55994/669
Decided by the Board November 18, 1942.
Sentence to imprisonment for a year or more — Entry without inspection — Admission of crime — Voluntary departure — Good moral character.
1. An alien has not been sentenced to imprisonment for 1 year or more within the meaning of section 19 of the Immigration Act of 1917 when he was convicted in California, the sentence providing for probation on condition that he serve 1 year in the county jail, since the jail confinement was merely a condition of the probation and under California law the case might be dismissed upon fulfilling the conditions of probation.
2. An alien has not entered by false and misleading statements thereby entering without inspection when he has failed to volunteer material information to the inspecting officer.
3. Admission by the alien of facts from which it might be inferred that some crime has been committed, does not establish that he has admitted the commission of a particular crime.
4. A finding of good moral character as required by section 19 (c) of the Immigration Act of 1917, as amended, authorizing voluntary departure cannot be made when the alien has been convicted of several crimes involving moral turpitude during the 5-year period preceding his application for voluntary departure although not deportable therefor, has failed to provide for his family, and has testified falsely during the proceedings.
CHARGES:
Warrant: Act of 1924 — Immigrant without immigration visa. Act of 1917 — Entered by false and misleading statements. Illiterate.
Lodged: Act of 1917 — Convicted of or admits commission of crime involving moral turpitude prior to entry — issuing fictitious checks; and obtaining goods by false pretenses.
Act of 1917 — Sentenced more than once for crimes involving moral turpitude — section 476, California Penal Code (2).
Mr. Louis E. Spiegler, Hebrew Sheltering and Immigrant Aid Society, for the respondent.
Miss Arlene Tuck, Board attorney-examiner.
STATEMENT OF THE CASE: We considered this case on January 16, 1940, at which time we found that the charges that respondent entered without having an immigration visa, that he entered by false and misleading statements, and that he was convicted or admits the commission, prior to entry, of a crime involving moral turpitude were sustained. But because of respondent's family — a legally resident wife and five children born in the United States — we granted him voluntary departure and directed that he be informed of preexamination.
On February 7, 1941, we reopened the case because it appeared that subsequent to the previous decision the respondent had been convicted for violating section 476 of the California Penal Code (knowingly issuing a fictitious check). At a reopened hearing conducted on April 18, 1941, the charge was lodged against respondent that he had been sentenced more than once to a term of imprisonment for a year or more for the commission subsequent to entry of a crime involving moral turpitude. This was based on two violations of section 476.
On December 20, 1941, the district director reported that the alien would be released from jail on the 25th of that month and it had been found that he is ineligible to be returned to Canada. Again because of respondent's long residence in the United States and because of his family; we ordered that pending final disposition of the case he be released under $500 bond or that he be paroled to the custody of some responsible person. At that time we also directed that the case be reopened so that there might be incorporated into the record additional evidence. Information had been received that respondent was wanted in Canada to answer a charge of obtaining goods by false pretenses.
We might now consider only whether the lodged charges are sustained — that is — the charge that respondent was sentenced more than once for the commission of a crime involving moral turpitude and the charge that he admits the commission prior to entry of a crime involving moral turpitude, namely, obtaining goods by false pretenses. Since we do have the case before us again, however, we shall reconsider it fully on its merits.
DISCUSSION: Respondent testified that he was born on May 15, 1888. He stated that he was born in a small town that is about 130 or 140 miles west of Prague, Bohemia. According to his pronunciation the place was called Ziasdez, but according to his passport it was spelled Zoyezdec. However, the place in what became Czechoslovakia that fits the geographical description given by respondent is Zhatetes.
Respondent first claimed that he was a citizen of the United States by naturalization, but he later admitted that he had only taken out his first papers. When the respondent was born, Bohemia was part of the Austro-Hungarian Empire, so that he would have been a citizen of that country at birth. After he came to the United States Bohemia became part of Czechoslovakia. We do not recognize Germany's conquest of Czechoslovakia, and hence from our point of view respondent is still a citizen of Czechoslovakia.
