A-5164327.
Commissioner's Motion April 21, 1954. Decided by Board July 14, 1954.
Crime involving moral turpitude — "Loan sharking" — Conspiracy to violate sections 340 and 357 of the Banking Law of New York not a crime involving moral turpitude — Not unlawful commercialized vice within section 212 (a) (12) of the Immigration and Nationality Act — Alien engaged in unlawful commercialized vice after entry not deportable under section 241 (a) (12) of the act.
(1) Conspiracy to violate sections 340 and 357 of the Banking Law of New York is not a crime involving moral turpitude since those sections are only a licensing and regulatory enactment. Statement in the conspiracy count relating to intimidation and threats is immaterial since not necessary for conviction.
(2) An alien who has engaged in unlawful commercialized vice after entry is not deportable under section 241 (a) (12) of the Immigration and Nationality Act as a member of a class specified in section 212 (a) (12) of the act since the latter section requires that the individual be coming to the United States to engage in such unlawful commercialized vice and does not proscribe conduct subsequent to entry.
(3) "Loan sharking" (usury) is a crime by statute in most jurisdictions and, while of a commercialized nature, it cannot be regarded as "any other unlawful commercialized vice, whether or not related to prostitution" within the meaning of section 212 (a) (12) of the Immigration and Nationality Act, since there is a clear distinction between "crime" and "vice."
CHARGES:
Warrant: Act of 1952 — After entry, became member of class specified in section 212 (a) (12), namely, alien who has been supported by or received proceeds of an unlawful commercialized vice (Loan Sharking).
Lodged: Act of 1952 — Convicted of two crimes involving moral turpitude — Petty larceny; conspiracy to commit crime of violation of banking law.
BEFORE THE CENTRAL OFFICE
(April 21, 1954)
Discussion: On the 19th day of April 1954, the Board of Immigration Appeals entered an order for the termination of the proceedings in this case, having concluded that respondent was not deportable on the charges shown above. The Service contends that respondent's deportability on these charges has been established.
The record relates to a native and citizen of Italy, whose only entry into the United States occurred on January 1, 1906, at which time he was lawfully admitted for permanent residence. In 1921 respondent was convicted of petty larceny committed on May 6, 1920. In 1939, in the State of New York, in an indictment consisting of 10 counts, respondent was charged with the commission of extortion (counts 1, 2, 4, and 5) and in count 10 with conspiracy, together with other persons named in the indictment, to commit the crime of violating sections 340 and 357 of the New York Banking Law during the period from October 1934 to April 1938. This count further states:
It was further a part of the said conspiracy, in the event the borrower should become or remain delinquent, or refuse to pay the principal or interest as it accrued, that the defendants would resort to unlawful means and intimidate the said borrower and make threats to him to do bodily harm in the event that he failed to comply with the terms of the loan, as laid down by the said defendants.
After setting forth the various overt acts committed by the defendants, count 10 of the indictment concludes with the allegation:
All of the acts and transactions alleged in the several counts of this indictment are connected together and constitute parts of a common scheme and plan, and constitute crimes of the same or of a similar nature.
On May 12, 1941, respondent pleaded guilty to count 10, conspiracy to commit the crime of violation of section 340 and section 357 as a misdemeanor and was sentenced to serve a term of 4 months' imprisonment.
The charge in the warrant of arrest alleges that respondent is deportable under the provisions of section 241 (a) (12) of the Immigration and Nationality Act in that by reason of conduct, behavior, or activity at any time after entry, he became a member of one of the classes specified in section 212 (a) (12), namely: An alien who has been supported by or received in whole or in part the proceeds of unlawful commercialized vice, to wit: loan sharking.
Section 241 (a) (12) provides that an alien in the United States shall be deported who:
by reason of any conduct, behavior or activity at any time after entry became a member of any of the classes specified in paragraph (12) of section 212 (a); * * *.
