56056/326
Decided by the Board April 24, 1941. Approved by the Attorney General.
Crime involving moral turpitude — Illegal entry into foreign country (Canada) — Obtaining foreign passport by fraud (Roumania).
1. Entry into Canada in violation of the Canadian Immigration Act making such action a criminal offense does not involve moral turpitude when not accompanied by false swearing amounting to perjury.
2. Assuming that applicable Roumanian law makes it a criminal offense to obtain a passport by fraud, such offense does not involve moral turpitude when not accompanied by false swearing amounting to perjury.
APPLICATION: For advance exercise of the seventh proviso to section 3 of the Immigration Act of 1917.
FOUND INADMISSIBLE BY UNITED STATES CONSUL:
Act of 1917 — Admits commission of crime involving moral turpitude — forgery and perjury.
Messrs. Konheim, Holpern, and Wolf, of New York City, for the applicant.
Mr. Anthony L. Montaquila, Board attorney-examiner.
BEFORE THE BOARD
STATEMENT OF THE CASE: Counsel, in his appearance before this Board, stated that the applicant is presently in St. Johns, Quebec, Canada, having journeyed thereto for the purpose of obtaining an immigration visa; that the American consul, however, refused issuance of a visa to her on the ground that she is inadmissible to the United States under section 3, Act of February 5, 1917, as amended, as one who admits the commission of an offense involving moral turpitude, to wit: forgery and perjury.
DISCUSSION: The record indicates that the applicant was born in Hungary on February 8, 1909, and entered Canada as an immigrant under the name of A---- N----, in possession of a Roumanian passport in that name on or about June 1, 1929; and entered the United States illegally at Detroit, Mich., about June 22, 1929. She was married to a naturalized citizen of the United States on July 27, 1935, and her husband executed a petition on Form 633 for the granting to her of a nonquota status in the issuance of an immigration visa. Following approval of the nonquota immigration status, the applicant departed for Canada for the purpose of obtaining an immigration visa. A visa, as stated, was refused her by the American consul, and she is presently in Canada.
The Department of State, with its communication of February 24, 1941, transmitted copy of despatch and enclosure from the American consul at Montreal, Canada, dated February 3, 1941, in which the reasons for refusing issuance to the applicant of an immigration visa are set forth as follows:
In a statement subscribed and sworn to at this office, a copy of which is enclosed, Mrs. G---- admitted the commission of a crime involving moral turpitude, namely fraudulent use of a Roumanian passport, fraud in obtaining a Canadian immigration visa, and fraudulent entry into the Dominion of Canada. These acts, committed in 1929, would appear to constitute a violation of the laws of Roumania and of the Dominion of Canada in effect at that time.
This office is informed by the Royal Consulate General of Roumania in Montreal that passport offenses are dealt with in Roumanian law in the Penal Code King Mihai I, Articles 401, 402, 403, 404, 405, 409, 412, and 414. The text of these statutes is not immediately available. However, article 409 of the code provides for a penalty of imprisonment for 1 to 6 months and a fine of 1,000 to 2,000 lei for an offense against the Roumanian passport regulations set forth in the code.
The following provisions of the Canadian law, in force in 1929, would appear to be relevant to the case at issue:
Order in Council, P.C. 185, dated January 31, 1923, under authority of section 37 of the Canadian Immigration Act, etc., which sets forth essentially:
"Every immigrant shall be in possession of a valid passport issued in and by the government of the country of which such person is a subject or citizen" and
"That the passport of any alien immigrant sailing directly or indirectly from the continent of Europe shall carry the visa of a Canadian immigration officer stationed on the continent of Europe or of a British diplomatic or consular officer."
The Canadian Immigration Act (Revised Statutes of Canada, 1927, ch. 93), section 3 (1) which declares inadmissible:
"Persons who do not fulfill, meet or comply with the conditions and requirements of any regulations which for the time being are in force and applicable to such persons under this act."
The Canadian Immigration Act, section 33, subsection 7, which provides:
"Any person who enters Canada by force or misrepresentation or stealth or otherwise contrary to any provisions of this act * * * shall be guilty of an offense under this act, and liable on conviction to a fine of not more than $200 or to a term of imprisonment not exceeding 3 months or to both fine and imprisonment."
