Interim Decision 4E1396

Interim Decision 4E1396

MATTER OF NGAN

In DEPORTATION Proceedings

A-13005842

Decided by Board September 17,1964

Respondent's oral false statements, under oath, in a question-and-answer statement before an officer of this Service in connection with the processing of a

visa petition to accord nonquota status to his wife and children, constitute

false testimony within the meaning of section 101(1) (6), Immigration an,d

Nationality Act.

CHARGE:

Order : Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)1—Excludable

at entry—No valid immigration visa in violation of section 13(a) of

the Act of May 26, 1924.

The case comes forward on motion of the General Counsel, Immigration and Naturalization Service dated July 26, 1964, requesting

that the Board reconsider and withdraw its order of June 26, 1861,

granting the respondent suspension of deportation and that the re

spondent's appeal from the order of the special inquiry officer dated

October 22, 1963, directing that the respondent be deported to China

on the charge stated in the order to show cause be dismissed

The facts are fully set forth in the orders of the special inquiry

officer, the prior order of this Board and the motion for reconsideration. Briefly, the record relates to a native and citizen of China, 42

years old, male, married, who last entered the United States at the

port of San Francisco, California on April 20, 1948, claiming to be

the citizen son of Wong Hong, a. United States citizen. At that time

he was admitted as a United States citizen without being inspected

as an alien. He now concedes that he is not the son of Wong Hong,

that he is not a citizen of the United States, and that he is deportable

on the charge stated in the order to show cause.

During the course of the deportation hearing the respondent applied

for suspension of deportation under the provisions of section 244(a) (1)

of the Immigration and Nationality Act, as amended, by the Act of

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October 24, 1962. The special inquiry officer found that the respondent satisfied the requisites of continuous physical presence in the

United States for not less than seven years immediately preceding the

date of his,application for suspension of deportation and that the respondent's deportation Would result in extreme hardship to himself

and to his 77-year-old father who was naturalized a citizen of the

United States on October 21, 1964.

The special inquiry officer found that the respondent satisfied the

requirements of good. moral character except for the fact that in his

sworn statement on June 17, 1959, during which respondent was represented by counsel before an immigrant inspector, the respondent

specifically testified that his name was Wong Chong and presented a

United States citizen identification card to establish his claim. He was

questioned about his relationship to Sam Sing Ngan and denied any

relationship. A visa petition was filed on October 7, 1958, by the

respondent claiming to be a United States citizen, for the issuance of a

nonquota immigrant visa to his spouse and three children. An investigation conducted in Hong Kong in connection with this visa petition

raised serious questions concerning the status of the petitioner as a

United States citizen and resulted in a denial of the visa petition. Not

until January 1963 did the respondent confess that he was in fact Ngan

Cho On, the son of Ngan Som Shing, confessed his alleged father,

Hong Wong, was not his true father, surrendered for cancellation his

certificate of derivative citizenship dated April 8, 1954, and his Citizen's Identification Card issued June 24, 1954, expressed repentance at

the deception he had practiced in connection with his entry into the

United States and in connection with the visa petition he had filed

for his wife and three children. The special inquiry officer found

that the respondent was precluded from establishing good moral

character under the provisions of section 101 (f) (6) of the Immigration and Nationality Act and therefore had not established statutory

eligibility under the provisions of section 244(a) of the Immigration

and Nationality Act for suspension of deportation.

Section 101(f) (6) of the Immigration and Nationality Act (8

U.S.C. 1101(f) (6) ) precludes an alien from establishing good moral

character, if during the period for which good moral character is required he "has given false testimony for the purpose of obtaining any

benefits under this Act." In our order of June 26, 1964, we held that

the word "testimony" as used in section 101(f) (6) of the Act has been

construed as referring solely to oral statements of witnesses under oath

in an administrative or judicial proceeding and we held. that the false

oral statements made by the respondent during the investigation were

a reiteration of the witness' statements submitted in the visa application and that the respondent had not given false testimony within

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he meaning of section 101(f) (6) of the Immigration and Nationality

Act.1

The Service motion disputes the rationale of our decision and the

disposition of the issue presented in the case as to whether it is false

testimony to gain a benefit under the Immigration and Nationality

Act within the meaning of section 101(f) (0) where the alien lies

under oath in a formal question and answer statement taken before

an officer of the Service in connection with the processing of the visa

petition to obtain nonquota status for his -wife and children. Counsel

for the respondent has filed a brief in opposition to the Service motion.

After full consideration of all the circumstances of the case and the

arguments set forth in the motion and brief, it is our conclusion that

the motion to reconsider should be granted.

The respondent's sworn statement of June 17, 1959, was taken before

a Service officer and the respondent was represented by counsel. In

that sworn statement he represented himself as James Chong Wong,

also known as Wong Chong, presented his United States Citizen's

Identification Card, asserted that the Citizen's Identification Card

and other papers were issued under his true name, indicated that his

wife had informed him that the American Consulate at Hong Kong

believed he was a "Ngan," the son of Sam Sing Ngan, denied that

he had ever used the name of Ngan Cho On, and reiterated that his

father's name was Wong Hung also known as Wong Gong Yon. It

is obvious that the respondent at that time was aware of the fact

that he was under investigation by the American Consultate as a

person who had taken an assumed. identity but nevertheless persisted

in his claim that he was the son of a United States citizen. The

respondent also presented as a witness, Ngan Sam Sing, who made

a sworn statement to the effect that he had always lived in the United

States and identified the respondent as Wong Chong. Not until January 1963 did the respondent confess that he was in fact Ngan Cho On,

the son of Ngan. Som Shing, who was not a United States citizen

and admit that he had no claim to United States citizenship. It is

clear that this retraction, some three and a half years later, and after

investigation disclosed evidence that the respondent was not in fact

the person he claimed to be, was not timely and was too late to fall

within the doctrine of timely recantation?