Section 212 (a) (12) provides in pertinent detail for the excludability from admission into the United States of:
* * * aliens who are or have been supported by, or receive or have received, in whole or in part, the proceeds of prostitution or aliens coming to the United States to engage in any other unlawful commercialized vice, whether or not related to prostitution.
The Board of Immigration Appeals has concluded that respondent is not deportable on the charge stated in the warrant of arrest for the reason that the last category set forth in section 212 (a) (12) of the act relates to aliens coming to the United States to engage in any other unlawful commercialized vice and does not authorize the deportation of an alien who has been supported by the proceeds of an unlawful commercialized vice. This conclusion by the Board requires further consideration.
Section 241 (a) (12) calls for the deportation of any alien who by reason of any conduct, behavior or activity at any time after entry became a member of any of the classes specified in paragraph (12) of section 212 (a). Section 212 (a) (12) sets forth as one of the classes "aliens coming to the United States to engage in any other unlawful commercialized vice, whether or not related to prostitution." It is therefore necessary to determine whether respondent was a member of such class. Counsel for respondent contends that the designated class relates to aliens coming to the United States to engage in any other unlawful commercialized vice and that unless an alien is coming for such purpose he is not deportable. In other words, this argument emphasizes the phrase "coming to." Following this argument to a conclusion, it would mean that an alien who engaged in unlawful commercialized vice after his entry into the United States would not be deportable. It is the view of the Service that such a contention is without reasonable basis.
The words "coming to" were inserted in section 212 (a) (12) of the act for the purpose of excluding those persons who were coming to the United States for the proscribed purpose. The important phrase designating the class is "engage in any other unlawful commercialized vice." Section 241 (a) (12) provides for the deportability of any alien who by reason of any conduct, behavior, or activity at any time after entry became a member of such class. It is apparent that Congress intended that aliens, whose conduct, behavior, or activity after entry was that of engaging in unlawful commercialized vice, were not deemed to be desirable residents of the United States and, consequently, were to be deported. A holding to the contrary would give no effect to the language contained in section 241 (a) (12) and would lead to the absurdity that a person coming to the United States to engage in unlawful commercialized vice would be debarred from entry into the United States, whereas a person who succeeded in entering the United States and thereafter engaged in the proscribed conduct could remain here and continue to engage in an illegal practice which warranted his exclusion from the United States. Such could not have been the intent of Congress. The various portions of a statute should be read harmoniously in order to effectuate the overall legislative design ( Shomberg v. United States, 115 F. Supp. 336, affirmed 210 F. (2d) 82 (C.A. 2, 1954)).
The warrant of arrest charged the alien as being one who has been supported by, or received in whole or part, the proceeds of an unlawful commercialized vice. The phraseology might have been clearer had the warrant of arrest charged respondent with being an alien who had engaged in unlawful commercialized vice. However, deportation charges do not depend on the form of the warrant of arrest ( Jurgens v. Seaman, 25 F. (2d) 35 (C.C.A. 8, 1928); Sormunen v. Nagle, 59 F. (2d) 398 (C.C.A. 9, 1932)). The courts never have insisted that such warrants must have the formality or particularity of a criminal indictment ( Kostenowczyk v. Nagle, 18 F. (2d) 834 (C.C.A. 9, 1927)). The warrant of arrest notified the alien that he was deportable under section 241 (a) (12) of the act, in that he was a member of a class specified in section 212 (a) (12), and particularly designated that he was supported by, or received in whole or in part, the proceeds of an unlawful commercialized vice, to wit; loan sharking. To say this charge is defective for failing to state that the alien had been engaged in an unlawful commercialized vice is merely a play on words. Certainly an alien who has been supported by, or received in whole or in part, the proceeds of an unlawful commercialized vice has been engaged in such vice. The warrant of arrest certainly contains sufficient information to have enabled respondent to prepare a defense to, or refutation of the charge.