The statement of the applicant referred to by the consul reads as follows:
I, the undersigned M---- G----, born M---- (Mildred) K---- at Magyarcsanad, Torontal, Hungary, on February 8, 1909, take oath and declare:
I lived in the town of Batonya, Torontal, Hungary, from about 1913 to 1929 with my mother and step-father.
In the year 1929, while on a visit to my grandmother in a small town in Transylvania, Roumania, I learned that a friend, A---- N---- (approximate spelling), who had applied for a Canadian immigration visa, had been advised by the British consul at Temisoara that a visa could be issued to her. Miss N----, however, was prevented by lack of funds from availing herself of this opportunity. I also wished to immigrate to Canada and had the necessary funds, but I understood that I would not be able to obtain a visa legally. Accordingly, Miss N---- gave me her Roumanian passport, to which my photograph had been attached. I took this passport to the British consul at Temisoara, falsely declared myself to be the person named in the passport, A---- N----, and to be of Roumanian nationality, and obtained an immigration visa for Canada as A---- N----. I was admitted to Canada as a landed immigrant under the name of A---- N---- and with A---- N----'s Roumanian passport on or about June 1, 1929, at, I believe, Quebec, Quebec.
I do not remember the number of A---- N----'s passport nor do I remember the name of the boat on which I arrived in Canada. Miss N---- resembles me physically, and I believe that she was born about 1912 in the village of Serovola (approximate spelling), Transylvania, Roumania. To the best of my knowledge and belief, she is still residing in Transylvania.
I discarded my fraudulent Roumanian passport after my arrival in Canada, and entered the United States illegally with a group of Canadian friends at Detroit on or about June 22, 1929.
In view of these facts, I admit that I have been guilty of a crime involving moral turpitude, namely, the fraudulent use of a Roumanian passport, fraud in obtaining a Canadian immigration visa, and fraudulent entry into the Dominion of Canada.
Section 3 of the Act of February 5, 1917, as amended, requires the exclusion from the United States of aliens who, among other grounds, have been convicted of or admit the commission of an offense involving moral turpitude. This applicant has never been convicted of any of the offenses in question, although she has made an admission thereof as indicated in the statement quoted above. The question remains whether said offenses involve moral turpitude as provided in said section 3. This case presents two questions for determination:
(1) Whether the applicant's entry into Canada about June 1, 1929, upon presentation of a Roumanian passport in the name of A---- N---- was an offense under the Canadian Immigration Act involving moral turpitude;
(2) Whether the Roumanian passport which the alien obtained from A---- N---- and which she utilized for the purpose indicated constituted an offense under the applicable Roumanian laws involving moral turpitude.
It will be well to remember that apparently the offense of perjury is not involved in any of the acts committed by the applicant. An immigration visa was refused her on the ground that she fraudulently used the Roumanian passport referred to, because of fraud in obtaining entry into the Dominion of Canada and the fraudulent entry into the Dominion of Canada.
Moral turpitude is defined in Corpus Juris (41 C.J. 212) as follows:
It is a vague term, its meaning depending, to some extent upon the state of public morals. It is defined as anything done contrary to justice, honesty, principle, or good morals; an act of baseness, violence, or depravity in the private and social duties which a man owes to his fellow men or to society in general, contrary to the accepted and customary rule of right and duty between man and man * * * Moral turpitude implies something immoral in itself, regardless of the fact whether it is punishable by law. * * *
This Board is of the opinion that the reasons given by the American consul in refusing the applicant a visa fail to disclose anything indicating that she committed a crime involving moral turpitude. The provisions of the Canadian immigration law, quoted by the consul and presumably applicable to this case, merely provide punishment for illegal entry into Canada. It may be conceded that violations of our immigration laws respecting illegal entry, or the passport laws of this or any country, accompanied by false swearing amounting to perjury, would constitute an offense involving moral turpitude. But this would not be true, however, if the violation consisted merely of subterfuge or concealment of a fact upon entering the country, such as using a foreign passport belonging to a friend or relative as an unwise convenience and such violation was not accompanied by false swearing. The basic difference is that the taking of a false oath is considered wrong independently of statute, while the other offense, though grave and properly penalized, cannot be said to possess the same inherent baseness which attaches to perjury.
