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: 

Jonathan E. Avirom, Esquire 

22b 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. R59). 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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Interim Decision #2221 

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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Interim Decision #2221 

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. 1Since 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 LD—E—, 8 I. & N. Dec. 399 (BIA, 1959), overruling Matter of Z—, 5 I. & N. Dec. 514 

(BIA, 1953). 

3Matter 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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Interim Decision #2221 

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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Interim Decision #2221 

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. 

416