In DEPORTATION Proceedings

MATTER or L

D

E

In DEPORTATION Proceedings

A-1105616I

!Melded by Board dime 29, 1959

Good moral character — Section 101(0(6) of 1952 act — False statements in

application are not "testimony_"

False statements in application for United States passport (whether or not

under oath) do not constitute false "testimony" within meaning of section

101(f) (6) of 1952 act. "Testimony" is construed as referring solely to oral

utterances or oral evidence. (Overrules Matter of 2 , 5 I. & N. Dec

514; modifies Matter of 0—, 7 I. & N. Dec. 480.)

CHARGE :

Order: Act of 1952—Section 241(a) (1) t8 U.S.C. 125 a) (1)1—Excludable

at entry under 8 U.S.C. 213(a), 1946 ed. — No immigration visa.

BEFORE THE BOARD

Discussion : This case is before us on appeal from a decision of

a special inquiry officer directing the respondent's deportation.

The respondent is a 39-year-old married male, native and citizen

of China, who last entered the United Slates in October 1941, at

which time he secured admission on his fraudulent claim that he

was a citizen of this country. He claims residence in the United

States since 1935. The respondent concedes that he is deportable,

and the only issue in this case relates to the special inquiry officer's

conclusion that. the respondent is statutorily ineligible for suspension

of deportation.

The respondent secured admission to this country in 1935 by claimF

, the son of C

A

K

a nativeing that he was C

born citizen. Actually, the respondent's name is L

K

A

; and he has never been a citihe is not the son of C

zen of the United States. He secured readmission in 1941 by continuing the deception. On December 2S, 1956, the respondent executed an application for a United States passport ill which he slated

that his name was C F and that, he was a citizen of the

United States by birth in China to a citizen father.

The special inquiry officer's conclusion that the respondent was

statutorily ineligible for suspension of deportation was predicated

on the view that section 101(f) (6) of the Immigration and Nationality Act [66 Stat. 166; 5 U.S.C. 1101(f) (6)] precludes a finding

,

399

of good moral character because of the false statement in the 1956

application for United States passport. Section 101(f) (6) bars a

finding of good moral character in the respondent's case if, subsequent to 1952, he is or was "one who has given false testimony for

the purpose of obtaining any benefits under this act * * *."

The respondent testified that after he made the applidation for a

passport. in 1956 be was requested to appear for an interview at. the

passport office in New York City, but did not, do so and never received a United States passport. Counsel apparently contends that

the respondent is not within the purview of S U.S.C. 1101 (f)(6)

because he did not actually procure a passport. We reject this contention, however, since it is not a requirement of the statute that

any benefit be secured but only that the false testimony shall have

been given for the purpose of obtaining a, benefit.

We consider that the important question in this case is whether

the respondent's false statement in the passport application is "testimony" within the meaning of 8 U.S.C. 1101(f) (6). In this connection, two recent court decisions must be examined—Orlando v. Robinson, 262 F.2d 850 (C.A. 7, 1959), cert. denied 359 U.S. 980 (1959),

and Sharaihu v. Hoy, 169 F. Stipp. 598 (S.D. Cal., 1959).

Some of the facts in Orlando v. Robinson, supra, are not clear

from that, opinion and we have examined the special inquiry officer's

decision of August 30, 1955. concerning Orlando and our decisions

of January 6. 1956, and August 7, 1958, in that case (file A4177580).

The Court of Appeals said that Orlando made false statements in

an application for registry on July 15, 1947, and in a petition for

naturalization on July 12, 1948 (actually, the 1918 false statement

was in a preliminary form for petition for naturalization which was

not sworn to until September 21, 1948), and that on JUly 12, 1948,

he "gave false testimony for the purpose of obtaining citia-eitship."

There was no discussion by the court as to whether the application

and petition (preliminary form) were under oath nor whether a

false statement is "testimony," although the court assumed in its

opinion that Orlando gave, false testimony on July 12, 1948.

Orlando was required to prove good moral character for ten years

prior to May 24, 1955, and 8 U.S.C. 1101(f) (6) would preclude a

finding that he was a person of good moral character if during the

ten-year-period he is or was one who had given false testimony for

the purpose of obtaining any benefits wader the Immigration and

Nationality Act. That act became effective on December 24, 1952,

and it would seem that the false statements which Orlando made in

1947 and 1948 could hardly be considered as having been made for

the purpose of obtaining a benefit under the Immigration and

Nationality Act which was not enacted until 1952.

