giance to the foreign state, it was held that that person had not voluntarily expatriated himself by the taking of an oath of allegiance to a foreign state or by service in the armed forces of the foreign state (Podea v. Acheson, 179 F. (2d) 306, U. S. Court of Appeals, Second Circuit, 1950). In that case the court said:

For many years he had vainly sought to obtain a passport from the State Department which was denied him under a mistake of law. If he had come in as an immigrant on the Rumanian quota, he might have had to meet the claim that he had conceded Rumanian citizenship and be confronted by a concession of serious if not fatal character. See Schaufus v. Attorney General, D. C., 45 F. Supp. 61, 65. If he had remained in this country under his visa he ran the risk of being deported for either an illegal entry or an illegal overstay. Sleddens v. Shaughnessy, 2 Cir., 177 F. (2d) 363. It seems most technical to hold that the plaintiff did not act under duress. In our opinion he never voluntarily expatriated himself by taking an oath of allegiance to Rumania or by serving in the Rumanian Army. Both steps were required by the situation in which he found himself, were primarily caused by the erroneous advice of the State Department and were farthest from his real purpose.

In the Podea case (supra), the facts were that he received a ruling from the Department of State in 1934 that he was not a citizen, that, in 1936, he made an application (his second application) for a United States passport which was refused and that later in the same year he was inducted into the Rumanian Army and took an oath of allegiance, apparently without further asserting his claim to American citizenship. He entered the United States in 1939 as a temporary visitor and was again advised by the Department of State that he was not a citizen. He returned to Rumania late in 1939 and was again inducted into the Rumanian Army in June 1941. The situation in Podea's case was that elements of compulsion were present, as pointed out in the court decision. He was inducted into the Rumanian Army and did not enlist. If he had remained in this country following his admission as a visitor, he would have run the risk of being deported. The instant case may be distinguished from the Podea case, in that there is nothing in the record to show that the subject's act of voting was required by the situation in which she found herself. As far as the record shows, she was not required to participate in the political affairs of a foreign state; instead it seems evident from her letters that she voted as a German because she wanted to show her preference for a political party.

While misinformation is an extenuating circumstance, it does not necessarily follow that it will serve forever as an excuse for a person's subsequent acts, especially action that need not be taken. It should also be pointed out that a national of the United States, denied a right or privilege by an administrative agency, has available to him the procedure outlined in section 503 of the Nationality Act of 1940 for procuring a judicial determination of citizenship status.

There is no evidence that the subject was required to vote at Bremen and her statements show that her participation in the election was an act of her own choosing. It is concluded, therefore, that her act of voting on August 14, 1949, was a voluntary act.

The subject's attorney has cited the case of Brehm v. Acheson, 90 F. Supp. 662 (S. D. Texas, 1950), in support of his contention that the subject did not lose her United States citizenship. It was held therein that an election in the American Zone of Germany by permission and under direction of the United States was not a political election. in a foreign state, because it was held in territory then ruled and governed by the United States. In the instant case, the subject voted in Bremen in the British Zone of Germany. It is a matter of no importance whether the territory at Bremen is regarded as being ruled by Great Britain or by Germany, since the election was, in any event, held in a foreign state.

It is concluded that the subject expatriated herself on August 14, 1949, under the provisions of section 401 (e) of the Nationality Act of 1940, through her voluntary act of voting in a political election in a foreign state.

It is ordered that from the evidence presented, the subject be deemed not a citizen of the United States. The file in the case should be returned to the field office at Buffalo, N. Y., with instructions to advise the subject accordingly.

IN THE MATTER OF K

In EXCLUSION Proceedings

A-8031641

Decided by Board September 27, 1951

Crime Unlawful compulsion (1949)—Paragraph 240, German Criminal CodeRecourse to "conviction record" to determine if offense involves moral turpitude.

The orginal charge was subornation of perjury, but the court found him guilty of unlawful compulsion (ordering the charge amended to read "Paragraph 240 of the German Criminal Code, instead of paragraph 160, 48, 43.”). Paragraph 240 (supra) is broad in scope and might include in its definition crimes which do and some which do not involve moral turpitude, so recourse may be had to examination of the "conviction record" (which includes a statement of record made by the court in sentencing defendant) to ascertain whether the requisite moral obloquy is present. Such a statement made by the court, as well as its action in reducing the charge, lead to the conclusion that he is not guilty of a crime involving moral turpitude and has not admitted the commission of such a crime.

EXCLUDED BY BOARD OF SPECIAL INQUIRY:

Act of 1917-Convicted of crime involving moral turpitude, unlawful compulsion, in violation of section 240 of the German Criminal Code.

Act of 1917-Admits crime involving moral turpitude—unlawful compulsion, in violation of section 240 of the German Criminal Code.

