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not establish that there was a conviction for fraud rather than for false misrepresentation. The second clause of 18 U.S.C. 1001 lists the commission of several acts which can constitute the crime. These acts are set forth in the disjunctive. Thus, it is a crime to make a false writing knowing it to contain a “false, fictitious or fraudulent statement” (emphasis supplied). In an indictment the elements of the crime can be set forth in the conjunctive; however, a defendant can be found guilty upon proof of the commission of any one of the acts charged (United States v. Wells, 180 F. Supp. 707 (Del. 1959)). Under such circumstances, there is a question as to whether the conviction was
based upon the existence of one element rather than another. We cannot assume that the respondent pleaded guilty to fraudulent conduct rather than false conduct. Since the burden is upon the Service, we must take the case in the light most favorable to the respondent and assume that the plea of guilty concerned a false rather than a fraudulent statement (Matter of B-M-,61. & N. Dec. 806; Matter of B-,41. & N. Dec. 444, 448–451; Matter of B-, 41. &N. Dec. 493, 496). The appeal of the examining officer will be dismissed.
The Service also points out that the Board has held that an impairing of Government functions can constitute fraud. The conviction in the instant case was not for the impairing of Governmental functions, but for violation of a law which this Board has held, cannot be said to involve moral turpitude.
ORDER: It is ordered that the appeal of the examining officer be and the same is hereby dismissed.
MATTER OF TZIMAS
In DEPORTATION Proceedings
Decided by Board September 10, 1962 Respondent, who upon arrival in the United States was destined to join a vessel
as a crewman, is ineligible for adjustment of his status under section 245 of the Immigration and Nationality Act, as amended (8 CFR 245.1), despite his admission as an alien in transit under section 101(a) (15) (C) of that Act.
Order: Act of 1952—Section 241(a) (2) (8 U.S.C. 1251 (a) (2)]-Remained
This is an appeal from the order of the special inquiry officer finding respondent deportable on the ground stated above and denying his application for adjustment of status under section 245 of the Immigration and Nationality Act. Voluntary departure was granted. The appeal will be dismissed.
No issue is taken with the finding of deportability. The special inquiry officer found respondent ineligible for adjustment of status because of his belief that respondent came within the terms of a regulation which states that an alien crewman or an alien coming to the United States to serve on a vessel cannot qualify for the relief. Counsel contends that the regulation is invalid for it enlarges the classes of persons who cannot obtain relief under the express terms of the statute; and he contends that the regulation does not apply in any event because respondent was not admitted to the United States as a crewman or alien destined to join a vessel, but was admitted in transit.
The respondent is a 25-year-old married male, a native and citizen of Greece, who was admitted to the United States on July 12, 1961, upon presentation of a C-1 visa (alien in transit, section 101(a) (15) (C) of the Act, 8 U.S.C. 1101(a) (15) (C)). Respondent was injured; he was permitted to remain in the United States until August 10, 1961. Before the date of his departure, he obtained a divorce from his wife in Greece; in February 1962 he married a United States citizen. A visa petition filed by respondent's wife was approved on April 12, 1962. Respondent filed an application for adjustment of status under section 245(a) of the Act at his deportation hearing on July 2, 1962.
*At oral argument counsel supplied the information that an investigation conducted by him revealed that an individual coming to the United States to take employment on a vessel could have been issued a D-1 (crewman) visa under section 101(a) (15) (D) of the Act, 8 U.S.C. 1101 (a) (15) (D).
The agents of the steamship line to which respondent was destined when he entered the United States have furnished the information that respondent's entry was for the purpose of employment as a seaman on a vessel (Ex. 7). The respondent admits that when he came to the United States he had a seaman's book to ship as a crewman and that he came here to reship on a vessel of the line on which he had arrived (pp. 13, 14).
In arriving at the finding of ineligibility, the special inquiry officer relied upon section 245.1 of Title 8 of the Code of Federal Regulations (Supp. 1962) which provides in pertinent part as follows:
An alien who on arrival in the United States was serving in any capacity on board a vessel or aircraft, or was destined to join a vessel or aircraft in the United States to serve in any capacity thereon, or was not admitted or paroled following inspection by an immigration officer is not eligible for the benefits of section 245 of the Act. * * * ?
The Attorney General is given the power to prescribe the regulations for the enforcement of section 245(a) of the Act. His regulation is binding upon the Board. The regulation excludes from the benefits of section 245(a) of the Act a person coming to the United States to join a vessel on which he is to serve as an alien crewman; respondent is such a person. The appeal must be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby dismissed.
