ESPINOSA

 Interim Decision #1250




                            MATTER OP ESPINOSA

                    In DEPORTATION Proceedings

                                 A-11078954

                    Decided by Board August 16, 1962
Respondent, who was Indicted for abetting a nonimmigrant visitor "to make
 a false and fraudulent statement" in an application for an extension of stay,
 and who was convicted of an offense defined by the third part of 18 U.S.C. 1001.
 which relates to the making or use of a false writing knowing it to contain any
 false, fictitious or fraudulent statement, has not been convicted of a crime
 that involves moral turpitude.
OaAaGE:

  Order : Act of 1952—Seetion 241 (a) (4) [8 U.S.C. 1251 (a) (4)3—Convicted of
            crime involving moral turpitude committed within fire years after
             entry and sentenced for a year or more ; 18 U.S.C. 2 and 1001.


   This is an appeal by the Service from the order of the special inquiry
officer 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 riles, of guilty under 

 and 1001
and given a suspended sentence of a. year. Deportation proceedings
were brought on the theory that respondent had been convicted of a,
crime involving moral turpitude committed within five years after
his entry for which he had been sentenced to confinement for a year.
The special inquiry officer terminated proceedings on the ground that
the record did not establish that respondent's conviction was for a
crime involving moral turpitude.
  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

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turpitude. Section 1001 of 18 U.S.C. consists of three parts. In
substance, a crime is created in. the first part by the misrepresentation
of a. material fact by scheme, in. the second part by the making of "any
false, fictitious or fraudulent statements", and in the third part by the
use of a false writing knowing it to contain "any false, fictitious or
fraudulent statement".
   The special inquiry officer held that respondent had been convicted
under the third part. He terminated proceedings following a precedent which held that a conviction under the third part does not involve
moral turpitude because of the conflict in the various circuits as to
whether materiality is required (Matter of            8 I. & N. Dee. 315).
   The Service contends that the conviction was under the second clause
and that since the indictment to which the respondent pled guilty
charged him with the making of a false and fraudulent statement,
respondent must be deemed to have been convicted for making a
fraudulent statement. The Service urges that since fraud is involved,
the crime must be held one which involves moral turpitude. The special inquiry officer was of the belief that even if the conviction had
been under the second part of section 1001, moral turpitude would not
be involved because the same words being used to spell out the crime
in the second and third clauses there still would remain a doubt as to
whether materiality is involved. Counsel's defense is based on the
belief that respondent committed the crime without any desire to
violate the law. He expresses his belief that the violation of law
occurred 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 considerable 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 making or use of a document containing a misrepresentation and that such a conviction cannot at the present serve
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

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not establish that there was a conviction for fraud rather than for false
misrepresentation. The second clause of 18 U.S.O. 1001 lists the commission of several note which can constitute the crime. These acts
are set forth in the disjunctive. Thus, it is a crime to make a false
writing knowing it to contain a "false, fictitious or fraudulent statement" (emphasis supplied). In an indictment the elements of the
crime can be set forth in the conjunctive; however, a defendant can be
found guilty upon proof of the commission of any one of the acts
charged (United States v. Wells, 

 (Del. 1959) ).
Under such circumstances, there is a question as to whether the conviction was based upon the existence of one element rather than another.
We cannot assume that the respondent pleaded guilty to fraudulent
conduct rather than false conduct. Since the burden is upon. the Service, we must take the case in the light most favorable to the respondent
and assume that the plea of guilty concerned a false rather than a
fraudulent statement (Matter of B-111—, 61. & W. Dec. 806; Matter of
B—, 4 I. & N. Dec- 444, 448-451; Matter of B—, 

, 496) .
The appeal of the examining officer will be dismissed.
   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.




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