Respondent claimed before a board of special inquiry in Blaine, Wash., on February 11, 1937, that he first entered the United States at Hoboken in 1908. Respondent testified that he last entered the United States in March 1938 at Detroit, Mich. He admitted that he made application for admission to the United States at Blaine, Wash., on February 11, 1937, as a United States citizen. He had then been rejected because he was found to be not in possession of an immigration visa, a person likely to become a public charge, and illiterate. Respondent testified that he did not have an immigration visa at the time of his last entry, and that he has never had an immigration visa. The charge that respondent entered the United States without having an immigration visa is therefore sustained.
The charge that he entered by false and misleading statements, thereby entering without inspection does not appear to be sustained. Respondent testified that at the time of his last entry he was inspected by an immigration officer who asked him where he was going. Respondent stated that he told the officer that he was going home to join his family. Respondent testified that he was not asked if he was a citizen of the United States. He admitted that he had not told the inspector that he had previously been rejected by the immigration authorities, but he added that the immigrant inspector did not ask him whether he had ever been rejected or refused admission into the United States. This is the only evidence relative to this charge, and from this testimony it appears that respondent was inspected at the time of his last entry, and that he did not make any false or misleading statements. He was not required to volunteer any information.
As we pointed out in our previous decision, the charge based upon respondent's alleged inability to read is also not sustained. At the hearing respondent struggled through a Bohemian and an English reading card. The report indicates that he did not evidence much understanding of what he had read, but in view of this accomplishment he cannot be regarded as unable to read.
On reconsideration we do not find the charge sustained that respondent was convicted, or admits the commission, prior to entry, of a crime involving moral turpitude. When this charge was first lodged it was based specifically on "the issuance of fictitious checks on banks in which you (respondent) had no money at times and places stated specifically by you in your foregoing testimony, namely, a check in the amount of $50 at Houston, Tex., in March 1931." The following is the testimony to which the examining inspector referred:
Q. On March 29, 1931, you are shown as being arrested in Houston as a fugitive enroute to Dallas, Tex.?
A. I took my whole family with me and in Dallas, Tex., we were without any money and I bought an automobile for $50 and I gave him a check for $50 to pay for it.
Q. On what bank did you draw that check?
A. I don't remember. The man gave me a blank check on a Dallas bank. I don't know the name.
Q. What did you do with the car?
A. We went to the Jewish Society for aid in Fort Worth, Tex., and somebody told him we had an automobile and he said we could sell the automobile and buy bread and the society in Fort Worth called up the Jewish Society in Dallas, Tex., and the police came for the car.
Q. Why were you arrested in Houston, Tex.?
A. The car came from Houston.
Q. Why were you taken to Dallas, Tex.?
A. We went through and I wanted to stop at Dallas enroute to New York and I wanted to get something from the Jewish Aid.
Q. A few moments ago you testified that you gave a check on a Dallas bank, in which city you bought the automobile?
A. That was a mistake. I bought the automobile in Houston, Tex., and gave a check to the man in Houston and when I was in Fort Worth, Tex., I asked the Jewish Aid Society for help and they filled out a paper and told me to come back at 10 o'clock the next day and when I went back they arrested me for the police in Houston. I did not commit any crime in Dallas, Tex., and the police in Dallas did not want me.
It will be seen that respondent not only does not admit the commission of any specific crime, but he does not admit the commission of any crime in this connection. Respondent does state facts from which it might be inferred that in this Houston incident he probably violated some law of Texas, but that is insufficient to sustain a charge that he admits the commission of a particular crime involving moral turpitude ( Howes v. Tozer, 3 F. 2d 849 (1925)). There is no evidence that respondent was ever convicted of any offense in connection with the $50 check that he issued in Texas.
