IN THE MATTER OF J----, 3 IN Dec. 126 (BIA 1948)
IN THE MATTER OF J----. In DEPORTATION Proceedings.
A-1172533Board of Immigration AppealsExecutive Office for Immigration ReviewU.S. Department of Justice
Decided by Board January 5, 1948
Forgery — Application for reentry permit — Violation of section 22 (a) of the Immigration Act of 1924 — Declaration of intention — Violation of 18 U.S.C. 138 — Common-law definition of forgery — Inapplicability of 18 U.S.C. 72.
When applying for a reentry permit in 1933 and again in 1936, and when filing a declaration of intention in 1935, the alien signed the name of his brother who was a legal resident of the United States, which this alien was not; after the common-law definition of forgery was read to him, he admitted that by the foregoing acts he committed forgery and also violated 18 U.S.C. 72, (which was read to him, too). The admission of forgery based on 18 U.S.C. 72 should be ignored; as to the declaration of intention, the crime is more specifically indicated by 18 U.S.C. 138; as to the applications for reentry permits, 18 U.S.C. 72 would seem to apply to the acts, but section 22 (a) of the Immigration Act of 1924 should be regarded as the law which prohibited the acts, and it was deemed immaterial that such section 22 (a) (supra) was not read to the alien at the hearing.
CHARGES:
Warrant: Act of 1924 — No immigration visa.
Act of 1917 — Admits crime prior to entry — Perjury.
Lodged: Act of 1917 — Admits crime prior to entry — Violation of section 28, act of March 4, 1909 (18 U.S.C. 72).
Act of 1917 — Admits crime prior to entry — Forgery (3 offenses).
BEFORE THE BOARD
BEFORE THE BOARD
Discussion: Respondent is a native and citizen of Germany, 40 years old. On March 9, 1942, this Board ordered him deported to Germany on the ground that he did not possess an immigration visa at the time of his last entry. On February 16, 1946, we withdrew the order of deportation and ordered the hearing reopened to permit the alien to apply for discretionary relief. The Commissioner recommends deportation.
Respondent came to Canada in 1927 and he has resided in the United States since August 1930. His last entry occurred in April 1938. On this occasion he intended to remain in the United States but he did not possess a valid entry document. In June 1933 respondent secured a reentry permit by applying for it in the name of his brother, who was a legal resident of the United States. The alien did the same in AprilPage 127
1936. He does not admit that he committed perjury in connection with these applications and we agree with the Commissioner that he is not subject to deportation on the ground that he admits the crime of perjury prior to entry.
Respondent also filed a declaration of intention to become a citizen in April 1935. This too was in the name of his brother and it gave the facts of his brother's legal admission to the United States. Respondent was read the common-law definition of forgery and he admitted that by the foregoing three acts he committed forgery. He was also read 18 U.S.C. 72 and he admitted that by the three acts he violated that section.
The Central Office holds that the false signing of the application for the reentry permits constituted crimes punishable by 18 U.S.C. 72 which reads in part as follows:
Whoever shall falsely make, alter, forge, or counterfeit, or cause or procure to be falsely made, altered, forged, or counterfeited, or willingly aid, or assist in the false making, altering, forging, or counterfeiting, any bond, bid, proposal, contract, guarantee, security, official bond, public record, affidavit, or other writing for the purpose of defrauding the United States; * * * shall be fined not more than $1000, or imprisoned not more than 10 years, or both.
Counsel urges that the alien's admission of having violated the foregoing statute may not serve as a ground of deportation. Counsel refers to the Commissioner's decision in Matter ofM----, 4923028, July 11, 1947. There the alien signed the name of another person in applying for an immigration visa. The Commissioner had previously held in that case that 18 U.S.C. 72 did not define forgery but merely the punishment for forgery, and accordingly, that an admission of having violated the section was not a ground of deportation. However, the hearing in that case was subsequently reopened and the alien again admitted committing forgery after the common-law definition of forgery was given to him. In his decision of July 11, 1947, the Commissioner held that the alien was subject to deportation on the ground of his admission of forgery.
The question of forgery in connection with applications for reentry permits and immigration visas has resulted in some confusion. In Matter of P----, 56158/5, September 14, 1944, the alien had secured a reentry permit by signing the name of another to the application, and this Board held that his admission of forgery in violation of 18 U.S.C. 72 was a ground of deportation. In Matter of M----, 3115424, April 9, 1946, the alien had purchased a reentry permit abroad and signed the name of another person. The common-law definition of forgery was given to him and he admitted having committed that crime. This Board held that the acts of the alien were contrary to section 22 (a) of the Immigration Act of 1924, and hence found the alien subject to deportation.Page 128
In Matter of B*----, 5231413, July 3, 1946, the alien had entered the United States by the use of a reentry permit issued to her sister, a legal resident. The Central Office held that there was no forgery in signing the sister's name. This Board held that the acts constituted forgery and that the statute violated was section 22 (a) of the 1924 act, citing the M----
case. We note that section 22 (a) was not read to the alien. On July 18, 1946, the Attorney General approved the holding of this Board that the alien was subject to deportation on the ground that she admitted the crime of forgery in violation of section 22 (a).