BEFORE THE BOARD

Discussion: Appellant is 35 years old, a native and citizen of Poland. He seeks to enter the United States as a displaced person under the Displaced Persons Act of 1948, as amended. He was ordered excluded by a board of special inquiry at Schweinfurt, Germany, on December 21, 1950. He appeals from the decision of exclusion.

The records show that appellant was a farmer and was deported from Poland to Germany to work as a farmworker in 1939. He was previously rejected by a United States consul because of illiteracy. He has now overcome that obstacle. The board of special inquiry found that appellant was convicted for violation of paragraph 240,

German Criminal Code on July 13, 1949, in the United States Summary Military Court at Coburg, Germany, that he admitted the commission of this offense, and that violation of that section of the German Criminal Code involves moral turpitude. The board found him inadmissible to the United States as a person who has been convicted of a crime involving moral turpitude and who admits the commission of such crime.

The Commissioner's opinion discussed at some length the facts with regard to the incident which resulted in appellant's conviction, and concluded that "the appellant attempted under threats of bodily injury to suborn two witnesses in a judicial proceeding. It is our view that subornation of perjury is an offense in which moral obloquy inheres." This discussion of the facts of the case and of what occurred at the criminal trial is unnecessary, and indeed is inappropriate in view of U. S. ex rel. Zaffarano v. Corsi, 63 F. (2d) 757 (C. C. A. 2, 1933), and similar cases. That line of cases limits us to consideration of the record of conviction, by which, says the court, in the Zaffarano case, ❝*** we mean the charge (indictment) plea, verdict, and sentence. The evidence upon which the verdict was rendered may not be considered, nor may the guilt of the defendant be contradicted."

We interpret the rule to mean that we may also consider any statement of record made by the court in sentencing a defendant. The record shows that the court ordered the charge amended to read "Paragraph 240 of the German Criminal Code, instead of paragraph 160, 48, 43." The court then said:

J— K—— as the police witnessed that you have behaved correctly and did not use any threats against the women, court is sentencing you to 1 month's confinement, but for the above reasons is suspending the sentence pending your good behavior.

The two sections of the German Criminal Code here involved are:

Unlawful Compulsion.—240 (as amended 29 May 1943, RGBI I 339).—Whoever unlawfully compels another, by force or threats of considerable evil, to act, to acquiesce in any act, or to omit to act shall be punished for unlawful compulsion by imprisonment, or fine, and in especially serious cases by confinement in a penitentiary or imprisonment for not less than 6 months.

The act is unlawful whenever the application of force or the infliction of the threatened evil for the purpose intended, contradicts the people's sound sentiment (gesundes Velksempfinden).

The attempt is punishable.

Subornation of a False Oath.-160.-Whoever suborns another to take a false oath shall be punished by imprisonment not to exceed two years, in addition to which he may be sentenced to loss of civic rights, and whoever suborns another to make a false declaration in lieu of an oath shall be punished by imprisonment not to exceed 6 months.

The attempt is punishable.

Another section, 159, is entitled "Attempted Subornation of Perjury." Appellant was not charged under this section.

The charge sheet shows that the charge was changed to paragraph 240 of the German Criminal Code, but the parenthetical explanation of what was contained in the sections of the charge originally placed there was not changed. That is, it continues to read, "Threatening and intimidation of witnesses, subornation of perjury." However, the record of the United States Courts of the Allied High Commissioner for Germany, Tenth Judicial District, shows that the violation charged was of paragraph 240 German Criminal Code, unlawful compulsion and shows that appellant was sentenced to one month imprisonment, suspended on good behavior.

Contrary to the Commissioner's finding, the court concluded that this man was not guilty of subornation of perjury as originally charged, that he was guilty, at most, of unlawful compulsion. Section 240, the statute in question, is broad in scope and might include offenses which would not involve moral turpitude. When a statute is divisible or separable and so drawn as to include within its definition crimes which do and some which do not involve moral turpitude, the record of conviction may be examined to ascertain whether the requisite moral obloquy is present. It is our conclusion that in view of the court's statement that he had "behaved correctly and did not use any threats against the women," and the court's action in reducing the charge from one under section 160 to one under section 240 of the code, that he is not guilty of the commission of a crime involving moral turpitude, nor has he admitted the commission of such a crime.

The immigration visa presented by the appellant, valid for a period of 4 months from the date of issuance, October 6, 1950, has now expired. The Assistant Commissioner found him inadmissible on the additional ground that he is an immigrant not in possession of a valid immigration visa. It will be necessary for the appellant to secure a new immigration visa.

Order: It is ordered that the appellant be admitted to the United States for permanent residence under the Displaced Persons Act of 1948, as amended, when in possession of the necessary documents.