A-6194022.
Decided by Central Office March 28, 1946. Decided by Board April 5, 1946.
Crime involving moral turpitude — Theft (Canada) — Violation of section 386 of the Criminal Code of Canada — Theft from person (Canada) — Violation of section 379 of the Criminal Code of Canada — Evidence.
1. The offense of theft in violation of section 386 of the Criminal Code of Canada involves moral turpitude where the evidence shows a "permanent taking" was intended.
2. The offense of theft from the person in violation of section 379 of the Criminal Code of Canada involves moral turpitude where the evidence shows a "permanent taking" was intended.
CHARGES:
Warrant: Act of 1918, as amended — No passport.
Act of 1924 — No immigration visa.
Act of 1917 — Admits crime prior to entry, to wit: Theft and Breaking, Entering and Theft.
Act of 1917 — Convicted of crime prior to entry, to wit: Theft and Breaking, Entering and Theft.
Lodged: Act of 1917 — Admits crime prior to entry, to wit: Theft (three offenses), and Theft from the person in violation of section 379 of the Criminal Code of Canada.
Act of 1917 — Convicted of crime prior to entry, to wit: Theft (two offenses), and Theft from the person in violation of section 379 of the Criminal Code of Canada.
BEFORE THE CENTRAL OFFICE
(March 28, 1946)
Discussion: The respondent is a 19-year-old male, native and citizen of Canada, who last entered the United States at the port of Niagara Falls, N.Y. on November 13, 1945, at which time he was admitted as a temporary visitor for a period of 1 day to attend the movies. On that occasion, it was his intention to return to Canada at the expiration of the time for which he was temporarily admitted, but after attending the movies he missed his bus going to Canada and has since remained in the United States.
In view of the foregoing, it is apparent that the respondent was a bona fide nonimmigrant at the time of his last entry to this country. Therefore, the charge in the warrant of arrest, that he is subject to deportation on the ground that at the time of entry he was an immigrant not in possession of a valid immigration visa, is clearly untenable and cannot be sustained.
Under section 175.48 (w) of title 8, Code of Federal Regulations, the respondent, as a native-born Canadian entering this country for a period less than 30 days, was not required to present either a passport or permit to enter. Accordingly, the charge stated in the warrant of arrest, that he is subject to deportation on the ground that at the time of entry he did not present a passport or document in lieu thereof, is not applicable and cannot be sustained.
On February 9, 1943, the respondent was arrested in the city of Oshawa, Canada, charged with theft of money from lodger, given a suspended sentence and returned to the Bowmanville Training School of which he was a ward. The respondent admits that he committed this theft for which he was given a suspended sentence and returned to the aforementioned training school. In connection therewith, it should be noted that the respondent was but 5 days over the age of 16 when this conviction took place, and the record does not disclose the date on which this crime is alleged to have been committed.
Section 2 (a) of the Canadian Juvenile Delinquents Act of 1929 provides that:
"Child" means any boy or girl apparently or actually under the age of 16 years: Provided, That in any Province or Provinces as to which the Governor-in-Council by proclamation has directed or may hereafter direct, "child" means any boy or girl apparently or actually under the age of 18 years: Provided further, That any such proclamation may apply either to boys only or to girls only or to both boys and girls.
Section 2 (g) of the Juvenile Delinquents Act provides:
"Juvenile delinquent" means any child who violates any provision of the Criminal Code or of any dominion or provincial statute, or any by-law — or ordinance of any municipality, or who is guilty of sexual immorality or any similar form of vice, or who is liable by reason of any other act to be committed to an Industrial School or Juvenile Reformatory under the provisions of any dominion or provincial statute.
