A-5536201
Decided by Board October 5, 1945.
Crime or misdemeanor — Act of February 5, 1917 — Maintaining a disorderly house — Violation of city ordinance.
The penal ordinance set forth in section 2 of chapter 9 of the city ordinance of Buffalo, N.Y., of which the alien was convicted in 1923, is not a felony or other crime or misdemeanor within the meaning of the Immigration Act of February 5, 1917, and so the question of whether this offense involves moral turpitude need not be considered.
CHARGES:
Warrant: Act of 1924 — Immigrant without immigration visa.
Act of 1918, as amended — No passport.
Act of 1917 — Entered by false and misleading statements, thereby entering without inspection.
Lodged: Act of 1917 — Convicted of crime involving moral turpitude prior to entry; maintaining a disorderly house in violation of city ordinance.
BEFORE THE BOARD
Discussion: The Presiding Inspector has found the respondent deportable on the documentary charges contained in the warrant of arrest and also on the charge lodged during the hearing. The case is before us for review.
The respondent, who was born in the Union of Soviet Socialist Republics in 1896, first entered this country at the port of New York in about 1907 when she was 13 years of age and apparently an orphan. She claims that she was then brought here by an immigrant couple whose name she does not remember and that she was destined to some place in Connecticut. Since her 1907 entry the respondent has made her home in the United States, her only absences being for brief visits to Canada. Her last entry occurred at Buffalo, N.Y., on or about August 15, 1940, when she was returning from a 1-day visit to Crystal Beach, Canada. She was then under the impression that she was an American citizen by reason of her first marriage in 1912 and was apparently admitted as such.
The only probative evidence in the record with respect to the nationality of the respondent's first husband is contained in their marriage license which reveals that he was born in Russia in 1888. The respondent herself, though she claims that he told her he was born in this country, admitted that she was so uncertain about her nationality status after the enactment of the Alien Registration Act of 1940, that she went to the local post office and registered as an alien. During the hearing she further testified without any compulsion or duress that she was a native and citizen of Russia. The preponderance of the evidence in the record warrants the finding that the respondent is an alien of Russian nationality.
At the time of the alien's last entry, when she was returning to her home in this country, she had no immigration visa or passport. Accordingly, she is now deportable on the documentary charges contained in the warrant of arrest. The no inspection charge cannot be sustained, as the Presiding Inspector concluded, in view of the fact that the respondent was not arrested until March 30, 1944, more than three years after her last entry. This charge is now barred by the statute of limitations.
With respect to the lodged criminal charge, it is established that on August 28, 1923, a complaint was issued against the alien in the City Court of Buffalo, N.Y., charging her with being a vagrant in violation of section 887, subdivision 4-b-3 of the New York Code of Criminal Procedure in that she "did unlawfully offer to secure another for the purpose of prostitution and did allow and permit certain otherly (sic) persons to be and remain in certain premises for the purpose of prostitution * * *". The respondent, however, was not tried on this charge but was permitted to plead guilty to the offense defined by chapter 9, section 2, of the city ordinance of Buffalo. As a result of her conviction she received a 60-day sentence in the Erie County Penitentiary, execution being deferred for a period of 1 year during her good behavior.
The city ordinance to which the respondent pled guilty is described as "disorderly conduct" and, as we have been given to understand, reads:
No person shall keep a house of ill-fame, house of prostitution, assignation house, or let, lease, or knowingly permit the use of a room or rooms in any building for the purpose of prostitution or unlawful sexual intercourse within the city of Buffalo or shall in any manner contribute to the support of such a house or shall voluntarily reside therein.
Any person who shall violate any provision of this section shall be guilty of disorderly conduct and shall upon conviction thereof, forfeit and pay a fine or penalty of not more than $250 for each offense or shall be committed to the Erie county penitentiary for such time as the court or officer before whom such person was convicted shall fix, not exceeding 6 months; and in case the person convicted of such violation is fined and does not immediately pay such fine or penalty he may be committed to the Erie county penitentiary for the term of 1 day for each and every dollar of said fine or penalty not paid.
The first issue to be considered is whether a violation of a municipal ordinance, in particular section 2 of chapter 9 of the city ordinance of Buffalo is a "felony or other crime or misdemeanor" within the meaning of the act of February 5, 1917. In Matter of D---- R----, 56156/310 (now A-2077593) (November 12, 1943), we had occasion to discuss this question with reference to a violation of section 887 of the New York Code of Criminal Procedure, the offense which the respondent was originally charged with committing. We there pointed out that the New York Court of Appeals had held in People ex rel. Stolofsky v. Superintendent, 259 N.Y. 115 (1932), that this particular offense was not a crime within the definition of section 2 of the New York Penal Law. This section of the penal law defines a crime, in its pertinent portion, as "an act or omission forbidden by law" and divides crimes into felonies and misdemeanors, a felony being defined as "a crime which is or may be punishable by: (1) Death; or, (2) imprisonment in a State prison" and a misdemeanor as "any other crime."