At the reopened hearing held on January 29, 1942, the charge was again lodged against respondent that he admits having committed a crime involving moral turpitude prior to entry into the United States, namely, receiving goods under false pretenses. This was based on respondent's activities in Canada prior to his last entry. Again respondent expressed agreement with the charge when it was placed against him. By detailed questioning the inspector elicited the following story from respondent. Respondent was being cared for by a Jewish welfare society in Toronto. He met a man there, another client of the society, who wrote a check for $7.75, which respondent signed. Respondent did not know the bank on which the check was written, and had no money in any bank in Toronto. He took the check to a clothing store, purchased a shirt for $1.85, and the storekeeper gave him the difference between the amount of the check and the price of the shirt. Respondent was then asked "Do you admit that you deliberately signed your name to a check and gave it to the person who sold you this shirt at Toronto as payment for that shirt when you knew that you had no funds in Canada?" Answer: "Yes." Here again respondent has admitted facts from which it might be inferred that he committed some crime, but he does not admit the commission of any specific crime. Such an admission does not satisfy the rule as set forth in the case of Howes v. Tozer, supra. Respondent was questioned about this check in Canada, because of a report that he was wanted by the Canadian authorities to answer a charge of receiving goods under false pretenses. A letter from the Border Patrol at Buffalo, New York, was read to respondent, and the letter mentions that there is a warrant outstanding in Toronto against respondent for obtaining goods by false pretenses. To this respondent replied "there is no use lying; I done it." This might be interpreted as the admission of the specific offense of obtaining goods by false pretenses. We could not properly determine merely from that description of the offense, however, whether it is one involving moral turpitude. The name of the offense does not include any intent to defraud. We find again, therefore, that the charge that respondent admits the commission of a crime involving moral turpitude is not sustained.
As has been pointed out, at the reopened hearing held on April 18, 1941, the charge was lodged against respondent that he had been sentenced more than once for a term of 1 year or more for the commission subsequent to entry of a crime involving moral turpitude, namely, two violations of section 476 of the California Penal Code. In connection with these offenses copies of the complaints and judgments of conviction were introduced in evidence and identified by the respondent. One of the complaints alleges that on May 20, 1939, A. K — committed the crime of making and passing a fictitious instrument in writing for payment of money, thereby violating section 476 of the California Penal Code. Another complaint alleges that on August 17, 1939, M---- F---- committed the same offense. Respondent had previously stated several times that he has used both of the above names. Judgments of conviction for the two offenses described above are dated April 24, 1940. Respondent, then, committed both offenses before he was convicted of either. It is our general view that an alien is not "sentenced more than once" unless he commits a crime, is convicted and sentenced, and then commits another crime for which he is also convicted and sentenced ( Wallis v. Tecchio, 65 F. 2d 250 (C.C.A. 5, 1933)). Following this view, we cannot sustain the charge that respondent has been sentenced more than once for the commission of a crime involving moral turpitude.
It will be observed that both offenses were committed within 5 years of respondent's last entry. The question arises then whether it would be advisable to reopen the case so that the charge might be lodged against respondent that he has been sentenced for the commission within 5 years after entry of a crime involving moral turpitude. This we shall not do because an examination of the judgments of conviction reveals that respondent was not "sentenced to imprisonment for a term of 1 year or more" as that phrase has been interpreted with particular reference to California procedure. Both convictions provide that the defendant "be granted probation for a period of 3 years, that as a condition of said probation he be confined in the county jail * * * for 1 year." The terms of confinement are to run consecutively. Such a judgment was considered in the case of K---- M---- K---- (55805/274), and on a petition for a writ of habeas corpus the district judge found that the alien had not been sentenced to imprisonment under section 19 of the 1917 act. This view was followed in the cases of A---- S---- S---- (56019/836), and H---- J---- K---- (56076/641). The rule is based not only on the words of the judgment in such cases but on the results of such a judgment according to California law. The judgment rather than sentencing the defendant to imprisonment places him on probation, and the confinement in jail is merely a condition to that probation. Section 1203.4 of the California Penal Code provides:
Every defendant who has fulfilled the conditions of his probation for the entire period thereof, or who shall have been discharged from probation prior to the termination of the period thereof, shall at any time thereafter be permitted by the court to withdraw his plea of guilty and enter a plea of not guilty; or if he has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and in either case the court shall thereupon dismiss the accusations or information against such defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted * * *
It has been logically contended that we cannot in an immigration proceeding say that an alien has been sentenced to imprisonment for the conviction of a crime when he may later have a verdict of guilty set aside and the accusation or information against him dismissed. This argument prevails even though section 1203.4 goes on to provide: "That in any subsequent prosecution of such defendant for any other offense, such prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismissed." Thus, although the defendant in a case like the present one, may be relieved from all penalties and civil disabilities, the conviction is not completely obliterated if he should commit another offense. Many aliens, however, might commit only one offense and then take advantage of section 1203.4. In that case it would be difficult indeed for us to hold that there was a complete and solid conviction existing against the alien.
Thus, after careful consideration the only charge against respondent that is sustained is that he entered the United States in March 1938 without having an immigration visa.
