A-1846515.
Decided by Board May 20, 1955.
Convicted of two crimes — One crime a "petty offense" as described in section 4 of Act of September 3, 1954 — Section 241 (a) (4) of Immigration and Nationality Act.
The charge "Convicted of two crimes involving moral turpitude, after entry, not arising out of a single scheme of criminal misconduct" under section 241 (a) (4) of the Immigration and Nationality Act is sustained although one of the offenses is a misdemeanor classifiable as a petty offense under section 4 of the Act of September 3, 1954, since the benefits of that statute apply only to aliens who have committed only one such offense.
CHARGES:
Warrant: Act of 1952 — Section 241 (a) (4) — Convicted of two crimes involving moral turpitude, after entry, not arising out of a single scheme of criminal misconduct.
BEFORE THE BOARD
Discussion: This case is before us on appeal from the decision of a special inquiry officer dated January 18, 1955, holding the alien deportable on the warrant charge. Respondent, a 57-year-old native and citizen of Hungary, last entered the United States on November 11, 1911, at Philadelphia, Pennsylvania, for permanent residence.
Respondent was convicted on April 4, 1929, on a plea of guilty in the Recorder's Court, Wayne County, Michigan, of the crime of uttering. According to the information, on February 4, 1929, respondent uttered and published as true a false, forged payroll check for $20.90, payable to L---- B---- and endorsed in that name. Respondent was sentenced to imprisonment for 2 to 14 years. Respondent was paroled on December 11, 1930, and discharged from any further service of his sentence on April 21, 1932.
Section 28.446 of the Michigan Statutes reads as follows:
Any person who shall utter and publish as true, any false, forged, altered or counterfeit record, deed, instrument or other writing mentioned in the preceding section, knowing the same to be false, altered, forged or counterfeit, with intent to injure or defraud as aforesaid, shall be guilty of a felony, punishable by imprisonment in the state prison not more than fourteen (14) years. (Emphasis supplied.)
Since section 28.446 contains the words "with intent to defraud," the test set out in Jordan v. DeGeorge, 341 U.S. 223 (1951), is applicable. In that case, the Supreme Court determined that offenses containing an inherent fraud element, as in the present case, involve moral turpitude. Hence, respondent's conviction for uttering in Michigan in 1929 was a conviction for an offense involving moral turpitude.
On October 4, 1940, respondent was convicted on a plea of guilty in the Recorder's Court, Wayne County, Michigan, of simple larceny of one sledge hammer, one vice, one hacksaw (total value of $3.00). Respondent was sentenced to 60 days' imprisonment in the Detroit House of Correction.
The pertinent sections of the Michigan Statutes provide as follows:
Section 28.588. Any person who shall commit the offense of larceny, by stealing, of the property of another, any money, goods or chattels, * * * if the property stolen exceeds the value of fifty (50) dollars, shall be guilty of a felony, punishable by imprisonment in the state prison not more than five (5) years or by fine of not more than two thousand five hundred (2,500) dollars. If the property stolen shall be of the value of fifty (50) dollars or less, such person shall be guilty of a misdemeanor.
Section 28.772. A person convicted of a crime declared in this or any other act of the state of Michigan to be a misdemeanor, for which no other punishment is specially prescribed by an statute in force at the time of the conviction and sentence, shall be punished by imprisonment in the county jail for not more than ninety (90) days or by a fine of not more than one hundred (100) dollars, or by both such fine and imprisonment.
Section 4 of the Act of September 3, 1954 (Public Law 770, 83d Cong.) provided that persons convicted of petty offenses should not be considered excludable under section 212 (a) (9) as persons convicted of crimes involving moral turpitude. The test of a "petty offense" under the Act of September 3, 1954 (P.L. 770, 83d Cong.) is that the statutory penalty must not exceed one year and that the actual punishment meted out by the court shall not be more than six months' imprisonment ( 18 U.S.C. 1 (3); Cong. Rec., p. 14505 (August 20, 1954), p. 14609 (August 20, 1954); Matter of C----, E-092142, Int. Dec. No. 635 (B.I.A., 1954); Matter of H----, A-6060587, Int. Dec. No. 658 (B.I.A., 1954)).
Because section 4 of the Act of September 3, 1954, specifically applies only to aliens who have committed a single petty offense, this statute has no bearing on the present case. On the other hand, larceny in Michigan was a crime involving moral turpitude, for the offense of larceny has uniformly been held as such a crime ( United States ex rel. Meyer v. Day, 54 F. (2d) 336 (C.C.A. 2, 1931); Matter of M----, 2 IN Dec. 530 (B.I.A., 1946)). Hence, respondent has been convicted of two crimes involving moral turpitude within the meaning of section 241 (a) (4).
Section 4. Any alien who is excludable because of the conviction of a misdemeanor classifiable as a petty offense under the provisions of section 1 (3) of Title 18, United States Code, by reason of the punishment actually imposed or who is excludable as one who admits the commission of such misdemeanor may hereafter be granted a visa and admitted to the United States, if otherwise admissible: Provided, That the alien has committed only one such offense. (Emphasis supplied.)
The special inquiry officer noted in denying discretionary relief that respondent was unable to prove the required good moral character during the past five years because he was a habitual drunkard. While counsel contests this conclusion, he has offered no additional evidence to supplement that already in the record below. During the hearing held on November 12, 1954, Dr. M---- S---- H----, resident psychiatrist at Wayne County General Hospital in Eloise, Michigan, testified that from his own personal knowledge he could state that respondent has been a habitual drunkard since September 15, 1954, and that from a reading of hospital records, he could conclude that respondent had been a chronic alcoholic since May 14, 1953.
Dr. H---- stated that respondent had been committed to the hospital for treatment by the Wayne County Probate Court upon a declaration of mental incompetency and admitted to the hospital on May 14, 1953. Since that time, hospital records reveal that respondent has managed to leave the hospital surreptitiously on several occasions (the last of which was July 15, 1954), and immediately began drinking heavily, necessitating his immediate and forcible return to the hospital at the instance of relatives. On the basis of this testimony, respondent clearly comes within section 101 (f) (1) and is thereby unable to prove good moral character and barred from relief.
For these reasons, the appeal is dismissed.
Order: It is hereby ordered that the appeal be dismissed.