Matter of Namio

• Decision Date: 17 August 1973
• Docket Number: A-19356812,Interim Decision Number 2221
• Citation: 14 I&N Dec. 412
• Parties: MATTER OF NAMIO In Deportation Proceedings
• Court: U.S. DOJ Board of Immigration Appeals

14 I&N Dec. 412

MATTER OF NAMIO

In Deportation Proceedings

Interim Decision Number 2221

A-19356812

Board of Immigration Appeals

Decided by Board August 17, 1973

(1) An alien's false statements under oath to a border patrol agent in a routine question-and-answer interview preclude a finding of good moral character under section 101(f)(6) of the Immigration and Nationality Act.

(2) The alien's recantation of the false testimony approximately one year later when disclosure of its falsity was imminent was neither a voluntary nor timely retraction and, therefore, was ineffective to remove the bar to his establishing good moral character under section 101(f)(6) of the Act.

(3) In the absence of a showing of a valid basis for adjournment, an immigration judge's refusal to grant adjournment of the deportation hearing and counsel's subsequent withdrawal did not deprive the alien of a fair hearing where the attorney had represented him for approximately one year, the alien had been afforded ample opportunity to present testimony, and the hearing had progressed to the point of the immigration judge's rendering of his decision.

CHARGE:

Order: Act of 1952 — Sectlon 241(a)(2) [8 U.S.C. 1251(a)(2)] — Entered the United States without inspection.

ON BEHALF RESPONDENT: Jonathan E. Avirom, Esquire, 225 Broadway New York, New York 10007, (Brief filed).

ON BEHALF OF SERVICE: Irving A. Appleman, Appellate Trial Attorney.

This is an appeal from an order of an immigration judge, dated May 18, 1972, which found the respondent deportable as charged and denied his application for voluntary departure. The appeal will be dismissed.

The respondent is a 28-year-old male alien who is a native and citizen of Italy. He departed Italy on May 18, 1971 and arrived in Toronto, Canada on the following day. While in Toronto, he was contacted by an individual who identified himself to the respondent as "the man that your relatives told you to expect" (Tr. p. R-59). On the twenty-second of May 1971, both men journeyed to Montreal by bus. On the following day, the respondent was informed that if he walked down a particular street, at a designated time, he would be picked up and driven directly to New York. He was told to carry his passport and to leave his suitcases at a certain house. The respondent followed the instructions and was picked up as planned. He crossed the border without being examined or inspected by an immigration officer.

At approximately 8:15 p.m., on the same day, the respondent was apprehended by the border patrol. Shortly thereafter, while under oath, he made false statements to a border patrol agent. He falsely stated that he traveled to Montreal alone; he did not think it was necessary to stop at the border; he hitchhiked to the United States; he had three rides from Montreal to the United States; he did not know if he was in Canada or the United States when he was last picked up; and he did not know when he entered into the United States.

The following day, the respondent pled guilty, and was found guilty, of entering the United States without presenting himself for inspection by a United States immigration officer. On the same day, he was served with an order to show cause alleging that he was subject to deportation pursuant to section 241(a)(2) of the Immigration and Nationality Act.

At the respondent's first deportation hearing, on July 8, 1971, he admitted the truth of the factual allegations contained in the Order to Show Cause, conceded deportability, and was denied the privilege of departing voluntarily from the United States. The respondent appealed that decision to this Board and we remanded "to permit respondent to establish that he is eligible for voluntary departure and merits that relief as a matter of discretion." At the reopened hearing on May 18, 1972, the immigration judge again denied respondent's application for voluntary departure. However, rather than predicating his decision on administrative discretion as he had previously, the immigration judge concluded that the respondent was statutorily ineligible for relief under section 244(e) of the Immigration and Nationality Act. The respondent appealed that decision.

In order to qualify for the discretionary benefit of voluntary departure, the respondent must establish that he has been a person of good moral character for at least five years preceding his application. Section 101(f)(6) of the Act provides that:

No person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be established, is, or was —

(6) one who has given false testimony for the purpose of obtaining any benefits under this Act;

We agree with the determination of the immigration judge that he was statutorily precluded from finding that the respondent was a person of good moral character since the respondent made false statements, while under oath, to a border patrol agent on May 23, 1971.¹ Since relief under section 244(e) of the Act is not available unless the person who is seeking the discretionary benefit is found to be a person of good moral character, the immigration judge correctly denied the respondent's application for voluntary departure.

In two similar cases, Matter of G---- L---- T----, 8 I. & N. Dec. 403 (BIA, 1959) and Matter of Ngan, 10 I. & N. Dec. 725 (BIA, 1965), this Board held that false testimony given, while under oath, at a quasi-judicial hearing, constitutes false testimony within the meaning of section 101(f)(6) of the Act. Although these two cases involved a quasi-judicial setting and the instant case does not, we do not deem this distinction to be important. We think that restricting the statutory meaning of false testimony to statements made in an administrative, judicial or quasi-judicial proceeding would be an impermissible delimitation not intended by Congress.²

The respondent contended that he is eligible for voluntary departure because of his recantation. This argument is without...