The Penal Code of Roumania is not available in the English version. However, it is not believed that it is necessary to a determination of whether moral turpitude was involved in the applicant's use of the Roumanian passport which she presented on the occasion of her entry into Canada. It appears that A---- N---- merely gave the applicant her Roumanian passport. There was no element of perjury involved in that transaction, and the document was merely utilized for the purpose stated. The reasons advanced to show that the applicant's entry into Canada under the circumstances recited did not constitute an offense involving moral turpitude are, in the judgment of this Board, equally applicable to the other situation. The words "involving moral turpitude," as long used in the law with reference to crimes, refer to conduct that is inherently base, vile, or depraved, contrary to the accepted rules of morality, whether it is or is not punishable as a crime. But it does not appear that the applicant's acts can be considered as falling within the meaning of the definition "moral turpitude."
It will be observed that while a conclusion has been reached that the offenses that the alien has admitted do not involve moral turpitude so as to render her inadmissible to the United States in the event she were to apply in possession of an appropriate immigration visa, the fact remains that a visa has been refused to her by the American consul in Canada by reason of her admission of the acts mentioned. It must be assumed, therefore, that the Department of State is apparently of the view that the applicant has admitted the commission of offenses involving moral turpitude, and consequently refuses issuance to her of an immigration visa by reason thereof.
Reorganization Plan No. V, transmitted to Congress on May 22, 1940, pursuant to the provisions of the Reorganization Act of 1939, provides:
In the event of disagreement between the head of any department or agency and the Attorney General concerning the interpretation or application of any law pertaining to immigration, naturalization, or nationality, final determination shall be made by the Attorney General.
To the end that a final determination on the issue raised by the record may be reached, binding alike on the Immigration and Naturalization as well as the Consular Service of the Department of State, a final decision should be rendered by the Attorney General. The Board of Immigration Appeals finds that a question of difficulty is involved and refers the case to the Attorney General for review of its decision.
FINDINGS OF FACT: Upon the basis of all the evidence in this case it is found:
(1) That the applicant is an alien;
(2) That the applicant entered the United States illegally at Detroit, Mich., about June 22, 1929;
(3) That the applicant entered Canada about June 1, 1929;
(4) That on the occasion of the foregoing entry she presented to the Canadian immigration officials a Roumanian passport in the name of A---- N----;
(5) That the applicant received the foregoing passport from the said A---- N----;
(6) That the applicant admitted to the American consul, Montreal, Canada, fraudulent use of the Roumanian passport;
(7) That the applicant admits the commission of the offense of illegally entering Canada;
(8) That the applicant admitted to the American consul, Montreal, Canada, illegally entering the Dominion of Canada through fraud;
(9) That the applicant has had a residence in the United States of more than 7 consecutive years;
(10) That the applicant has been denied an immigration visa by the American consul in Montreal, Canada, because of admission by her of the foregoing offenses;
(11) That the pertinent Roumanian statutes have not been made a part of the record because of their unavailability.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact it is concluded:
(1) That the offenses that constitute the basis for refusal by the American consul to the applicant of an immigration visa are not considered to involve moral turpitude;
(2) That by reason of the foregoing conclusion, the applicant would not be inadmissible to the United States solely on the ground of her admission of the said offenses;
(3) That by reason of the foregoing the application for waiver of inadmissibility under the seventh proviso by virtue of the offenses in question is not necessary.
OTHER FACTORS: The applicant was married on July 27, 1935, in Newark, N.J., to a naturalized citizen of the United States. The record is silent as to any repugnant features other than those referred to heretofore.
ORDER: It is ordered that the application for consideration of this case under the seventh proviso of section 3 of the Immigration Act of February 5, 1917, be denied for the reason that the alien is not inadmissible to the United States on the grounds advanced by the American consul in Montreal, Canada.
The foregoing decision and order of the Board were certified to and approved by the Attorney General.