A-9726926
Decided by Central Office October 12, 1948 Decided by Board January 26, 1949
Crime involving moral turpitude — Demanding property with menaces in violation of section 451 of the Criminal Code of Canada (1936).
Demanding property with menaces in violation of section 451 of the Criminal Code of Canada (1936) is an offense which involves moral turpitude.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1917 — Convicted and admits commission of crime involving moral turpitude; to wit: Demand with menaces in violation of section 451 of the Criminal Code of Canada.
BEFORE THE CENTRAL OFFICE
(October 12, 1948)
Discussion: The appellant, 32 years of age, native and citizen of Canada, applied for admission into the United States at Buffalo, N.Y., on July 2, 1948, for admission as a temporary visitor for two weeks. A Board of Special Inquiry found him to be inadmissible on the grounds stated above and he has appealed from the excluding decision.
The record establishes that the appellant was excluded by a Board of Special Inquiry at the port of Buffalo, N.Y., on April 5, 1948, on the grounds of no visa, no passport, admitted commission of crime, to wit: accessory to extortion, and previously arrested and deported, no permission to reapply. At the conclusion of that hearing the alien was requested to appear within 60 days for the purpose of reopening the hearing in order to introduce additional evidence and testimony regarding his conviction on January 13, 1936. Upon his failure to comply with such request the case was closed as an abandoned application on October 15, 1946. The alien was subsequently granted permission to reapply for admission after deportation.
On February 20, 1936, in the county court judge's criminal court of the county of Wentworth, Ontario, Canada, the respondent was convicted upon his plea of guilty of violation of section 451 Canadian Criminal Code and was sentenced to imprisonment for a term of 18 months with a further indeterminate sentence of not more than 12 months. The conviction was had upon an indictment charging that the appellant on January 13, 1936, "did unlawfully send, knowing the contents thereof, a letter demanding of one, Eli Luchuk, with menaces and without any reasonable or probable cause a sum of $200 contrary to the provisions of section 451 of the Criminal Code." The appellant testified that he and a friend sent a threatening letter in January 1936, to a bookmaker demanding $200 and that he was arrested when they went to the appointed place to collect the money; and admitted that it was extortion.
Section 451 of the Canadian Criminal Code relating to the crime of demanding property with menaces, reads as follows:
Everyone is guilty of an indictable offence and liable to 14 years' imprisonment who sends, delivers, or utters, or directly or indirectly causes to be received, knowing the contents thereof, any letter or writing demanding of any person with menaces, and without any reasonable or probable cause, any property, chattel, money, valuable security, or other valuable thing.
The word "menaces" as used in this section is equivalent to threat. R. v. Tomlinson, 1 Q.B. 706 (1895). The threat must be such as would be reasonably calculated to overcome the will of a man of ordinary firm mind. R. v. Sotherton, 6 East 126 (1805). It is a menace within the meaning of this section when one threatens either to do violence to the person of another or to commit acts calculated to injure the property or character of another. R. v. Boyle, 3 K.B. 339 (1914). The Solicitor of Labor has held that a statute with very similar wording, to wit: With intent to extort, unlawfully depositing in a post office of the United States matter containing threat to injure the person or property of the addressee in violation of section 338 — A, title 18, U.S.C., involves moral turpitude (see memorandum of Solicitor of Labor, May 19, 1934, file No. 55844/988). It is concluded that the gravamen of the violation set forth in section 451 of the Canadian Criminal Code lies in the extortion with menaces or threat and that the crime is one involving moral turpitude. The finding of inadmissibility by the Board of Special Inquiry is sustained.
Findings of Fact: Upon the basis of the evidence presented, it is found:
(1) That the appellant is an alien, native and citizen of Canada;
(2) That the appellant seeks admission into the United States as a temporary visitor for pleasure for a period of 2 weeks;
(3) That the appellant was convicted on his plea of guilty on February 20, 1936, in the county court judge's criminal court, county of Wentworth, Ontario, Canada, of the crime of Demand with menaces in violation of section 451 of the Canadian Criminal Code.Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 3 of the Immigration Act of February 5, 1917, the appellant is inadmissible to the United States on the ground that he has been convicted of and admits the commission of a crime involving moral turpitude, to wit: Demand with menaces in violation of section 451 of the Canadian Criminal Code.
The appellant, single, is without immediate family ties in the United States. In addition to the offense already set forth he was arrested on April 26, 1933, and on May 17, 1933, on a charge of vagrancy.
Recommendation: It is recommended that the excluding decision of the Board of Special Inquiry be affirmed.
So ordered.
Discussion: This case is before us on appeal from an order of the Commissioner dated October 12, 1948, affirming the appellant's exclusion by a Board of Special Inquiry on the grounds noted above. Counsel during oral argument on appeal urges that the appellant be admitted to the United States for a short time and in support thereof he submitted a letter from the chief of constables office, Hamilton, Ontario, Canada, attesting to the appellant's good reputation in the community wherein he resides.
The record relates to a native and citizen of Canada, 32 years of age, who applied for admission to the United States as a temporary visitor at Buffalo, N.Y., on July 2, 1948. He was found inadmissible and ordered excluded by a Board of Special Inquiry.
The Commissioner in his order of October 12, 1948, has found the appellant inadmissible to the United States as one who admits and has been convicted of a crime involving moral turpitude. With this finding we agree. However, the record establishes that the appellant is the father of an 8-year-old son residing in the United States. He has not seen his son for 2 years. He testified that he contributed to the support of his child until the spring of 1947. Since that time he has not heard from nor does he know the exact whereabouts of his son. He now wishes to enter the United States for the purpose of locating and visiting his child. The appellant has been steadily employed by the National Steel Car Corp., Hamilton, Ontario, since May 1946. Prior to the latter employment he had been sailing on United States vessels for several years. The record establishes that the appellant has had no police or criminal record since his arrest and conviction in 1936. On the evidence of record it appears that the appellant has effectively established his rehabilitation.
Upon consideration of the entire record we will authorize the appellant's temporary admission into the United States under the ninth proviso to section 3, act of 1917, as amended, for a temporary visit not to exceed 2 weeks, if otherwise admissible than as one who has been previously found excludable as one who has been convicted of or admits the commission of a crime involving moral turpitude.
Order: It is directed that the alien be admitted to the United States under the ninth proviso to section 3, act of 1917, as amended, for a temporary visit not to exceed 2 weeks, if otherwise admissible than as one who has been previously found excludable as one who has been convicted of or admits the commission of a crime involving moral turpitude; to wit: Violation of the provisions of section 451 of the Criminal Code of Canada.