1610-9315
Decided by the Board April 6, 1953
Crime involving moral turpitude — Admits committing acts which constitute the essential elements thereof — Petty theft, California — Admissibility under section 212 (a) (9) of the Immigration and Nationality Act of 1952 — Effect of pardon.
(1) An alien is not inadmissible to the United States under section 212 (a) (9) of the Immigration and Nationality Act of 1952 when he admits committing acts which constitute the essential elements of a crime involving moral turpitude if such admission relates to the same crime for which he was previously convicted and for which he obtained a pardon. The administrative view that a pardon forecloses basing a charge upon a subsequent admission of the same offense which constituted the basis for the conviction obtains under the 1952 Act.
(2) Aside from the fact that the alien no longer must admit the legal conclusion that he has in fact committed the specific crime, the requirements set forth in Matter of J., 56038/559 2 IN Dec. 285 (1945) still prevail.
EXCLUDED:
Section 212 (a) (9) of the Immigration and Nationality Act — Admits committing acts which constitute the essential elements of a crime involving moral turpitude, to wit: Petty theft;
Section 212 (a) (20) of the Immigration and Nationality Act — Not in possession of a valid immigrant visa.
BEFORE THE BOARD
Discussion: The case comes forward on appeal from the order dated February 25, 1953 of the special inquiry officer excluding the applicant on the grounds stated above.
The facts of the case are fully set forth in the decision of the special inquiry officer. Briefly, the record relates to a native and citizen of Guatemala, 43 years old, male, who arrived at the port of Los Angeles on February 6, 1953, by plane and applied for admission to the United States as a nonquota immigrant for permanent residence. The evidence establishes that on June 16, 1947, in the Municipal Court of the City and County of San Francisco the appellant was convicted of the crime of petty theft and was given a 60-day suspended sentence. No official court record of this conviction was introduced into evidence but the facts relative to this conviction were developed from a police certificate and an investigator's report. The appellant was given a hearing before a special inquiry officer on February 9, 1953, which was continued for the purpose of obtaining court records of the conviction. At the next continued hearing on February 19, 1953, counsel for the appellant submitted an order of expungement dated February 10, 1953, under which it was ordered that the charge of petty theft in violation of section 488 of the California Penal Code, the plea of guilty thereto and the sentence therefore were each of them dismissed and set aside and the record of the same was thereby expunged. The special inquiry officer, citing, Matter of O---- T----, A-4355094 (C.O., 1951), 4 IN Dec. 265, found that the expungement of the record in effect canceled out the conviction and the admission of the crime, this holding following decisions of this Board in Matter of V----, 56033/701 (April 10, 1943) and Matter of E----, A-5697769 (January 6, 1945).
During the hearing the appellant was questioned and admitted that he stole the knives, this being the same offense for which he was convicted on June 16, 1947. The special inquiry officer held that as a result of the admission of the appellant regarding the commission of acts which constitute the essential elements of the crime of petty theft the appellant was inadmissible on the ground that he admits committing acts which constitute the essential elements of a crime involving moral turpitude, to wit: Petty theft.
It is to be noted that the special inquiry officer reached this finding of inadmissibility despite his concession that under the authority of Matter of O---- T---- ( supra) the expungement of the record of conviction pursuant to section 1203.4 of the California Penal Code canceled out a charge of conviction and admission of a crime involving moral turpitude under the Immigration Act of 1917. Apparently, the theory behind the decision of the special inquiry officer lies in the changed wording of this ground of inadmissibility as set forth in section 212 (a) (9) of the Immigration and Nationality Act of 1952 which provides in pertinent part as follows:
Aliens who have been convicted of a crime involving moral turpitude (other than a purely political offense), or aliens who admit having committed such a crime, or aliens who admit committing acts which constitute the essential elements of such a crime; * * *
The proviso in section 19 (a) of the Immigration Act of 1917 regarding pardons and recommendations against deportation has been substantially incorporated in section 241 (b) of the Immigration and Nationality Act. The effect of an expungement of a record of conviction under section 1203.4 of the Penal Code of California has been held to be equivalent to a pardon.