It now becomes necessary to determine whether the conduct, behavior or activity of the alien after his entry constituted engaging in unlawful commercialized vice. Respondent's conduct is fully set forth in the indictment which led to his conviction in 1941. It shows that respondent participated in a scheme to obtain monies from various individuals at exorbitant rates of interest contrary to the banking laws of the State of New York and to enforce collection illegally by intimidation, threats of bodily harm, and extortion.
The statute uses the phrase "unlawful commercialized vice, whether or not related to prostitution." There does not appear to have been any definition given or discussion had as to the meaning of these words by the various congressional committees, or in the debate in Congress. Language in a statute is generally construed according to its natural and most obvious sense, without resorting to an artificial or forced construction. Words of ordinary import should receive their understood meaning and technical terms are construed in their special sense ( United States Lines Co. v. Shaughnessy, 101 F. Supp. 61 (S.D.N.Y., 1951), 195 F. (2d) 385 (C.A. 2, 1952)).
Webster's New International Dictionary, 2d ed. (1940) contains as one of the definitions of the word "commercialize" the following: "specifically to cause to yield pecuniary profit; as, to commercialize vice." Thus, "commercialized gambling" is such gambling as is a source of sure and steady profit ( State v. Gardner, 92 So. 368, 371, 151 La. 874 (Sup.Ct., 1922)). The word "vice" is defined as "state of being given up to evil conduct or habit; depravity; wickedness; corruption." While the phrase "commercialized vice" has been referred to as "traffic in women for gain," or "immoralities having a mercenary purpose" ( Caminetti v. United States, 242 U.S. 470, 484, 497 (1917)), the court there was speaking of the White Slave Traffic Act which relates specifically to prostitution. However, in the provision of law under discussion, the phrase "commercialized vice" is enlarged by the use of the words "whether or not related to prostitution." It was, therefore, clearly intended by Congress that in construing the phrase "commercialized vice," the definition was not to be ejusdem generis with prostitution but was to be given meaning wider in scope.
The term "loan shark" has been commonly used to describe those who lend small sums at higher rates of interest than the law allows. See article entitled "Loan Shark Problem" ( Law and Contemporary Problems, Vol. VIII, 1941, School of Law, Duke University). In a related article in the same volume, entitled "Evasion and Avoidance of Usury Laws," the following is stated:
The most notorious of usurers in modern city life are the "five for six boys" in the large cities. The designation grows out of the practice of making loans of $5. for a week or 2 weeks and exacting a promise to repay $6. No interest rate is stated. By reputation these lenders are generally gangsters or racketeers who readily admit their business is illegal, and who enforce their contracts by fear of brute force.
See also article entitled "Collection Tactics of Illegal Lenders" and in particular the discussion under the subtopic "Strong-Arm Collectors."
Respondent was convicted of conspiracy in violation of sections 340 and 357 of the Banking Law of the State of New York. Section 340 penalizes conducting a loan business without a license, whereas section 357 punishes the offense of loaning money at usurious rates of interest ( People v. Faden, 271 N.Y. 435, 3 N.E. (2d) 584 (1936) affirming 247 App. Div. 777, 286 N.Y.S. 405 (1936)). Pertinent to the problem here under discussion is the case of Commonwealth v. Donoghue, 250 Ky. 343, 63 S.W. (2d) 3 (1933), which "deals with the sufficiency of an indictment charging the common-law offense of conspiracy and relates to what are popularly referred to by the invidious and iniquitous term of `loan sharks'." The court sets forth a detailed history of the moral sanctions against usury beginning with Biblical days, pointing out that usury has been bitterly denounced in all ages of the civilized world and in most Christian countries. "It suffices to say that the business of the usurer has always called for vigorous condemnation and has ever been regarded as against public welfare and public policy." The court furthermore stated:
The indictment does not charge the accused with the mere exaction of usury, or of isolated instances of collecting slight excesses over the legal rate of interest. The objects of the conspiracy were not incidents to a legitimate business. If that were all, it might be doubted whether it could be regarded as an offense or an unlawful act within the meaning of that term in its relation to conspiracy. It charges a nefarious plan for the habitual exaction of gross usury, that is, in essence, the operation of the business of extortion. The import of the indictment is to charge systematic preying upon poor persons, of taking an unconscionable advantage of their needy conditions, of oppressing them, of extorting money from them through the disguise of interest, and, as an intrinsic part of the plan, to prevent restitution by obstructing public justice and the administration of the law. If ever there was a violation of public policy as reflected by the statutes and public conscience, or a combination opposed to the common weal, it is that sort of illegitimate business. It was extortioners of this class, called money changers, whom the Christ drove from the Temple on two occasions.
