States (217 U. S. 349, 363), involving a conviction of a public official on a charge of falsifying a cashbook, the conviction occurring under article 300, the court stated "A false entry is all that is necessary to constitute the offense." The court went on to point out that whether an offender against the statute injures anyone by his act or intends to injure anyone is not material. It is true that the discussion in that case had relation to an offense by a public official, and the falsification of a public document as distinguished from a commercial document. However, it is significant in an analysis of the statute in question, as indicating that the statute does not require a criminal intent of such nature as to warrant a finding that a conviction under either article 301 or 300 is a conviction for a crime involving moral turpitude. In view of the foregoing, we are unable to sustain the charges based on the offense committed in 1915 in the Philippine Islands.

The remaining question concerns the stipulation entered into between the respondent and this Service wherein it was agreed for the purpose of the proceedings that the respondent had established a residence in the United States prior to May 1, 1934, which he never abandoned. Despite this stipulation, the examining officer, with the consent of the hearing examiner, questioned the respondent at length with respect to absences from the United States subsequent to May 1, 1934, and lodged a charge under the Immigration Act of 1924 predicated on evidence thus obtained of absences subsequent to May 1, 1934, and reentry as an immigrant thereinafter.

The general principles of law applicable to stipulations are well established. Thus, in the absence of fraud, mistake, or imposition, stipulation admitting or agreeing on the existence of designated facts for the purpose of the trial are binding and conclusive upon the parties as to the facts so designated (Schmertz Wire Glass Company v. Continuous Press Glass Company, 216 Fed. 828), as long as the stipulation stands. They are binding upon the court as well as on the parties (Haese v. Heitzeg, 159, Cal. 569, 114 P. 816). The rule that the parties to a stipulation are bound thereby has been held to apply to the Federal Government as well as to individuals (Hackfeld & Company v. U. S., 197 U. S. 442). The rule has been otherwise put that a stipulation as to a fact "permits the fact to be taken for granted by the judge, the jury, and the other party, for the purpose of the litigation in hand, and thus precludes controverting it either by evidence or by argument" (Wigmore, Code of Evidence, 1935, vol. IX, sections 2584, 2590, and (3d Ed. 1942.) sec. 3131). Stipulations in administrative proceedings have the same general effect as in judicial proceedings (Federal Trade Commission v. A. E. Staley Manufacturing Company, 324 U. S. 746, 758 ff: Commissioner of Internal Revenue v. West Production Company, 121 F. (2d) 9).

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However, a stipulation involving an interpretation of a statute (Salomon v. United States, 7 Cust. A. 5), or which affects the interest of individuals, which cannot be ascertained in advance of the adjudication of the cause (In re: Dardis, 135 Wis. 457), is invalid. Also, the general rule that stipulations admitting the existence of facts for the purpose of the trial, are conclusive on the parties, does not apply where it appears from the manner in which the case was tried that the stipulation was ignored (60 C. J. 68). More generally stated, the rule is that while it is the policy of the court to enforce stipulations, unless good cause is shown for not doing so, nevertheless, stipulations will not be enforced under all circumstances. The court in its discretion may set aside a stipulation on numerous grounds, such for instance, as fraud, undue influence, collusion, mistake, false statement innocently made, inadvertence or improvidence in making the stipulation, and on other grounds (Wigmore vol. IX (3d Ed.), sec. 2590). The rule has been otherwise put that stipulations are under the control and subject to the discretion of the court (Humphries v. Shapiro, 175 N. Y. S. 426), which has power to relieve the parties therefrom upon proper application and assuring a sufficient cause, on such terms as will meet the justice of a particular case. Whether or not a stipulation should be set aside rests in the discretion of the court, and requires an extraordinary exercise of its powers, which can be allowable and proper only when it is made clear that it is necessary to prevent injustice (Moffitt v. Jordan, 127 Calif. 628, 60 P. 175). A stipulation as to the existence of certain facts may be set aside where it was induced by false representation as to material facts, the falsity of which was unknown to the person making them, although there was no fraud or wrongful intent to defraud or deceive (Amsinck and Company v. Springfield Grocer Company, 7 F. (2d) 855). However, where there was no mistake of fact, but merely a lack of the full knowledge of the facts, which was plainly due to failure to exercise due diligence to ascertain them, this did not constitute a ground for relief against a stipulation (Di Donato v. Rosenberg, 245, N. Y. S. 675, 230 App. Div. 538).

The matter of interpretation of stipulations has been before the Federal courts on numerous occasions. The case of American Food Products Company v. United States (73 C. Cls. 526), holds that where in the trial of a case, evidence adduced throws grave doubt upon a stipulation entered into by the parties and justice requires that the stiuplation be set aside, the court will so order. The case of Grissinger v. United States (77 C. Cls. 106, certiorari denied, 290 U. S. 676), holds that an erroneous stipulation of fact by the parties to a suit may be disregarded and the case considered and determined upon the facts disclosed by the record. To the same effect, it has been held that the Court of Claims is not bound by a stipulation of parties, in an action brought by a corporation to recover an income and profits tax paid

by the company, to the effect that the plaintiff and its subsidiary corporations filed a consolidated return for the tax year, where the stipulation was contrary to the fact in evidence (Wilson and Company v. United States, 15 F. Supp. 332).

With respect to the manner in which a stipulation may be set aside, the proceeding to set aside a stipulation is summary in nature, usually determined upon submission of affidavits and counteraffidavits of the parties to the stipulation (Beaumont Pasture Company v. Preston, 65 Texas 448), or on motion to it (American Food Products Co. v. U. S., 73 C. Cls. 526). Where the mistake alleged as a ground in the stipulation is apparent without any further proofs, no formal filing of affidavits is necessary (Levy v. Sheehan, 28 P. 748, 3 Wash. 420). As indicated above, the court may on its own initiative in the course of a proceedings vacate a stipulation in certain circumstances, such as fraud or when inadvertently and mistakenly agreed to and justice would be impeded if the stipulation were adhered to (American Food Products v. United States, supra).

