ESPINOSA
CHARGE:
Order: Act of 1952—Section 241 (a) (4) [
This is an appeal by the Service from the order of the special inquiry officеr terminating proceedings. The respondent, a 34-year-old male, a native and citizen of Cuba, last entered the United States in January 1960 after a temporary visit abroad. He had been admitted for permanent residence on December 20, 1957. On April 21, 1961, he was convicted on a plea of guilty under
Respondent was indicted for abetting a nonimmigrant visitor “to make a false and fraudulent statement” in an application for an extension of stay. Respondent was convicted “as charged.”
We need not concern ourselves with the effect of section 2 of Title 18 of United States Code which defines “principal“. The issues are (1) under what clause of section 1001 was respondent convicted, and (2) whether the portion under which conviction occurred involves moral
The special inquiry officer held that respondent had beеn convicted under the third part. He terminated proceedings following a precedent which held that a conviction undеr the third part does not involve moral turpitude because of the conflict in the various circuits as to whether materiality is rеquired (Matter of G—, 8 I. & N. Dec. 315).
The Service contends that the conviction was under the second clause and that since the indictment to which the rеspondent pled guilty charged him with the making of a false and fraudulent statement, respondent must be deemed to have been сonvicted for making a fraudulent statement. The Service urges that since fraud is involved, the crime must be held one which involves morаl turpitude. The special inquiry officer was of the belief that even if the conviction had been under the second part оf section 1001, moral turpitude would not be involved because the same words being used to spell out the crime in the second аnd third clauses there still would remain a doubt as to whether materiality is involved. Counsel‘s defense is based on the belief that respоndent committed the crime without any desire to violate the law. He expresses his belief that the violation of law ocсurred when the respondent, in an act of charity, suggested to a friend that she give a Philadelphia address on an application for an extension of stay, rather than a New York address, so that she could obtain a three-month extension instead of one-month extension, thus avoiding the necessity of making repeated applications. The examining officer takes issue with this view of the motivation behind respondent‘s conduct (p. 11).
Whether or not respondent was convicted on the basis of the facts alleged by counsel, the possibility of his conviction under such circumstances is apparent; it raises considerablе question as to whether violation of such a law should be held to involve moral turpitude. However, we need not decide the issue on this basis. We agree with the special inquiry officer that the conviction was under the third clause which concerns the mаking or use of a document containing a misrepresentation and that such a conviction cannot at the present sеrve as the basis for deportation. Even if we are wrong in this thesis, and the crime consists of a violation of the second clause of section 1001 which concerns the making of false statements without reference to writings, it seems to us that a question as to materiality would still exist. Besides, the simple answer lies in the fact that the record does
The Service also points out that the Board has held that an impairing of Government functions can constitute fraud. The conviction in the instant case was not for the impairing of Governmental functions, but for violation of a law which this Board has held, cannot be said to involve moral turpitude.
ORDER: It is ordered that the appeal of the examining officer be and the same is hereby dismissed.