The Service believes that respondent's conduct, behavior, and activity described in the indictment as obtaining pecuniary profits through usury, in violation of law, by means of intimidation, threats of bodily harm and extortion, comes within the plain meaning of the term "commercialized vice," according to its natural and most obvious sense. It is, therefore, urged that respondent was properly found deportable by the special inquiry officer on the charge stated in the warrant of arrest.
As to the lodged charge, the Board has concluded that respondent's conviction in 1941 for conspiracy to commit the crime of violating sections 340 and 357 of the Banking Law of the State of New York was not a conviction for a turpitudinous offense since the crime at its minimum did not involve moral turpitude. It is submitted that this conclusion too, warrants further examination.
In the Matter of C----, A-5595280, 5 IN Dec. 65, the Board of Immigration Appeals on October 12, 1953, stated as follows:
Upon closer scrutiny of the decision in United States ex rel. Mylius v. Uhl (supra) * we are of the opinion that while we cannot go to the evidence or testimony outside the record of conviction to determine moral turpitude, it is entirely proper to determine moral turpitude upon a record of conviction itself. * * *
[The] judicial pronouncements appear to postulate the rule that in these broad divisible statutes which involve acts which do and acts which do not involve moral turpitude, while it is improper to go to testimony or evidence as to the nature of the particular act, it is entirely correct and eminently fitting to base a determination of moral turpitude upon the record of conviction, i.e., the complaint information or indictment, plea, verdict, and sentence. Indeed, we are precluded from going outside the record of conviction. Where the record of conviction is of no assistance in determining the moral obloquy of the crime, a finding of moral turpitude cannot be made. But, where, as in the instant case, the record of conviction clearly shows lewd and lascivious acts involved in the commission of a crime contained in a divisible statute, we are justfied in basing thereon a conclusion that the crime involved moral turpitude.
Respondent herein was convicted of the crime of conspiracy to commit offenses in violation of sections 340 and 357 of the New York Banking Law. The crime of conspiracy is defined by New York Penal Law, section 580 (McKinney's Consolidated Laws of New York, Annotated), in pertinent part as follows:
If two or more persons conspire:
1. To commit a crime; or
6. To commit any act injurious to the public health, to public morals, or to trade or commerce, or for the perversion or obstruction of justice, or of the due administration of the laws,
Each of them is guilty of a misdemeaner.
It appears that respondent was convicted either under subsection 1 or subsection 6 of section 580 of the New York Penal Law. As respondent was convicted under a broad divisible statute, the principle of law enunciated in the Matter of C----, above, becomes pertinent. Drawing an analogy with what was stated in Commonwealth v. Donoghue, ( supra), the indictment in the instant case did not charge respondent with the mere exaction of usury or of isolated instances of collecting slight excesses over the legal rate of interest. The indictment charged respondent with a nefarious plan for the habitual exaction of gross usury and the operation of usury by intimidation, threats of bodily harm and extortion. It has been stated that "the unlawful taking of the property of another by force or threats is a crime so vile that it unquestionably involves moral turpitude" ( Matter of C----, A-4888223, 5 IN Dec. 370). If effect is given to the language contained in the indictment, in accordance with the doctrine enunciated in the Matter of C----, 5 IN Dec. 65, respondent must be held to have been convicted of a crime involving moral turpitude. In our view he should be found deportable on the lodged charge as well.
