IN THE MATTER OF I——

In EXCLUSION Proceedings

A-7068001

Decided by Board October 31, 1950

Decided by Acting Attorney General November 8, 1950

Admission of the commission of a crime involving moral turpitude prior to entry (perjury)—Adequacy thereof-Whether such admission can be used against the alien if on the same set of facts he was convicted of a lesser crime which does not involve moral turpitude.

1. An alien admitted the commission (in 1948, before last entry) of perjury at a board of special inquiry hearing (on May 1, 1950), with respect to false statements as to his birthplace and citizenship, after the offense of perjury was defixed and explained to him adequately; and his tardy denials of such admission at the later board of special inquiry hearing (continued on May 8, 1950), was of no avail and did not detract from his earlier admission, under the circumstances in this case.

2. Such admission of the commission of perjury (a crime involving moral turpitude) can be used against the alien though on the same set of facts he was convicted of a lesser crime (violation of 8 U. S. C. A. 746 (18) for falsely representing himself as a citizen of the United States) which does not involve moral turpitude, it being noted there was no judicial adjudication as to the offense of perjury, the alien not being indicted or tried for that offense. (See 3, I. & N. Dec. 623, as to the situation in which a use of an admission of the commission of a crime would be deemed inconsistent with a court's dismissal of such offense on other than purely technical grounds; also see footnote 13 on p. 12 of 3, I. & N. Dec. 236.)

EXCLUDED BY BOARD OF SPECIAL INQUIRY :

Act of 1917-Admits crime, to wit: Perjury.

BEFORE THE BOARD

(October 31, 1950)

Discussion: This matter is before the Board on motion of counsel for reconsideration of our order of August 10, 1950, dismissing the appeal.

Appellant, a native of Jamaica, British subject, arrived at Miami, Fla., on April 29, 1950. He was in possession of an unexpired British

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Jamaican passport and an immigration visa issued April 13, 1950, by the American vice consul at Kingston, Jamaica. A board of special inquiry found appellant to be inadmissible on the ground set forth above. The Assistant Commissioner affirmed the excluding decision of the board of special inquiry.

Appellant first sought admission to this country at Miami, Fla., on or about September 2, 1948. At that time he applied for admission ast a United States citizen, claiming that he had been born in South Carolina and taken to Jamaica as an infant. He presented a birth certificate purporting to show his birth in South Carolina. He was held for a board of special inquiry. Throughout the proceedings before that board he continued to assert his claim to citizenship, until the immigration officials obtained proof in the form of letters from Jamaica that he had been born in Jamaica. After he was confronted with this proof he admitted that he had been born in Jamaica and was a subject of Great Britain. He related the manner in which his entry had been planned and admitted that he had knowingly and falsely stated under oath that he was a native-born citizen of the United States and that he had committed the crime of perjury.

On October 1, 1948, at Miami, Fla., charges were filed against appellant under 8 U. S. C. A. 746 (18). He had a hearing before a United States Commissioner and he pleaded guilty to having falsely misrepresented himself as being a citizen of the United States. On October 29, 1948, he was sentenced and placed on probation by the United States District Court at Miami, Fla., with a special condition ordered by the court, as follows:

Committed to the custody of the Attorney General of the United States of America for confinement in an institution to be designated by him for a period of 1 year; further, that the above sentence be suspended and you are hereby placed on probation for a period of 3 years; special condition, that you only enter the United States of America hereafter legally (Record, May 1, 1950 hearing, p. 8).

At the conclusion of the criminal proceedings in 1948 appellant returned to Jamaica where he secured the documents necessary for a legal entry and again applied for admission as a permanent resident. On May 1, 1950, during proceedings before a board of special inquiry at Miami the term "perjury" was again defined and explained to appellant. He was confronted with the testimony given by him at his hearings in 1948. He admitted that statements made by him during those hearings with regard to his birthplace and citizenship were false, and that he had committed the crime of perjury. On May 8, 1950, after the alien had been granted a week's continuance he again appeared before the board of special inquiry accompanied by counsel. At this hearing he was interrogated by counsel and by the chairman of the board of special inquiry. He stated repeatedly that he

did not understand the term "perjury," and he continued to deny an understanding of the word, in spite of repeated explanation by counsel and by the chairman. He was ordered excluded as a person who admits the commission prior to entry of a crime involving moral turpitude, to wit, perjury. The Assistant Commissioner affirmed the order of exclusion.

Before this Board counsel argued that the necessary requisites to a finding of an admission of the commission of perjury are not present in the record. That is, she maintained that an adequate and knowing admission had not been made by appellant during the course of the hearings. On August 10, 1950, we dismissed the appeal from the Assistant Commissioner's order of exclusion, on the ground that appellant's admission of the commission of the crime of perjury was valid and that his tardy denials in the hearing of May 8, 1950, of his earlier admissions were of no avail and did not detract from his earlier admissions.

It is now urged that the United States Attorney in Miami did not prosecute appellant for the crime of perjury, but for a lesser crime, a crime not involving moral turpitude, and that it is, therefore, improper for the immigration authorities to find him excludable as one who admits the commission of a crime involving moral turpitude, to wit: perjury. It is the opinion of the majority of the members of this Board that since the statute demands either a conviction or the admission of the commission of a crime, that appellant is excludable. "The admission is treated as evidence of guilt tantamount to conviction." U. S. ex rel. Rosen v. Williams, 200 F. 538 (C. C. A. 2, 1912); U. S. ex rel. Karpay v. Uhl, 70 F. (2d) 792 (C. C. A. 2, 1934). It is our opinion that he was convicted for a different crime, and he was never tried for the crime of perjury. It is not as though he had been tried for perjury and been acquitted. It is not as though he had been charged with perjury and that the perjury counts had been dismissed by a federal court after consideration of the case on its merits. Even in such cases it may be that the law permits the immigration authorities to make an independent determination of the deportability of an alien without regard to the judicial action in the criminal proceeding. The following cases do not involve "Admisssions of the commission of crimes," but they do appear to constitute authority for independent determination by immigration authorities.

