A-3381749.
Decided by Central Office February 28, 1947. Decided by Board October 15, 1947.
Crime involving moral turpitude — Perjury — Canada — Section 170 of the Criminal Code of Canada.
The offense described by section 170 of the Criminal Code of Canada does not involve moral turpitude, for this Canadian statute has departed from the common law definition of perjury by eliminating the requirement of "materiality," and without this element this Canadian offense is not considered base, vile, and depraved.
BOARD OF SPECIAL INQUIRY FOUND ALIEN INADMISSIBLE.
Act of 1917 — Admits crime of perjury (Canada).
BEFORE THE CENTRAL OFFICE
(February 28, 1947)
Discussion: This case relates to a native citizen of Italy, 46 years of age, who was accorded a hearing before a Board of Special Inquiry in preexamination proceedings on May 24, 1946, to determine his admissibility to the United States before departing to Canada to obtain an immigration visa for permanent residence. He was found to be inadmissible on the above designated ground and appealed.
The appellant testified that he came to the United States in July 1923 and has remained here since that time with the exception of two visits to Italy of 9 months each in 1928 and 1933 and 9 months in Canada following his return from Italy in 1934. He last entered the United States during September or October 1935 at the port of Detroit, Mich.
The record establishes that on August 8, 1935, the appellant was naturalized a citizen of Canada but that on November 18, 1943, his certificate of naturalization was revoked and canceled on the ground of absence abroad for a period of not less than 7 years. There was admitted in evidence a certified copy of the appellant's petition for naturalization sworn to before a Clerk of the Court at Welland, Ontario, on December 10, 1934, in which the alien claimed to have resided in the Dominion from 1923 to the date of execution of said petition which information the subject now admits was untrue. The Naturalization Act of Canada provides that:
The residence required by this section is residence in Canada for not less than 1 year immediately preceding the application, and previous residence either in Canada or in some other part of His Majesty's dominions, for a period of 4 years within the last 8 years before the application.
It is obvious therefore that the false statement of the appellant concerning his residence in Canada was a material factor in his naturalization proceeding and it is conceded that the Clerk of the Court is an officer authorized to administer oaths in such proceedings.
Perjury is defined by Canadian Statute as,
An assertion as to a matter of fact, opinion, belief, or knowledge, made by a witness in a judicial proceeding as part of his evidence, upon oath or affirmation, whether such evidence is given in open court, or by affidavit or otherwise, and whether such evidence is material or not, such assertion being known to such witness to be false, and being intended by him to mislead the court, jury or person holding the proceedings.
After a reading of this definition to the appellant he admitted that he knew at the time he executed his petition for naturalization in 1934 that if he had told the truth concerning his residence in the Dominion he would not have been granted citizenship in Canada and that he had committed perjury on that occasion.
Perjury in Canada differs from that offense in the United States in that Canadian law does not require that the false statement be reganding a material matter to the proceeding involved and, on the basis of this variance in definition, the Board of Immigration Appeals has held that a violation of section 170, supra does not involve moral turpitude ( Matter of L----, 56107/183, Oct. 14, 1942; Matter of S----, 56107/182, October 14, 1942; Matter of V----, 4375931, June 3, 1943. This conclusion was apparently based on an interpretation of the rulings by the courts in the case of Mylius v. Uhl (203 Fed. 152, D.C.S.D., N.Y. 1913, aff'd 210 Fed. 860 C.C.A. 2d 1914) limiting inquiry to the inherent nature of the crime as defined by statute and established by the record of conviction. Where there is no conviction, it has been held that the range of inquiry is wider (37 Op. Atty. Gen. 293) but moral turpitude cannot be found present in a crime admitted by an individual when a conviction for the offense admitted would be held not to involve this element.
Notwithstanding the decision of the Board of Immigration Appeals in this case the office of the American Consulate in Windsor, Ontario, on March 19, 1946, informally refused the alien an immigration visa because of the admission of the commission of Perjury which the Board of Immigration Appeals had found not to involve moral turpitude. On December 30, 1946, the case was ordered reopened for the purpose of introducing evidence bearing on the character of the alien for the past 7 years with a view to exercising discretionary authority in his behalf in connection with the admission of Perjury.
