IN THE MATTER OF F—————

In EXCLUSION Proceedings

A-7985857

Decided by Board August 6, 1952

Juvenile Delinquency Act (Federal 1938): Applicable when offense committed in 1947-Perjury: Juvenile under 18 in 1947, Federal offense.

(1) Under the provisions of the Federal Juvenile Delinquency Act of 1938, a juvenile is a person who has not attained his 18th birthday.

(2) Perjury before an officer of this Service in 1947 by an alien who had not then attained his 18th birthday is deemed to be an act of juvenile delinquency and not a crime within the meaning of section 3 of the Immigration Act of 1917, as amended.

EXCLUDED:

Act of 1917-Admits crime involving moral turpitude, to wit:

Perjury.

BEFORE THE BOARD

Discussion: The appellant, a 22-year-old single male, native and citizen of Mexico, applied for admission to the United States at Calexico, Calif., on May 28, 1952, as a temporary visitor for a period of 6 weeks. At the time of his arrival, he was destined to College Station, Tex., for the purpose of attending the summer cotton school at the Agricultural and Mechanical College of Texas. He presented for inspection Mexican immigration form 5-C 559558, issued in his name on January 12, 1949, and nonresident alien's border crossing identification card No. 522255, issued in his name at Calexico, Calif., on September 5, 1951, valid until September 4, 1952, bearing the following notation: Limited to Calexico city limits. No admission to exceed 48 hours. There was also attached to the appellant's Mexican immigration form 5-C, nonimmigrant visa No. 442, issued in the appellant's name on May 20, 1952, at the American consulate in Mexicali, Baja California, Mexico, valid for 3 months from date of issue and valid for a single journey to the United States.

After a hearing conducted at Calexico, Calif., on May 28, 1952, a board of special inquiry found the appellant inadmissible to the United States under the provisions of section 3 of the Immigration

Act of 1917, in that, he is an alien, who admits the commission of a felony or other crime or misdemeanor involving moral turpitude, to wit: Perjury. This case is now before us on appeal from the excluding decision entered by the board of special inquiry on May 28, 1952.

It appears that the appellant remained in the United States for a period of 3 months, after obtaining admission thereto at Calexico, Calif., early in 1947, by presenting a birth certificate of a citizen of the United States born at Calexico, Calif. On May 24, 1947, he attempted to re-enter the United States by stating under oath to an officer of the Service that he was a citizen of the United States born at Calexico, Calif. The record discloses that the chairman of the board of special inquiry asked the appellant a question based on a prior proceeding, wherein the appellant in sworn statements dated March 26 and March 30, 1951, admitted the foregoing and after allegedly receiving an adequate definition and an explanation of the crime of perjury, admitted the commission of such crime, when he stated under oath to an officer of the Service at Calexico, Calif., on May 24, 1947, that he was a citizen of the United States by virtue of birth at Calexico, Calif.

The question of whether the respondent made a valid admission of the crime of perjury, after having been given an adequate definition and having the elements of such crime explained in understandable terms can only be determined on the basis of the evidence of record. Since, the alleged definition, explanation, and admission of the commission of the crime of perjury on May 24, 1947, are not part of the record, we are unable to determine whether the appellant made a valid admission that he committed the crime of perjury, in connection with his application for admission as a United States citizen on May 24, 1947.

In any event, the record shows that the appellant was 17 years and 1 month of age at the time he sought admission to the United States as a citizen thereof on May 24, 1947, by executing the oath of a returning citizen and stating under oath to an officer of the Service that he was a citizen of the United States by virtue of birth at Calexico, Calif. The applicable statute relating to juvenile delinquents in effect at that time, provided as follows: "A 'juvenile' is a person 17 years of age or under, and ‘juvenile delinquency' is an offense against the law of the United States committed by a juvenile and not punishable by death or life imprisonment" (18 U. S. C. 921 (1940 Ed.) June 16, 1938, ch. 486, sec. 1, 52 Stat. 764). The phrase "17 years of age or under" in section 921, title 18 (supra), was generally interpreted to mean those persons who had not reached their 18th birthday. The appellant was a juvenile on May 24, 1947, and his offense must be considered a delinquency and not a crime.