In Williams v. U. S. ex rel. Bougadis, 186 U. S. 479 (C. C. A. 2, 1911) the alien had claimed United States citizenship and had been admitted to the United States as a citizen when he produced citizenship papers which, in reality, had been issued to someone else. He had been indicted for the offense of falsely representing himself to be a citizen. A verdict of acquittal had been directed by the trial court. The Circuit

Court (so termed at that time) later discharged the alien in habeas corpus proceedings on the ground that he had been discharged in the earlier proceeding. On appeal the Circuit Court of Appeals reversed the latter order. With regard to the dismissal of the earlier proceeding the court said:

In our judgment, the direction of the verdict upon the trial of the indictment is not res judicata of the present proceeding. That was a criminal trial, under section 79 of the Criminal Code (U. S. Comp. St. Supp. 1909, p. 1414), in which the government was required to establish the defendant's guilt beyond a reasonable doubt. This is a proceeding under an entirely different law, instituted by executive officers of the government to ascertain whether an alien should be deported. It is not a criminal trial. No punishment has been or can be inflicted.

In U. S. ex rel. Mastoras v. McCandless, 61 F. (2d) 366 (C. C. A. 3, 1932), the alien and his wife had been arrested upon a charge of conducting a bawdy house. The wife pleaded guilty, was sentenced and served a term in prison. The alien was acquitted by direction of the court. Following these proceedings he was arrested on the charge that he had been found in the United States in violation of the immigration laws, in that, he had been found connected with the management of a house of prostitution. The court held that the fact that he was previously acquitted of the charge under which the deportation warrant was issued is immaterial, that it does not constitute res judicata in a deportation proceeding, citing Lewis v. Frick, 233 U. S. 291, 34 S. Ct. 488, 58 L. Ed. 967.

In the case of Lewis v. Frick (supra), the alien had been indicted on the charge that he knowingly imported an alien woman from a foreign country for an immoral purpose. The trial of the indictment resulted in a verdict of not guilty. The Supreme Court held that the trial court erred in holding that in the absence of a conviction for a felony that it was not possible to deport the alien for this offense. The court said:

We agree with the circuit court of appeals that the verdict and judgment acquitting petitioner under the indictment does not render the present controversy res judicata. The issue presented by the traverse of the indictment was not identical with the matter determined by the Secretary of Commerce and Labor. And, besides, the acquittal under the indictment was not equivalent to an affirmative finding of innocence, but merely to an adjudication that the proof was not sufficient to overcome all reasonable doubt of the guilt of the accused. The distinction between a criminal prosecution and an administrative inquiry by an executive department or subordinate officers thereof has been often pointed out. (Citing cases.)

The above cases do not involve the "admissions" provision, but it seems to us that when an alien has admitted the commission of a crime the reasoning of these cases applies with greater force. It has been our custom to consider ourselves bound by a judicial adjudication in a cause and not to hold the alien on an independent admission,

unless the court's action in dismissing a charge is based purely on technical grounds. It is our opinion that our findings herein are not inconsistent with the judicial action; there was no adjudication of the charge of perjury, because appellant was not indicted or tried for that offense. He was tried for the crime of false claim to citizenship. We do not consider the cases cited in the minority opinion to be binding or to be inconsistent with the holding herein.

Order: It is ordered that the motion be denied.

Dissenting: LEIGH L. NETTLETON and ROBERT M. CHARLES, Members.

Discussion: The facts in this matter are adequately stated by the opinion of the majority members of this Board, except it is important to note that during the hearing on May 8, 1950, counsel protested the questions put to the alien in previous hearings when he was not represented by counsel, questions which sought to obtain an admission of the commission of the crime of perjury. Counsel objected on the grounds that such questions "might tend to degrade, incriminate, and subject to prosecution" the appellant. The chairman of the board of special inquiry informed counsel as follows:

You are advised that in October 1948, while the applicant was under proceedings in this office, the charge against him for the commission of perjury was presented to the United States District Attorney in Miami, at which time the United States Attorney declined to prosecute on that charge. Therefore, the question and answer under discussion will not be stricken from the record. Do you understand?

A. Yes.

In other words isn't the Government's contention now that the question is academic?

Q. Yes.

A. I will accept that for the record.

Appellant was charged with false claim to citizenship. He pleaded guilty to this charge and was sentenced for this offense. Admittedly, false claim to citizenship has been held to be a crime not involving moral turpitude. Matter of T, 56156/584 (January 4, 1944); Matter of H—, A-5918387 (56156/910) (May 1, 1944).

At the outset let it be stated that the law requires the exclusion of an alien (i) who has been convicted of, or (ii) who admits having committed a felony or other crime or misdemeanor involving moral turpitude.

As shown above there was presented to the United States Attorney the charge that the alien herein had committed perjury. For reasons best known to the United States attorney he declined to prosecute on a perjury charge but did prosecute the alien for having made a false claim to citizenship, in violation of 8 U. S. C. 746 (18). The alien has admitted in this proceeding that he committed perjury, and thereafter he sought to recant such admission. It is clear that there can