In re Ringnalda, 48 F. Supp. 975 (S.D. Calif. 1943); In re Paoli, 49 F. Supp. 128 (N.D. Calif., 1943); Matter of V----, 56033/701; Matter of E----, A-5697769. The effect of the decision of the Supreme Court of California on June 15, 1949, in the case of Meyer v. Board of Medical Examiners et al., 206 P. (2d) 1085 was considered in Matter of O---- T----, Int. Dec. No. 278, because of the holding in the Meyer case that section 1203.4 of the California Penal Code does not wipe out the record of conviction as a cause for suspension or disbarment of a lawyer or physician; however, in view of the court decisions in In re Ringnalda and In re Paoli ( supra) it was concluded that no change was warranted in the view that the charge of admission of the commission of a crime which had been expunged under section 1203.4 was not sustained.
Reference to the legislative history relating to the enactment of section 241 (b) of the Immigration and Nationality Act and to the exclusion of the criminal classes (section 212 (a)) reveals the following statement: "It is the recommendation of the subcommittee that the exclusion clause pertaining to crime involving moral turpitude should be modified to exclude aliens who have been convicted of a crime involving moral turpitude, or aliens who admit committing acts which constitute the essential elements of such a crime, or aliens whose admissions are tantamount to a confession of such a crime. The principal purpose of the change is to overcome the situation which exists under the present law where an alien admits facts in an examination which clearly indicate commission of such a crime, but does not actually admit having committed such a crime as required by the law." Aside from the fact that the alien must no longer admit the legal conclusion that he has in fact committed the specific crime, the requirements set forth in Matter of J----, 56038/559, 2 IN Dec. 285 (1945) still prevail.
Report of the committee on the Judiciary pursuant to Senate Resolution 137, S. Rept. No. 1515, 81st Cong., 2d sess., pp. 352-354. The report makes it quite clear that the objection sought to be overcome was the court decisions holding that to sustain a charge of admission of the commission of a crime it was necessary for the alien to admit the commission of the specific crime and that the mere admission of facts from which an inference of guilt might be drawn was not competent, citing United States ex rel. Jelic v. District Director, 106 F. (2d) 14; ex parte Rocha, 30 F. (2d) 823; Howes v. Tozer, 3 F. (2d) 849.
We are accordingly convinced that the special inquiry officer in attempting to predicate an admission of the commission of the crime of petty theft based upon the testimony of the alien regarding the descriptions of acts and his guilt thereof which constituted the same crime for which he has received the benefits of a pardon as evidenced by the expungement of the record of conviction pursuant to section 1203.4 of the California Penal Code has misconceived the extent of the change in the language of section 212 (a)(9) of the Immigration and Nationality Act. We perceive no foundation either in the language of the act or in its legislative history to cause a change in the previous administrative view that a pardon forecloses basing a charge upon a subsequent admission of the same offense which constituted the basis for the conviction.
Rasmussen v. Robinson, 163 F. (2d) 732; Matter of C---- Y---- C----, A-5124278, 3 IN Dec. 623 (1950).
As stated by the special inquiry officer, there is no evidence whatsoever in this case of fraud or misrepresentation on the part of the applicant in procuring his visa nor did he try to conceal from the vice consul the fact that he had been arrested, convicted and sentenced when he made application for an immigration visa, inasmuch as his application was accompanied by a copy of his criminal record which was attached to the visa. It has been held that but for the stated exceptions, section 1203.4 of the California Penal Code, has a retroactive effect and the criminal proceedings have been expunged by the exercise thereof. Under the circumstances, it would be a superfluous and empty gesture to require the alien to obtain a new visa. Accordingly we find the documentary charge of inadmissibility also not sustained.
In re Paoli, 49 F.Supp. 128 (N.D. Calif., 1943).
Order: It is ordered that the appeal be and the same is hereby sustained and that the alien be admitted for permanent residence.