In the Matter of S----, 5702971, August 17, 1945, it was determined that a violation of section 36 (c) of the Alien Registration Act of 1940 (8 U.S.C. 457 (c)) cannot be said to involve moral turpitude because "under the terms of the statute it is possible for one to be convicted of a crime which clearly does not involve moral turpitude." It was stated in the opinion of the Attorney General, however, that, "It should be pointed out that persons violating section 36 (c) may in the administrative proceedings, or otherwise, and prior to the filing of a complaint, have admitted facts such as to show the commission of the crime of perjury" and that "while it would not be possible to prosecute the applicant or declarant for both the offense of perjury and the offense of violating section 36 (c) * * *, the admission of facts showing that perjury had been committed or the prosecution and subsequent conviction for perjury would, under section 3 of the act of February 5, 1917 (8 U.S.C. 136 (e)), render the alien inadmissible."
Concluding, therefore, that the appellant has admitted conduct constituting the essential elements of the crime of perjury as known at common law and in the United States and that he committed this offense; that said conduct constitutes a crime in the jurisdiction in which it occurred; that the appellant was advised concerning the essential elements of perjury as known both in the United States and in Canada; and that thereafter he freely admitted having committed this offense; the question remains whether or not, in view of the decisions cited above, it can be said that the crime admitted by the alien was one involving moral turpitude.
The crime of theft in Canada presents a situation comparable to that of perjury in Canada, i.e., theft in the Dominion may result from a temporary taking whereas at common law and in the United States this crime is committed only where the unlawful taking was with the intent to deprive the owner of his property permanently.
Subsequent to the decision in the L----, S---- and V---- cases, supra, Attorney General Biddle in considering the question as to whether theft in Canada involves moral turpitude, declared that in that instance, the Board of Immigration Appeals was not "precluded from exercising its independent judgment as to whether the crime for which the appellant was convicted involved moral turpitude" nor was said Board "required to decide this issue by a mechanical application of the definitions found in the Canadian Statutes" ( Matter of T----, 56156/249, Feb. 24, 1944).
This departure from principles followed in determining the presence or absence of moral turpitude in offenses committed in the United States is in accord with prior decisions of Attorney General Cummings relating to such determinations in cases of foreign crimes.
In 30 Op. Atty. Gen. at page 96, Mr. Cummings considered a provision of the Italian Penal Code reading, "whoever without intent to kill causes someone an injury in body or in health or a mental injury, is punished with imprisonment (13) from 1 month to a year". Under the doctrine of the Mylius case, supra, followed in the L---- case, supra, it would have to be concluded that, since this statute was indivisible and violations thereof might or might not involve moral turpitude, no offense thereunder could be deemed a basis for exclusion or deportation since the crime defined does not inherently involve the element of moral turpitude. The Attorney General, however, considered the decree of the Italian Court which set forth the charge and the facts found by said Court and concluded, "the above quoted portion of the decree of the Italian Court shows that the alien has been convicted of the crime of willfully assaulting and seriously injuring another by shooting him with a pistol. Judging this crime by the standards prevailing in the United States, as those standards have been announced in the decisions of our courts, it is one involving moral turpitude."
In a later case (1938), Mr. Cummings had before him the offense of knowingly making false statements in an affirmation before an official in Germany, the statute defining which did not require that the false affirmation be in regard to a matter material to the point of inquiry. In deciding that the alien concerned should not be denied a visa on the ground that he had been convicted for the above-mentioned offense, the Attorney General did not accept the contention made in behalf of the alien, that this Government is not justified in examining into the facts in the case with a view to determining whether the statement in question was material, but based his conclusions on the then existing conditions in Germany which precluded a finding of moral turpitude in the alien's conduct notwithstanding that his false statement "related to a matter which the German authorities deemed material and respecting which they deemed it necessary to obtain correct information" (39 Op. Atty. Gen. 215, 223).
It is the opinion of this Service, therefore, that in the case of admissions of or convictions for perjury in Canada, we are entitled to go beyond the statutory definition of this crime and ascertain whether or not the conduct complained of conforms to the crime of perjury as it is known in the United States and where it does to hold said offense within the purview of Sections 3 and 19 of the Immigration Act of 1917 (See U.S. ex rel. Boraca v. Schlotfeldt, 109 F. (2d) 106, C.C.A. 7th, 1940). In sustaining the ground of inadmissibility found in this case, we adhere to the decision of the Board of Immigration Appeals in the Matter of C----, 56107/536, decided on September 10, 1942, shortly before the L---- decision, supra. Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That the appellant is an alien, a native and citizen of Italy;
(2) That the appellant has resided in the United States from 1923 with the exception of two visits to Italy of 9 months each and one visit to Canada of nine months between 1934 and 1935;
(3) That the appellant last entered the United States in September or October 1935 at the port of Detroit, Mich.;
(4) That on December 10, 1934, the appellant executed a petition in naturalization proceedings before a Clerk of the Court at Welland, Ontario, Canada, claiming to have resided in that Dominion from 1923 to the date of said petition;
(5) That the appellant admits having committed perjury on December 10, 1934 when he executed said petition falsely claiming protracted residence in Canada.Conclusion of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 3 of the Immigration Act of 1917 the appellant would be inadmissible to the United States as a person who admits having committed a crime involving moral turpitude, to wit: Perjury in naturalization proceedings in Canada on December 10, 1934.
