A-7746359.
Decided by Board January 13, 1955.
Crimes involving moral turpitude — Section 56-1016 of the Arizona Employment Security Act of 1941.
Violation of section 56-1016 of the Arizona Employment Security Act of 1941 (false statement or concealment to obtain benefits under any employment security law) is a crime involving moral turpitude.
EXCLUDABLE:
Act of 1952 — Section 212 (a) (9) — Admission of and conviction for a crime involving moral turpitude, false statements to obtain benefits under the Arizona Employment Security Act.
BEFORE THE BOARD
Discussion: This case is before us on appeal from the decision of a special inquiry officer dated October 29, 1954, excluding the alien under section 212 (a) (9). Appellant, a 43-year-old native and citizen of Mexico, sought admission to the United States at Douglas, Arizona, on October 28, 1954, as a border crosser returning to his employment in the United States. On that occasion, he presented the required alien registration receipt card.
Appellant was originally admitted to the United States for permanent residence on December 17, 1943, at Douglas, Arizona, as a nonquota immigrant under section 4 (c) of the act of 1924. Since that time he has maintained his status as a commuter while living in Agua Prieta, Sonora, Mexico.
In Matter of H---- O----, A-7675485, 5 IN Dec. 716 (B.I.A., 1954), 22 L.W. 2459, question was posed whether the Immigration and Nationality Act of 1952 ( 66 Stat. 163; 8 U.S.C. 1101) has restricted, changed, or otherwise limited the long-established system of commuter admissions. The Board held that the practice of considering commuters as permanent residents has not been disturbed by the act of 1952, but rather has impliedly received congressional approval.
Appellant was convicted on October 27, 1954, on a plea of guilty in the Justice Court, Cochise County, Arizona, of making false statements to obtain benefits under the Employment Security Act by falsely stating that he lived in Douglas, Arizona, although he and his family actually lived in Agua Prieta, Sonora, Mexico. Appellant was sentenced to 60 days' imprisonment on each of 14 counts, with a total sentence of 840 days' imprisonment being suspended by the court. The court noted that the total amount of benefits obtained by appellant was $340.
The pertinent sections of the Arizona Employment Security Act of 1941, as amended (56-1001 to 56-1022) provide as follows:
56-1016. Penalties. — (a) Whoever makes a false statement or representation knowing it to be false or knowingly fails to disclose a material fact, to obtain or increase any benefit or other payment under this Act, either for himself or for any other person, or under an employment security law of any other state, of the Federal Government, or of a foreign government, shall be punished by a fine of not less than twenty-five dollars ($25.00) nor more than two hundred dollars ($200.00), or by imprisonment for not longer than sixty (60) days, or by both such fine and imprisonment; and each such false statement or representation or failure to disclose a material fact shall constitute a separate offense.
56-1004. Benefit Eligibility Conditions. — An unemployed individual shall be eligible to receive benefits with respect to any week only if the Commission finds that: * * *
(d) Residence. — He is residing in Arizona at the time he registers for work and files a claim for benefits * * *.
Since section 56-1016 (a) includes the word "knowingly" in its phraseology, recent comments by the Supreme Court on the use of this word in criminal statutes is relevant in the present situation. In Morissette v. United States, 342 U.S. 246 (1952), the Court stated at pages 264, 265:
Congress has been alert to what often is a decisive function of some mental element in crime. It has seen fit to prescribe that an evil state of mind, described variously in one or more such terms as "intentional," "willful," "knowing," "fraudulent" or "malicious," will make criminal an otherwise indifferent act, or increase the degree of the offense or its punishment. Also, it has at times required a specific intent or purpose which will require some specialized knowledge or design for some evil beyond the common-law intent to do injury. The law under some circumstances recognizes good faith or blameless intent as a defense, partial defense or as an element to be considered in mitigation of punishment.
Therefore, the word "knowingly" connotes a purposeful intent in connection with a conscious or deliberate act of wrongdoing. In the instant case, appellant consciously or deliberately stated that he was a resident of Douglas, Arizona, with the purposeful intent of deceiving and obtaining unemployment benefits to which he was not entitled.
In addition, we feel that the phraseology of sections 56-1016 and 56-1004 clearly implies that an intent to defraud through the utilization of false statements on the unemployment application is an essential element of the offense in question. The Supreme Court has, of course, determined that offenses containing an inherent fraud element involve moral turpitude ( Jordan v. DeGeorge, 341 U.S. 223 (1951)).
Hence, we conclude that the offense defined in section 56-1016 of the Arizona Code is a crime involving moral turpitude. Cf., Matter of L----, T-2760542, 5 IN Dec. 705 (B.I.A., 1954); Matter of W----, E-137668, 5 IN Dec. 759 (B.I.A., 1954). Thus, appellant was properly excluded under section 212 (a) (9) and the appeal is accordingly dismissed.
In Matter of L----, T-2760542, 5 IN Dec. 705, B.I.A., March 5, 1954; 23 L.W. 2120, the Board considered a conviction under section 101 (a) of the California Unemployment Insurance Act. In that instance, the alien had falsely stated that he was unemployed, when he was actually working, and received benefits to which he was not entitled. The offense was found to be one involving moral turpitude, since an intent to defraud is an essential element of the crime.
Order: It is hereby ordered that the appeal be dismissed.