A-3760634
Decided by Board March 16, 1956
Petty offense — Section 4 of the Act of September 3, 1954 — Relieves all disabilities flowing from conviction coming within its purview — Good moral character, section 101 (f) (3) of the 1952 act.
(1) The benefits of section 4 of the Act of September 3, 1954, are applicable to all aliens whether applying for admission for the first time or whether already residing in the United States, and an alien who is within the purview of that act is to be relieved of all disabilities flowing from his conviction.
(2) An alien is not precluded from establishing good moral character by the provisions of section 101 (f) (3) of the Immigration and Nationality Act if convicted within the statutory period during which good moral character is required of an offense which comes within the purview of section 4 of the Act of September 3, 1954.
(3) Therefore, while no finding is made as to whether the crime involves moral turpitude, an alien convicted in 1954 of "possessing slugs" (under section 1293-d of the New York Penal Law) is not considered as an alien who has been "convicted" of a crime involving moral turpitude within the meaning of section 212 (a) (9) of the Immigration and Nationality Act and is not precluded from establishing good moral character. Hence, having met the other statutory requirements of section 244 (a) (1) of the act, he is found eligible for suspension of deportation thereunder.
CHARGES:
Warrant: Act of 1952 — After admission as nonimmigrant, failed to comply with conditions of status.
Lodged: Act of 1952 — Excludable at entry — No immigration visa.
BEFORE THE BOARD
Discussion: This case is before us on appeal from a decision of a special inquiry officer denying the application for suspension of deportation and directing the respondent's expulsion.
Discussion as to deportability: The respondent is a 66-year-old male, native and citizen of Spain, who was admitted to the United States on January 13, 1932, as a nonimmigrant in transit from Cuba to Spain. He visited his brother and sister in the United States and then decided to remain. He last entered the United States about August 22, 1932, after a short visit in Canada. This entry cannot be verified. At that time he intended to remain in the United States permanently but he was not in possession of the required immigration visa. Hence, the entry was unlawful and he is deportable under the Immigration and Nationality Act on the lodged charge.
Discussion as to eligibility for suspension of deportation:
The respondent is unmarried and has been living with his married sister for the last 22 years. They have been living at the same address for 13 years and the respondent contributes to her support as she is not employed and there are marital difficulties between her and her husband. The respondent is a restaurant worker and earns about $50 weekly. His cash and bank funds amount to approximately $900 and he has other assets of approximately $1,000.
The special inquiry officer's denial of the application for suspension of deportation was predicated on a conclusion that the respondent was barred from establishing good moral character by reason of the provisions of section 101 (f) (3) of the Immigration and Nationality Act due to the fact that he had been convicted in 1954 of the offense of "possessing slugs." The sentence imposed was a $50 fine or 10 days' imprisonment and the respondent paid the fine. He had pleaded guilty to the offense on the advice of counsel but, from a transcript of the proceedings at the time sentence was imposed, it appears that he has consistently maintained that he was actually innocent. He asserted that he had loaned $5.00 to an acquaintance; that after trying to secure payment of the loan for some time, this individual offered him 30 or 40 subway tokens in payment; and that he (the respondent) did not realize that they were not genuine tokens.
We previously held that criminal intent and the element of fraud were not ingredients of the offense covered by section 1293-c of the New York Penal Law and that moral turpitude was not involved in a conviction thereunder for operating a subway turnstile with a metal disc instead of a nickel ( Matter of G----, 56158/190, 2 IN Dec. 235 (1945)). It appears that the respondent was convicted under a different provision (section 1293-d of the New York Penal Law) and the special inquiry officer held that fraud was an essential element of that offense. That statutory provision is as follows:
Any person who, with intent to cheat or defraud the owner, lessee, licensee or other person entitled to the coin-contents of any vending machine, coin-box telephone, turnstile or other receptacle designed to receive or be operated by lawful coin of the United States of America or a token provided by the person entitled to the coin-contents of such receptacle in furtherance of or in connection with the sale, use or enjoyment of property or service or the use or enjoyment of any telephone, telegraph, railroad or other facilities or service; or any person who, knowingly or having cause to believe that the same is intended for fraudulent or unlawful use on the part of the purchaser, donee or user thereof, shall manufacture, sell, offer to sell, advertise for sale, give away or possess any token, slug, false or counterfeited coin or any device or substance whatsoever intended or calculated to be placed, deposited or used in the operation of any such vending machine, coin-box telephone, turnstile or other receptacle, shall be guilty of a misdemeanor and punishable by imprisonment for not more than six months, or by a fine of not more than five hundred dollars or by both fine and imprisonment. The manufacture, sale, offering for sale, advertising for sale, distribution or possession of any such slug, device, substance or apparatus, shall be prima facie evidence of intent to cheat or defraud within the meaning of this section.