2 For reasons hereinafter set forth no discussion of counsel's contentions will be made; however, so that the contentions may be understood, pertinent portions of the law and regulations will be set forth.
Section 245 (a) of the Immigration and Nationality Act (8 U.S.C. 1255(a)) reads as follows:
The status of an alien, other than an alien crewman, who was inspected and admitted or paroled into the United States may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if * * *
The term "crewman" is defined to mean “a person serving in any capacity on board a vessel or aircraft” (section 101 (a) (10) of the Act, 8 U.S.C. 1101 (a) (10)).
An “alien crewman" is described as follows:
[A]n alien crewman serving in good faith as such in any capacity required for normal operation and service on board a vessel (other than a fishing vessel having its home port or an operating base in the United States) or aircraft, who intends to land temporarily and solely in pursuit of his calling as a crewman and to depart from the United States with the vessel or aircraft on which he arrived or some other vessel or aircraft; (section 101 (a) (15) (D), 8 U.S.C. 1101 (a) (15) (D)).
MATTER OF SZAJLAI
In SECTION 341 Proceedings
Decided by Assistant Commissioner October 5, 1962
Subject's absence abroad in the United States armed forces during the period
of physical presence required by section 301 (b) of the Immigration and Nation. ality Act, as amended, for retention of United States citizenship, is regarded as constructive physical presence in the United States within the meaning of that section.
The subject has applied to this Service for a certificate of citizenship, claiming to have acquired United States citizenship at birth abroad to a citizen mother and an alien father. The District Director and the Regional Commissioner have concluded that the application should be granted, a conclusion in which this office concurs.
Applicant's mother was born in the United States on January 23, 1917, and lived in this country until 1921. On September 30, 1934, she was married to applicant's father, an alien, and the applicant was born in Hungary on May 14, 1936. He was admitted to the United States for the first time on July 22, 1958, as a citizen of the United States in possession of a United States passport. Thereafter, he was inducted into the Armed Forces of the United States on May 13, 1960 and, under military orders, served overseas on foreign duty from October 5, 1960 until May 12, 1962, when he was returned to the United States.
It is conceded that under Section 1993 U.S.R.S., as amended May 26, 1934 (48 Stat. 797)," the applicant became a citizen of the United States at the time of his birth. It is also undisputed that under section 301 (b) of the Immigration and Nationality Act (66 Stat. 163), his arrival in the United States in 1958, at which time he was over 16 but under 23 years of age, was timely for the purpose of permitting him then to be recognized as a citizen of the United States (Lee You Fee v. United States, 355 U.S. 61; Matter of M—, 7 1. & N. Dec. 646).
A question arises, however, with regard to whether he may still be considered a citizen in view of the factual interruption of his physical presence in this country by his absence abroad in the service of the Armed Forces of the United States.
Under section 301(b) of the Act, the applicant, in order to retain his United States citizenship, is required to complete five years' continuous physical presence in the United States before reaching 28 years of age. Section 16 of the Act of September 11, 1957 (71 Stat. 644), permits temporary absences from the United States during the period of required physical presence without a break in its continuity, provided these absences in the aggregate are less than 12 months.
As the applicant's absence abroad totaled more than 12 months, section 16 is ineffective to preserve the continuity of the period of physical presence in the United States which began to accumulate with his 1958 entry and, in view of his age when factually he resumed physical presence in the United States, he is not in a position to accumulate a new five-year period of continuous physical presence here before he becomes 28 years old. Under section 301(b), therefore, his service abroad in the Armed Forces of the United States will have had the extraordinary effect of depriving him of his United States citizenship, unless his physical presence may be regarded as having continued to accumulate in the United States during the time he was serving abroad. Forfeiture of citizenship under such circumstances would be so palpably an absurd and inequitable result that resort may be had to the legislative history of the Act for any light it may shed.
The legislative history of section 301(b), as well as related sections, is of no assistance in determining the Congressional intent concerning the effect of absence abroad in the Armed Forces of the United States upon the period of physical presence being accumulated as compliance with the conditions for retention of citizenship. The original provisions of that section were found to be harsh and unduly restrictive, however, and section 16 was enacted to alleviate the hardships imposed. As to this ameliorative legislation, the reports on the bills which preceded its enactment (Senate Report No. 1057 on S. 2792 and House Report No. 1199 on H.R. 8123, 85th Congress, 1st session) indicate that there were then in contemplation only the results which would follow from voluntary absences from this country, as in the cases of students in the United States who might proceed abroad for the purpose of spending summer vacations with their parents residing there: The amendment to section 1 will permit nationals and citizens of the United States at birth, born outside the geographical limits of the United States and
* See Appendix III.