Upon the basis of the foregoing, the Board of Immigration Appeals is requested to reconsider its decision in this case, to withdraw its order of April 19, 1954, and to enter an order directing respondent's deportation on both of the charges discussed herein.
Motion is hereby made that the Board of Immigration Appeals reconsider and withdraw its order of April 19, 1954, and enter an order for the deportation of respondent.
(July 14, 1954)
Discussion: This case is before us on the basis of the Assistant Commissioner's motion of April 21, 1954, requesting that we reconsider and withdraw our order of April 19, 1954, and enter an order for the deportation of the respondent.
The facts are set forth in our decision of April 19, 1954. Briefly, the respondent received a suspended sentence in 1921 in connection with a conviction for petty larceny and he pleaded guilty in 1941 to the conspiracy count of an indictment and was sentenced to imprisonment for 4 months. It is not disputed that petty larceny involves moral turpitude. The Service contends that the second offense also involves moral turpitude and, on the basis of the second conviction, seeks to sustain a charge that the respondent was engaged in an unlawful commercialized vice, namely, "loan sharking."
We have carefully considered the arguments set forth and cases cited in the Assistant Commissioner's motion as well as the reply brief submitted by the respondent's counsel. We will deal first with the question of whether the respondent's conspiracy conviction involved moral turpitude. The conspiracy count, to which the respondent pleaded guilty in 1941, is the tenth count of an indictment. In that count, the respondent and certain other defendants were accused of conspiracy, from October 1934 until April 1938, to commit the crime of violating sections 340 and 357 of article 9 of the Banking Law of New York, these sections being thereafter set forth, in substance, in count 10.
We have consistently held that the determination of whether the crime of conspiracy involves moral turpitude must be made on the basis of whether the substantive crime, which the defendants conspired to commit, is or is not of that nature. In the respondent's case, we must examine, therefore, sections 340 and 357 of the Banking Law of New York. Section 340 is as follows:
Matter of N----, A-1779952, 2 IN Dec. 201, 202 (1944); Matter of S----, 56152/593, 2 IN Dec. 225, 226 (1944); Matter of B----, 55811/86, 2 IN Dec. 542, 544 (1946); Matter of F----, A-6019766, 2 IN Dec. 754, 756 (1947); Matter of P----, 56038/653A, 3 IN Dec. 56, 61 (1948).
340. Doing business without license prohibited. — No person, copartnership, association, or corporation shall engage in the business of making loans of money, credit, goods, or things in action in the amount or of the value of $300 or less and charge, contract for, or receive a greater rate of interest, discount, or consideration therefor than the lender would be permitted by law to charge if he were not a licensee hereunder except as authorized by this article and without first obtaining a license from the superintendent of banks.
The pertinent part of section 357 is as follows:
357. Restrictions on loans of three hundred dollars or less by nonlicensees, interest; other charges; when unenforceable. — No person, copartnership, association, or corporation, except as authorized by this article, shall directly or indirectly charge, contract for, or receive any interest, discount, or consideration greater than the lender would be permitted by law to charge if he were not a licensee hereunder upon the loan, use, or forbearance of money, goods, or things in action, or upon the loan, use, or sale of credit of the amount or value of $300 or less.
Section 352 of article 9 provides that a person licensed under article 9 may loan any sum not exceeding $300 and charge 3 per cent per month on the first $150 and 2½ per cent per month on the remainder. The violation of sections 340 and 357 is made a misdemeanor by section 358. The foregoing statutory provisions may be briefly summarized as follows: Section 340 prohibits the doing of a small loan business without a license; section 352 permits a licensee to charge more than 6 per cent interest per year; and section 357 prohibits a nonlicensee from charging more than 6 per cent.
