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MATTER OF R-M

In DEPORTATION Proceedings

A-7500998

Decided by Board June 19, 1959

Deportability-Section 241(a)(11) of 1952 act-Mere possession of marihuana

not deportation ground. Conviction of simple possession of marihuana held not to be deportable of

fense under section 241 (a) (11) of the 1952 act. (Follows Hoy v. MendozaRivera, C.A. 9, April 3, 1959, and modifies Matter of M-V-71. & N. Dec. 571.)

CHARGE:
Order: Act of 1952—Section 241 (a) (11) [8 U.S.C. 1251 (a) (11)]-Convicted

of illegal possession of marihuana.

BEFORE THE BOARD

Discussion: This case is before us on appeal from a special inquiry officer's order of January 22, 1959, directing that the respondent be deported from the United States in the manner provided by law on the charge contained in the order to show cause.

The record relates to a 41-year-old married male who last entered the United States on January 7, 1958, as a returning resident alien. However, he now claims birth in Amargosa, Arizona, on November 30, 1917. But, upon careful consideration of the evidence of record, which has been fully discussed in the special inquiry officer's opinion, we find that the Government has met the burden resting on it in this proceeding of establishing alienage. We will summarize that evidence briefly.

A baptismal certificate issued on February 8, 1918, as well as one issued in 1958, reflects birth in Mexico; the godmother has testified that respondent's father furnished the information reflected therein; and the respondent has admitted that his father told him his baptismal certificate showed birth in Mexico. Forms 1-404-A, certificate of admission of respondent's parents on March 2, 1923, shows that respondent, then aged five, was born in Mexico; and Forms I-404-A relating to his admissions in 1940 and 1941, show respondent's birthplace as Mexico. Alien Registration Forms executed by respondent under oath in 1940 and 1953 contain statements by him that he was born in Mexico. He also claimed birth in Mexico in a sworn statement to an immigration officer on February 2, 1958, and he then presented an Alien Registration Receipt Card (Form I-151).

The evidentiary value of the documents submitted by the respondcent is strictly limited by their nature in relation to the issue involved here. His army discharge reflects birth in the United States, but the record reveals that said recitation therein is based on respondent's unsupported claim and United States citizenship is not a requirement for military service. (See Matter of M— 6 I. & N. Dec. 415.) The same is true of the certificate of respondent's school attendance in Arizona in 1928-1929.

The weight to be accorded the testimony of respondent's sister, his senior by 18 years, is affected by the relationship. The same is true of the testimony of his aunt, his mother's sister, who was also his godmother; and her testimony was also hearsay. The testimony of his father's friend and former employer was also hearsay.

The only remaining issue is that of deportability, which is predicated on respondent's conviction in the Superior Court, Pinal County, Arizona, for the offense of illegally having marihuana in his possession on or about January 8, 1958. Imposition of sentence was suspended for a term of two years; respondent was placed on probation for that period; and the court reserved the right to impose service of the sentence within the probationary period, if respondent should violate the conditions of probation.

It has been judicially determined that, insofar as marihuana is involved, deportability under section 241 (a) (11) of the Immigration and Nationality Act depends upon a conviction for possession for the purpose of manufacture, production, etc. (Hoy v. MendozaRivera, C.A. 9, April 3, 1959, #16,170). This record, however, establishes that the respondent was only convicted of illegal possession of marihuana. Therefore, in the light of the cited decision he does not fall in the ambit of the statute.

In Matter of M-V-7 I. & N. Dec. 571, we considered whether the amendment to section 241(a)(11) of the Immigration and Nationality Act (8 U.S.C. 1251) by the Narcotic Control Act of 1956 was retroactive. We held that it was. Involved was a conviction for unlawful possession of marihuana. The issue in the Mendoza-Rivera case, supra, was not raised in Matter of MV-, supra. The latter decision must be read in the light of our holding in the instant case.

Order: It is ordered that the proceeding be terminated.

MATTER OF L-DE

In DEPORTATION Proceedings

A-11056167

Decided by Board June 29, 1959

Good moral character-Section 101(f)(6) of 1952 act—False statements in

application are not "testimony." False statements in application for United States passport (whether or not

under oath) do not constitute false "testimony” within meaning of section 101(f) (6) of 1952 act. "Testimony" is construed as referring solely to oral utterances or oral evidence. (Overrules Matter of 2 5 I. & N. Dec.

514; modifies Matter of 0- 7 I. & N. Dec. 486.) CHARGE: Order: Act of 1952_Section 241(a) (1) 18 U.S.C. 1251 (a) (1)]-Excludable

at entry under 8 U.S.C. 213(a), 1946 ed.--No immigration visa.

BEFORE THE BOARD

Discussion: This case is before us on appeal from a decision of a special inquiry officer directing the respondent's deportation.

The respondent is a 39-year-old married male, native and citizen of China, who last entered the United States in October 1941, at which time he secured admission on his fraudulent claim that he was a citizen of this country. He claims residence in the United States since 1935. The respondent concedes that he is deportable, and the only issue in this case relates to the special inquiry officer's conclusion that the respondent is statutorily ineligible for suspension of deportation.