Other Factors: As stated above the appellant has resided in the United States practically continuously since 1923. His wife and two minor children reside in Italy. The subject claims never to have been arrested other than in deportation proceedings and the Federal Bureau of Investigation reports no record of the alien. An independent investigation conducted by this Service in January 1947 discloses nothing detrimental to the appellant and establishes that he has an excellent reputation among persons who have known him from periods ranging from four and one-half years to fourteen years. This same report establishes that the appellant has been continuously employed since 1935.
The appellant presented a pass book evidencing as of December 1, 1945, $1,768.66 in the bank and he testified that in addition thereto he has $1,400 in war bonds and $2,000 in postal savings. He admitted that for approximately one year before the war he was a member of a fascist group in this country but explained that he joined solely because his wife wrote to him from Italy telling him that for the sake of his two children he should join such an organization. He was never an officer in the group and the Alien Enemy Control Unit reports it has no record of him.
In view of the appellant's good record during more than 20 years' residence in the United States it is deemed appropriate to exercise in his behalf the discretionary authority contained in the seventh proviso in section 3 of the Immigration Act of 1917, as amended, to the end that he may adjust his immigration status. The time within which he might depart from the United States without an order of deportation will also be extended.
Order: It is ordered that the time within which the alien may depart from the United States without an order of deportation be extended to 4 months from the date of notification of this decision, upon consent of surety.
It is further ordered, That if the alien applies for admission to the United States within 3 months after his authorized departure, he be admitted under the seventh proviso to section 3 of the Immigration Act of 1917, as amended, if otherwise admissible than as one who admits having committed a crime involving moral turpitude, to wit: Perjury in connection with naturalization proceedings in Canada on December 10, 1934.
In accordance with 8 C.F.R. 90.3 this case is referred to the Board of Immigration Appeals for consideration.
Discussion: Appellant is a native and citizen of Italy, 47 years old. On November 18, 1943, this Board found him subject to deportation on the ground that at the time of his last entry he did not possess an immigration visa. The order permitted him to depart in lieu of deportation. On March 3, 1945, we authorized preexamination. Hearings were held in preexamination proceedings and the Board of Special Inquiry found him inadmissible on the ground that he admitted the commission of a crime involving moral turpitude, namely, perjury. The Central Office agrees with the Board of Special Inquiry. It recommends that the seventh proviso to section 3 of the act of February 5, 1917, be invoked to permit the alien to adjust his immigration status.
The alien first came to the United States in 1923. He has resided here since that time, except for two visits to Italy in 1928 and 1933, and an absence of about 9 months in Canada in 1935. The alien was naturalized in Canada in August 1935. In his sworn petition for naturalization he claimed that he had resided in Canada since 1923. Briefly, Canadian law requires 5 years' residence as a condition to naturalization. The alien admits that when he made the foregoing false statement in his petition for naturalization he committed perjury, as defined by section 170 of the Canadian Criminal Code. This section defines the crime of perjury as follows:
The naturalization certificate was canceled in 1943 on the ground of absence abroad for more than 7 years.
Perjury is an assertion as to a matter of fact, opinion, belief or knowledge, made by a witness in a judicial proceeding as part of his evidence, upon oath or affirmation, whether such evidence is * * * material or not, such assertation being known to such witness to be false, and being intended by him to mislead the court, jury or person holding the proceeding.
The Board decided in Matter of L----, 56107/183 (October 14, 1942), that the offense described by section 170 does not involve moral turpitude. We pointed out that the Canadian statute has departed from the common law definition of perjury by eliminating the requirement of materiality, and we concluded that without this element the Canadian offense is not base, vile and depraved, and therefore should not be regarded as involving moral turpitude. Our decision was based on U.S. ex rel. Mylius v. Uhl, 203 Fed. 152 (S.D.N.Y. 1913) aff'd 210 Fed. 860 (C.C.A. 2d, 1914). This is the leading case on the rule to be followed in determining whether or not a crime involves moral turpitude within the meaning of the act of February 5, 1917. We think that our holding in the L---- case is supported by the Mylius decision, and that it is in accord with other authority.
