MATTER OF NGAN
In DEPORTATION Proceedings
A-18005842
Decided by Board September 17, 1964
Interim Decision #1396
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(f) (6), Immigration and Nationality Act.
Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (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, 1964, granting the respondent suspension of deportation and that the respondent‘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
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, Wong Hong, 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
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
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 Consulate 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.2
It is believed that our reliance upon the case of United States v. Minker, 350 U.S. 179, was misplaced. The Minker case involved the
The case of Sharaiha v. 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
In applying the principle of the Sharaiha case, we cited Matter of L-D-E-, 8 I. & 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 under oath, do not constitute “testimony” within the meaning of
The true distinction between the instant case and the case cited above appears in Matter of G-L-T-, 8 I. & N. Dec. 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
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 17, 1959 (Exs. 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 parte 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
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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