G

                             MATTER OF G-


                   in DEPORTATION Proceedings
                                 A-10808945
                        Doided by Board May 6, 1959

Crime involving moral turpitude-18 U.S.C. 1001—False writings in matter in
 which U.S. is involved—Does not involve moral turpitude.
Moral turpitude will not be found in the offense defined by the second part of
 18 U.S.C. 1001 (making false writings in a matter involving the United
 States) while the conflict among Circuits remains unresolved as to whether
 materiality is essential to support a conviction.

CHARGE:
  Order: Act of 1952—Section 241 (a) (4) (8 U.S.U. 1251(a) (4) J--Uonvicted
             of crime involving moral turpitude committed within five years
             after entry and sentenced to confinement for a year or more—Conspiracy to make and use false writings.

                           BEFORE THE BOARD

  Discussion: The Assistant Commissioner, Investigations, requests
that this Board reconsider its order of February 10, 1959, which
held that respondent was not deportable on the charge stated above.
The facts are fully set forth in previous orders. The issue is
whether mural turpitude is involved in a conviction under the second
part of 18 U.S.C. 1001 which, in brief, concerns the making of false
writings knowing them to contain false statements in a matter in
which the United States is involved.
  In similar laws, even as to statements made under oath, moral
turpitude is not found unless materiality is an element (Matter of
S—, 

, 361, footnote 15; Matter of G          , 

). Section 1001 does not require that the statement in-.
volved be under oath, and there is a "sharp conflict" between circuits
as to whether materiality is required (United States v. Quirk, 167
F. Stipp. 462. 464 (Ell. Pa., 1958) ). (The cases supporting the
different positions are listed in footnote 3 on page 464 of Quirk.
Four circuits require materiality (4th, 5th, and 6th) ; the Second
and Third Circuits hold that materiality is not an element.)
  The conviction in the instant case occurred in the Fifth Circuit
where materiality is required to obtain a conviction under the second

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 part of section 1001. The Service is of the opinion that since
materiality is an element of the conviction involved here, we must
rule that moral turpitude is involved. As far as the immigration
laws go, it is immaterial that conduct of the respondent may have
involved moral turpitude, if the law under which he was convicted
does not inherently involve moral turpitude (Matter of S , supra,
pp. 360-362). So, it is with the law itself, not the respondent's
conduct, that we are concerned. Without materiality, we cannot
find that the law involves moral turpitude. There is a conflict in
the jurisdiction as to whether materiality is involved. A substantial
doubt exists as to whether the law does require materiality. Such
a doubt will exist until the matter is clarified by either the Supreme
Court or by legislation. Doubt must be resolved in favor of the
alien. Until clarification comes, we cannot hold that the Service
has borne its burden of establishing that the alien has been convicted of a crime involving moral turpitude.
  Moreover, let us see where the Service view will lead. We shall
assume for the purpose of this discussion that moral turpitude is
involved if the law requires materiality. If the conviction oceure in
 a jurisdiction requiring materiality, the alien will he deportable.
 What should be done as to a person who had been convicted in the
 jurisdiction where materiality is not required? Could it be held
 that such a person has been convicted of a crime involving moral
 turpitude? We think not. In the court where he was convicted
 materiality is not an element; it need not be alleged nor proven.
 This person has been convicted under a law which does not inherently involve moral turpitude. We would be required to find that
 he was not deportable. Then we would be faced with the situation
that persons convicted of identical ulTelist0 under identical la wa
 would be deportable if convicted in one jurisdiction but not deportable if convicted in another jurisdiction. This cannot be. A Federal law must be given a uniform interpretation for immigration
purposes. Until the conflict is resolved, the law can be interpreted
uniformly only by holding that a person convicted under the portion
with which we are concerned has not been convicted of a crime'
involving moral turpitude.
   Order : It is ordered that the motion be and the same is hereby
denied.




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