It is believed that our reliance upon the case of United States v.

Minker, 350 U.S. 1,79, was misplaced. The Minker case involved the

Citing Matter of

8 I. & N. Dec. 399; United States v. Walser, 350

U.S. 179 (1956) and ShamMA v. Hoy, 169 F. Supp. 598 (S.D. Cal. 1959).

Waiter of M , 9 I. &

Dee. llg citing Matter of .R—R—, 3 I. & N. Dee. 823,

—

in which there was timely recantation without prior exposure of the admittedly

false testimony.

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issue of whether section 235(a) of the Immigration and Nationality

Act, providing that any immigration officer shall have power to require by subpoena the attendance and testimony of witnesses before

immigration officers relating to the privilege of any person to enter,

reenter, reside in, or pass through the United States or concerning any

matter which is material and relevant to the enforcement of the Act

in its administration by the Service, empowers an immigration officer

to subpoena a naturalized citizen who is the subject of an investigation by the Service, where the purpose of the investigation is to

determine if good cause exists for the institution of denaturalization

proceedings under section 340 (a) of the Act. The court concluded

that Congress had not provided with sufficient clarity that the subpoena power granted by section 235 (a) extends over persons who are

the subjects of denaturalization investigation and therefore Congress

is not to be deemed to have done so impliedly. In the concurring

opinion, Justice Black stated that the broad powers contained in

section 235 of the Act should be confined in. its use of those powers to

the treatment of aliens. The observation in the majority opinion deprecating compuliory coo parte administrative examinations, witrammeled by the safeguards of public adversary judicial proceeding, must

be read in context to its reference to prospective defendants in denaturalization suits.

The case of Sharoilitsv. Hoy,169 F. Supp. 598, involved an application to extend the time of temporary stay to which was attached the

certificate of acceptance bearing a sworn statement by the plaintiff.

In construing the prohibition against a finding of good moral character by a person who has given false testimony for the purpose of obtaining any benefit under the Act contained in section 101(f) (6) of

the-Immigration and Nationality Act (8 1101 (f) (6) ), the District Court held that the word "testimony," technically construed,

refers solely to oral utterances of witnesses under oath and held that

the written application far extension of time of temporary stay was

not oral and did not constitute testimony.

In applying the principle of the Bkaraiha case, we cited Matter of

L—D—E—, 8 L & N. Dec. 399. That case involved false statements in

an application for a United States passport. We concluded that false

statements which appear in a written application, whether or not

wader oath, do not constitute "testimony" within the meaning of 8

U.S.C. 1101 (f) (6).

The true distinction between the instant case and the ease cited above

appears in Matter of G—L--T—, 8 I. & N. Dee. 403. That case involved a person who obtained. admission to the United States in 1940

under the fraudulent claim of being a United States citizen. He acquired a certificate of citizenship in 1947 on the basis of that claim

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which was stolen from him in 1953. In January 1954 he was questioned

under oath by an officer of the Service in connection with an application

for a certificate of citizenship to replace the stolen one and at that time

gave false testimony concerning his citizenship. The special inquiry

officer held that due to his false testimony the respondent was precluded from establishing good moral character by reason of the provisions of 8 U.S.C. 1101(f) (6). We considered the case of Sharaiha

v. Hoy, 169 F. Supp. 598 holding that false testimony involved only

oral utterances of witnesses under oath but held that the false information given under oath in the question and answer statement before an

officer of the Service in connection with an application for a. certificate

of citizenship in lieu of one lost was, in fact, testimony, and that the

rule stated in Sharaiha v. Hoy had no application.

We believe that the holding in Matter of G—L—T--, supra, is dispositive of the instant case. The sworn statements in the present case,

given on. October 20, 1958, and June 11, 1950 (ENG. 16 & 18) were given

in the form of a formal question-and-answer statement and the respondent was represented by counsel. The matter involved was a visa

petition which, like the matter involved in Matter of G—L—T , supra,

an application for a certificate of citizenship in lieu of one lost, is not

an "adversary" proceeding but is rather an ex parts proceeding. It

was, however, a quasi judicial proceeding in that the respondent was

placed under oath by an immigrant inspector and was examined in the

presence of counsel. In the visa petition proceeding he was seeking

a benefit under the immigration laws, namely, the securing of a nonquota status for his wife and children as the spouse and children of a

United States citizen which he falsely represented himself to be. His

oral sworn statements taken in connection therewith, after investigation had disclosed reason to doubt the bona fides of the status of the

respondent as a, citizen of the United States, constitute testimony as

that term is used in section 101(f) (6) (8 U.S.C. 1101(f) (6) ) since

it was not written but oral and thus not within the restriction of

Sharaiha v. Hoy, supra. As we have previously pointed out we consider the case of United States v. thinker, 350 U.S. 179 not applicable.

Upon the present record, in. spite of the favorable factors of long

residence and serious economic detriment to himself and his elderly

citizen father, the application for suspension of deportation must be

denied because of the prohibition contained in section 101(f) (6) of the

Act, the acts constituting which occurred during the period for which

good moral character must be established.

ORDER: It is ordered that our prior order dated June 26, 1964,

be and the same is hereby withdrawn.

It is further ordered that the appeal be and the same is hereby

dismissed.

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