It is well settled that the presence or absence of moral turpitude must be determined, in the first instance, from a consideration of the crime as defined by the statute; that we cannot go behind the judgment of conviction to determine the precise circumstances surrounding the commission of the crime; and that, if the offense, as defined in the statute, does not inherently or in its essence involve moral turpitude, then no matter how immoral the alien may be, or how iniquitous his conduct may have been in the particular instance, he cannot be deemed to have been guilty of base, vile or depraved conduct. It is only where the statute includes within its scope offenses which do and some which do not involve moral turpitude, and is so drawn that the offenses which do embody moral obloquy are defined in divisible portions of the statute and those which do not in other such portions, that the record of conviction, that is, the indictment, plea, verdict and sentence may be examined to ascertain therefrom under which divisible portion of the statute the conviction was had and determine from that portion of the statute whether moral turpitude is involved.
United States ex rel. Mylius v. Uhl, 203 Fed. 152, aff'd. 210 Fed. 860 (C.C.A. 2, 1914); United States ex rel. Portada v. Day, 16 F. (2d) 328 (S.D.N.Y., 1926); United States ex rel. Robinson v. Day, 51 F. (2d) 1022 (C.C.A. 2, 1931); United States ex rel. Meyer v. Day, 54 F. (2d) 336 (C.C.A. 2, 1931); Matter of S----, A-5702971, 2 IN Dec. 353, 357 (Approved by Attorney General Aug. 18, 1945).
Matter of S----, ( supra), (note 2).
In Matter of P----, A-3748813, 2 IN Dec. 117, 121, decided June 23, 1944, we said "One of the criteria adopted to ascertain whether a particular crime involves moral turpitude is that it be accompanied by a vicious motive or corrupt mind" and we also stated that it was in the intent that moral turpitude inheres. When we examine, in the light of the principles discussed above, the statutory provisions which the respondent was convicted of conspiring to violate, namely, sections 340 and 357 of the Banking Law of New York, we find only a licensing and regulatory enactment with a complete absence of any element which could be considered to denote baseness, vileness or depravity. No criminal intent is required to be established and negligence in failing to secure a license to carry on a small loan business or inadvertently "receiving" more than the interest permitted would make the offender subject to prosecution. In view of the foregoing, we have no hesitancy in holding that the crime, of which the respondent was convicted in 1941, does not involve moral turpitude.
In reaching the conclusion mentioned, we have not, of course, overlooked the argument by which the Assistant Commissioner has sought to persuade us that the crime does involve moral turpitude. It runs thus. The crime of conspiracy is defined in section 580 of the New York Penal Law; the respondent was convicted under either subsection 1 or subsection 6 thereof; and hence, it is a broad divisible statute. Therefore, it is urged that we look to the allegations which were made in the indictment. In this connection, the Service relies heavily on our decision in Matter of C----, A-5595280, 5 IN Dec. 65, decided October 12, 1953. We are convinced that the applicable part of section 580 is subsection 1 which provides that if two or more persons conspire "To commit a crime" each of them is guilty of a misdemeanor; that no broad divisible statute is involved in this case; and that our decision in Matter of C----, ( supra), has no application.
The Assistant Commissioner's motion also refers to the fact that the respondent and other defendants were charged with extortion in counts 1, 2, 4, and 5 of the same indictment that contained the conspiracy count to which the respondent pleaded guilty and that the conspiracy count contains a statement that it was part of the conspiracy "that the defendants would resort to unlawful means and intimidate the said borrower and make threats to him to do bodily harm in the event that he failed to comply with the terms of the loan, as laid down by the said defendants." Apparently, these matters are the basis for the following statement in the motion, "The indictment charged respondent with a nefarious plan for the habitual exaction of gross usury and the operation of usury by intimidation, threats of bodily harm and extortion."
The respondent was not named as a defendant in counts 3, 6, 7, 8, and 9.
