56143/551
Decided by the Board October 13, 1943.
Admission of crime — Attempt to smuggle (sec. 1593, title 19, U.S.C.).
An admission by an alien that she attempted to smuggle merchandise into the United States with intend to defraud the revenue of the United States in violation of section 1593, title 19, United States Code, does not constitute the admission of a crime involving moral turpitude since by the statute an attempt is not defined as a crime.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1917 — Admits commission of a crime involving moral turpitude — attempt to defraud the revenue of the United States.
Mr. Leon Ulman, Board attorney-examiner.
STATEMENT OF THE CASE: The appellant applied for admission to the United States at San Ysidro, Calif., on June 21, 1943, as a returning resident and presented a valid resident alien's border-crossing identification card. A board of special inquiry has excluded her on the ground above stated and pending our consideration of the case the appellant has remained in Mexico.
DISCUSSION: The appellant is a native and citizen of Mexico, 39 years of age, married. It appears that she was admitted to the United States for permanent residence in 1926 and has resided in the United States continuously since such time. On June 19, 1943, she went to Mexico for a visit and on her attempted return on June 21, she was apprehended by the United States Customs Service. It was then ascertained that she was endeavoring to smuggle several dozen pairs of silk stockings into the United States. The appellant admits that she committed the crime of unlawfully attempting to smuggle the merchandise into the United States with intent to defraud the revenue of the United States. We note, parenthetically, that on August 6, 1943, the appellant pleaded guilty to a violation of section 1593, title 19, United States Code, in that she unlawfully imported the said merchandise into the United States. Section 1593 provides so far as pertinent that:
If any person knowingly and wilfully, with intent to defraud the revenue of the United States, smuggles, or clandestinely introduces into the United States any merchandise which should have been invoiced, or makes out or passes or attempts to pass, through the customhouse any false, forged, or fraudulent invoice, or other document or paper, every such person * * * shall be guilty of a misdemeanor * * *.
In Keck v. United States, 172 U.S. 434, 43 L. Ed. 505 (1899) the Supreme Court has before it an indictment laid under Section 2865 of the Revised Statutes, which in terms was practically identical with Section 1593. The Court there held that the offense does not include mere attempts to commit smuggling, and is not committed by the concealment of goods, when they are not taken through the lines of customs authorities but are delivered to the customs officer on board a vessel at the time when or before the obligation to pay the duties arises. The Court said in referring to the offense of smuggling —
Nothing in the statute by the remotest possible implication can be found to cover mere attempts to commit the offense referred to.
The same conclusion was reached on the authority of the Keck case in United States v. Ritterman, 12 F. 2d 849 (C.C.A. 2 (1926)), reversed on other grounds ( 273 U.S. 261). Consequently, we conclude that the appellant's admission is of no significance, since in fact an attempt to smuggle does not constitute a crime. The appeal must be sustained.
FINDINGS OF FACT: Upon the basis of all the evidence presented, it is found:
(1) That the appellant is a native and citizen of Mexico;
(2) That the appellant was admitted to the United States for permanent residence in 1926;
(3) That the appellant has resided in the United States continuously since her admission;
(4) That on or about June 19, 1943 the appellant went to Mexico for a visit;
(5) That the appellant seeks admission to resume her residence;
(6) That the appellant has presented a valid resident alien's border-crossing identification card;
(7) That the appellant admits having committed the crime of attempting to smuggle goods into the United States with intent to defraud the revenue of the United States.
CONCLUSION OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
That under section 3, of the Immigration Act of 1917, the appellant is not inadmissible as one who admits having committed a crime involving moral turpitude, to wit: attempting to smuggle goods into the United States, with intent to defraud the revenue of the United States.
ORDER: It is ordered that the appeal be sustained and that the appellant be admitted as a returning resident.