It is noted that the instant proceeding was conducted under the Administrative Procedure Act. The respondent was not represented by counsel but does appear to have had a representative from the Philippine consulate general. The Government was represented by an examining officer. The hearing was held before a hearing examiner whose position was analogous to that of the judge in a duly constituted court. As noted above, stipulations in administrative proceedings have the same general effect as before a court of law (Commissioner of Internal Revenue v. West Production Company, supra). The foregoing discussion of the applicable law indicated that while stipulations are generally binding upon the parties, they can be set aside by the court under certain circumstances. One such circumstance would be where the stipulation was inadvertently and mistakenly agreed to and where justice would be impeded if either party were held strictly to the stipulation (American Food Products v. United States, supra).

In the course of the instant hearing evidence was introduced in the form of the alien's testimony, which indicated that the alien was in the United States in violation of the Immigration Act of 1924. This fact does not appear to have been known to the examining officer at the time that the above stipulation was entered into, nor is there anything of record to indicate that it should reasonably have been known at that time. It appearing from the evidence introduced that the fact stated in the stipulation as to continuous residence since prior to May 1, 1934, was in manifest error, and that a further violation of the immigration laws of the United States was indicated, it rested within the sound discretion of the hearing examiner to declare the stipulation vacated. He appears to have taken no formal action

to effect such a vacating of the stipulation. However, his action in permitting the continuation of the alien's examination with a view to introduction into the record of further evidence bearing on the documentary charge, and thereafter permitting the lodging of the additional charge, was clearly tantamount to a vacating of the stipulation. Admittedly, it would have been better practice for the hearing examiner to have formally notified the alien and his representative to this effect. However, we find no authority that such notification is essential, or that the failure to deliver such a notification constitutes reversible error. In this connection we note that neither the alien nor his representative interposed any objection to the line of questioning developing the further evidence to sustain a charge based on entry without documents, and that at no time was the stipulation pleaded as a bar to the introduction of the evidence, the lodging of the charge or the finding of deportability based upon this charge, although it was manifest that those actions were all contrary to the burden of the stipulation. There would appear to have been a complete acquiescence on the part of the alien and his representative to a waiver and vacating of the stipulation. Under these circumstances we find that the introduction of evidence contrary to the terms of the stipulation and the lodging of a charge based upon the evidence so adduced, was not reversible error.

The evidence of record fully sustains the charge that at the time of his last entry, on September 16, 1945, the alien was an immigrant not in possession of an immigration visa, and not exempted from the presentation thereof.

Upon consideration of the entire record, the findings of fact and conclusions of law of the hearing examiner as to deportability are adopted with the following amendments:

C. L. (1) That under sections 19 and 20 of the act of February 5, 1917, the respondent is not subject to deportation on the ground that he has been convicted of a felony or misdemeanor involving moral turpitude prior to entry into the United States, to wit: Falsification of a commercial document (two charges).

C. L. (2) That under sections 19 and 20 of the act of February 5, 1917, the respondent is not subject to deportation, in that, he admits having committed a felony or other crime or misdemeanor involving moral turpitude prior to entry into the United States, to wit: Falsification of a commercial document (two charges).

With reference to the question of discretionary relief, it appears that the alien has a United States citizen wife whom he married in 1924. He has a citizen child and is responsible for the support of a grandchild. He appears to have resided continuously in the United States since 1936. He has no criminal record other than as set forth above.

It is noted that in the petition for naturalization which he filed in 1947, and in the first hearing under the present proceedings, the alien failed to disclose his absence from the United States from 1926 to 1936. He also failed to reveal his arrest record in connection with his application for naturalization and also, in 1945, in connection with his employment by the Post Office Department failed to disclose his arrest record. His explanations of these failures to disclose the true facts are not altogether credible. In view of these factors, we are not disposed to consider maximum discretionary relief.

However, as the husband of a United States citizen by marriage occurring prior to January 1, 1948, he would appear to be eligible for the issuance of a nonquota immigration visa. His close family ties in the United States, long residence, and the absence of any serious criminal record since 1915, justify a grant of the privilege of departing voluntarily, coupled with preexamination. In order that the alien may avail himself of this relief we will also grant an advance exercise of the 7th proviso to section 3 of the Immigration Act of 1917 to permit his return when in possession of appropriate documents, notwithstanding possible inadmissibility as one who may admit the commission of crimes involving moral turpitude; namely, any offense arising from the misappropriation of funds, Philippine Island, 1915, and perjury in connection with his petition for naturalization, his application for employment by the Post Office Department in San Francisco in 1945 and in these proceedings.

Order: It is ordered that an order of deportation be not entered at this time but that the alien be required to depart from the United States, without expense to the Government, to any country of his choice within 60 days after notification of decision, conditioned upon arrangements being made with the local immigration office for verification of departure.

It is further ordered that preexamination be authorized.

It is further ordered that if the alien applies for admission into the United States within 3 months after his authorized departure he be admitted under the 7th proviso to section 3 of the Immigration Act of 1917, if otherwise admissible than as one who may be deemed to have been convicted of or to have admitted the commission of crimes involving moral turpitude; namely, any offense arising from misapppropriation of funds, Philippine Islands, 1915 and perjury, in connection with his naturalization proceedings, 1947, his application for employment by the Post Office Department, San Francisco, 1945, and in these proceedings, subject to revocation in the discretion of the Attorney General after hearing, if the alien subsequently commits any offense.