The decision of the special inquiry officer and the two decisions

of this Board concerning Orland() did not refer to any false testi400

moray given by hint but only m the false s(a rnrciiLs made in die 147

and 1948 forms and in his alien registration form in 1940. There

was no statement in these three decisions that a finding of good

moral character was precluded by virtue of S U.S.C. 1101(f) (6), but

the decisions were predicated on a conclusion that Orlando had not

affirmatively established good moral character during the ten-yearperiod.

Although the court in the Orlando case stated that the act committed by him on July 12, 1948, made him then a person not of good

moral character, there was no definite statement that Orlando's action

on July 12, 1948, precluded him from establishing good moral character by reason of the provisions of 8 U.S.C. 1101(f) (6). However,

there is some language in the opinion which indicates that this may

have been the view of the court. Nevertheless, the opinion in its

entirety shows that the court did not rely on 8 U.S.C. 1101(f) (6)

but held that Orlando was not a person of good moral character

because he made false. statenmIlts in his 194-7 and 1948 applications;

the final conclusion was that he not only failed to sustain the burden

of proving good moral character for ten years, but that the evidence

conclusively showed that he was not a person of good moral character during that period.

There is nothing in the Orlando opinion which would indicate

that the Government urged that 8 U.S.C. 1101(f) (6) precluded a

finding of good moral character in his case. There is a statement

on page 851 of the court's opinion reading, "* * * Orlando argues

that the applicant has to be a special kind of a prevaricator in order

to be ineligible for suspension of deportation as defined by 8 U.S.C.A.

§ 1101(f) * *." We assume that counsel for Orlando was urging

that he did not come within any of the eight numbered paragraphs

of S U.S.C. 1101(f) and that, therefore, a finding of good moral

character should be made. That argument, of course, ignores the

last sentence of the statutory provision which provides otherwise.

It appears to have been due only to this contention of counsel that

8 U.S.C. 1101(f) (6) was considered by the court; although, as we

have indicated above, it was actually inapplicable to Orlando's case.

Since the question involved in this respondent's case is whether a

false statement in an application is false testim-ony within the meaning of 8 U.S.C. 1101(f) (6) and since that question was not even

discussed in °Timid o, that case has no relevance to that of this

respondent.

With respect to Sh,tivih-a v. Hoy. supra, the special inquiry officer

had held there that the alien was ineligible for voluntary departure

on the ground that he had given false testimony for the purpose of

obtaining a benefit under the immigration and Nationality Act.

On August 22, 106, lie had executed under oath an application for

401

extension of his temporary stay as a student, which application contained a false statement to the effect that he was a student in good

standing at the University of Southern California. The court held

that this did not constitute "testimony" within the meaning of S

U.S.C. 1101(f) (6) because "the word testimony, technically construed, refers solely to the oral utterances of witnes.9es Midor oath,

* * *." In Ensign v. Pennsylvania, 227 U.S. 592, 599 (1913), it was

said, "The word 'testimony' more properly refers to oral evidence."

The decision in Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948), was

predicated on the proposition that, where the words of a deportation

statute are susceptible of more than one meaning, the doubt should

be resolved in favor of the alien.

Upon careful reconsideration of the question and in the light of

the judicial authorities mentioned in the preceding paragraph, we

have concluded that false statements which appear in an application,

whether or not under oath, do not constitute testimony within the

meaning of 8 U.S.C. 1101(f) (6). Since this is contrary to the conclusion reached in Matter of Z , 5 I. & N. Dec. 514 (1953), that

decision is overruled.

The special inquiry officer cited Matter of 0

, 7 I. & N. Dec.

486 (1957), as a basis for his conclusion that the respondent was precluded from establishing good moral character under 8 U.S.C. 1101

(f) (6). In the cited case, we concluded that the alien gave false

testimony within the meaning of that statutory provision because

of false statements in an application. She denied that she was sworn

to the application. We said that, even if her conduct did not render

her statutorily ineligible for voluntary departure, that relief should

be denied as a matter of discretion because of the deception which

she had practiced on the Service. That decision is hereby modified

insofar as it may be inconsistent with this opinion.

In view of the foregoing, we conclude that the false statement

made by this respondent in his application for a United States passport on December 28, 1956, did not constitute "testimony" within

the meaning of 8 U.S.C. 1101(f) (6), and that the question of

whether a finding of good moral character should or should not be

made in view of the false statement must be determined in accordance with the last sentence of 8 U.S.C. 1101(f) rather than under

subparagraph (6). Since it was solely on the basis of 8 U.S.C.

1101(f) (6) that the special inquiry officer held that discretionary

relief could not be granted, we will remand the case to him for

further consideration of the application for suspension of deportation.

Order: It is ordered that the outstanding order of deportation be

withdrawn and that the case be remanded to the special inquiry

officer for further consideration of the application for suspension

of deportation.

402