IN THE MATTER OF R- A——— In EXCLUSION Proceedings 56175/69 Decided by Board February 27, 1945 "Draft" Evader—Alien, Excludability-Section 3 of the Act of February 5, 1917, as amended-Evidence. An alien, who was lawfully admitted to the United States for permanent residence in March 1944, when he was told by the admitting officer he had 90 days within which to register under the Selective Training and Service Act of 1940, as amended, and who departed within 90 days of such admission, lest he be compelled to register here for the draft and thereafter be unable to live out of the United States, is not deemed excludable from the United States under the provision of section 3 of the Act of February 5, 1917, as amended by the Act of September 27, 1944, as one who departed to evade or avoid service in our armed forces, since he was held not liable thereto at the time he departed. EXCLUDED BY BOARD OF SPECIAL INQUIRY: Act of 1917, as amended-Departed to evade United States military service. BEFORE THE BOARD Discussion: The subject, a native and citizen of Mexico, 29 years of age, applied for admission as a local crosser worker on November 18, 1944, at the port of San Ysidro, California. He presented a resident alien's border crossing identification card revalidated to expire on November 26, 1944 but, following a hearing before a Board of Special Inquiry December 13, he was excluded on the above designated ground. He appealed. The record establishes that the subject was admitted to the United States under the provisions of section 4 (c) of the Immigration Act of 1924, on December 29, 1943, and that from January 4 to April 3, 1944, he resided in this country. The appellant testified that he departed for Mexico on April 3 because he knew that if he remained more than 90 days in the United States he would be compelled to register under the Selective Training and Service Act of 1940, as amended, and that, if he had so registered, he would not have been able to live in Mexico. He also testified, "I am not afraid to register for Selective Service and I know that for those who live in the United States and are called into the Service, the Government provides for their families; but I wasn't sure that they would provide for mine, since it was in Mexico. That's really why I didn't want to register." Section 2 of the 1940 Act, supra, provides: Except as otherwise provided in this act, it shall be the duty of every male citizen of the United States, and of every other male person residing in the United States, who, on the day or days fixed for the first or any subsequent registration, is between the ages of 18 and 65, to present himself for and submit to registration at such time or times and place or places and in such manner and in such age group or groups, as shall be determined by rules and regulations prescribed hereunder, and section 611.3 of the Selective Service Regulations provides: Every male citizen and every other male person, except a person within one of the categories, specifically excepted by the provisions of section 611.13, who is within the age groups of persons who have been required by the first or any subsequent proclamation of the President to present themselves for and submit to registration and who is not within one of the several states of the United States, the District of Columbia, Alaska, Hawaii or Puerto Rico on the day fixed for registration of persons within such age groups shall present himself for and submit to registration before a local board when he thereafter returns to or for the first time enters any State of the United States, the District of Columbia, Alaska, Hawaii or Puerto Rico. The appellant not having in his possession "an official document issued pursuant to authorization of or described by the Director of Selective Service which identifies him as a person not required to present himself for and submit to registration," as required by section 611.13, supra, was technically required to register immediately upon his entry into the United States on January 4, 1944, but from a practical standpoint aliens are permitted 90 days within which to register after coming to the United States since within that period, any alien who has not declared his intention to become a citizen of this country and who lawfully enters the United States may file with the local board where he is at the time located, an Alien's Application for Determination of Residence for the purpose of ascertaining whether or not he comes within the provisions of the statute relating to "any other male persons residing in the United States" (Selective Service Regulations, 611.21). Inasmuch as the appellant was advised at the time of his entry on January 4, 1944, that he had 90 days within which to register for the draft, it would be inequitable to hold him responsible to a strict, technical application of the terms of the Selective Service Act of 1940, as amended. Insofar as this case is concerned, therefore, it is concluded that the appellant left the United States prior to the expiration of the time within which he was required to register and so could not have departed for the purpose of evading service in our armed forces for which he was not yet liable. His appeal will, accordingly, be sustained. Findings of Fact: Upon the basis of the evidence, it is found: (1) That the appellant is an alien, a native citizen of Mexico; (2) That the appellant seeks admission into the United States as a local crosser worker; (3) That the appellant was admitted to the United States on December 29, 1943, under section 4 (c) of the Immigration Act of 1924 as a local crosser worker; (4) That from January 4, 1944 to April 3, 1944, the appellant resided in the United States without registering under the Selective Training and Service Act of 1940, as amended; (5) That the appellant did not depart from the United States on April 3, 1944, for the purpose of evading or avoiding service in the armed forces of the United States. Conclusion of Law: Upon the basis of the foregoing findings of fact, it is concluded: That under section 3 of the Immigration Act of February 5, 1917, as amended, the appellant is not inadmissible to the United States as a person who has departed from the jurisdiction of the United States. for the purpose of evading or avoiding training or service in the armed forces of the United States. Order: It is ordered that the appeal be sustained and the appellant admitted to the United States as a local crosser worker. IN THE MATTER OF J——— In EXCLUSION Proceedings 56038/559 Decided by Board March 1, 1945 Crime Involving Moral Turpitude-Perjury—Adequacy of Admission of Commission-No conviction. 