opinion by Judge Clark, who served as Reporter of the Advisory Committee on the Federal Rules of Civil Procedure
How later courts described this case
- opinion by Judge Clark, who served as Reporter of the Advisory Committee on the Federal Rules of Civil Procedure
Written by the judges who cited it.
The opinion
CHASE, Circuit Judge
(dissenting).
It is clear that the burden was upon the relator to show his right to enter this country. His admission that he had previously committed a crime in Germany involving moral turpitude would require his exclusion. 8 U.S.C.A. § 136 (e). It was found that he did make such an admission and the scope of our review ought to be held to a consideration of whether the evidence supported the finding after the relator had been given a fair opportunity to be heard.
I fail to understand how there can be the slightest doubt that the relator deliberately attempted by fraud to obtain a visa for his friend Artukovic. The fact that Artukovic consented to the attempt to defraud in no way exculpates the relator. The law required the personal appearance of the applicant for the visa and the relator, representing himself to be the applicant, at first succeeding in deceiving the consular officials and was treated as though he were an applicant. That, of course, was why he was to be given the medical examination since it was to determine his physical fitness to enter this country. It was only when he had ample reason to believe that his fraud would be exposed by the examination 'that he ceased pretending to be Artukovic. The admission of such a brazen attempt to defraud this government, coupled with his admission that he knew what he did was a crime, gives ample support for the action of the Board and I think we are taking a long step in the wrong direction when a gloss is put upon that sort of conduct. The element of moral turpitude was inherent in the fraud. This appeal ought not to be treated as though he had been excluded after a failure by the government to prove that he had been convicted of an excluding crime with which he was charged and which he denied. As it is, his admissions alone are what count and speculation as to whether or not he admitted too much in the light of what may be the law in Germany seems to me to be only an unwarranted presumption of reversible error. It was for him to show such error affirmatively.
The relator was given two hearings and apparently made as full an explanation of his conduct as he could. Certainly he was given every reasonable opportunity to es *22 tablish the pertinent facts and was excluded upon a ground adequately called to his attention and fairly explored. His difficulty is that, he has twice failed to establish a right to enter and now he should be required to accept the consequences.
I would affirm the order.