V-324142.
Decided by Board July 6, 1954.
Crime involving moral turpitude — Admission of essential elements of — Section 212 (a) (9) of Immigration and Nationality Act — False statements in application for extension of stay.
An alien who admits that he, knowingly and willfully, falsely alleged in applications for extensions of temporary stay that he was not employed, lest he be forced to leave the United States upon disclosure of his employment, has admitted the essential elements of the crime defined in 18 U.S.C. 1001 which is a crime involving moral turpitude. He is, therefore, inadmissible to the United States under section 212 (a) (9) of the Immigration and Nationality Act. (Cf. Matter of G----, 0612/33255, July 13, 1954, Int. Dec. No. 620.)
EXCLUDABLE:
Act of 1952 — Section 212 (a) (9) — Admits the commission of a crime — Making false and fraudulent statements in application for extension of stay. ( 18 U.S.C. 1001.)
BEFORE THE BOARD
Discussion: This case is before us on appeal from the decision of the special inquiry officer dated June 7, 1954, excluding the alien on the above-mentioned ground. Appellant, a 26-year-old native and citizen of Cuba, applied for admission for permanent residence at Miami, Fla., on May 25, 1954. At that time he was in possession of a valid Cuban passport and a valid nonquota immigrant visa. He previously entered the United States at Miami on May 22, 1953, as a temporary visitor for pleasure until August 22, 1953. Appellant obtained two extensions of his temporary stay to November 22, 1953, and to January 21, 1954. In these applications, filed with the Immigration Service in New York City, appellant stated that he was not employed, although he had in fact taken employment on May 30, 1953, at the Text Machinery Co., Astoria, Long Island, N.Y. Appellant has admitted that he made these statements and that he did so knowingly and willfully, lest he be forced to leave the United States upon disclosure of his employment. 18 U.S.C. 1001 provides as follows:
Statements or entries generally. — Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than 5 years, or both. June 25, 1948, c. 645, 62 Stat. 749.
In connection with this offense, the term "fraud" has been defined as consisting of a misrepresentation of a material fact, made with knowledge of its falsity and with intent to deceive another, which representation must be believed and acted upon by the person deceived to his own damage ( United States v. United States Cartridge Co., 95 F. Supp. 384 (D. Mo., 1950), aff'd 198 F. (2d) 456, cert. den. 345 U.S. 910). In addition, the acts must be done knowingly, willfully, and with a wrongful purpose in order to satisfy the essential elements of the offense ( United States v. Buckley, 49 F. Supp. 993 (D.C., 1943)).
Since the Supreme Court has determined that offenses containing an inherent fraud element involve moral turpitude and because of the above-mentioned judicial construction of 18 U.S.C. 1001, this crime is clearly one involving moral turpitude ( Jordan v. DeGeorge, 341 U.S. 223, 95 L. Ed. 886 (1951)). The record reveals that the elements of the crime defined in 18 U.S.C. 1001 were definitely present in appellant's actions and that he has made a valid admission of the commission of this crime.
The standards for valid admissions, set out in Matter of J----, 56038/559, 2 IN Dec. 285 (Atty. Gen., 1945), have been applied to section 212 (a) (9). Matter of B----, unreported, 0100/26634 (B.I.A., April 15, 1953).
It is noted in passing that dissenting opinions, such as those quoted by the special inquiry officer, are not considered controlling precedents. The ground of exclusion under section 212 (a) (9) is, therefore, sustained and the appeal is accordingly dismissed.
Rubinstein v. Brownell, 206 F. (2d) 449 (C.A.D.C., 1953), aff'd 346 U.S. 929 (1954).
Order: It is hereby ordered that the appeal be dismissed.