Section 5031, chapter 403 of the revised title 18 U. S. C. (Public Law 772, June 25, 1948, 80th Cong., ch. 645, 52 Stat. 764–766) provides that a juvenile is a person who has not attained his 18th birthday and "juvenile deliquency" is a violation of a law of the United States committed by a juvenile and not punishable by death or life imprisonment. The phrase "who has not attained his 18th birthday” referred to in section 5031 (supra), was substituted for "17 years of age or under” as more clearly reflecting congressional intent and administrative construction. Hence, it can be seen that the offense committed by the appellant on May 24, 1947, was not a crime, but a juvenile delinquency. Therefore his admission of the commission of a crime involving moral turpitude, to wit: Perjury is a nullity. Accordingly, he is not inadmissible to the United States under section 3 of the Immigration Act of 1917, as amended.

For the reasons stated, the appeal will be sustained and the following order entered.

Order: It is ordered that the appeal be sustained.

It is further ordered that the alien be admitted to the United States as a temporary visitor under section 3 (2) of the act of 1924, as amended, for such period of time and under such conditions as the officer in charge of the district deems appropriate in the premises.

IN THE MATTER OF O- G

In DEPORTATION Proceedings

A-7491363

Decided by Board August 7, 1952

Suspension of deportation, economic detriment-Section 19 (c) (2) of the Immigration Act of 1917, as amended-Exercise of discretion.

(1) The exercise of the discretionary power to grant suspension of deportation pursuant to section 19 (c) of the Immigration Act of 1917, as amended, is not warranted in the case of a father and daughter, natives and citizens of Mexico who have only been in the United States since 1949, the remainder of the family group consisting of two children born in the United States after entry of family in 1949 and the citizen wife/mother who except for a short period of time had maintained residence in Mexico.

BEFORE THE BOARD

Discussion: This is an appeal from an order entered by the Assistant Commissioner on January 22, 1952, denying the respondent's application for suspension of deportation.

A resume of the facts, as shown in detail below, shows that the respondents are a father and minor daughter, natives and citizens of Mexico who illegally entered the United States on July 8, 1949, without visa or passport and at a place other than a designated port of entry. The adult male respondent married a native-born citizen of the United States in Mexico in September 1946. His wife had resided in Mexico from shortly after her birth until July 8, 1949, with the exception of a 6-month period in 1944 when she was employed in the United States. Shortly after her return to the United States in 1949 she gave birth to a daughter and later to a third child. The adult respondent's wife and the two younger children are native-born citizens of the United States, while he and his older daughter, as shown above, are natives and citizens of Mexico. The adult respondent has never applied for lawful admission to the United States for permanent residence.

The adult respondent does not contest the charges contained in the warrant of arrest but requests suspension of deportation under the provisions of section 19 (c) (2) of the Immigration Act of 1917, as amended, contending that his deportation would result in serious

economic detriment to his wife and two young children who are citizens of the United States.

We concur in the findings below that the adult male alien has established that he has met the minimum requirements for suspension of deportation in showing that his deportation would result in serious economic detriment to his citizen wife and children. Further there is no showing that indicates that he has been other than a person of good moral character for the past 5 years. In granting suspension of deportation under section 19 (c) (2) (a) the Attorney General has the power to suspend deportation when the minimum requirements have been complied with by the applicant. This authorization, however, is discretionary and not mandatory. Therefore, all the factors involved in each individual case must be considered and not the mere fact that the minimum requirements have been met. In the instant case, the respondents entered illegally in that they had no visas, no passports and that they entered at other than a designated port. The adult respondent's wife is a citizen of the United States, although she has resided since shortly after her birth, except for a short period of time, in Mexico. It must be concluded that no undue hardship would result if she returned to that country with her husband.

The adult alien admits that the family entered the United States at the specific time in order that his child could be born in this country (the child was born about 3 weeks after the family's entry). This admission would clearly indicate that at the time of his entry, it was his intention that by having his child born in the United States, he perhaps would secure the right of permanent residence by the exercise of this discretionary relief, thus circumventing the normal procedure for acquiring the right of permanent residence.

The parents have resided in Mexico most of their lives, having been in the United States a relatively short period of time. The mother is apparently of Mexican extraction and is accustomed to the ways of life in Mexico. The children are infants. The family therefore, have not established deep roots in this country. The record contains a statement by the mother showing that she and the children would return to Mexico with the alien members of the family if these members are not allowed to remain in the United States. The respondents are citizens of Mexico and as such are not subject to quota limitations. When consideration is given to these and other circumstances involved, it is concluded that the case does not present a strong enough appeal to warrant the exercise of the discretionary relief requested.

Order: It is ordered that the appeal be and the same is hereby dismissed.