1. In deciding whether an alien has admitted the commission of a crime involving moral turpitude, under sections 3 and 19 of the Immigration Act of 1917 (where there has not been a conviction thereof based on a plea of guilt), certain rules enumerated in this opinion are to be observed. (See restatement of rules at end of decision.) 2. Where perjury is imperfectly defined so that it does not include all essential elements, and the alien not only refuses to admit he committed perjury, but surrounds his answers thereon with qualifications, mere admissions of fact are not deemed sufficient to establish his guilt, and his statement that he went through all the acts of committing perjury does not amount to an admission of the commission of perjury. EXCLUDED BY BOARD OF SPECIAL INQUIRY: Act of 1917-Admits commission of crime-Perjury. BEFORE THE BOARD Discussion: The appellant is a native and citizen of Canada who applied on February 9, 1945, at Detroit, Mich., for admission to the United States as a temporary visitor under the border crossing privilege. He was found to be inadmissible by a Board of Special Inquiry on the ground stated above and has appealed from that decision. In the instant case the appellant was asked the question "Mr. J——— did you commit the crime of perjury before an immigrant inspector on August 7, 1939, at this port by executing under oath an oath that you were a citizen of the United States?", to which question the appellant answered "Yes". No definition of the crime of perjury was offered the appellant and the record of his exclusion by a Board of Special Inquiry on May 6, 1940, is relied upon in the instant case. On June 10, 1940, the then Board of Review, affirmed the excluding decision of the Board of Special Inquiry, on the ground that the appellant had admitted the commission of perjury. In that decision it was stated: On August 7, 1939, following a 2-day visit to Canada, appellant applied for readmission to the United States at Detroit, Mich., and executed an “Oath of citizenship" for the express purpose of being admitted to the United States as a United States citizen. In that "Oath of citizenship" he set forth that he was born in Detroit, Mich., June 20, 1908, that he had been absent from the United States since the 5th of August, 1939, and that he was then returning to the United States to resume his residence here. The "Oath of Citizenship" was executed before Immigrant Inspector Gordon J. Griffiths, who administered the jurat. executing that "Oath of citizenship" appellant was admitted as an American citizen. Upon Subsequently, the appellant was arrested on a warrant issued by the Secretary of Labor, and on September 11, 1939, was accorded a hearing to enable him to show cause why he should not be deported. On February 5, 1940, the Department directed that although appellant was deportable, he was permitted to depart to any country of his choice within 90 days after notification of decision. He accordingly departed to Canada May 4, 1940. He was married between the time he was arrested and the time he departed to Canada. His wife is a native of Canada residing lawfully in the United States. The major part of this Board of Special Inquiry hearing is devoted to the "Oath of citizenship" executed by the appellant on August 7, 1939, and to examining the appellant for the purpose of determining whether he admits having committed the crime of perjury in connection therewith. Appellant acknowledges that he did sign that "Oath of citizenship" and that he was placed under oath at that time and he asserts that he did swear falsely under oath. He admits that the circumstances surrounding the signing of that "Oath of citizenship" were that of perjury. The appellant excuses his actions on the ground that he had been called to Canada because of a serious accident to his fiancee, in which she broke her arm 5 days prior to their intended marriage and that the shock to him was so great that he got drunk and was under the influence of liquor and under great emotional strain when he executed the oath. He also testifies that it was about 1 a. m. when he arrived at the port of entry, that he was tired and drunk and that when the officer asked him where he was born he thought it would be easier to get through by telling them he was born in Detroit. He acknowledges that on other occasions he has also accomplished entry into the United States by claiming birth in Detroit. He acknowledges that he understands the nature of an oath, and that the giving of false testimony under oath constitutes perjury. When appellant was questioned on August 29, 1939, preliminary to deportation proceedings against him, he testified before an immigrant inspector with respect to his entry on August 7-"I told him a lie at that time. I have often said I was born in Detroit, Mich., to save time". In the hearing accorded him on the warrant of arrest on September 12, 1939, he was asked whether he was under the influence of liquor at the time he executed the "Oath of citizenship" and replied-"I wasn't drunk-I had a drink or so that evening." At this hearing he explains that statement by stating that |