A-7427678
Decided by Board August 8, 1951
Crime involving moral turpitude — Sending threatening letter through mails, with intent to extort (1932) 18 U.S.C. 338, 338a — Theft by bailee (1943) — Article 1429, volume 3, Vernon's Annotated Penal Code of Texas.
(1) Sending threatening letters through the United States mails with intent to extort money from the addressee, contrary to the provisions of 18 U.S.C. 838, 338a, is an offense involving moral turpitude (1932).
(2) Theft by bailee (1943) in violation of article 1429, Vernon's Annotated Penal Code of Texas, is an offense involving moral turpitude.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1940 — No visa, reentry permit or border crossing identificacation card.
Act of 1917 — Convicted of and admits commission of crimes involving moral turpitude — Sending threatening letters through the United States mail with intent to extort money; Theft by bailee.
BEFORE THE BOARD
Discussion: Appellant, a 60-year-old native and citizen of Mexico, originally came to the United States in 1909; he was admitted for permanent residence on August 24, 1917, and lived here continuously until February 15, 1950, when he went to Mexico to visit a daughter. Appellant sought to resume his residence the following day but was excluded by a board of special inquiry on May 23, 1950, at Brownsville, Tex. This finding was affirmed by the Acting Assistant Commissioner on July 7, 1950, with this Board remanding the case to the Immigration Service on August 22, 1950, for inclusion in the record of a copy of appellant's conviction for theft and also for a new character investigation.
Additional hearings were subsequently held with the result that the Acting Assistant Commissioner again affirmed the excluding decision of the board of special inquiry on April 13, 1951, on the above-enumerated charges.
According to the record, on December 7, 1932, appellant pleaded guilty in the United States District Court, Southern District of Texas, to a charge of sending threatening letters through the United States mail with intent to extort money from the addressee, contrary to the provisions of 18 U.S.C. 338, 338a. Appellant was sentenced to imprisonment for a period of 1 year, with the sentence being suspended on condition that he maintain good behavior for 5 years. This crime appears to be one involving moral turpitude ( Brewer v. United States, 290 Fed. 807 (C.C.A. 2, 1923)). See also, Hyde v. United States, 198 Fed. 610 (C.C.A. 8, 1912); Horman v. United States, 116 Fed. 350 (C.C.A. 6, 1902); Yusem v. United States, 8 F. (2d) 6 (C.C.A. 3, 1925); Linn v. United States, 234 Fed. 543 (C.C.A. 7, 1916).
The record also shows that appellant was convicted on June 1, 1943, on a plea of guilty, of theft by a bailee and fined by the justice of the peace, Court of Cameron County, Tex., in the amount of $18.45. Appellant admits committing this crime, saying that he sold a saw which was left with him for sharpening, but has made restitution. The evidence of this conviction is based upon the court docket book only, since the remaining court and police department records were incompletely kept until a very recent date.
Article 1429, Vernon's Annotated Penal Code of Texas, provides as follows:
Theft — Conversion by bailee. — Any person having possession of personal property of another by virtue of a contract of hiring or borrowing, or other bailment, who shall, without the consent of the owner, fraudulently convert such property to his own use with intent to deprive the owner of the value of the same, shall be guilty of theft, and shall be punished as prescribed in the Penal Code for theft of like property (Act of 1887).
According to the wording of the statute and the construction placed on it by the Texas courts, the criminal intent to deprive the owner of his property is an essential element of the crime. It has also been held that the term "conversion" connotes that the goods, obtained through the bailment contract, have been appropriated by the defendant to his own use, thus permanently depriving the owner of their enjoyment, ( Lee v. State, 81 Tex. Crim. Rep. 117, 129 (1917)). See also, Moses v. State, 147 Tex. Crim. Rep. 206, 179 S.W. (2d) 558 (1944); Krause v. State, 151 Tex. Crim. Rep. 197 (1947); Marshall v. State, 108 Tex. Crim. Rep. 561, 2 S.W. (2d) 233 (1928); Creale v. State, 71 Tex. Crim. Rep. 9 (1913); Dunlap v. State, 143 Tex. Crim. Rep. 601 (1942). Since it has long been accepted that moral turpitude inheres in the intent, the offense, defined in article 1429, is a crime involving moral turpitude.
U.S. ex rel. Mongiovi v. Karnuth, 30 F. (2d) 825 (W.D., N.Y., 1929); U.S. ex rel. Meyer v. Day, 54 F. (2d) 336 (C.C.A. 2, 1931); U.S. ex rel. Shladzien v. Warden, 45 F. (2d) 204 (E.D., Pa., 1930).
For these reasons, appellant is clearly excludable as an alien seeking entry without the appropriate documents (sec. 13 (a) (1), act of 1924); as an alien who has been convicted of the crime of sending threatening letters through the United States mails (sec. 3, act of 1917); and as an alien who both admits the commission of and has been convicted of theft by a bailee (sec. 3, act of 1917).
Appellant's wife died in 1935 and all his children are grown, with one daughter residing in Mexico. His family, especially one daughter in this country with whom he lived previously, has expressed a wish to make a home for appellant if he is allowed to stay here. Aside from intermittent arrests for drunkenness, appellant has had a clear record since the 1943 conviction. The independent character investigation, conducted by the Immigration Service, revealed no evidence considered derogatory.
A determination of whether discretionary action should be taken in a particular case requires that all the circumstances involved must be considered. Admittedly, appellant's two criminal convictions are the chief unfavorable factors in the record, but these occurred 8 and 19 years ago.
Notwithstanding these unfavorable facts, we feel that the record tends to show that the appellant has lived a generally quiet, law-abiding existence in recent years and has not shown himself to be a disturbing influence in his community. We feel that all the circumstances involved in the instant case tend to indicate that appellant certainly is not a criminal in the popular sense of the term and has adequately succeeded in a conscientious effort at rehabilitation during the past 8 years, since his conviction for theft.
While a character investigation revealed that appellant has been arrested for drunkenness several times in recent years, this infraction is not considered serious enough to disturb a favorable determination. Furthermore, the controlling factor in the present case is appellant's long residence in the United States of 41 years, which would render any adjustment to a new environment difficult at the age of 60.
Hence, we conclude that appellant should not be required to make this adjustment, even though he has no one in this country financially dependent upon him. Also, it would seem unduly harsh to rob appellant of the care and companionship which his United States resident children have offered him.
Therefore, we will direct an advance exercise of the 7th proviso to section 3, act of 1917, and authorize appellant's prompt admission, ( Matter of V---- I----, A-3328982 (March 31, 1949; 17 L.W. 2465)).
Order: It is ordered that when the alien applies for admission to the United States, he be admitted under the 7th proviso to section 3 of the Immigration Act of 1917, if otherwise admissible than as one who has been convicted of and admits the commission of crimes involving moral turpitude, to wit: Sending threatening letters through the United States mails, committed between May 25 and May 30, 1932; and theft by bailee, committed prior to June 1, 1943, subject to revocation in the discretion of the Attorney General, after hearing, if the alien hereafter commits any crime.