It has been well established that juvenile delinquency is not considered to be a crime within the meaning of sections 3 and 19 of the Immigration Act of February 5, 1917 as amended ( Matter of S----, 56052/519 (May 11, 1942); Matter of B----, 56106/828 (January 22, 1943); Matter of M----, 56137/862 (renumbered A-5946635) (April 10, 1943); Matter of A----, 56038/313 (August 7, 1943); and Matter of E----, 56041/272 (renumbered A-4626745) (April 7, 1944, Atty. Gen. April 14, 1944)). Although the record establishes that the respondent was 5 days over the age of 16 years when the aforementioned conviction took place, the actual date of the commission of the offense in question is not known. We are, therefore, unable to determine, on the present record, whether the respondent was convicted as a juvenile delinquent or as an adult. In the circumstances, neither the respondent's conviction nor admission of the commission of this offense may be used as a basis for his deportation.
On September 21, 1943, in Alliston, Ontario, Canada, the respondent was convicted of theft in violation of section 386 of the Criminal Code of Canada which provides as follows:
Every one is guilty of an indictable offence and liable to 7 years' imprisonment who steals anything for the stealing of which no punishment is otherwise provided or commits in respect thereof any offence for which he is liable to the same punishment as if he had stolen the same.
2. The offender is liable to 10 years' imprisonment if he has been previously convicted of theft.
It should be noted that section 386 supra does not define the crime of theft or stealing but merely prescribes punishments therefor. It is necessary, therefore, to resort to section 347 of the Canadian Criminal Code for a definition of the crime of theft or stealing, which section states as follows:
Theft or stealing is the act of fraudulently and without colour of right taking, or fraudulently and without colour of right converting to the use of any person, anything capable of being stolen, with intent,
(a) to deprive the owner, or any person having any special property or interest therein, temporarily or absolutely of such thing or of such property or interest; or
(b) to pledge the same or deposit it as security; or
(c) to part with it under a condition as to its return which the person parting with it may be unable to perform; or
(d) to deal with it in such a manner that it cannot be restored in the condition in which it was at the time of such taking and conversion.
2. Theft is committed when the offender moves the thing or causes it to move or to be moved, or begins to cause it to become movable, with intent to steal it.
3. The taking or conversion may be fraudulent, although effected without secrecy or attempt at concealment.
4. It is immaterial whether the thing converted was taken for the purpose of conversion, or whether it was, at the time of the conversion, in the lawful possession of the person converting.
In the Matter of T----, 56156/249 (February 24, 1944), it was stated that the crime of "theft or stealing", under the Canadian statute, includes offenses which would not be so characterized in our law; that, therefore, the crime of theft in Canada may or may not involve moral turpitude; that before this offense can be held to involve moral turpitude, there must be an affirmative showing that the theft was committed with the intention of permanently depriving the owner of his property; and that it is permissible to look beyond the statute to consider such facts as may appear from the record of conviction or admissions of the alien to reach an independent conclusion as to whether the offense is one which, under our law, involves moral turpitude.
In the instant case, the respondent describes the circumstances surrounding the crime, of which he was convicted on September 21, 1943, at Alliston, Ontario, by stating, "I had a fight with a farmer I was working for. He didn't want to pay me. He was going away, said I should wait until he came back, and I took $35 for the month that I worked; it was the money that he owed me, and went." While the respondent was not questioned as to his intent at the time he committed this offense, the only reasonable conclusion that can be reached is that the respondent stole this money with the intention of retaining it and permanently depriving the rightful owner of same. It is held, therefore, that the circumstances surrounding the offense in question satisfy the "permanent taking" doctrine enunciated in the Matter of T----, supra, and that this offense of theft in Canada involves moral turpitude. In view of his unequivocal admission of the commission of this crime, the respondent is deportable as one who admits the commission of a crime involving moral turpitude prior to entry, to wit: Theft.
It should be noted that the hearing does not contain an authenticated copy of the record of the respondent's conviction of theft on September 21, 1943. The only documentary evidence of record, relating to this offense, consists of a letter from the Chief of Police at Oshawa, Canada. While such evidence should ordinarily be received with caution, it should be noted that the respondent identified this document as relating to him, admitted that he was convicted and received a sentence of 3 months definite and 3 months indefinite, and unequivocally admitted the commission of the crime. It is held, therefore, that this letter from a foreign police official, coupled with the respondent's admission of conviction as shown therein, is competent evidence to support the charge that the respondent is subject to deportation on the ground that he has been convicted of a crime involving moral turpitude prior to entry into the United States, to wit: Theft. In this connection, it might be stated that in U.S. ex rel Schreiber v. Reimer 19 F. Supp. 719 (D.C.N.Y. 1937), the court held that a letter of a foreign police official stating that an alien had been convicted of embezzlement was held competent to prove a conviction prior to entry. The Board of Immigration Appeals, on December 7, 1945, also approved an order of the Commissioner to this effect in the Matter of V----, 5-991035.
