E-092142.
Decided by Board October 8, 1954.
Crime involving moral turpitude — Petty offense — Effect of section 4 of the Act of September 3, 1954, P.L. 770, on deportability under section 241 (a) (1) of Immigration and Nationality Act.
An alien presently in the United States who was convicted in 1906 for a misdemeanor classifiable as a petty offense is not now deportable under section 241 (a) (1) of the Immigration and Nationality Act as one who has been convicted for crime prior to entry. If such alien were outside the United States and applying for admission, he would not be excludable by reason of such conviction because of the provisions of section 4 of the Act of September 3, 1954, P.L. 770. Therefore, he is not deportable in expulsion proceedings.
CHARGE:
Warrant: Act of 1952 — Excludable at time of entry as one convicted for crime, to wit: Petit larceny.
BEFORE THE BOARD
Discussion: This appeal relates to a 74-year-old male alien, native and citizen of Canada, retired. The special inquiry officer has found deportability on the charge in the warrant of arrest and has entered an order for deportation. Exception is taken to the conclusion that under section 241 (a) (1) of the Immigration and Nationality Act of 1952, the respondent is subject to deportation.
The history of the case shows that respondent first entered the United States in May or June 1900 by train at Detroit, Michigan, allegedly for permanent residence. This finding is supported by his sworn statements and his testimony. He asserts, and his testimony and sworn statements are undisputed, that he has resided in the United States continuously to the present time except several temporary visits to Canada after which he returned to this country in 1903, 1908 and 1912 or 1913. His absences were for periods of less than one year. He last reentered on an uncertain date in the summer of 1912 or 1913. His entries have not been verified. Documentary evidence shows he entered the United States prior to October 1, 1906. Considering his residence status, we find that under applicable regulations he, a Canadian citizen, who entered the United States prior to October 1, 1906, may, for reentry purposes, be deemed to have been lawfully admitted for permanent residence in 1900 (8 C.F.R. 110.38 (prior); and 8 C.F.R. 4.2 (b) (current)). His reentries in 1903, 1908, and 1912 or 1913, after temporary visits to Canada, did not break the continuity of his lawful domicile because the record indicates that during such absences he intended to return to this country and resume former residence.
The sole ground for deportability is predicated on the conviction of the alien in Criminal Court, Cook County, Chicago, Illinois on plea of guilty to the charge that on July 6, 1906, he committed the crime of petit larceny (theft of a suitcase of the value of $15). He was sentenced on September 4, 1906, to 30 days in the House of Correction in Chicago. At the time the special inquiry officer rendered his decision on June 5, 1953, he appropriately found that the respondent was subject to deportation as an alien who was excludable at the time of his reentries in 1908 and 1912 or 1913, because he had been convicted prior thereto of a crime involving moral turpitude, to wit: petit larceny.
We now have before us section 4 of Public Law 770, enacted by the 83d Congress on September 3, 1954, for the relief of persons convicted of a misdemeanor classifiable as a petty offense, which reads as follows:
Section 4. Any alien who is excludable because of the conviction of a misdemeanor classifiable as a petty offense under the provisions of section 1 (3) of Title 18, U.S.C., by reason of the punishment actually imposed or who is excludable as one who admits the commission of such misdemeanor may hereafter be granted a visa and admitted to the United States, if otherwise admissible; provided that the alien has committed only one such offense.
Section 1, Title 18, U.S.C.A., classifies the offenses under that title:
Offenses classified —
Notwithstanding any Act of Congress to the contrary:
(1) Any offense punishable by death or imprisonment for a term exceeding one year is a felony.
(2) Any other offense is a misdemeanor.
(3) Any misdemeanor, the penalty for which does not exceed imprisonment for a period of six months or a fine of not more than $500, or both, is a petty offense.
The question to be resolved in view of the statutes just quoted, is whether the crime for which the respondent was convicted on plea of guilty on September 4, 1906, is a misdemeanor classifiable as a petty offense within 18 U.S.C.A. 1 (3).
