A-6019766.
Decided by Central Office October 4, 1946. Decided by Board February 11, 1947.
Crime involving moral turpitude — Conspiracy to defraud of Canadian customs duties — Violation of section 444 of the Criminal Code of Canada.
(1) The offense of conspiracy to commit a crime does not involve moral turpitude unless the crime attempted or committed under the conspiracy involves moral turpitude.
(2) The offense of conspiring by deceit, falsehood, and other fraudulent means to defraud His Majesty the King of customs duties in violation of section 444 of the Criminal Code of Canada involves moral turpitude.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1917 — Convicted of crime in 1932 in Canada, to wit: Conspiracy to defraud His Majesty the King of customs duties in violation of section 444 of the Criminal Code of Canada.
BEFORE THE CENTRAL OFFICE
Discussion: On June 4, 1946, the appellant applied for admission into the United States at Montreal, Canada, and was referred to a Board of Special Inquiry which after a hearing conducted on June 4, 1946, ordered him excluded on the above stated ground. He has appealed from this decision.
The appellant is a 47-year-old male, married, an alien, a native of Russia and a naturalized citizen of Canada since July 5, 1940. He desires to come to the United States on business trips for periods of about 10 days.
He was tried in the Court of King's Bench, Crown Side, in Montreal, Province of Quebec, Canada, on November 21, 1932, on the following charge, to wit: For having at the City of Montreal, District of Montreal, from about the beginning of July 1926 to about the end of May 1930, conspired with one another and with divers other persons, by deceit, falsehood, and other fraudulent means to defraud His Majesty the King of customs duties. He was found guilty by a jury with a strong recommendation to the clemency of the court. He was convicted for violation of section 444 of the Criminal Code of Canada and was sentenced on January 3, 1933, to 12 months at hard labor from the date of incarceration. He testified that he remained in jail for about 5½ months.
Section 444 of the Criminal Code of Canada reads as follows:
Every one is guilty of an indictable offense and liable to 7 years' imprisonment who conspires with any other person, by deceit or falsehood or other fraudulent means, to defraud the public or any person, ascertained or unascertained, or to affect the public market price of stocks, shares, merchandise, or anything else publicly sold, whether such deceit or falsehood or other fraudulent means would or would not amount to a false pretense as hereinbefore defined (Tremeear's Criminal Code of Canada, fifth edition by A.B. Harvey, p. 498).
The alien's attorney contends that the offense for which the appellant was convicted in Canada, as above stated, is an offense which does not involve moral turpitude and requests consideration of the appellant's part in the above conspiracy as constituting at most an error of judgment or "a venial peccadillo."
In this connection, it is noted that the Board of Review considered this question in this case on January 8, 1940, and decided that the offense for which the appellant was indicted and convicted was one which did involve moral turpitude. In a similar case before the Board of Immigration Appeals on September 30, 1941, relating to a codefendant of the appellant, in the above indictment the offense in question was also considered to be one involving moral turpitude ( Matter of C----, 56096/221, September 30, 1941).
The case before us may be distinguished from the case cited by the alien's attorney, Matter of B----, 55811/86, April 29, 1946, in that the appellant B---- was convicted under section 573 of the Criminal Code of Canada which reads as follows:
Everyone is guilty of an indictable offence and liable to 7 years' imprisonment who, in any case not hereinbefore provided for, conspires with any person to commit any indictable offence (Tremeear's Criminal Code of Canada, fifth edition by A.B. Harvey, p. 632).
It is palpable that an offense for which a person may be convicted under above section 573 of the Criminal Code of Canada may or may not involve moral turpitude, inasmuch as the object of the conspirator may be to commit any indictable offense which would include an indictable offense which may or may not involve moral turpitude.
It was also pointed out in the B---- case that the indictment was made under a provision of the customs law which does not contain an averment denouncing the act as a perpetration of fraud upon either property or revenue of the Crown and that the conviction record did not indicate whether the offense committed was accompanied by a vicious motive or corrupt mind the presence of which is the usual test applied in determining whether the crime contains the element of moral obloquy ( Mongiovi v. Karnuth, 30 F. (2d) 825 (1929)). It was further pointed out in the B---- case that the statute violated was similar to the provisions of section 593 (b) of the Tariff Act of 1930, which had been held to be a violation of law not involving moral turpitude ( Matter of F----, CF-72242, April 5, 1938).
It has been held that a conspiracy to commit a crime does not involve moral turpitude unless the crime committed or attempted involves that element ( Matter of L----, 56156/271, April 29, 1944). The indictment in the present case contains an intention to defraud in the charge. Furthermore the statute under which the indictment was prosecuted, section 444 of the Criminal Code of Canada, specifically sets forth an element to defraud. The courts have amply clarified that an offense involving moral turpitude is present when the offense involves an intent to defraud ( Berlandi v. Reimer, 30 F. Supp. 767 (D.C. New York, 1939, affirmed 113 F. (2d) 429 (C.C.A. 2d, 1940)).
We cannot look beyond the conviction record and statute where such statute and conviction record clearly set forth the offense committed in a foreign country which may be readily compared to a similar offense in the United States, so that the standard by which the crime is to be judged can be ascertained. It is to be noted that where there is no evidence of either actual fraud or of intent to defraud, a conviction under section 444 of the Criminal Code of Canada cannot be supported ( R. v. Phillips (1928) 35 O.W.N. 119, 13 Can. Abr. 567 (C.A.)). The alien's counsel's point that the appellant was merely a conspirator to the extent that he unwittingly financed the smuggling cannot be considered. It is concluded that the appellant was convicted of an offense involving moral turpitude when he was convicted in 1932 and sentenced in 1933 of the above-stated offense.
The record shows that the appellant was excluded on the same ground on January 8, 1940, but his admission as a visitor for business for a period of 1 year, no single visit to exceed 5 days was authorized under the provisions of the ninth proviso to section 3 of the act of 1917, upon the filing of a $500 departure bond. His temporary admission was subsequently extended from year to year, the last time being by order dated January 27, 1945.
The appellant has requested a reconsideration as to whether the offense for which he was convicted actually involves moral turpitude. He has contended that this offense does not involve moral turpitude and that therefore he should be allowed to visit the United States temporarily without the necessity of being granted authorization under the ninth proviso, upon the filing of a $500 departure bond.
The appellant states that he is a manufacturer of clothes and that his interest in this business is valued by him at about $1,500,000. He stated that he has been offered $1,100,000. He appears to have complied with the conditions of his admission heretofore. He states that he does not intend to leave Canada and reside in the United States. He would like to go to the fashion meets at Los Angeles, Calif., from time to time. It is believed that he should be accorded similar privileges as he has had heretofore in connection with his temporary visits to the United States.
Order: It is ordered that the alien be admitted to the United States under the authority contained in the ninth proviso to section 3 of the Immigration Act of 1917, for temporary visits, in no instance to exceed two weeks over a period of one year from date of notification of decision, conditioned upon the filing of a bond in the sum of $500 guaranteeing his ultimate departure from the United States, and if otherwise admissible than as one who has been convicted of a felony or other crime or misdemeanor involving moral turpitude, to wit: Conspiracy to defraud His Majesty the King of customs duties in violation of section 444 of the Criminal Code of Canada, in 1932.
The case is submitted to the Board of Immigration Appeals under 8 C.F.R. 90.3 for reference to the Attorney General.
Upon consideration of the entire record, it is ordered that the decision of the Commissioner be and the same is hereby affirmed.
While the alien's presence in the United States is not emergent, since we find that the case is exceptionally meritorious, we have, on that basis, approved the order of the Commissioner.