A-5960240
Decided by Board June 15, 1951
Crime involving moral turpitude — Tampering with motive power of vessel — 18 U.S.C. 502.
Violation of 18 U.S.C. 502 is an offense which involves moral turpitude. (See new 18 U.S.C. 2275.)
CHARGES:
Warrant: Act of 1924 — Remained longer — seaman.
Lodged: Act of 1917 — Crime within 5 years, to wit: Conspiracy to and attempt to tamper, and tampering and attempting to tamper with, the motive power of a vessel ( 18 U.S.C. 502).
BEFORE THE BOARD
Discussion: The respondent herein appeals from an order entered by the Assistant Commissioner January 15, 1951, denying his application for voluntary departure, preexamination and advance exercise of the 7th proviso to section 3 of the Immigration Act of 1917 and directing his deportation from the United States pursuant to law on the charges stated above. Respondent's exceptions do not contest the findings of fact or conclusions of law as to deportability but are concerned solely with the question of discretionary relief.
The respondent last entered the United States at San Juan, P.R., June 7, 1940, and was admitted as a seaman for 60 days. After his admission, he decided to remain in this country permanently. He was ordered deported to Italy May 14, 1941, but this Board on August 27, 1948, withdrew the outstanding order and warrant of deportation and reopened the case to permit the respondent to apply for discretionary relief.
The respondent was convicted in the United States District Court, San Juan, P.R., for violation of 18 U.S.C. 502, to wit: Conspiracy to tamper and attempt to tamper, and tampering and attempting to tamper, with the motive power of a vessel while said vessel was within the jurisdiction of the United States, with intent to injure and endanger the safety of the vessel, said acts having been committed on or about March 29, 1941. Violation of 18 U.S.C. 502 has been held to be a crime involving moral turpitude. Matter of C----, A-5956631 (B.I.A. 1943).
The respondent married a native-born citizen of the United States on May 11, 1947. He is gainfully employed as a busboy earning $28 per week plus his meals. His wife is employed as a stenographer and earns approximately $75 a week. Affidavits have been presented attesting that the respondent is a person of good moral character. Evidence has been submitted showing that the respondent has no arrests or criminal record in the United States except for the crime mentioned above. We find that the respondent has been a person of good moral character for the preceding 5 years.
The respondent's application for voluntary departure, preexamination, and advance exercise of the 7th proviso to waive the criminal ground of inadmissibility was denied by the Assistant Commissioner primarily because at that time he would have been inadmissible upon application for readmission under the provisions of section 1 (2) (C) of the act of October 16, 1918, as amended by the Internal Security Act of 1950 since he has admitted former membership in organizations affiliated with the Fascist Party of Italy.
The 82d Congress, however, since the adjudication of the case by the Assistant Commissioner, has enacted certain exceptions to the restrictive provisions of section 1 (2) (C) of the act of October 16, 1918, as amended by section 22 of the Internal Security Act of 1950 (Public Law 14, 82d Cong.; H.R. 2339, approved March 28, 1951). Where membership or affiliation with a proscribed organization was due solely and absolutely necessary for the purpose of obtaining or keeping employment, food rations, housing, or other essentials of living the restrictive provisions of section 22 of the Internal Security Act ( supra), do not apply. The affirmative evidence of record establishes that the respondent was forced to belong to the Fascist Federation of Seamen in order to obtain and keep his employment as an Italian seaman. Accordingly, insofar as membership in this organization is concerned, the respondent, under Public Law 14 ( supra), is not inadmissible now.
The respondent testified during the hearing that he also belonged to the Guild Fascist Youth Organization but that he was opposed to Fascist ideology.
The record, however, was not developed to show whether respondent's membership in this organization comes within any of the exceptions enumerated in Public Law 14 ( supra), or whether his membership therein ceased before he reached his 16th birthday. Under the circumstances, we will authorize the respondent's preexamination and the omissions referred to above can be developed during the hearing before the Board of Special Inquiry. At the same time, we will authorize the respondent's voluntary departure and provide for the advance exercise of the 7th proviso to remove the criminal ground of inadmissibility.
Order: It is ordered that the order entered by the Assistant Commissioner January 15, 1951, be and the same is hereby withdrawn.
It is further ordered that the appeal insofar as it relates to the grant of voluntary departure and preexamination be and the same is hereby sustained; preexamination is hereby authorized together with the alien's voluntary departure in connection therewith.
The criminal ground of exclusion is hereby waived pursuant to the discretion contained in the 7th proviso to section 3 of the Immigration Act of 1917, as amended, notwithstanding the alien's inadmissibility as one who was convicted of and/or admits the commission of a crime involving moral turpitude, to wit: His conviction in the United States District Court, San Juan, P.R., 1941, for violation of 18 U.S.C. 502, subject to revocation in the discretion of the Attorney General, after hearing, if the alien subsequently commits any offense.