In re R-S-J-

Decision Date10 June 1999
Docket NumberInterim Decision #3401
PartiesIn re R-S-J-, Respondent
CourtU.S. DOJ Board of Immigration Appeals

In a decision dated May 17, 1996, the Immigration Judge denied the respondent's applications for suspension of deportation and voluntary departure.1 The Immigration Judge found that the respondent could not establish that he had been a person of good moral character for the requisite statutory periods because he found that the respondent had provided false testimony in the course of his earlier interview with an asylum officer of the Immigration and Naturalization Service. The respondent appeals. The issue raised by the respondent is whether false oral statements made under oath to an asylum officer can constitute "false testimony" under section 101(f)(6) of the Immigration and Nationality Act, 8 U.S.C. § 1101(f)(6) (1994), as defined by the United States Court of Appeals for the Ninth

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Circuit. The respondent contends that they do not because the asylum officer is not a "tribunal." We reject this argument and hold that false statements under oath to an asylum officer can constitute false testimony for purposes of section 101(f)(6) of the Act. The appeal will therefore be dismissed. However, because it is not clear whether the false statements admitted to in this case were made under oath, the record will be remanded.


The relevant facts of this case are straightforward and not in dispute. The respondent filed an Application for Asylum and Withholding of Deportation (Form I-589) with the San Francisco Asylum Office of the Service on October 18, 1995. The application was prepared by another individual. The respondent admitted that he signed the application, after it had been mailed to him in New York, knowing that it was false, "because he told me that under this made up story is [sic] many cases he has filed and they had been successful." On November 29, 1995, the respondent appeared in San Francisco for an interview on the application before an asylum officer. When questioned about the facts related on the application, the respondent answered according to the false story provided to him. The respondent later admitted to the Immigration Judge that the story he related to the asylum officer "was false." The asylum officer did not testify before the Immigration Judge regarding what transpired at the interview, and no written record of the interview was presented to the Immigration Judge. The respondent has not alleged that he was not put under oath by the asylum officer, but there is no affirmative evidence that an oath was administered.


An alien applying for suspension of deportation bears the burden of establishing statutory eligibility for the relief as well as showing that he warrants a favorable exercise of discretion. See section 244(a)(1) of the Act, 8 U.S.C. § 1254(a)(1) (1994). To be statutorily eligible for suspension of deportation, an alien seeking relief must show that he has been physically

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present in the United States for a continuous period of not less that 7 years immediately preceding the date of such application;2 that during such period he was and is a person of good moral character; and that deportation would result in extreme hardship to the alien or his spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence. Id.

Section 101(f)(6) of the Act states that "[n]o person shall be regarded as, or found to be, a person of good moral character who . . . has given false testimony for the purpose of obtaining any benefit under this Act." This provision of the Act has been the subject of numerous judicial and administrative decisions. The Supreme Court has held that section 101(f)(6) of the Act does not impose a materiality requirement for false testimony, but noted that such testimony "is limited to oral statements made under oath . . . with the subjective intent of obtaining immigration benefits." Kungys v. United States, 485 U.S. 759, 780 (1988). Hence, false statements which appear in an application, even if the application bears a statement of oath, do not constitute testimony within the meaning of section 101(f)(6) of the Act. Matter of L-D-E-, 8 I&N Dec. 399 (BIA 1959). However, where false statements are uttered orally under oath, they have been held to constitute false testimony within the meaning of section 101(f)(6) of the Act. See, e.g., Matter of Barcenas, 19 I&N Dec. 609, 612 (BIA 1988) (false statements at deportation hearing). Moreover, it has long been held that such statements need not be uttered in administrative or judicial proceedings, but can include statements made under oath to government officials, including Service officers and consular officials. Matter of Namio, 14 I&N Dec. 412, 414 (BIA 1973) (false statement under oath to a border patrol agent); see also, e.g., Liwanag v. INS, 872 F.2d 685 (5th Cir. 1989) ("false testimony" to a Service officer during an investigation); United States v. Baumann, 764 F. Supp. 1335 (E.D. Wis. 1991) ("false testimony" both in application for a visa at an American consulate and in an application for citizenship); United States v. Koziy, 540 F. Supp. 25 (S.D. Fla. 1982) (same); Matter of Ngan, 10 I&N Dec. 725 (BIA 1964) ("false testimony" to a Service officer in connection with processing a visa petition); Matter of G-L-T-, 8 I&N Dec. 403 (BIA 1959) ("false testimony" to a Service officer in connection with an application

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to replace a certificate of citizenship); cf. Matter of M-, 9 I&N Dec. 118 (BIA 1960) ("false testimony" to an Immigration officer at an airport with voluntary and timely retraction). Likewise, false statements made under oath during an interview regarding an application for naturalization have been consistently held to constitute false testimony. In re Yao Quinn Lee v. United States, 480 F.2d 673 (2d Cir. 1973); Berenyi v. District Director, INS, 352 F.2d 71 (1st Cir. 1965), aff'd, 385 U.S. 630 (1967); United States v. Abdulghani, 671 F. Supp. 754 (N.D. Ga. 1987); see also Kungys v. United States, supra, at 806 (White, J., dissenting).

The Ninth Circuit, in which this case arises, has held that such oral statements must be made "to a court or tribunal." Phinpathya v. INS, 673 F.2d 1013, 1018-19 (9th Cir. 1981), rev'd on other grounds, 464 U.S. 183 (1984). Thus, this requirement by the court adds another element to the analysis whether an alien has given "false testimony" within the scope of section 101(f)(6) of the Act. The respondent contends that his admitted oral misrepresentations to an asylum officer do not constitute "false testimony," because such statements were not made to "a court or a tribunal." As the respondent acknowledges, the Ninth Circuit has not defined what constitutes "a court or tribunal." However, in a decision issued while this appeal was pending, the Ninth Circuit held that false statements made under oath during a naturalization examination constitute false testimony within the meaning of section 101(f)(6) of the Act. Bernal v. INS, 154 F.3d 1020 (9th Cir. 1998). For the reasons set forth below, we find it appropriate, consistent with Bernal, to rule that false statements under oath to an asylum officer, whose authority to administer oaths and take testimony is parallel to that of a naturalization examiner, and whose authority to grant benefits under the Act is arguably greater, likewise constitute "false testimony" for purposes of section 101(f)(6) of the Act.


The respondent argues that asylum officers cannot constitute a "tribunal" because they are not "judges" and "have not been given judicial power as has been conferred upon them by law as an immigration judge." However, it is clear both that the definition of a tribunal is broader than the scope of those holding judicial office, and that Immigration Judges are not the only "tribunal" within the immigration system.

Webster's Dictionary defines "tribunal" as "a person or body of persons having authority to hear and decide." Webster's Third New International Dictionary 2441 (P. Gove ed. 1986). According to Black's Law Dictionary 46 (6th ed. 1990), an "administrative tribunal" is "a particular administrative agency before which a matter may be heard or tried as distinguished

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from a judicial forum." In United States ex rel. Alaska Smokeless Coal Co. v. Lane, 250 U.S. 549, 551 (1919), the Supreme Court found that the General Land Office is a tribunal, not merely a ministerial office, because "like any other tribunal[,] its institution and purpose defin[e] and measur[e] its power, the determining elements being those of fact and law, upon which necessarily judgment must be passed."

Thus, the fundamental attributes of an administrative tribunal are its authority to hear and decide; its administrative nature; and its authority to render judgments in accordance with the facts and the law. Based on these characteristics, we can readily...

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