Subsequently, the Commissioner held that an admission of forgery of an application for a visitor's visa, based on 18 U.S.C. 72, was not a ground of deportation because the statute did not define the offense but simply set forth the punishment.Matter of L----, 6422399, July 14, 1947. On July 18, 1947, this Board affirmed the Commissioner's decision without opinion. The Commissioner has also held that an admission of forgery based on 18 U.S.C. 72 where the alien applied for an immigration visa in another's name, should be considered superfluous because section 22 (a) of the 1924 Act was a more specific description of the offense and, therefore, more appropriate. Matter of B----,
4393369, December 3, 1946. Here too, this Board affirmed without opinion, January 22, 1947.
Section 22 (a) of the Immigration Act of 1924 provides in part:
Any person who knowingly (1) forges, counterfeits, alters, or falsely makes any immigration visa or permit * * * shall, upon conviction thereof, be fined not more than $10,000, or imprisoned for not more than 5 years, or both.
We believe, on the basis of the B*---- case, supra, that this is the specific offense which the alien committed when he applied for the reentry permits, and that his admission of forgery, after having been given the common-law definition, renders him subject to deportation. Although 18 U.S.C. 72 would seem to apply to the acts of the alien, we think that section 22 (a) of the 1924 act should be regarded as the law which prohibited the acts. We believe that it is immaterial that section 22 (a) was not read to the alien at the hearing. The act of respondent in filing a declaration of intention in the name of his brother was also covered by 18 U.S.C. 72. But we agree with the Commissioner that the crime is more specifically indicated by 18 U.S.C. 138 which was in effect at the time the declaration of intention was filed, and read in part as follows:
* * * whoever shall falsely make, forge, or counterfeit, any oath, certificate, signature, or other instrument, paper, or proceeding required or authorized by any law relating to or providing for the naturalization of aliens * * * shall be fined not more than $1,000, or imprisoned not more than 5 years, or both.
In view of what we have said above in regard to the reentry permit applications, we think that the admission of forgery based onPage 129
18 U.S.C. 72 should be ignored, and that respondent should be found subject to deportation on the ground that he admits the crime of forgery in violation of 18 U.S.C. 138.
Upon consideration of the entire record, the findings of fact and conclusions of law proposed by the Presiding Inspector, as modified by the Commissioner July 8, 1947, are hereby adopted.
The alien was married in June 1944 to a native citizen of the United States and he and his wife are the parents of a child born in this country in November 1945. The wife and child are dependent upon the alien for support. He is employed as the manager of a meat market with earnings of $55 a week. He has a bank account of $3,800 and other assets are valued at $2,900. The wife has war bonds with a face value of $2,500.
The alien, consistent with the adoption of his brother's identity, did not register for Selective Service because his brother was beyond military age. In July 1942 he was convicted for his failure to register and sentenced to imprisonment for 13 months. He was released from prison in July 1943, and he was then arrested in alien enemy proceedings. He was ordered released in July 1943. The alien testifies that this was his only arrest. His statement is confirmed by the records of the Federal Bureau of Investigation. The alien has submitted a copy of a letter dated September 9, 1943, signed by the Assistant United States Attorney for the Eastern District of Washington, where the Selective Service conviction took place. The letter states that except for this conviction the alien bears a good reputation and has never been in trouble. The file also contains several character affidavits. At the oral argument before this Board, additional character affidavits were submitted. Independent character investigations were made and the results were favorable to the alien.
The alien will be enabled to adjust his immigration status if we grant voluntary departure, preexamination, and the seventh proviso. Except for the Selective Service conviction, his record has been good for more than 10 years. The conviction occurred more than 5 years ago and the acts of the alien on which the conviction was based took place 7 years ago. We think the alien has shown good moral character for the past 5 years. In view of his long residence, the abundant character evidence, and his dependent citizen wife and child, we shall grant discretionary relief to permit the alien to adjust his immigration status.
Order: It is ordered that the Commissioner's order and warrant of deportation be withdrawn.
It is further directed that an order of deportation be not entered at this time, but that the alien be required to depart from the United States, without expense to the Government, to any country of his choice, within 6 months after notification of decision, on consent of surety.Page 130
Departure in accordance with the foregoing will be deemed sufficient to cancel the outstanding delivery bond.
It is further directed that preexamination be authorized.
It is further directed that if the alien applies for admission within 4 months after his departure, the grounds of exclusion arising from his admission of having committed forgery in 1933, 1935, and 1936 be waived, under the discretionary authority conferred by the seventh proviso to section 3 of the act of February 5, 1917, subject to revocation in the discretion of the Attorney General, after hearing, if the alien subsequently commits any offense.Page 131