The court described the offense (pp. 118, 119) as "one of those minor offenses which are merely violations of police regulations * * * (which) has been described as petty, quasi-criminal, or a lesser offense not amounting to a misdemeanor."
Because we found in the D---- R---- case that a violation of section 887 of the Code of Criminal Procedure did not involve moral turpitude, we expressly reserved judgment as to whether a violation of this provision was "a felony or other crime or misdemeanor" within the meaning of the immigration laws. If we then had, as we did, serious doubts as to whether a violation of section 887 of the Code of Criminal Procedure fell within the scope of the 1917 act, our doubt becomes all the greater when we consider this lesser infraction of the law now before us for consideration. And it must have been a lesser infraction since under New York law the alien apparently could only have been permitted to plead guilty to a lesser offense than that charged in the complaint (sections 334 and 342-a of the New York Code of Criminal Procedure).
But we need not and do not rest our decision solely on this rationale. A penal ordinance, as is the one under consideration, at common law was enforced either by an action in debt or assumpsit to recover the penalty imposed for its violation, imprisonment ordinarily being the instrument used to effect payment. Such actions were obviously civil in nature. In most, if not all states, the method of enforcing criminal ordinances is usually prescribed by the municipal charter or the applicable state law and must be strictly followed. Usually two types of proceeding are recognized-one is an action in debt to recover the penalty imposed and the other is a summary proceeding on information or complaint. The judicial decisions are in apparent conflict as to whether actions to enforce penal ordinances are civil or quasi-civil, criminal or quasi-criminal in nature, the weight of authority being that the prosecution is in the nature of a civil action. It is true, of course, that the machinery and procedure used in criminal cases are usually employed in the enforcement of such ordinances and for that reason the prosecution has been said to have criminal as well as civil aspects. For example, in the State of New York it has been said that the violation of an ordinance prohibiting the sale of liquor on Sunday "is neither a breach of the peace, nor, as has been decided by the supreme court in similar cases, a crime or misdemeanor." Yet another New York court has said, "Although such actions are civil in form and name in our state, they are scientifically classified as criminal in nature." Another judge in a different jurisdiction said, "The best the law has been able to do is to call it civil or quasi-criminal in character." It has been said that the proceeding "is civil in form and quasi-criminal in character. * * * It is governed by the rules of pleading applicable to civil cases, but if it was solely civil no fine or imprisonment could be inflicted. It is therefore a quasi-civil and criminal action. Partaking of some of the features of each, its similitude to either is not complete. In pleading it is more nearly like a civil action but in its effects and consequences it more nearly resembles a criminal proceeding."
McQuillin, Municipal Corporations (2d ed., pp. 810, 811). Assumpsit was said to lie on the theory that the citizens of the municipality had made an implied promise to observe all rules and regulations passed by the corporate body. Debt was also a proper form of action because the penalty imposed was a sum certain.
Ibid., pp. 810, 811.
Ibid., p. 813.
Wood v. Brooklyn, 14 Barb. (N.Y., 1852), 425, 431. See also People v. Springer, 10 N.Y.S. (2d) 136 (1938); Buffalo v. Thorpe, 230 N.Y.S. 187 (1928).
Rome v. Foot, 162 N.Y.S. 781, 785 (1916). See also People v. Van Houten, 36 N.Y.S. 1130 (1895), and City of Buffalo v. Murphy, 239 N.Y.S. 206 (1930), where the courts took the position that it was immaterial whether the violation was called a crime or not.
St. Louis v. Amelin, 235 Mo. 669, 678 (1911).
Stevens v. Kansas City, 146 Mo. 460, 465 (1898).
When we take into consideration the common-law attitude toward penal ordinances, the fact that the weight of judicial authority considers their enforcement as partaking of what may be deemed a hybrid form of criminal and civil action, and the peculiar status of this particular ordinance when viewed in the light of the New York law with respect to a violation of section 887 of the Code of Criminal Procedure, we feel obliged to hold that the penal ordinance of which the respondent was convicted in 1923 is not a felony or other crime or misdemeanor within the meaning of the act of February 5, 1917.
Accordingly, we have no need to consider whether the offense in question involves moral turpitude, though, following our reasoning in the D---- R---- case, we would have to conclude that it does not comprehend such conduct.
Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That the respondent is an alien, a native and citizen of the Union of Soviet Socialist Republies;
(2) That the respondent last entered the United States at Buffalo, N.Y., on August 15, 1940;
(3) That the respondent then intended to resume her residence in this country;
(4) That the respondent was not then in possession of an immigration visa;
(5) That the respondent was not then in possession of a passport or other document in lieu thereof;
(6) That the respondent was arrested in these proceedings on October 5, 1944;
(7) That the respondent was convicted in the City Court in Buffalo, N.Y., on August 28, 1923, of violating section 2 of chapter 9 of the city ordinances of Buffalo, which proscribed certain forms of disorderly conduct.Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under sections 13 and 14 of the Immigration Act of 1924, the respondent is subject to deportation in that at the time of entry she was not in possession of an unexpired immigration visa;
(2) That under section 19 of the act of February 5, 1917, and the Passport Act of May 22, 1918, as amended by the act of March 2, 1921, and Executive Order 8430 of June 5, 1940, the respondent is subject to deportation in that she did not present a passport or other official document in the nature of a passport showing her origin and identity as required by said Executive order;
(3) That under section 19 of the act of February 5, 1917, the respondent is not subject to deportation in that she entered by means of false and misleading statements, thereby entering without inspection;
(4) That under section 19 of the act of February 5, 1917, the respondent is not subject to deportation in that she has been convicted of a crime or misdemeanor involving moral turpitude prior to entry, to wit: Section 2, chapter 9, of the city ordinances of Buffalo (disorderly conduct);
(5) That under section 20 of the act of February 5, 1917, the respondent is deportable to the Union of Soviet Socialist Republics at Government expense.Other Factors: When the respondent first came to the United States she worked as a domestic in the home of the couple who brought her here. She was apparently uneducated, had no trade, and had never had the benefit of a home environment. According to her testimony, while she was still very young she was induced to leave her Connecticut home by a man who persuaded her to live an immoral life. Subsequently she left him and went to Pittsburgh where she met and married her first husband. She was then about 16 years of age. This marriage proved unsuccessful and allegedly because her first husband tried to force her to indulge in narcotics, they separated. She claims that she has not seen or heard of him since 1916.
After leaving her first husband the respondent came to Buffalo, N.Y., where she has since made her home. Soon thereafter, on her own admission, she became connected with the management of a house of prostitution and followed that pursuit until she met her present husband in 1928. During this period she was arrested on six occasions on charges connected with prostitution. She was only convicted on the one occasion mentioned above.
Mr. C----, when he met the respondent in 1928, was a widower with two American-born children, a 9-year-old boy and a 3-year-old girl. Though he was aware of the respondent's immoral activities, he asked her to become his wife. Because the alien had never been divorced from her first husband and had no definite knowledge of his death, they began to live together as man and wife without going through a formal marriage ceremony. Incidentally, the evidence in the record does not permit us to make a definitive finding as to whether or not a valid common law marriage was then entered into. The couple established a home at that time and thereafter held themselves out as husband and wife. The respondent brought up her husband's two children as though they were her own and became devoted and attached to them. These children are now married, and the son and the daughter's husband, at the time of the hearing, were serving in the American Army. After the institution of the deportation proceedings the respondent took immediate steps to resolve any doubt that might have existed about the legality of her relationship with Mr. C----. She obtained a court order dissolving her first marriage and on September 15, 1944, went through a marriage ceremony with her husband.
Since 1928 the respondent has behaved as a person of good moral character. She has become a devoted mother to her stepchildren and she has taken an active part in many local philanthropic organizations. At no time has she participated in any illegal or illicit activities. Her husband, a citizen of the United States, is part owner of a restaurant and derives an income of between $4,000 and $5,000 annually. He is her sole support. Apparently there is a strong bond of affection between them and also between the respondent and her stepchildren who are unaware of her past. Witnesses appeared at the hearing and testified as to her good character and as to the high regard in which she is held by the community. An independent character investigation conducted by the Immigration and Naturalization Service proved favorable to her.
Unquestionably on this record the respondent has established her good moral character for the past 5 years. She is not deportable on any of the grounds set forth in section 19 (d) of the act of February 5, 1917, as amended. While we do not condone her activities prior to 1928, we appreciate that they may to a considerable extent have been caused by environmental factors over which she had no control. By her own conduct she has atoned for her past omissions and has completely rehabilitated herself. She is now and has been for the past 15 years a law-abiding and highly respected person. Her case is deserving of the exercise of the discretion contained in section 19 (c) of the act of February 5, 1917, as amended. We believe that this relief should take the form of voluntary departure and preexamination.
Order: It is directed that an order of deportation be not entered at this time but that the alien be required to depart from the United States, without expense to the Government, to any country of her choice within six months after notification of decision, conditioned upon arrangements being made with the local immigration office for verification of departure.
It is further directed, That preexamination be authorized.