As we read this statutory provision, it relates to three classes of persons, namely, (1) any person who, with intent to cheat or defraud; or (2) any person who knowingly; or (3) any person having cause to believe that the same is intended for fraudulent or unlawful use. Under the third category, it would seem that there need be no intent to cheat or defraud or actual knowledge and that a person who was merely negligent might be convicted. However, for reasons indicated hereinafter, we deem it unnecessary to decide whether the offense covered by section 1293-d of the New York Penal Law involves moral turpitude.
Pursuant to section 4 of the Act of September 3, 1954 ( 68 Stat. 1145) the respondent could be granted a visa and admitted to the United States even if the violation of section 1293-d of the New York Penal Law involves moral turpitude. This is so because he has committed only one offense and it is classifiable as a petty offense under 18 U.S.C. 1 (3). The Service contends that the respondent is precluded from establishing good moral character by the provisions of section 101 (f) (3) of the Immigration and Nationality Act. That statutory provision is as follows:
Section 101. (f) For the purposes of this Act-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 — * * * (3) a member of one or more of the classes of persons, whether excludable or not, described in paragraphs (11), (12), and (31) of section 212 (a) of this Act; or paragraphs (9), (10), and (23) of section 212 (a), if the offense described therein, for which such person was convicted or of which he admits the commission, was committed during such period.
The Service relies heavily on the phrase "whether excludable or not" which appears in the first part of section 101 (f) (3) of the Immigration and Nationality Act. The contention is that, if an alien has been convicted of a crime involving moral turpitude within the period during which good moral character is required, then a finding of good moral character is precluded even though he would no longer be excludable. It is possible that the phrase was intended to reach certain aliens who would be inadmissible under section 212 (a) of the act only for a condition presently existing. For example, paragraph (11) of that section, which is mentioned in section 101 (f) (3), relates partly to aliens "who are polygamists" and it would seem logical that a finding of good moral character should not be made if the alien was not now but had been a polygamist at any time within the period during which he is required to establish good moral character notwithstanding the fact that he would not be inadmissible if he were now seeking to enter the United States.
Section 212 (a) of the Immigration and Nationality Act deals solely with aliens seeking admission to the United States. We believe it is probable that the framers of the legislation inserted the phrase "whether excludable or not" because it was considered necessary in order to guard against a possible interpretation that section 101 (f) (3) did not relate to aliens applying for voluntary departure and suspension of deportation since they were already in the United States whereas the term "excludable" relates technically only to an arriving alien who is seeking admission to this country.
The actual language of section 4 of the Act of September 3, 1954, makes it specifically applicable only to exclusion proceedings. Nevertheless, we have utilized the 1954 act to terminate deportation proceedings ( Matter of C----, E-092142, 6 IN Dec. 331 (1954); Matter of H----, A-6060587, 6, I. N. Dec. 435 (1954)). In Matter of Z----, E-072431, 23 Law Week 2164 (1954), the special inquiry officer held that an alien who had been convicted of forgery in 1952 and who had been granted a full and unconditional pardon in 1953 was precluded from establishing good moral character under section 101 (f) (3) of the Immigration and Nationality Act. We concluded that, although the offense had been committed within the period during which the alien was required to establish good moral character, he was not precluded from doing so by the provisions of section 101 (f) (3) inasmuch as he had been pardoned for the offense. A similar conclusion was reached in Matter of H----, T-1496858, 6, I N. Dec. 619 (Atty. Gen., Oct. 18, 1955), in which the alien had been convicted of two offenses involving moral turpitude during the period for which good moral character was required to be established but the convictions were expunged under a provision of the California Penal Code. These aliens were apparently within the literal meaning of section 101 (f) (3) of the Immigration and Nationality Act because each had been convicted of a crime involving moral turpitude and the offense had been committed within the period during which he was required to establish good moral character. The aliens would not have been excludable because of the convictions and the phrase "whether excludable or not," was also pertinent in their cases. Since we held that they were not precluded from establishing good moral character, it would seem that we should also hold that the respondent is not barred from doing so.
