MATTER OF M— 

In DEPORTATION Proceedings 

A-10291348 

Decided by Board October :28, 1960 

False testimony—Section 101(f)(6)—Timely retraction overcomes bar to relief. 

An alien is not barred by section 101(f) (6) of the Immigration and Nationality Act from establishing good moral character where he has made a voluntary and timely retraction of attempted false testimony in statement made 

before immigration officer. 

CHARGE : 

Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2)]—Nonimmigrant crewman—remained longer. 

BEFORE THE BOARD 

DISCUSSION: The respondent appeals from a decision of the 

special inquiry officer denying him the privilege of voluntary departure in lieu of deportation. Deportability on the charge laid 

under section 241(a) (2) of the Immigration and Nationality Act 

is conceded (8 U.S.C. 1251(a) (2)). 

The respondent, a native and citizen of Italy, 82 years of ago, last 

entered the United States on July 10, 1956, through the port of 

Fort Lauderdale, Florida. He has remained continuously in the 

United States beyond the period of his admission as a seaman. He 

is deportable on the charge stated in the order to show cause. 

The respondent has applied for the privilege of voluntary departure in lieu of deportation (section 244(e) of the Immigration 

and Nationality Act, 8 U.S.C. 1254(e)). The special inquiry officer 

relies upon the provisions of section 101(f) (6) of the Immigration 

and Nationality Act (8 U.S.C. 1101(f) (6)1 to sustain his conclusion 

that the respondent is statutorily ineligible for voluntary departure. 

Counsel on appeal urges error in this conclusion. 

The special inquiry oficer finds that the respondent has not es- f

tablished good moral character for the period required by the statute 

because he (respondent) "has given false testimony" for the purpose 

of obtaining a benefit under the immigration laws. The basis for 

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this finding is a statement taken from the respondent by an immigration officer at the International Airport, San Juan, Puerto Rico, 

on July 24, 1960. The respondent in his statement to the immigration officer attempted to establish that he was an alien lawfully 

residing in the United States. However, prior to the completion of 

the statement he volunteered that he had entered the United States 

unlawfully. 

Counsel, inter alia, urges that respondent's statement is not "false 

testimony" as a matter of law because there was "timely recantation" 

of his own volition and without delay. 

"Testimony" is the evidence given by a competent witness under 

oath or affirmation, as distinguished from writings and other sources 

(Edelstein v. United States, 149 Fed. 636). We have held that where 

an alien in an immigration proceeding testifies falsely under oath 

as to a material fact but voluntarily and without prior exposure of 

his false testimony comes forward and corrects his testimony, perjury has not been committed and the charge based thereon is not 

sustained (Matter of 1?-1i—, 3-823, B.I.A., Dec. 13, 1949, and 

cases cited). 

Respondent's testimony in the statement taken from him on July 

24, 1960, falls squarely within the purview of our holding in Matter 

of R—R----, supra. The respondent voluntarily and prior to any 

exposure of the attempted fraud corrected his testimony that he was 

an alien lawfully residing in the United States. 

We find no basis for applying a different rule with respect to a 

voluntary recantation without prior exposure when an application 

for discretionary relief under section 244(e) is involved than we 

apply when the issue is one of deportation or exclusion based upon 

the commission of prejury. We have held that the "false testimony" 

contemplated by section 101(f) (6), supra, must be given under oath? 

By the same token, an oath or affirmation is an essential element of 

the crime of perjury. 

As a matter of law, the respondent is not barred by the provisions 

of section 101(1) (6), supra, from establishing his good moral character. We conclude that he has met the burden of establishing good 

moral character for the statutory period. We also conclude that he 

is statutorily eligible for the relief he seeks. Applying the criteria 

set forth in Matter of M—, 4-626, B.I.A.. Apr. 22, 1952, the respond- 

'Mutter of 0- 6-208. B.I.A., July 13,, 1054. There is a conflict between the 

respondent's testimony and the transcript of respondent's statement as to 

whether the respondent was actually under oath'when the statement was taken. 

We will accept the respondent's testimony during the course of the hearing 

that he was actually under oath in light of our finding that there was an 

effective recantation. 

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ent's application for voluntary departure will be denied as a mattei 

of administrative discretion. An appropriate order will be entered. 

ORDER: It is directed that the appeal be and the same is hereby 

dismissed 

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