We followed this holding in Matter of S----, 56107/182, October 14, 1942, and Matter of V----, 4375931, June 3, 1943.
Mylius was excluded on the ground that he had been convicted in England for maliciously publishing a defamatory libel in violation of Lord Campbell's Libel Act. The lower court and the Circuit Court of Appeals held that the crime did not involve moral turpitude. Both courts agreed that moral turpitude must be determined by the inherent nature of the crime. It is clear from the two opinions that the definition of the crime must be found in the statute and that the indictment cannot serve to support a finding of moral turpitude if it goes beyond the essence of the crime as defined by the statute. We think this will be seen from the following excerpts from the opinion of Judge Noyes (pp. 153-154):
* * * In my opinion when it has been shown that an immigrant has been convicted of a crime, the only duty of the administrative officials is to determine whether that crime should be classified as one involving moral turpitude, according to its nature and not according to the particular facts and circumstances accompanying a commission of it. I do not think the immigration law intends that where two aliens are shown to have been convicted of the same kind of crime, the authorities should inquire into the evidence upon which they were convicted and admit the one and exclude the other. It is true that if they do not take such course some aliens who have been convicted of high crimes may be excluded although their particular acts evidence no immorality and that some who have been convicted of slight offenses may be admitted although the facts surrounding their commission may be such as to indicate moral obliquity. But such results always follow the use of fixed standards and such standards are, in my opinion, necessary for the efficient administration of the immigration laws.
* * * * * * *
We come then to the fundamental inquiry: Does the crime of criminal libel in its nature imply personal depravity or baseness upon the part of its perpetrator? In my opinion the answer to this question depends upon that which must be shown to establish his guilt. Undoubtedly there may be cases in which the facts will show upon the part of the libeler a malignity of purpose and depravity of disposition conclusively indicating moral turpitude. But if it be unnecessary to establish such purpose or disposition to make out the crime of criminal libel, it cannot be said in its nature to involve them or the conclusion to be drawn from them. [Italics supplied.]
The opinion of the Circuit Court of Appeals looked to the indictment only for the purpose of determining under what section of Lord Campbell's Libel Act the alien had been convicted. It was immaterial, the court remarked, that the alien had been charged with publishing a libel directed against the King of England. The court said at page 862:
* * * But we are dealing with laws designed to exclude from this country those whose records abroad are such as to warrant the inference that they are depraved and will continue to belong to the criminal classes. In construing these laws we should proceed on broad general lines, considering all persons as equal before the law. A decision which makes the infamy of the libel dependent upon the rank of the person libeled cannot be defended either in law or ethics. If it would not involve moral turpitude to publish this libel of a field laborer in Devon or a street sweeper in London, it would not involve moral turpitude to publish it regarding the Lord Chancellor or even the King.
Indirectly such a libel may involve the crime of lese-majeste or treason, but the only crime charged in the indictment is maliciously publishing the defamatory libel as stated. Issue was joined on that charge and the verdict determined that the defendant had published such a libel, but nothing more.
See also United States ex rel. Guarino v. Uhl, 107 F. (2d) 399 (C.C.A. 2d, 1939); United States ex rel. Zaffarano v. Corsi, 63 F. (2d) 757 (C.C.A. 2d, 1933). As the court said in United States ex rel. Robinson v. Day, 51 F. (2d) 1022 (C.C.A. 2d, 1931), "Neither the immigration officials, nor we, may consider the circumstances under which the crime was in fact committed. When by its definition it does not necessarily involve moral turpitude, the alien cannot be deported because in the particular instance his conduct was immoral." The Courts have considered the record of conviction, which includes the indictment, plea, verdict and sentence, only where the statute is divisible, for the purpose of determining under which section or clause of the statute the conviction occurred. (See U.S. ex rel. Zaffarano v. Corsi, supra; U.S. ex rel. Valenti v. Karnuth, 1 F. Supp. 370 (N.D.N.Y., 1932); U.S. ex rel. Guarino v. Uhl, supra.)
This Board has consistently applied the principles laid down in U.S. ex rel. Mylius v. Uhl and the other court cases cited above. In Matter of S----, 5702971, August 1, 1945, we held that the offense of knowingly making a false statement in an application for registration in violation of section 36 (c) of the Alien Registration Act of 1940 did not involve moral turpitude. We pointed out that no evil intent was required, and that materiality was not a necessary element of the crime. The Attorney General approved our ruling.
The Attorney General approved our decision without writing an opinion. The excerpt quoted in footnote 2 of the Central Office memorandum in the present case appears in a memorandum on the S---- case addressed to the Attorney General by Mr. Cook.