The phrase "whether excludable or not" was included in section 101 (f) (3) of the Immigration and Nationality Act at the time of its original enactment on June 27, 1952, and it is obvious that it was not inserted for the purpose of encompassing aliens who would not be excludable because of the provisions of the Act of September 3, 1954, which became law over two years later. Hence, the phrase has no unusual significance in connection with the 1954 act. Moreover, we do not believe that the question of whether the respondent is excludable or not is controlling. It so happens that he would not be excludable if he were to apply for admission to the United States in the future, but, assuming that he would be inadmissable, the basis of our decision would not be affected. We believe that the important consideration is not admissibility or inadmissibility but rather whether it is now proper to hold that there has been a conviction for crime within the meaning of section 212 (a) (9) of the Immigration and Nationality Act.
The Act of September 3, 1954, was remedial legislation and the general rule is that such legislation is to be liberally construed ( Sutherland on Statutory Construction (3d ed.), Vol. 2, section 3302). It is clear from the statement of the sponsors of section 4 of the Act of September 3, 1954, that they desired to alleviate certain hardships which had resulted from a strict interpretation of section 212 (a) (9) of the Immigration and Nationality Act. The 1954 act was intended to benefit certain aliens who would otherwise be inadmissable to the United States. As to those who had committed only one petty offense, the action of Congress was tantamount to a pardon for the offense and we think that it must be accorded a legal effect as comprehensive as an administrative pardon ( Matter of Z----, supra) or the expungement of the conviction record ( Matter of H----, supra).
The specific problem before Congress related to certain aliens who had been denied visas because they had committed trivial offenses. These were aliens who had never lived in the United States. We perceive no reason why a less favorable rule should be adopted with respect to the respondent who has resided in the United States for 24 years. We believe that Congress intended that the 1954 act should be applicable to all aliens whether they were applying for admission for the first time or whether they were already residing in the United States and that an alien who was within the purview of the act was to be relieved of all disabilities flowing from his conviction. In view of the foregoing, we conclude that the respondent cannot be considered an alien who has been "convicted" of a crime involving moral turpitude within the meaning of section 212 (a) (9) of the Immigration and Nationality Act. We also hold that he is not precluded from establishing good moral character by the provisions of section 101 (f) (3) of that act.
A check of the appropriate local and federal records has failed to reveal any criminal record against the respondent other than the case involving possession of slugs in 1954 which has been discussed above. In view of the respondent's age, the fact that he does not speak or understand English, and the absence of any other criminal record, we accept his version of the innocent manner in which he came into possession of the spurious subway tokens.
The respondent registered under the Selective Training and Service Act of 1940 and was not required to register under subsequent acts. Persons well acquainted with him have satisfactorily established that he is, and was during the seven years preceding his application, a person of good moral character. An independent investigation was entirely favorable to the respondent.
Because of the oversubscribed condition of the Spanish quota, the respondent would not be able to adjust his immigration status if voluntary departure and preexamination were granted. He resided in Cuba for approximately ten years before coming to the United States. Since he left Spain about 35 years ago, it is unlikely that, at his present age of 66, he would be able to secure employment or support himself either in Spain or Cuba. In view of his residence in the United States of 24 years and his advanced age, we conclude that the respondent's deportation would result in exceptional and extremely unusual hardship to the alien. He also meets the other statutory requirements of section 244 (a) (1) of the Immigration and Nationality Act, and it is our considered opinion that this case merits the granting of suspension of deportation.
Order: It is ordered that the special inquiry officer's order of October 6, 1955, be and the same is hereby withdrawn.
It is further ordered that the deportation of the respondent be suspended under the provisions of section 244 (a) (1) of the Immigration and Nationality Act.
It is further ordered that if the Congress takes no action adverse to the order granting suspension of deportation, the proceedings be cancelled, and the alien, if a quota immigrant at the time of entry and not then charged to the appropriate quota, be so charged as provided by law.
It is further ordered that in the event Congress takes action adverse to the order granting suspension of deportation, the alien shall be granted the privilege of voluntary departure at his own expense in lieu of deportation, and if the alien, after notification, fails to depart when and as required, the privilege of voluntary departure shall be withdrawn without further notice or proceedings, and the alien shall be deported from the United States in the manner provided by law on the lodged charge.