*

he so testified because he was afraid that he might be charged with driving while intoxicated should he testify that he was drunk at that time. * The appellant undoubtedly swore falsely on August 7, 1939, when he stated under an oath administered by an immigrant inspector that he was born in Detroit, Mich. The sole point for determination is whether appellant admits having committed perjury. In Howes v. Tozer, 3 F. (2d) 849, it was stated that the word "admits" in the clause "Any alien who was convicted or admits the commission prior to entry of a felony or other crime involving moral turpitude” under section 19 of the 1917 act means "An unequivocal acknowledgment of guilt, an acknowledgment which shall leave no fair ground for doubt or debate," that it did not mean "admitting facts from which an inference of guilt may be drawn *" This appellant does make such unequivocal admission of guilt. He does not deny having made false statements under oath, but merely tries to excuse himself on the ground that he was acting under great emotional strain, and while under the influence of liquor, although in his warrant hearing he testified under oath that he was not under the influence of liquor at the time of the offense.

* *

The record in the exclusion proceedings of May 6, 1940, discloses that the crime of perjury was not defined for the appellant. He was asked if he understood the nature of an oath and stated that he did. He was then asked "and you do know that giving false testimony under oath constitutes the crime of perjury?" to which he answered "Yes.” He admitted signing the oath that he was a citizen and that he swore falsely under oath and although he stated he did not remember being placed under oath he stated that he was satisfied that he went through all the acts of committing perjury. However, he consistently refused to admit that he had committed perjury. Admissions of fact are not sufficient to establish his guilt and his statement that he is satisfied that he went through all the acts of committing perjury does not amount to such an admission. This is particularly so in view of the qualifications which surround his answers; his refusal to admit that he committed perjury, and his imperfect definition of the offense.

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, the following rules are to be observed:

(1) It must first be established that under the law where the act was alleged to have been committed that it is a crime.

(2) An adequate definition of the crime, including all essential elements, must first be given to the alien. This must conform to the law of the jurisdiction where the offense is alleged to have been committed, and it must be explained in understandable

terms.

(3) The alien must then admit all the factual elements which constitute the crime. (In the Matter of P, Atty. Gen., 56107/465, March 7, 1941.)

(4) The alien must thereafter admit the fact that he has committed the crime-in other words, the legal conclusion. (Howes v.

Tozer, 3 F. (2d) 849.)

(5) The admission by the alien of the crime must be explicit, unequivocal and unqualified. (Howes v. Tozer, 3 F. (2d) 849.) (6) It must also appear from the statute and statements of the alien that the crime which he has admitted committing involves moral turpitude. It is not necessary that the alien admit that the crime involves moral turpitude.

We are of the opinion that the appellant cannot be considered as having admitted the commission of perjury.

Findings of Fact: Upon the basis of all the evidence presented, it is found:

(1) That the appellant is a native and citizen of Canada;

(2) That the appellant has applied for admission to the United States as a temporary visitor;

(3) That the appellant has not admitted the commission of perjury. Conclusion of Law: Upon the basis of the foregoing findings of fact, it is concluded:

That under section 3 of the act of February 5, 1917, the appellant is not inadmissible to the United States on the ground that he admits the commission of a felony or other crime or misdemeanor involving moral turpitude, to wit: Perjury.

Other Factors: The appellant's wife and two children reside in Canada.

Order: It is ordered that the appeal be sustained and that the alien be admitted to the United States as a temporary visitor for visits not to exceed 29 days.

RESTATEMENT OF RULES

Re-Memorandum of Solicitor General of May 29, 1945

The following rules are observed in exclusion or expulsion proceedings in establishing that an alien admits the commission of a felony or other crime or misdemeanor involving moral turpitude.

(1) It must be clear that the conduct in question constitutes a crime or misdemeanor under the law where it is alleged to have occurred.

(2) The alien must be advised in a clear manner of the essential elements of the alleged crime or misdemeanor.

(3) The alien must clearly admit conduct constituting the essential elements of the crime or misdemeanor and that he committed such offense. By the latter is meant that he must admit the legal conclusion that he is guilty of the crime or misde

meanor.

(4) It must appear that the crime or misdemeanor admitted actually involves moral turpitude, although it is not required that the alien himself concede the element of moral turpitude. (5) The admissions must be free and voluntary.

