56040/547
Decided by the Board November 22, 1940. Approved by the Attorney General November 29, 1940.
Seventh Proviso to Section 3, Immigration Act of 1917 — Discretion — Factors.
1. When an alien has been convicted of a crime involving moral turpitude, in determining whether to exercise discretion to admit him under the seventh proviso to section 3 of the Immigration Act of 1917, the factors to be considered are the social and humane problems involved and the alien's undesirability as evidenced by the crime for which he was convicted.
2. Although in exclusion or deportation predicated on conviction of a crime, the judgment of conviction is conclusive as to guilt, in considering whether discretionary action should be taken under the seventh proviso to section 3 of the Immigration Act of 1917, inquiry may be had into the circumstances surrounding the commission of the crime and the conviction.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1917 — Convicted of crime — petty theft.
APPLICATION: Admission to resume residence.
Mr. Albert E. Reitzel, for the Immigration and Naturalization Service.
BEFORE THE BOARD
STATEMENT OF THE CASE: The appellant had been taken into custody under a warrant of arrest issued April 4, 1940, charging that he had been convicted of or admits the commission of a crime involving moral turpitude prior to entry into the United States, to wit: petty theft. He has been accorded a hearing thereunder and, upon consideration of the record of hearing, was granted an opportunity to depart from the United States, without the issuance of a warrant of deportation, within a period of 30 days. Upon consideration of the case at that time, June 14, 1940, it was directed that the appellant be informed that he might apply for entry into the United States without an immigration visa upon making proper application, and that consideration would be given to his case under the provisions of the seventh proviso to section 3 of the act of 1917. According to this permission, the appellant departed from the United States on July 1, 1940, and made application for readmission at Calexico on July 12, 1940. The board of special inquiry found the appellant inadmissible under section 3 of the Act of February 5, 1917, on the ground above stated. From this action the alien appeals.
The Service attorney does not oppose the admission of the appellant under the seventh proviso of section 3 of the act of 1917 but believes his guilt may not be questioned in consideration under this provision of law.
DISCUSSION: The appellant testifies that he is 26 years of age, married, and a native and citizen of Mexico. He presents a document issued by the Mexican Immigration Service, showing his origin and identity, in lieu of a passport but does not present a visa of any kind. He entered the United States on July 5, 1918, at El Paso, which entry has been made lawful through registry proceedings, and has lived in the United States continuously since that time.
On December 6, 1937, the appellant was convicted of a crime of petty theft in the State of California. This conviction occurred prior to a short visit to Mexico from which the appellant returned on March 22, 1940. Because the conviction occurred prior to the entry of March 22, 1940, deportation proceedings were instituted.
The appellant has been convicted of the crime of theft, which crime involves moral turpitude, and is inadmissible on this ground.
Although when the case was considered on June 14, 1940, the appellant was advised that he could return to the United States within 6 months without an immigration visa, regulations of the Department of State, effective on July 1, 1940, based on Executive Order 8430 of June 5, 1940, require all immigrants to present immigration visas. The same regulations permit returning residents to present reentry permits or border-crossing identification cards in lieu of immigration visas, but the former rule, made under the provisions of section 13 (b) of the Immigration Act of 1924, which permitted aliens lawfully admitted to the United States for permanent residence to reenter without visas after visiting in certain countries, including Mexico, if the absence was not more than 6 months, has been revoked. The appellant does not have an immigration visa, nor either of the documents he is permitted to present in lieu thereof. He, therefore, is inadmissible under the Immigration Act of 1924.
FINDINGS OF FACT: Upon the basis of all the evidence adduced at the hearing, it is found:
(1) That the appellant is an alien, being a native and citizen of Mexico;
(2) That the appellant has been lawfully admitted to the United States as a permanent resident as of July 5, 1918;
(3) That the appellant seeks to enter the United States to resume permanent residence;
(4) That the appellant is in possession of a valid document in the nature of a passport showing his origin and identity;
(5) That the appellant is not in possession of an unexpired immigration visa;
(6) That the appellant has been convicted of a crime, to wit: petty theft.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 3 of the Immigration Act of 1917, the appellant is inadmissible to the United States because he has been convicted of a crime involving moral turpitude, to wit: petty theft;
(2) That the appellant is inadmissible to the United States under the Immigration Act of 1924, because he is an immigrant not in possession of an unexpired immigration visa.
OTHER FACTORS: There are two matters for consideration under the discretionary authority vested in the Attorney General: First, should the appellant's admission to the United States be authorized under section 13 (b) of the Immigration Act of 1924? This provision of the law grants to the Attorney General, insofar as the 1924 act is concerned, power to admit to the United States without an immigration visa an alien who is returning from a temporary absence abroad and who has previously been legally admitted for permanent residence. As previously pointed out, when the decision in the deportation proceeding was rendered, advice was given the appellant consistent with regulations then in effect that he would need no document if he returned to this country after visiting in Mexico for 6 months or less. The fact that regulations were changed after the order of this case was entered and prior to the alien's application for readmission to the United States is a compelling reason why the authority contained in subdivision (b) of section 13 of the act of 1924, should be exercised in the appellant's favor.
The second discretionary matter for consideration is whether the appellant should be admitted to the United States under the provisions of the seventh proviso to section 3 of the Immigration Act of February 5, 1917. That proviso reads as follows:
Provided further, That aliens returning after a temporary absence to an unrelinquished United States domicile of 7 consecutive years may be admitted in the discretion of the Attorney General, and under such conditions as he may prescribe.
The appellant previously lived in the United States 22 years and was out of the United States 11 days prior to the present application for readmission. It may be accepted without further proof that such an absence was a temporary visit from the United States and that the appellant was domiciled in the United States for more than 7 consecutive years.
