indictment until April 4, 1938, considerably subsequent to his last entry to this country. We must therefore rely upon his admission of the commission of the offense of perjury and in that connection the record does not contain a definition of the offense. This individual was asked:

Q. When you testified under oath on April 4, 1930, you knew that you were testifying falsely that you were committing perjury?

A. Yes.

The proceeding contains a copy of an indictment wherein it would appear that the alien gave false testimony as to a material fact in a naturalization proceeding in violation of title 8, section 414 of the United States Code in that he knowingly procured naturalization in violation of the provisions of the naturalization laws. In the Matter of J—, decided by this Board on March 1, 1945, the Solicitor General on May 29, 1945, stated that the rules pertaining to the admission of the commission of a felony or other crime or misdemeanor are to be observed as follows:

(1) It must be clear that the conduct in question constitutes a crime or misdemeanor under the law where it is alleged to have occurred.

(2) The alien must be advised in a clear manner of the essential elements of the alleged crime or misdemeanor.

(3) The alien must clearly admit conduct constituting the essential elements of the crime or misdemeanor and that he committed such offense. By the latter is meant that he must admit the legal conclusion that he is guilty of the crime or misdemeanor. (4) It must appear that the crime or misdemeanor admitted actually involves moral turpitude, although it is not required that the alien himself concede the element of moral turpitude. (5) The admissions must be free and voluntary.

8 U. S. C., sec. 414 which has since been repealed provided as follows: Procuring naturalization illegally; aiding unauthorized proceedings; false testimony. Any person who knowingly procures naturalization in violation of the provisions of this chapter shall be fined not more than $5,000, or shall be imprisoned not more than 5 years, or both, and upon conviction the court in which such conviction is had shall thereupon adjudge and declare the final order admitting such person to citizenship void. Jurisdiction is hereby conferred on the courts having jurisdiction of the trial of such offense to make such adjudication. Any person who knowingly aids, advises, or encourages any person not entitled thereto to apply for or to secure naturalization, or to file the preliminary papers declaring an intent to become a citizen of the United States, or who in any naturalization proceeding knowingly procures or gives false testimony as to any material fact, or who knowingly makes an affidavit false as to any material fact required to be proved in such proceeding, shall be fined not more than $5,000, or imprisoned not more than 5 years, or both.

In the instant case the alien has made an unqualified admission of the commission of a crime and the Attorney General has held that a willful, false swearing to a material matter ordinarily is an offense involving moral turpitude (1938, 39 Op. Atty. Gen. 215). See also Howes v. Tozier, 2 F. (2d) 268 C. C. A. 1925, 3 F. (2d) 349.

A plea of alien of guilty during the course of prosecution has been held to be a confession of guilt sufficient to justify deportation. (See

Blumen v. Haff 78 F. (2d) 833, (C. C. A. 9, 1935) certiorari denied, 1935, 296 U. S. 644, 80 L. Ed. 458.)

In view of the foregoing it is our conclusion that the alien is subject to deportation because of the admission of the commission of a crime involving moral turpitude. He has however resided in the United States for upward of 7 years. Counsel has submitted a number of letters as to the alien's present good character. However before final determination of remedial relief the Board is of the opinion that a thorough character investigation should be made. Accordingly, the hearing will be ordered reopened.

Order: It is ordered that the order and warrant of deportation be and the same are hereby withdrawn and that the hearing be reopened in order that a thorough character investigation may be made and an application received for such remedial relief as may be warranted.