The respondent secured admission to this country in 1935 by claiming that he was CF->, the son of C—A-K

a nativeborn citizen. Actually, the respondent's name is L-D

E-; he is not the son of C-A--- ; and he has never been a citizen of the United States. He secured readmission in 1941 by continuing the deception. On December 28, 1956, the respondent executed an application for a United States passport in which he stated that his name was C- -F- and that he was a citizen of the United States by birth in China to a citizen father.

The special inquiry officer's conclusion that the respondent was statutorily ineligible for suspension of deportation was predicated on the view that section 101(f) (6) of the Immigration and Nationality Act [66 Stat. 166; 8 U.S.C. 1101(f) (6)] precludes a finding

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of good moral character because of the false statement in the 1956 application for United States passport. Section 101(f) (6) bars a finding of good moral character in the respondent's case if, subsequent to 1952, he is or was "one who has given false testimony for the purpose of obtaining any benefits under this act * * *"

The respondent testified that after he made the application for a passport in 1956 he was requested to appear for an interview at the passport Office in New York City, but did not do so and never received a United States passport. Counsel apparently contends that the respondent is not within the purview of 8 U.S.C. 1101(f) (6) because he did not actually procure a passport. We reject this contention, however, since it is not a requirement of the statute that any benefit be secured but only that the false testimony shall have been given for the purpose of obtaining a benefit.

We consider that the important question in this case is whether the respondent's false statement in the passport application is “testimony” within the meaning of 8 U.S.C. 1101(f) (6). In this connection, two recent court decisions must be examined - Orlando v. Robinson, 262 F.2d 850 (C.A. 7, 1959), cert. denied 359 U.S. 980 (1959), and Sharaiha v. Hoy, 169 F. Supp. 598 (S.D. Cal., 1959).

Some of the facts in Orlando v. Robinson, supra, are not clear from that opinion and we have examined the special inquiry officer's decision of August 30, 1955, concerning Orlando and our decisions of January 6, 1956, and August 7, 1958, in that case (file A-4177580). The Court of Appeals said that Orlando made false statements in an application for registry on July 15, 1947, and in a petition for naturalization on July 12, 1948 (actually, the 1948 false statement was in a preliminary form for petition for naturalization which was not sworn to until September 21, 1948), and that on July 12, 1948, he "gave false testimony for the purpose of obtaining citizenship.There was no discussion by the court as to whether the application and petition (preliminary form) were under oath nor whether a false statement is "testimony," although the court assumed in its opinion that Orlando gave false testimony on July 12, 1948.

Orlando was required to prove good moral character for ten years prior to May 24, 1955, and 8 U.S.C. 1101(f) (6) would preclude a finding that he was a person of good moral character if during the ten-year-period he is or was one who had given false testimony for the purpose of obtaining any benefits under the Immigration and Nationality Act. That act became effective on December 24, 1952, and it would seem that the false statements which Orlando made in 1947 and 1948 could hardly be considered as having been made for the purpose of obtaining a benefit under the Immigration and Nationality Act which was not enacted until 1952.

The decision of the special inquiry officer and the two decisions of this Board concerning Orlando did not refer to any false testimony given by him but only to the false statements made in the 1947 and 1948 forms and in his alien registration form in 1940. There was no statement in these three decisions that a finding of good moral character was precluded by virtue of 8 U.S.C. 1101(f) (6), but the decisions were predicated on a conclusion that Orlando had not affirmatively established good moral character during the ten-yearperiod.

Although the court in the Orlando case stated that the act committed by him on July 12, 1948, made him then a person not of good moral character, there was no definite statement that Orlando's action on July 12, 1948, precluded him from establishing good moral character by reason of the provisions of 8 U.S.C. 1101(f) (6). However, there is some language in the opinion which indicates that this may have been the view of the court. Nevertheless, the opinion in its entirety shows that the court did not rely on 8 U.S.C. 1101(f) (6) but held that Orlando was not a person of good moral character because he made false statements in his 1947 and 1948 applications; the final conclusion was that he not only failed to sustain the burden of proving good moral character for ten years, but that the evidence conclusively showed that he was not a person of good moral character during that period.

There is nothing in the Orlando opinion which would indicate that the Government urged that 8 U.S.C. 1101(f) (6) precluded a finding of good moral character in his case. There is a statement on page 851 of the court's opinion reading, “* * * Orlando argues that the applicant has to be a special kind of a prevaricator in order to be ineligible for suspension of deportation as defined by 8 U.S.C.A. $ 1101(f) ***.” We assume that counsel for Orlando was urging that he did not come within any of the eight numbered paragraphs of 8 U.S.C. 1101 (f) and that, therefore, a finding of good moral character should be made. That argument, of course, ignores the last sentence of the statutory provision which provides otherwise. It appears to have been due only to this contention of counsel that 8 U.S.C. 1101(f) (6) was considered by the court; although, as we have indicated above, it was actually inapplicable to Orlando's case. Since the question involved in this respondent's case is whether a false statement in an application is false testimony within the meaning of 8 U.S.C. 1101(f) (6) and since that question was not even discussed in Orlando, that case has no relevance to that of this respondent.

With respect to Sharaiha v. Hoy, supra, the special inquiry officer had held there that the alien was ineligible for voluntary departure on the ground that he had given false testimony for the purpose of obtaining a benefit under the Immigration and Nationality Act. On August 22, 1956, he had executed under oath an application for

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