The legislative history of the crime of larceny in the State of Illinois, the jurisdiction where respondent was convicted in 1906, shows that since at least 1879, the crime of larceny has been divided into two grades, the value of the stolen property being the standard by which the punishment to be inflicted is determined. The statutory law, as amended and in effect between 1879 and 1921, provided that the convicted person be punished in the penitentiary for a term of one to ten years if the value of the property exceeded $15; and that if the value of the stolen property was less than $15, the convicted person should be confined in the county jail not more than one year and fined not exceeding $100. By amendment in 1921, larceny of property of the value of not more than $15 was designated a misdemeanor; and larceny of property of the value of more than $15 was designated a felony. ( People v. Purcell, 269 Ill. 467, 109 N.E. 1007; and People v. Crane, 356 Ill. 276, 190 N.E. 355.)
Sec. 37.328, Illinois Criminal Code, reads: Larceny defined. * * * Larceny is the felonious stealing, taking and carrying, leading, riding or driving away the personal goods of another. Larceny shall embrace every theft which deprives another of his money or other personal property, or those means or muniments by which the right and title to property, real or personal, may be ascertained. Private stealing from the person of another, and from a house in the day time, shall be deemed larceny. Larceny may also be committed by feloniously taking and carrying away any bond, bill, note, receipt or any instrument of writing of value to the owner.
Sec. 37.330, as amended in 1921, reads: Punishment — Value of property. * * * Every person convicted of larceny if the property exceeds the value of fifteen dollars, or if the property is stolen from the person of another, shall be imprisoned in the penitentiary not less than one, nor more than ten years; if the property stolen has not been stolen from the person of another and is of the value of fifteen dollars, or less, the person convicted shall be confined in the county jail, or sentenced to labor in the work-house of the county, city or town where the conviction is had, or on the streets or alleys of the city, or on the public roads in the county, or to such labor under the direction of the sheriff as the county board may provide for, not exceeding one year, and fined not exceeding one hundred dollars. (This section of law was further amended in 1951 to characterize the offenses (larceny) involving stolen property valued at $50 or less as misdemeanors; and offenses (larceny) involving the value of stolen property of more than $50 as felonies.)
Having determined from the statutory law of the State of Illinois that the respondent was convicted of a misdemeanor, the maximum punishment being imprisonment in the county jail not exceeding one year and a fine not exceeding $100, the crime is easily and readily classifiable as a petty offense under section 1 (3) of Title 18, U.S.C.A. Our conclusion is confirmed by the legislative history of the Act of September 3, 1954 (Public Law 770), wherein it is specified that the benefits of the statute are intended for those who can meet two requirements or standards, namely, the crime must be an offense which if committed in the United States would be a misdemeanor (not punishable by imprisonment for more than one year); and, the offense must be one for which the actual penalty imposed in the particular case was imprisonment not to exceed six months or a fine not to exceed $500, or both. Applying this test, we find that the respondent meets the requirements and therefore comes within section 1 (3), Title 18, U.S.C.A., in that his conviction on September 4, 1906, was for a misdemeanor, classifiable as a petty offense.
Congressional Record — Senate Debate on S. 2862 (August 20, 1954, p. 14609).
The respondent is now in the United States. If he were outside the jurisdiction of this country and applying for admission, he would not be excludable because of his conviction for petit larceny in Illinois in 1906, because of the provisions of section 4 of the Act of September 3, 1954 (Public Law 770) enacted for the relief of persons convicted of petty offenses. Inasmuch as that statute would be beneficial to the respondent should he be outside the United States seeking documentation to enter, we believe that by the same reasoning he should be relieved from deportation in expulsion proceedings. In the situation we find that respondent is not now deportable by reason of his conviction for petit larceny on September 4, 1906, a petty offense. The charge in the warrant of arrest is not sustained. The appeal will be sustained and the proceedings terminated.
Order: It is ordered that the appeal in this case be sustained and that the proceedings under warrant of arrest dated March 18, 1953, be terminated.