E-077114
Decided by the Board April 7, 1954
Single scheme of criminal misconduct — Section 241 (a) (4) of the Immigration and Nationality Act.
When an alien has performed an act which, in and of itself, constitutes a complete, individual and distinct crime then he becomes deportable when he again commits such an act, provided he is convicted of both. The fact that one may follow the other closely, even immediately, in point of time is of no moment. Equally immaterial is the fact that they may be similar in character or that each distinct and separate crime is a part of an over all plan of criminal misconduct. The exception contained in section 241 (a) (4) of the Immigration and Nationality Act relates to a situation where there are two separate and distinct crimes but morally the transaction constitutes only a single wrong.
CHARGES:
Warrant: Act of 1940 — No visa, reentry permit, or border crossing identification card.
Lodged: Act of 1952 — Entered without inspection.
Act of 1952 — Convicted of two crimes involving moral turpitude since entry, to wit: Obtaining money under false pretense, and obtaining money under false pretense.
BEFORE THE BOARD
Discussion: This case is before us on appeal from an order entered by the special inquiry officer on February 12, 1954, directing the respondent's deportation on the charge contained in the warrent of arrest and on the second lodged charge. Counsel has submitted a memorandum in support of the appeal.
The respondent is an alien who last entered the United States at Niagara Falls, N.Y., on June 29, 1952. On November 22, 1952, he was convicted in the Municipal Court, Wooster, Ohio, on his plea of guilty, of the crime of "Obtaining money; false pretense"; he was sentenced to pay a fine of $100 plus cost and to imprisonment for 60 days; restitution was made and 30 days of the imprisonment were suspended. The complaint charges that the respondent, on or about November 17, 1952, in Wayne County, Ohio, did unlawfully and with intent to defraud obtain by making false pretenses certain specified sums of money from three named persons, contrary to section 13104 of the Ohio General Code (2911.01 Revised Code). On December 23, 1952, in the Mayor's Court Village of Apple Creek, Ohio, respondent was convicted, on his plea of guilty, of violation of section 13104 of the Ohio General Code. The affidavit of complaint charged him with unlawfully and with intent to defraud obtaining certain specified sums of money from named individuals and business concerns. He was fined $100 plus costs; $75 of the fine was suspended on condition of restitution; and he was sentenced to imprisonment for 30 days. Respondent has testified that he served 30 days on both convictions and that the second trial and conviction followed the completion of his serving the sentence under the first conviction.
The first question presented by this appeal involves the question of whether or not D---- made an "entry" within the purview of the immigration laws, on the date and at the place specified in the preceding paragraph. Counsel contends that he did not make such an entry, because the departure which preceded it was accidental and unintentional. We have carefully considered the entire evidence of record in this connection, and find that the contention is without merit. The special inquiry officer has found that the respondent's last departure from and reentry into the United States occurred under such circumstances as to establish that they occurred at a time when he was mentally alert and conscious of what he was doing and, hence, were the result of his knowing and volitional acts. We concur. Furthermore, in connection with the last charge stated above, it is immaterial whether there was an entry in 1952. Deportability on this ground can be based on the original entry.
The second question raised on appeal involves the construction of section 241 (a) (4) of the Immigration and Nationality Act of 1952. Specifically, the issue to be decided here is whether or not the two crimes of which D---- has been convicted arose out of, "a single scheme of criminal misconduct." It is his contention that the solicitations were pursuant to a scheme or pattern to raise funds for a single purpose and that Congress, by use of the quoted words, gave expression to an intent to exempt from deportation the malefactor whose misdeeds arose out of a plan or design to commit a series of criminal acts reasonably contemporaneous and more or less similar in character. Such construction is not, in our opinion, permissible.
To us, the natural and reasonable meaning of the statutory phrase is that when an alien has performed an act which, in and of itself, constitutes a complete, individual and distinct crime then he becomes deportable when he again commits such an act, provided he is convicted of both. The fact that one may follow the other closely, even immediately, in point of time is of no moment. Equally immaterial is the fact that they may be similar in character, or that each distinct and separate crime is a part of an overall plan of criminal misconduct.
We differentiate the foregoing situation from that wherein two crimes flow from and are the natural consequence of a single act of criminal misconduct. That is, we distinguish it from the case where technically there are two separate and distinct crimes, but morally the transaction constitutes only a single wrong. For example, a counterfeiter may be indicted in one count for possessing a bill, and in another for passing it, though he cannot pass it without having possession; so also, a person might break and enter a store with intent to commit larceny and in connection therewith commit an assault with a deadly weapon.
Those examples clearly illustrate what we hold to be crimes arising out of a single scheme of criminal misconduct. However, with reference to the last example, we would reach a different result if, after breaking and entering and committing larceny in one store, the person did the same thing in the adjoining store.
Finally, in this connection, it is clear that following D----'s contention to its logical conclusion would result in theoretical absurdities. By way of illustration, it would preclude deportation of the alien who robs A on Monday, B on Tuesday, C on Wednesday, etc., all in the same town, in the same manner and for the single purpose of obtaining money.
The final argument advanced in this case is that the crimes of which the respondent has been convicted do not involve moral turpitude. It is urged that the misconduct partook of the nature of solicitation of funds without proper license or credentials and that the leniency of the sentences imposed impels the conclusion that the civil authorities did not consider the deviation in a category of petty thievery.
This last contention is also without merit. The fact remains that D---- has been convicted of two crimes. On the record, fraud is an ingredient of those crimes. ( Matter of C----, A-5595280, B.I.A., October 12, 1953, Int. Dec. No. 482). Accordingly, they involve moral turpitude ( Jordan v. DeGeorge, 341 U.S. 223 (1951)).
No further issues have been raised for our consideration. On the basis of the foregoing, it is clear that D---- is deportable on the grounds urged by the special inquiry officer. Accordingly, we will dismiss the appeal.
Order: It is ordered that the appeal be and the same is hereby dismissed.