56041/710
Decided by the Board April 13, 1943.
Crime involving moral turpitude — Falsifying return with intent to evade payment of tax (Canada).
The crime of falsifying a tax return with intent to evade payment of tax in violation of section 112 (3) of the Special War Revenue Act, chapter 179, Revised Statutes of Canada, involves moral turpitude.
CHARGES:
Warrant: Act of 1924 — Remained longer than permitted.
Lodged: Act of 1924 — Immigrant without immigration visa. Act of 1917 — Convicted of crime involving moral turpitude prior to entry — evading payment of tax imposed by the Special War Revenue Act, Chapter 179, Revised Statutes of Canada.
Mr. C.G. Gatley, of Los Angeles, Calif., for the respondent.
Mr. Edward J. Ward, Board attorney-examiner.
STATEMENT OF THE CASE: The respondent is a native of Canada and a subject of Great Britain, 55 years of age, who last entered the United States at Miami, Fla., on March 13, 1940, and was admitted as a temporary visitor for a period of 3 weeks. He has received no extension of his stay, but has continued to remain in the United States. It therefore appears that the charge stated in the warrant of arrest is clearly sustained by the evidence. On the other hand, the lodged charge, namely, that the respondent entered as an immigrant not in possession of an immigration visa is not sustained in view of his denial that he intended at the time of entry to stay for more than a temporary visit.
DISCUSSION: As to the criminal charge lodged at the hearing: There is no dispute that the respondent was convicted of an offense prior to his last entry into the United States for the record contains a certified true copy of the original conviction, setting forth that on the 19th of January 1939 in the City of Vancouver, British Columbia, A---- G. A---- was convicted before Geo. R. McQueen, Esq., deputy police magistrate:
For that he the said A---- G. A----, at the said city of Vancouver, on or about the 5th day of August 1937, unlawfully and with intent to evade the payment of a tax imposed by the Special War Revenue Act, chapter 179, Revised Statutes of Canada 1927, and amending acts, did falsify the return of a person liable to pay taxes imposed by the said act, to wit, Standard Tent Awning, Ltd. for the month of June 1937, and made and was privy to the making of a false and fraudulent return of Standard Tent Awning, Ltd. * * *.
Respondent was sentenced to pay the sum of $246.25 penalty on or before February 6, 1939, and adjudged to be imprisoned in the common gaol of the County of Vancouver at hard labor for the term of 3 months unless the fine was paid.
The respondent's conviction of an offense prior to his last entry into the United States being established, the sole question at issue is whether that offense is properly to be deemed to have been a felony or other crime or misdemeanor involving moral turpitude within the meaning of section 19 of the Immigration Act of February 5, 1917.
Section 112, subsection 3, of the Special War Revenue Act, chapter 179, Revised Statutes of Canada and Amending Acts, for violation of which respondent was convicted, reads as follows:
Everyone, who with intent to evade the payment of sales tax or any other tax imposed by this act, destroys, alters or mutilates the records or books of account of any person, firm or corporation liable to pay any taxes imposed by this act, or makes or is privy to the making of false and fraudulent entries, or omits or concurs in omitting to enter any material particular in the records or books of account or returns required to be made by this act or by any regulations made thereunder, of such person, firm, or corporation, is guilty of an offense and shall be liable on summary conviction to a penalty of not less than $100 and not exceeding $1,000 and to a further penalty equal to double the amount of the tax evaded or sought to be evaded and in default of payment of the said penalties to imprisonment for a term of not less than 3 months and not more than 12 months.
Respondent's counsel in his brief cites the opinion in United States ex rel. Zaffarano v. Corsi, 63 F. 2d 757, in which the court said: "The crime committed must itself involve moral turpitude * * *." With that we agree. However, counsel then quotes at length from the decision of the United States district court in United States v. Carrollo, 30 F. Supp. 3, in which the court appeared to hold that "attempting to evade a tax" is not to be deemed a crime involving moral turpitude within the meaning of section 19 of the Immigration Act of 1917. Reference to that decision, however, shows that what the court was primarily concerned with was the question of whether under the division of powers provided for in the United States Constitution the court could be said to have the duty of recommending against deportation in view of the fact that deportation is within the executive and not judicial power. Since it was this issue that the court decided in the Carrollo opinion, the statement quoted by counsel that "attempting to evade a tax" does not involve moral turpitude is obiter dicta.
No such possible comment could be made upon the decision of the Circuit Court of Appeals for the Fifth Circuit in Guarneri v. Kessler, 98 F. 2d 580. There the question before the court was whether Guarneri, having been convicted of the crime of smuggling "with intent to defraud the revenue" of the United States, was guilty of a crime involving moral turpitude. The opinion concluded with the statement: "We have no hesitancy in holding that to clandestinely introduce goods into the United States with intent to defraud the revenue is dishonest and fraudulent and involves moral turpitude." It would appear that the two phrases "with intent to evade the payment of tax" and "with intent to defraud the revenue" have so exactly the same meaning that they might be used interchangeably. The decision in the Guarneri case, supra, is therefore compelling authority for our finding that the offense of which the respondent was convicted prior to his entry into the United States was a crime involving moral turpitude within the meaning of section 19 of the Immigration Act of 1917.
FINDINGS OF FACT: Upon the basis of all the evidence presented, it is found:
(1) That the respondent is an alien, a native of Canada and subject of Great Britain;
(2) That he last entered the United States at Miami, Fla., on March 13, 1940, and was admitted for a temporary visit of 3 weeks;
(3) That he has remained in the United States longer than 3 weeks;
(4) That he is not shown to have had the intention at the time of entry to remain for more than a temporary visit;
(5) That he was convicted at Vancouver, British Columbia, Canada, on February 1, 1939, of falsifying a return with intent to evade the payment of a tax imposed by the Special War Revenue Act, chapter 179, Revised Statutes of Canada 1927, as amended.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under sections 14 and 15 of the Immigration Act of 1924, the respondent is deportable in that he has remained in the United States for a longer time than permitted by the said act or regulations made thereunder;
(2) That under sections 13 and 14 of the Immigration Act of 1924, he is not subject to deportation in that at the time of entry he was an immigrant not in possession of an unexpired immigration visa;
(3) That the offense for which the respondent was convicted on February 1, 1939, was a felony or other crime or misdemeanor involving moral turpitude within the meaning of section 19 of the Immigration Act of 1917;
(4) That under section 19 of the Immigration Act of 1917, the respondent is deportable in that he has been convicted of a felony or other crime or misdemeanor involving moral turpitude prior to entry into the United States, to wit: intent to evade the payment of a tax imposed by the Special War Revenue Act, chapter 179, Revised Statutes of Canada 1927, as amended;
(5) That under section 20 of the Immigration Act of 1917 he is deportable to Canada at Government expense.
OTHER FACTORS: Although it appears that the respondent is married to a lawfully resident alien, his testimony that he has "no business whatever" and that his "means of support depends on the income that my wife is getting," would seem to make doubtful whether his deportation would involve serious economic detriment to any close relative in this country, and, although not material to the question of his deportability, the result of an investigation conducted at Vancouver regarding the respondent's activities and reputation seems to indicate that, among persons with whom he has been acquainted there, he is not entitled to be deemed of good moral character.
ORDER: It is ordered that the alien be deported to Canada at Government expense on the charge stated in the warrant of arrest and the additional charge: That he is in the United States in violation of the Immigration Act of February 5, 1917, in that he has been convicted of a felony or other crime or misdemeanor involving moral turpitude prior to entry into the United States, to wit: intent to evade payment of a tax imposed by the Special War Revenue Act, chapter 179, Revised Statutes of Canada 1927, as amended.