The respondent was not convicted on the counts of the indictment which charged extortion and those charges were dismissed. It is true that some of the "overt acts" relating to the conspiracy count contain allegations that intimidation and threats of bodily harm (which would constitute extortion) were resorted to by the defendants to enforce payment of the loans. However, other "overt acts" relate solely to the loaning of money and the voluntary repayment without intimidation or threats.
The Supreme Court, in United States v. Britton, 108 U.S. 199, 204 (1883), said "This offense (conspiracy) does not consist of both the conspiracy and the acts done to effect the object of the conspiracy, but of the conspiracy alone." In addition, conspiracy is complete upon the commission of a single overt act and, if several overt acts are charged in the indictment, it is sufficient to establish that at least one of these acts was committed in furtherance of the conspiracy. We hold, therefore, that the respondent's plea of guilty to, and his conviction of, conspiracy to commit the crime of violation of sections 340 and 357 of the Banking Law does not establish that he or his coconspirators resorted to intimidation or threats of bodily harm as alleged in some of the overt acts, since the respondent's conviction might equally have been predicated on an overt act which did not involve that element. Likewise, we must disregard the statement, quoted above from the conspiracy count itself, relating to intimidation and threats since it is immaterial, for the purpose of a conviction under sections 340 and 357, whether intimidation and threats were resorted to or whether the borrower voluntarily paid more than the legal rate of interest. For the reasons mentioned, we must reject the contention of the Service that the crime, of which the respondent was convicted in 1941, involved moral turpitude.
Williams et al. v. United States, 3 F. (2d) 933, 935 (C.C.A. 6, 1925); Hall v. United States, 109 F. (2d) 976, 984 (C.C.A. 10, 1940); 15 Corpus Juris Secundum, Conspiracy 43, p. 1068.
We turn now to the ground asserted in the warrant of arrest which charges that the respondent is deportable under section 241 (a) (12) of the Immigration and Nationality Act because, after entry, he became a member of a class specified in section 212 (a) (12) of that act, namely, "an alien who has been supported by or received in whole or in part the proceeds of an unlawful commercialized vice, to wit: Loan Sharking." Paragraph (12) of section 241 (a) directs the deportation of an alien who "by reason of any conduct, behavior or activity at any time after entry became a member of any of the classes specified in paragraph (12) of section 212 (a); * * *." Section 212 (a) sets forth the classes of aliens who shall be excluded from admission into the United States and paragraph (12) thereof is, in part, as follows:
Aliens who are prostitutes * * *; and aliens who are or have been supported by, or receive or have received, in whole or in part, the proceeds of prostitution or aliens coming to the United States to engage in any other unlawful commercialized vice, whether or not related to prostitution.
We have emphasized above the language relied upon in the warrant of arrest. As stated in our previous decision, there is no legal basis for thus attempting to connect the language relating to one class of aliens with language pertaining to another class. In its motion, the Service urges that we find the respondent deportable on the ground that he engaged in an unlawful commercialized vice after entry, and that this is substantially the same as the charge in the warrant of arrest. We need not pass on the question of whether the charges are sufficiently similar since we hold that the statute does not authorize the respondent's deportation on the charge which is now proposed.
The Service contends that the class of aliens are those engaged in any other unlawful commercialized vice, and we are asked to disregard the phrase "coming to the United States." It is argued that there is an absurdity in excluding a person who is coming to the United States for the purpose of engaging in an unlawful commercialized vice and failing to provide for the deportation of persons who, although not coming to the United States for that purpose, subsequently become engaged in such activity. We perceive no incongruity although we might point out that, even the construction urged by the Service, would not reach aliens applying for admission who had been engaged in unlawful commercialized vice (other than prostitution) prior to entry and who were not coming to the United States to engage in such activity.