The issue, therefore, narrows itself to this: Should the Attorney General direct the appellant's admission to the United States, notwithstanding his conviction of the crime of petty theft? It is the opinion of the Board of Immigration Appeals that readmission under this provision of law should be authorized for the reasons hereinafter stated.
In considering whether readmission under this proviso ought to be authorized, broadly speaking, there are two fields of inquiry: first, that relating to the social and humane problems involved, and second, that relating to an alien's undesirability as evidenced by the crime for which he was convicted.
The social and humane factors are favorable to the appellant's readmission under the seventh proviso. As before stated, he has lived in the United States since a child of 4 years of age. This country has been his exclusive home. He has been educated here. He is from a practical standpoint a product of this country. Certain it is that the exclusion of one who has lived here for so many years has more farreaching social consequences than the exclusion of one who may be applying to enter the country for the first time, or who may be seeking reentry after only a few years of residence.
Not only has the appellant lived here, but he has married here and has two children aged 4½ and 3 years, respectively. His wife and children are all native-born citizens. Other than being the recipient of direct relief for a period of 30 days in 1936, the appellant has been supporting his family. There is every reason to anticipate that his exclusion will cause his family to seek charitable assistance for their existence. These factors all appeal for favorable action under the seventh proviso of section 3 of the Immigration Act of 1917.
Under the second proposition, that is, the consideration to be accorded the appellant, viewed solely from the standpoint of the crime committed, it is likewise the opinion of the Board of Immigration Appeals that the case merits a favorable action. It is apparent that when action under the seventh proviso is contemplated, the nature of the crime and all circumstances connected therewith are appropriate matter for inquiry. The same consideration will not be given one who has committed an aggravated crime as would be accorded one who has committed a minor infraction of law, although both crimes involved moral turpitude. In this case, the conviction in question is the sole criminal record. The sentence imposed was but 6 months in jail, and of this sentence the appellant was required to serve only a few days. These are all factors that tend to indicate that the alien is not a criminal in the popular acceptance of that term. To deny him reentry into the United States because of the rather minor nature of the crime would be actual punishment entirely disproportionate to the seriousness of the offense.
There is, moreover, another matter that justifies consideration. Insofar as the question of whether an alien is subject to exclusion or deportation because of the conviction of a crime, the Department is bound by the criminal record and may not go behind it and review the evidence and render an independent judgment on the guilt or innocence of the alien involved ( Ng Sui Wing v. United States, 46 F. 2d 755; United States ex rel. Zaffarano v. Corsi, 63 F. 2d 757). This does not mean, however, that in considering whether discretionary action should be taken the Attorney General may not or should not inquire into the circumstances surrounding the commission and conviction of the crime, even if such inquiry leads to the conclusion that in fact the alien was innocent of wrongdoing. The language employed in the proviso in no way limits the Attorney General in reference to the factors he may consider in exercising his discretion. Ordinarily, the correctness of a record of conviction will not be questioned even in relation to discretionary action, particularly where the conviction occurred in a court of record. Nevertheless, we feel the power does rest in the Attorney General to make such inquiry if he feels in an individual case that such action is justified.
The Service attorney believes that the Attorney General may not, in reference to action under the seventh proviso, question the correctness of a criminal conviction. In support of this view, the Service attorney cites United States ex rel. Zaffarano v. Corsi, supra. This case was concerned solely with the issue of whether the alien involved was deportable. With this decision we are in full accord. It does not touch upon the permissible extent of the Attorney General's inquiry when confronted with an appeal for admission under the seventh proviso. We do not find the reasons advanced by the Service attorney in support of his view persuasive, and, therefore, we are unable to agree with him. The Service attorney does not, however, take the view that the appellant should be denied entry under the seventh proviso of section 3.
In the present case, there are factors that seriously question whether in fact the appellant was guilty of the crime for which he was convicted. The conviction was before a justice of the peace. The appellant testified at the hearing under the warrant of arrest that when taken by the deputy sheriff to the justice of the peace, he entered a plea of not guilty. He further testifies that then the justice of the peace and the deputy sheriff whispered to each other and the deputy sheriff took him (the appellant) out of the room and urged him to plead guilty by telling him that if such a plea were entered, he (the appellant) would be released. The appellant was then returned to the justice of the peace, and told that officer he would plead guilty if released. The appellant claims that the justice of the peace said that the next day he (the appellant) would be taken to court in El Centro. The next day, however, the appellant learned from the jailer that he had received a sentence of 6 months in jail. Thereafter, and for the first time, the appellant engaged counsel who secured the appellant's release on parole after serving only a few days in jail. No other action in the case was taken.
The appellant consistently claims that he was not guilty of the crime for which he was convicted. The procedure outlined above gives grave reason for questioning whether the appellant was in fact guilty. He was not found guilty after a court trial but was induced to plead guilty on either a misunderstanding or misrepresentation. The procedure in the criminal case did not tend to develop the guilt or innocence of the accused. Under these conditions, the same weight should not be attached to the conviction as would normally be the case.
Even if we do not go behind the record of conviction, it is the conclusion of the Board of Immigration Appeals that the appellant's admission under the seventh proviso of section 3 of the Immigration Act of 1917 should be authorized. It, however, feels that the right of the Attorney General to question a record of conviction in an unusual case such as this, solely in regard to discretionary action under the seventh proviso of section 3, is an important principle of law that should be definitely decided. Therefore, notwithstanding, the agreement of the Service attorney with the decision in this case (although not with all of the reasoning), the matter should be referred to the Attorney General for review.
ORDER: It is ordered that the alien be admitted to the United States for permanent residence under the provisions of the seventh proviso to section 3 of the Immigration Act of 1917 and section 13 (b) of the Immigration Act of 1924.
The foregoing decision and order of the Board were approved by the Attorney General.