IN THE MATTER OF T— AND MATTER OF D—

In EXCLUSION Proceedings

A-5972903 (56175/164)

Decided by Board March 2, 1945

Immigrants-Nonquota status-Unmarried alien children under 18 born in quota country-Accompanying parent born in nonquota country and entitled to nonquota status-Section 4 (c) of the Immigration Act of 1924.

Unmarried alien children under 18 years of age, who were born in a quota country, but are accompanying their mother who was born in a nonquota country and who is entitled to nonquota status, are likewise entitled to nonquota status under section 4 (c) of the Immigration Act of 1924.

EXCLUDED BY BOARD OF SPECIAL INQUIRY:

Act of 1924-Quota immigrants without quota immigration visas.

BEFORE THE BOARD

Discussion: The appellants are a sister and brother, 5 and 2 years of age, respectively, natives of China and citizens of France. Their mother is a native of Mexico and apparently also a citizen of that country, though she is married to a French national who was born in Russia and who is now interned in Shanghai, China. The appellants and their mother applied for admission for permanent residence at Laredo, Tex., on February 6, 1945, and each presented a section 4 (c) nonquota immigration visa in support of their respective applications. After a hearing before a Board of Special Inquiry the mother was ordered admitted as a section 4 (c) immigrant, but the two children were excluded as quota immigrants who were not in possession of quota immigration visas. Pending our consideration of their appeals, the children were paroled into the United States in the custody of their mother. The visas presented by the appellants were issued by the American Vice Consul at Mexico, D. F., Mexico, on November 28, 1944, under section 4 (c) of the Immigration Act of 1924 on the ground that they were children, under 21 years of age, accompanying their mother, a native-born Mexican citizen. The Vice Consul's action in issuing these visas was in accordance with note 144 to section XXII-1 of the Foreign Service Regulations of the United States which are contained in visa supplement A thereof. This note reads, in part:

Children born in a quota country under 21 years of age accompanying a parent born in a nonquota country would have nonquota status under section 12 (a)

of the act, but if such children are accompanying both parents and the father was born in a quota country, the children would take his quota nationality under the provisions of the section of the act cited.

* * *

Section 4 (c) of the Immigration Act of 1924 provides nonquota status for "an immigrant born in the Republic of Mexico * * * and his wife, and his unmarried children under 18 years of age, if accompanying or following to join him." Section 12 (a) of this act provides in part that in determining nationality "the nationality of a child under 21 years of age not born in the United States, accompanied by its alien parent not born in the United States, shall be determined by the country of birth of such parents if such parent is entitled to an immigration visa."

The Central Office of the Immigration and Naturalization Service is apparently of the opinion that section 12 does not confer any nonquota status not comprehended within section 4 of the Immigration Act of 1924 and for that reason believes that the two children involved in these proceedings are quota immigrants. That section 12 does not confer such status is apparently also the view of the Department of State, for in the same note quoted from above, it is stated, "It should be noted in this connection that nonquota status under section 4 (c) cannot be disturbed by section 12 (a) of the act." Yet, notwithstanding this language, it went on to read in the apparently inconsistent manner set forth above.

Granting that section 12 may not be employed in the determination of an alien's nonquota status,1 and that the basis for the Consul's issuance of the visas to the appellants may have been erroneous, we nevertheless cannot agree with the ultimate conclusions of the Central Office of the Immigration and Naturalization Service and the Board of Special Inquiry. We believe that the appellants were nonquota immigrants within the scope of section 4 (c) of the Immigration Act of 1924. They were under 18 years of age, obviously unmarried, and were accompanying an immigrant parent who was entitled to and was in possession of a section 4 (c) nonquota visa. The fact that the masculine gender is employed in the pertinent portion of section 4 (c) does not mean that the accompanying nonquota immigrant must be the father for the children to be entitled to nonquota status. A female alien born in a nonquota country is a nonquota immigrant even if she is married to and accompanied by an alien born in a quota country. The word "immigrant," as employed throughout section 4 of the 1924 act, obviously includes both male and female aliens.

1

The House Committee Report on the Immigration Act of 1924 (Rept. No. 350, 68th Cong., 1st sess.), lends support to the assumption that section 12 was enacted solely for the purpose of determining and enforcing the numerical limitation imposed by the quota and applied only to immigrants coming from quota countries.

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