There are other illustrations of a differentiation made by Congress between arriving aliens and those who have taken up residence in the United States. We note also that in the first part of section 212 (a) (12) where the same phrase was used, it was coupled with the present and past tenses, thus clearly rendering deportable aliens who engaged in prostitution after entry, and that in section 241 (a) (12) a specific provision was made with respect to aliens who, after entry, had been connected with the management of a house of prostitution. We entertain no doubt that a similar specific provision would have been included if Congress had intended to authorize the deportation of aliens who engaged in unlawful commercialized vice after entry. In addition, it is well settled that, where the language of a statute is plain and unambiguous, the duty of interpretation does not arise. In such cases, the literal meaning of the words used must prevail. It is obvious that the respondent was not "coming to the United States" to engage in an unlawful commercialized vice since his only entry occurred on January 1, 1906, when he was approximately 8 years of age.
Compare section 212 (a) (9) with section 241 (a) (4). Section 212 (a) (13) uses language identical with that under consideration, namely, "Aliens coming to the United States to engage in any immoral sexual act" but aliens not coming for that purpose who subsequently engage in such acts are not deportable.
(12) * * * aliens coming to the United States * * * to engage in prostitution; * * *.
Caminetti v. United States, 242 U.S. 470, 485 (1917).
Another matter which requires consideration is whether the Government has established, as alleged in the warrant of arrest, that the respondent was engaged in "loan sharking." We have not found any authoritative definition of that phrase. The Assistant Commissioner, in his motion, has defined it as follows: "The term `loan shark' has been commonly used to describe those who lend small sums at higher rates of interest than the law allows." If we accept that definition, the phrase "loan sharking" adds nothing to the 1941 conviction because essentially that was the offense involved. If "loan sharking" implies the use of intimidation, threats or physical violence, then the evidence does not establish "loan sharking" on the basis of the conviction record for the reasons previously stated; there is no other evidence establishing that the respondent was engaged in "loan sharking"; and his testimony contains a denial that he received proceeds from loan sharking, or that he was engaged in any unlawful commercialized vice or that he ever used threats of physical harm to collect usurious rates of interest.
There is one additional reason why the warrant charge cannot be sustained. We do not believe that "loan sharking" comes within the phrase "any other unlawful commercialized vice, whether or not related to prostitution" which appears in section 212 (a) (12) of the Immigration and Nationality Act. In 15 Corpus Juris Secundum, page 578, commercialized vice is defined as "traffic in women for gain" and this is based on a statement made in Caminetti v. United States, ( supra) (note 9) page 484. It is clear that a broader meaning must now be given to "commercialized vice" in view of the added phrase "whether or not related to prostitution."
Insofar as the word "commercialized" is concerned, it seems obvious that a commercialized vice is one that has been made a matter of trade or a source of profit. However, the Service contention appears to be that in the phrase "commercialized vice," the word "vice" should be given a meaning synonymous with "crime" so that any crime from which pecuniary profits are derived would be a form of commercialized vice. Had this been the congressional intention, it would have been logical to employ the words "commercialized crime." In Webster's New International Dictionary (2d ed.), the word "vice" is defined as follows: "1. A moral fault or failing; esp., immoral conduct or habit, as in the indulgence of degrading appetites; as, the vice of gluttony. 2. State of being given up to evil conduct or habit; depravity; wickedness; corruption." Statutory words are presumed to be used in their ordinary and usual sense and with the meaning commonly attributed to them ( Caminetti v. United States ( supra) (note 9) page 485). We think there is a clear distinction between "crime" and "vice" and that the ordinary and usual sense in which the latter is used is in describing a moral failing or an immoral habit, as for example, the vice of prostitution, of gambling, of addiction to narcotics, etc. While "loan sharking" (usury) is made a crime by statute in most jurisdictions and while it is a crime of a commercialized nature, we are convinced that it cannot, in any true sense of the word, be considered a vice. For the reasons set forth above, we adhere to our previous conclusion that the charges against the respondent are not sustained and that the proceedings should be terminated. Accordingly, the Assistant Commissioner's motion will be denied.
Order: It is ordered that the motion of the Assistant Commissioner dated April 21, 1954, be and the same is hereby denied.