Interim Decision #2221
MATTER OF NAMIO
In Deportation Proceedings
A-19356812
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—Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Entered the United
States without inspection.
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Jonathan E. Avirom, Esquire Irving A. Appleman
22b Broadway Appellate Trial Attorney
New York, New York 10007
(Brief filed)
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
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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 dr 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 containvd in the
Order to Show Cause, conceded deporLability, 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
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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 respimdent'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(fX6) of the Act. Although, these two cases
involved a quasi-judicial setting and the instant ease does riot, 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?
The respondent contended that he is eligible for voluntary
departure because of his recantation. This argument is without
merit since we have consistently held that the recantation must be
voluntary and without delays An analysis of the facts of this case
indicates that the respondent did not retract his statement until
approximately one year later, and the retraction was not made
until it appeared that the disclosure of the falsity of the statements was imminent. It is evident that the recantation was
neither voluntary nor timely.
We conclude that the determination of the immigration judge
that the respondent was statutorily ineligible for voluntary departure was correct, and the respondent's appeal from that determination will be dismissed.
At the conclusion of the respondent's defense, his attorney
requested an adjournment so that he could further discuss certain
matters with his client. The requested adjournment was denied by
a The false statements were made during the course of a routine question-andanswer interview which was transcribed verbatim.
2 For a discussion of the necessity of construing the term "false testimony"
narrowly, see Sharaiha v. Hoy,
169 F.2d 539 (S.D. Cal., 1959) and Matter of L-
D—E—,
8 I. & N. Dec. 399 (BIA, 1959), overruling Matter of Z—,
5 I. & N. Dec. 514
(BIA, 1953).
3 Matter of M—,
9 I. & N. Dec. 118 (13 IA , 1960); Llanos-Senarrilos v. United
States,
177 F.2d 165 (C.A. 9, 1949). In Lianas, the court stated that "ON the
witness withdraws the false testimony of his own volition and without delay, the
false statement and its withdrawal may be found to constitute one inseparable
incident out of which an intention to deceive cannot rightly be drawn.
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the immigration judge on the ground that the attorney had
represented the respondent for approximately one year, and that
this was sufficient time to discuss all matters pertaining to a
proper defense. Respondent's attorney withdrew from the case
and departed from the hearing room. 4
The respondent contended that his right to a full and fair
hearing was abridged because of the immigration judge's denial of
his request for an adjournment. He further argued that the
immigration judge's action in closing the hearing without permitting an opportunity to find a substitute lawyer after the attorney
of record had withdrawn denied him due process of law.
In U.S. ex rel. Bilokumsky v. Tdd, 263 U.S. 149, 154 (1923), the
United States Supreme Court stated:
To render a hearing unfair, the defect, or the practice complained of, must
have been such as might have led to a denial of justice, or there must have
been absent one of the elements deemed essential to due process.
Since the immigration judge has the discretion to grant or deny
a motion to adjourn or postpone, 8 CFR 242.13, the only issue is
whether or not his decision to deny the motion deprived the
respondent of a full and fair hearing. This can be ascertained only
by analyzing the particular factual circumstances involved in this
case.
The adjournment was requested after deportation had been
conceded and the respondent had testified on direct examination
and cross examination. No other evidence was to be introduced by
the Immigration Service, and it was a fair conclusion by the
immigration judge that no other evidence would be presented by
the respondent. The immigration judge, in explaining why he
would not grant the motion to adjourn, stated to respondent's
attorney: "You have brought this case all the way up to the point
where I am about to make my decision. I cannot recognize your
withdrawal from the case." Thereupon, the respondent's attorney
withdrew from the proceeding, asserting that he could not properly represent his client unless an adjournment was granted. At
that time, the immigration judge stated his decision and closed the
hearing.
After carefully analyzing the record, we conclude that the
immigration judge was entirely justified in refusing to grant the
adjournment. Counsel for the respondent did not indicate that he
had any testimony which he would present at the adjourned
hearing, nor did he present a valid basis for demanding an
adjournment. The respondent was afforded ample opportunity to
4 The withdrawal by respondent's attorney was highly irregular and patently
injudicious.
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present testimony. In Moutsos v. Shaughnessy, 149 F. Supp. 116
(S.D.N.Y. 195'7), the court stated that "no party has an inflexible
right to adjournment. His only right is not to be deprived of an
opportunity to present testimony." We find that the denial of the
adjournment was entirely within the discretion of the immigration
judge and that respondent was not deprived of a fair hearing.
The final assertion of the respondent is that the immigration
judge acted al.} trarily in closing the hearing without affording
the responder - time to secure a substitute counsel. A careful
study of the hearing shows to our satisfaction that it was not
arbitrary or unreasonable to close the hearing at that time. The
respondent had presented his case and had been represented
throughout by counsel. As the immigration judge stated, there
was nothing-left but the decision.
We conclude that the respondent has not demonstrated that he
has been deprived of a full and fair hearing. The immigration
judge reasonably exercised his discretion in denying the adjournment and closing the hearing. Based upon the foregoing the
following order will be entered.
ORDER: The appeal is dismissed.
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