A-8176708
Decided by Board July 16, 1957
Crime involving moral turpitude — Conviction of an offense under subdivision (8) of section 722 of the New York Penal Law is conviction of a crime within the meaning of section 241 (a) (4) of the act.
Conviction for disorderly conduct under section 722 (8) of the New York Penal Law is conviction for a crime involving moral turpitude within the meaning of the immigration laws, despite the fact that New York courts have defined such violations as "offenses" (citing United States v. Flores-Rodriguez, 237 F. (2d) 405).
CHARGE:
Order to Show Cause: Act of 1952 — Section 241 (a) (4) ( 8 U.S.C. 1251 (a) (4)) — Convicted twice of crimes after entry.
BEFORE THE BOARD
Discussion: On February 21, 1957, this respondent, a 41-year-old widower, a native and last a citizen of Poland, alleged to be stateless, who was admitted to the United States for permanent residence on November 26, 1951, was found deportable by a special inquiry officer on the charge in the order to show cause and deportation was directed. The case has been certified to this Board for review and final order. Deportability is contested on the allegation that respondent has been convicted of offenses which are not crimes and, therefore, the convictions do not come within section 241 (a) (4), Immigration and Nationality Act.
The evidence upon which deportability is based has been clearly and accurately set forth by the special inquiry officer who has incorporated in his decision the provision of the New York statute violated by the respondent, and under which he has been charged and convicted, after trial, on 2 occasions. The pertinent statute is subdivision (8) of section 722 of the New York Penal Law. The convictions occurred on August 11, 1954, and October 3, 1955, respectively, in City Magistrates' Court of the City of New York. The offenses were committed on August 1, 1954, and September 26, 1955, respectively. Respondent was fined $50 following each conviction.
§ 722. Disorderly Conduct. Any person who with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned, commits any of the following acts shall be deemed to have committed the offense of disorderly conduct: * * * 8. Frequents or loiters about any public place soliciting men for the purpose of committing a crime against nature or other lewdness.
Counsel, apparently conceding the convictions, contends that violation of subdivision (8) of section 722 of the New York Penal Law is known as disorderly conduct, and that the acts of misconduct committed by the respondent have been defined by the New York courts as "offenses," distinguishable from crimes or misdemeanors. Two New York decisions, allegedly defining certain acts of disorderly conduct in violation of section 722, New York Penal Law, as "offenses" and not "crimes," have been cited by counsel. It is urged that convictions for offenses which are not crimes will not support a ground for deportation under the provisions of section 241 (a) (4) of the Immigration and Nationality Act. On this reasoning, it is alleged that deportability is not established and that this proceeding should be terminated.
People ex rel. Burke v. Fox, 205 N.Y. 490; and Steinert v. Sobey, 14 App. Div. 505.
We have carefully considered the argument presented by counsel, also the points emphasized by Service counsel. We have decided that under the ruling and decision of the United States Court of Appeals (2d Circuit) in United States v. Flores-Rodriguez, 237 F. (2d) 405 (1956), in which case the pertinent New York statute quoted above was carefully considered, this respondent has been convicted twice for crimes involving the element of moral turpitude. In fact, the pertinent issue in United States v. Flores-Rodriguez, supra, was whether an alien convicted of violation of section 722 (8), New York Penal Law (loitering about a public place soliciting men for the purpose of committing a crime against nature, the same or similar acts committed by this respondent), and who denied conviction of any crime under oath, had committed perjury. Rodriguez had denied and concealed the conviction when he executed an application for an immigrant visa in Cuba in 1952. Precisely, the point considered was whether the matter concealed and denied was a material fact. The court after quoting the pertinent sections of law involved in the instant case, held that the conviction was a material fact to the issue of the alien's admissibility to the United States, because such offense constituted a crime or misdemeanor involving moral turpitude within the meaning of the statute excluding aliens from admission to the United States.
With respect to the decision in the Rodriguez case, we believe it is significant that the court observed that under New York law disorderly conduct had been denominated an "offense," that is, neither a "crime" nor a "misdemeanor," apparently for the purpose of determining or defining the jurisdiction of the inferior courts. The court further observed that the definition of the terms "crime" by New York courts does not control in the interpretation of an act of Congress when interpreting and applying the immigration law. Consequently, we feel that the ruling of the United States Court of Appeals in United States v. Flores-Rodriguez, supra, is decisive on the issue in the instant case. The charge in the order to show cause is sustained.
People v. Gilbert, 12 N.Y.S. (2d) 632; People v. Montgomery, 17 N.Y.S. (2d) 71; and People v. French, 102 N.Y. 583, 7 N.E. 913.
There is no issue of discretionary relief before us. Notwithstanding the forceful argument presented by counsel there is no alternative but to affirm the decision of the special inquiry officer.
In passing, we note that the date of conviction stated in Finding of Fact (4) should be October 3, 1955; also, that Findings of Fact (5) and (6) are conclusions of law. Findings (5) and (6) are deleted.
Order: It is ordered that the decision of the special inquiry officer in this case dated February 21, 1957, certified to this Board for review and final order, be and the same is affirmed.