The court decisions cited above involved convictions, while in the present case the asserted ground of deportation is the alien's admission of having committed a crime. However, the principles enunciated in the court cases are applicable here. The record shows that the alien's false statements under oath were in fact material. But no matter how iniquitous the conduct of the alien may have been, the crime, as defined by the statute, does not inherently involve moral turpitude. To find that the offense in the particular circumstances involved moral turpitude would in effect enlarge the crime by adding the element of materiality which the statute was drawn to eliminate. As Judge Noyes declared in Mylius v. Uhl, the crime must be judged "according to its nature, and not according to the particular facts and circumstances accompanying a commission of it."
The Central Office opinion refers to two rulings of the Attorney General in support of its conclusion that the crime which the alien admits having committed involves moral turpitude. 39 Op. Atty Gen. 95 (1937); id. 215 (1938). We think that these two opinions are in accord with the court decisions, and that our ruling in Matter of L---- is not inconsistent with them. The first opinion appears to appraise the crime as it is set forth in the decree of the Italian court where the alien was convicted. However, the opinion sets forth the articles of the penal code under which the conviction occurred, and under the Zaffarano ruling, supra, it was wholly proper to consult the decree in order to determine under which statutes the alien had been convicted. The decree showed that the conviction had taken place under the language of two statutes, which contained separable provisions, and that the offense consisted of willful assault with a dangerous weapon.
The second opinion of the Attorney General considered whether the German offense of making a false affidavit concerning property involved moral turpitude. There was a difference of opinion among German commentators as to whether the false statements, in order to constitute the crime, had to be material. The Attorney General pointed out that the alien's false statement was actually material, but he did not expressly hold that the offense would involve moral turpitude if it covered immaterial as well as material false statements. He concluded that since the alien had made the false affidavit under duress, the offense should not be regarded as involving moral turpitude.
The Central Office memorandum in the present case also refers to Matter of T----, 56156/249, decision of Attorney General February 24, 1944. There the question was whether the crime of theft, as defined by section 347 of the Criminal Code of Canada, involved moral turpitude. The statute was drawn to penalize the taking of property where the intent was to deprive the owner temporarily of possession, as well as permanently. It is settled law that the offense of taking property temporarily does not involve moral turpitude. The Attorney General held that this Board could determine from the record of conviction or from the admissions of the alien whether the intention was to deprive the owner of possession permanently, and therefore whether the crime involved moral turpitude. The Attorney General said:
I think the correct rule is that the Board is entitled to look beyond the statutes to consider such facts as may appear from the record of conviction or the admissions of the alien and to reach an independent conclusion as to whether the offense is one which under our law involves moral turpitude.
The Central Office urges that a similar policy be applied in determining whether the offense of perjury in Canada involves moral turpitude. Since under the ruling in the T---- case it is permissible to determine from the testimony of the alien that a particular offense of theft was committed with the intention of retaining permanent possession of the property, and that the offense therefore involved moral turpitude, the Central Office argues that it should also be permissible to determine from the testimony of the alien whether a particular instance of perjury in Canada was actually material, and accordingly, whether the offense involved moral turpitude.
With this contention we cannot agree. The T---- ruling is binding on this Board and we do not question it. But we think that in view of the Mylius case and the other court decisions cited above we cannot employ the alien's testimony for the purpose of defining the offense of perjury in Canada which he admits having committed. That offense is defined by the statute. As so defined, it eliminates the element of materiality, and for this reason it does not inherently or necessarily involve moral turpitude. To find that the offense involves moral turpitude because the alien's testimony shows that the false statements were material would be to follow a course which the Mylius case expressly forbids.
The T---- ruling permits this Board to reach a decision on a question of fact, based on the alien's testimony. That question is whether the alien did or did not intend to deprive the owner of possession permanently. If, however, this ruling is extended to the offense of perjury in Canada, it will be our duty not only to make a determination of fact, as to whether the alien's statement was false, but also to decide a question of law, namely, whether the false statement was material. This would constitute a radical departure from Mylius v. Uhl, which limited the immigration authorities to an examination of the crime as defined by the statute. We believe that the Mylius case and other judicial authority support our ruling in Matter of L----, and we reaffirm that ruling.
Since we are of the opinion that the crime which the alien admits having committed does not involve moral turpitude, it will be unnecessary to exercise the seventh proviso, as the Central Office recommends.
Order: It is ordered that the time within which the alien may depart from the United States without an order of deportation be extended for 4 months from the date of notification of this decision, on consent of surety.