FINDINGS OF FACT: Upon the basis of all the evidence presented, it is found:
(1) That the respondent is an alien, a native of the Austro-Hungarian Empire, and a citizen of Czechoslovakia;
(2) That the respondent last entered the United States in March 1938 at Detroit, Mich.;
(3) That the respondent entered without having an immigration visa;
(4) That the respondent entered the United States for permanent residence;
(5) That the respondent did not enter the United States by false and misleading statements;
(6) That the respondent was not unable to read at the time of his last entry;
(7) That respondent admits facts from which can be inferred that prior to his last entry he issued a check in Texas without having funds in the bank;
(8) That respondent admits that prior to his last entry he obtained goods by false pretenses in Canada;
(9) That respondent was not convicted for any crime in connection with either of the above incidents;
(10) That on April 24, 1940, the respondent was convicted in California for two violations of section 476 of the California Penal Code, but was placed on probation for 3 years on condition that he be confined in the county jail for 1 year.
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 on the ground that he entered the United States without having an immigration visa;
(2) That under sections 3 and 19 of the Immigration Act of 1917, the respondent is not subject to deportation on the ground that at the time of his entry into the United States he was unable to read the English language or some other language or dialect;
(3) That under section 19 of the Immigration Act of 1917, the respondent is not subject to deportation on the ground that he entered the United States by false and misleading statements, thereby entering without inspection;
(4) That under section 19 of the Immigration Act of 1917, the respondent is not subject to deportation on the ground that he was convicted, or admits the commission, prior to entry, of a crime involving moral turpitude;
(5) That under section 19 of the Immigration Act of 1917, the respondent is not subject to deportation on the ground that he has been sentenced more than once to a term of imprisonment of 1 year or more for the commission subsequent to entry of a crime involving moral turpitude;
(6) That under section 20 of the Immigration Act of 1917, the respondent is deportable to Czechoslovakia at Government expense.
OTHER FACTORS: Respondent testified that his wife has resided in the United States since she was 12 years old. He has 5 children, all born in the United States, two of whom are still minors, 15 and 17 years old. At the time of the preliminary investigation respondent's family were receiving relief from the State of California. At the time of the hearing respondent stated that he was working as a junk dealer and averages between $15 and $18 a week. At the reopened hearing conducted in the county jail respondent stated that his wife is supported by the children. We do not know what respondent has been doing since he has been released from jail in California. At the reopened hearing in January of this year respondent stated that he is in debt in the sum of $500 or more.
A record from the California State Division of Criminal Identification and Investigation indicates that between 1922 and 1938 respondent had been arrested five times for passing fictitious checks and once for obtaining goods by false pretenses. This does not include either the Houston or the Toronto incidents discussed above. In none of these instances, however, was respondent convicted. He was questioned at the hearing about these arrests, and from his testimony it appears that he has a habit of buying automobiles and paying for them with worthless checks. In every instance, however, he stated that he later made good on the checks. Hence the absence of convictions. In 1928 he was brought to California from Cincinnati and was convicted for failure to provide for his minor children. Besides the offenses that were the basis for the sentenced-more-than-once charge, this appears to be the only conviction against him.
We cannot find that respondent is a person of good moral character. He sems to have an irresistible proclivity for writing bad checks. Although for technical reasons we have held that none of the occasions on which respondent issued such checks constituted a basis for deportation under the immigration laws, we cannot ignore a criminal record as long and persistent as respondent's. Crimes such as the recent offenses in California. — the violations of section 476 of the California Penal Code — have been held to involve moral turpitude ( United States ex rel. Portada v. Day, 16 F. 2d 328 (D.C., N.Y., 1926)). The record also indicates that throughout his married life respondent has required assistance from various private and public charitable organizations. Respondent showed a disregard for truth by twice testifying under oath that he is a United States citizen by virtue of naturalization — one story varying widely from the other in all details.
Respondent, far from being the support and protector of his family, involves them in one difficulty after another. Although it is regrettable that a person who has been in the United States so long and who has so many family ties should have to be deported, respondent is clearly a nuisance and a menace to every community in which he happens to be.
ORDER: It is ordered that the alien be deported to Czechoslovakia at Government expense, on the charge that he entered the United States without having an immigration visa.