On February 11, 1944, in the Police Magistrate's Court at St. Catharines, Ontario, Canada, the respondent was convicted of theft from the person, contrary to section 379 of the Criminal Code of Canada which provides as follows:
Every one is guilty of an indictable offence and liable to 14 years' imprisonment who steals any chattel, money, or valuable security from the person of another.
It should be noted that section 379, supra, does not create a different offense of theft but merely provides the punishment therefor when the theft is from the person of another. It is necessary, therefore, to resort to section 347, supra, for a definition of the crime of "theft or stealing," and the "permanent taking" principle laid down in the Matter of T----, supra, previously discussed in this memorandum applies.
The respondent admits, unequivocally, that he committed the theft for which he was convicted on February 11, 1944, and describes the circumstances surrounding this crime by stating, "I was working. I got a parole out of the Reformatory on December 7 and on February 2, 1944, I got laid off my job, and I went home and told my mother and she told me if I didn't have money to pay my room and board there I couldn't stay there. I couldn't get the money until a week later so I went out and grabbed a purse, and they caught me and I was sentenced." In view of the circumstances surrounding this crime, as described by the respondent, there appears to be no question but that the theft in question was committed with the intent of permanently depriving the rightful owner of her property. Accordingly, this theft, in violation of section 379 of the Canadian Criminal Code, of which the respondent was convicted on February 11, 1944, involves moral turpitude and he is subject to deportation because of his conviction and admission of the commission of same.
There was attached to the record of hearing a warrant of arrest issued December 1, 1945, by a Justice of the Peace at St. Catharines, Ontario, Canada, wherein it is charged that the respondent, on November 10, 1945, did "unlawfully steal from the dwelling house of one, A---- S----, in the said city the sum of $115.00. Contrary to section 380 of the Criminal Code of Canada." Although the respondent unequivocally admits that he committed the theft as set forth in this outstanding warrant for his arrest, it should be noted that he was not given a definition of the crime conforming to the law of the jurisdiction where it is alleged to have been committed. In the absence of such a definition, the alien's admission of this crime may not be used as a basis for his deportation, and the charge predicated thereon cannot be sustained.
The record fails to reflect that the respondent was either convicted or admits the commission of "breaking, entering, and theft." Accordingly, the charges in the warrant of arrest, that the respondent is deportable because of his conviction and admission of the commission of "breaking, entering, and theft," cannot be sustained.
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 Canada;
(2) That the respondent last entered the United States at the port of Niagara Falls, N.Y., on November 13, 1945, and was admitted as a temporary visitor for a period of 1 day;
(3) That at the time of entry, the respondent intended to return to Canada at the expiration of the time for which he was temporarily admitted;
(4) That on February 9, 1943, in Oshawa, Canada, the respondent was convicted of theft of money;
(5) That the respondent admits committing the theft for which he was convicted on February 9, 1943;
(6) That on the present record a determination as to whether or not the respondent was convicted as a juvenile delinquent cannot be made;
(7) That on September 21, 1943, in Alliston, Ontario, Canada, the respondent was convicted of the crime of theft in violation of section 386 of the Criminal Code of Canada;
(8) That the respondent admits, unequivocally, that he committed the crime of theft of which he was convicted on September 21, 1943;
(9) That on February 11, 1944, in the Police Magistrate's Court at St. Catharines, Ontario, Canada, the respondent was convicted of the crime of theft from person, in violation of section 379 of the Criminal Code of Canada;
(10) That the respondent admits having committed the crime of theft from the person for which he was convicted on February 11, 1944;
(11) That the respondent admits having committed the crime of theft at St. Catharines, Ontario, Canada on November 10, 1945;
(12) That the respondent was not given a definition of the crime of theft corresponding to the Canadian statutes;
(13) That the respondent neither admits the commission nor has he been convicted of breaking, entering, and theft.Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 19 (a) of the Immigration Act of February 5, 1917, as amended, the respondent is subject to deportation on the ground that he admits having committed a felony or other crime or misdemeanor involving moral turpitude prior to entry into the United States, to wit: Theft; and Theft from the Person;
(2) That under section 19 (a) of the Immigration Act of February 5, 1917, as amended, the respondent is subject to deportation on the ground that he has been convicted of a felony or other crime or misdemeanor involving moral turpitude prior to entry into the United States; to wit: Theft; and Theft from the Person;
(3) That under section 19 (a) of the Immigration Act of February 5, 1917, as amended, the respondent is not subject to deportation on the ground that he admits having committed a felony or other crime or misdemeanor involving moral turpitude prior to entry into the United States, to wit: Theft (three offenses), and Breaking, Entering, and Theft;
(4) That under section 19 (a) of the Immigration Act of February 5, 1917, as amended, the respondent is not subject to deportation on the ground that he has been convicted of a felony or other crime or misdemeanor involving moral turpitude prior to entry into the United States, to wit: Theft (two offenses), and Breaking, Entering, and Theft;
(5) That under section 19 (a) of the Immigration Act of February 5, 1917, as amended, the respondent is not subject to deportation on the ground that at the time of entry he did not present an unexpired passport or official document in the nature of a passport issued by the government of the country to which he owes allegiance or other travel document showing his origin and identity, as required by the Passport Act approved May 22, 1918, as amended, and Executive Order 8766 of June 3, 1941, issued thereunder;
(6) That under section 13 (a) (1) and 14 of the Immigration Act of May 26, 1924, the respondent is not subject to deportation on the ground that at the time of entry he was an immigrant not in possession of a valid immigration visa and not exempted from the presentation thereof by said act or regulations made thereunder;
(7) That under section 20 of the Immigration Act of February 5, 1917, as amended, the respondent is deportable to Canada at the expense of the Government.Other Factors: The respondent is single, and his only relative in the United States is an aunt whose name or address he does not know.
On December 3, 1945, the respondent was convicted in the District Court of the United States for the Western District of New York at Buffalo, N.Y., upon his plea of guilty to a violation of section 2 of the act of March 4, 1929, as amended, as a result of which he was sentenced to 1 year's imprisonment. Sentence was suspended and he was placed on probation for 1 year and remanded for deportation.
Inasmuch as the respondent is deportable as a member of one of the classes specified in section 19 (d) of the Immigration Act of February 5, 1917, as amended, he is ineligible for the discretionary relief set forth in section 19 (c) of that act, and his deportation is mandatory.
Order: It is ordered that the alien be deported to Canada at Government expense on the following charges:
The act of February 5, 1917, in that he admits having committed a felony or other crime or misdemeanor involving moral turpitude prior to entry into the United States, to wit: Theft, and theft from the person;
The act of February 5, 1917, in that he has been convicted of a felony or other crime or misdemeanor involving moral turpitude prior to entry into the United States, to wit: Theft and theft from the person.
In accordance with 8 C.F.R. 90.3 the case is referred to the Board of Immigration Appeals for consideration.
Upon consideration of all the evidence of record, the findings of fact and conclusions of law proposed by the Presiding Inspector as modified by the Commissioner on March 28, 1946, are hereby adopted.
Order: It is ordered that the alien be deported to Canada at Government expense on the following charges:
The act of February 5, 1917, in that he admits having committed a felony or other crime or misdemeanor involving moral turpitude prior to entry into the United States, to wit: Theft and theft from the person;
The act of February 5, 1917, in that he has been convicted of a felony or other crime or misdemeanor involving moral turpitude prior to entry into the United States, to wit: Theft and theft from the person.