A-6793441
Decided by Board November 29, 1956
Crime involving moral turpitude — Gross indecency, section 206 (now 149) of the Canadian Criminal Code.
The offense of gross indecency in violation of section 206 of the Canadian Criminal Code is a crime involving moral turpitude. While "gross indecency" is not defined in the statute and the record of conviction does not specify the misconduct, the reported cases in Canada involving section 206 fail to show any instance where a conviction occurred under a set of facts which would not have involved moral turpitude.
CHARGES:
Warrant: Act of 1952 — Sections 241 (a) (1) and 212 (a) (19) ( 8 U.S.C. 1251 (a) (1) and 8 U.S.C. 1182 (a) (19)) — Excludable at time of entry; visa procured by fraud.
Lodged: Act of 1952 — Sections 241 (a) (1) and 212 (a) (9) ( 8 U.S.C. 1251 (a) (1) and 8 U.S.C. 1182 (a) (9)) — Excludable at time of entry — Crime prior to entry — gross indecency.
Act of 1952 — Section 241 (a) (1) ( 8 U.S.C. 1251 (a) (1)) — No visa at time of entry.
BEFORE THE BOARD
Discussion: This case is before us on motion of the Commissioner requesting that we reconsider and withdraw our order of July 20, 1956, terminating proceedings, and that we enter an order affirming the decision of the special inquiry officer directing the deportation of the respondent from the United States.
The material facts are set forth in our order of July 20, 1956. Briefly, the record relates to a native of England, citizen of Canada, 36 years old, male, who last entered the United States in 1951, as a returning resident. He had previously been admitted for permanent residence in 1947, upon presentation of a nonpreference quota visa. The visa was issued to him under his true name of H----. Prior to discovering his true name he had used the name of B----, the name of the family which had reared him, and under this latter name had been convicted in 1940 in Toronto, Canada, of the crime of gross indecency in violation of section 206 of the Canadian Criminal Code. We held that since the visa was secured in the respondent's real name, a name by which he was commonly known, and since the crime of gross indecency under section 206 of the Canadian Criminal Code did not involve moral turpitude because of the lack of definition of the term "gross indecency," the respondent was not inadmissible on the basis of all the facts and it could not be held that there was a misrepresentation as to a material matter.
Now section 149.
The Service argues that had the circumstances surrounding the conviction been brought to the attention of the American consul there would have been provided a substantial basis for concluding that the respondent was inadmissible on medical grounds as a person of constitutional psychopathic inferiority and that, consequently, the concealment was material irrespective of whether the conviction was one for a crime involving moral turpitude. Further, the Service contends that the conviction was for a crime involving moral turpitude. Upon reconsideration, we agree that the crime involves moral turpitude and we find it unnecessary to consider the first ground urged for reversal.
The respondent was convicted in 1940 of violation of section 206 of the Canadian Criminal Code which provides: "Every male person is guilty of an indictable offense and liable to five years' imprisonment and to be whipped who, in public or private, commits, or is a party to the commission of, or procures or attempts to procure the commission by any male person of, any acts of gross indecency with another male person." The term "gross indecency" is not defined in the statute and the record of conviction was of no assistance in ascertaining the exact act of gross indecency which was involved. For such reason we were unable to conclude that every offense under the statute involved moral turpitude, citing Matter of Z----, 56175/99, 2 IN Dec. 316. However, as pointed out in the Service motion, an examination of reported cases failed to turn up any case wherein a conviction occurred under this section upon facts which would not have involved moral turpitude. Most of the cases circumvented any discussion of the facts involved by referring to them either as too disgusting to mention or as obscene and indecent exhibitions.
R. v. Hunt (1950), 34 Cr. App. R. 135; 2 All E.R. 291; R. v. Hornby, 2 All E.R. 487. In Rex v. Horn, 40 C.C.C. 117, penetration per os of a young child was indicated; in the case of R. v. Burrows, 1 All E.R. 58, and in R. v. Miskell, 1 All E.R. 137, 138, misconduct with young children was involved.
The absence of definition in the statute as to the nature of the crime did not militate against reaching a conclusion that an admission of the commission of the crime of gross indecency in violation of section 338 of the Public Acts of Michigan (a statute almost identical with the present one) involved moral turpitude, it being held that the conduct admitted by respondent was vile, base, depraved and contrary to the tenets of society in and of itself and was morally turpitudinous ( Matter of W----, A-5630998, 5 IN Dec. 578). Similarly, the fact that the offense was not defined by statute nor described in the record of conviction because the acts were too disgusting, depraved, obscene or indecent to mention did not prevent a finding of moral turpitude as to indecent assault in violation of section 6052 of the General Statutes of Connecticut ( Matter of Z----, A-4566433, Int. Dec. No. 805). In Matter of G----, A-5707845, 6 IN Dec. 461, it was held that taking indecent liberties with a female under 16 in violation of section 28.3688 Michigan Statutes Annotated, Title 28, constituted a crime involving moral turpitude, where the indecent liberties complained of were not stated in the information nor defined by statute, on the basis of a Michigan court decision that indecent and improper liberties with the person of a child means liberties such as the common sense of society would regard as indecent and improper. Indecent assault in violation of section 292 (a) of the Canadian Criminal Code was held to involve moral turpitude even though the offense was not defined in the Code ( Matter of S----, T-2733560, 5 IN Dec. 686). A conviction of section 722 (8) of the New York Penal Law was held to involve moral turpitude by the concurring judge and was broadly intimated in the majority opinion ( United States v. Flores-Rodriguez, 237 F. (2d) 405, C.A. 2, October 1, 1956, in this respect overruling Matter of F---- R----, A-8401009, 6, I. . N. Dec. 813).
In unreported Matter of F----, A-4529296 (B.I.A., April 3, 1946), it was held that a conviction of the crime of taking indecent liberties with a child in violation of section 37.083, Illinois Statutes, was base, vile, and depraved and involved moral turpitude even though the acts were not defined by statute nor set out in the record of conviction because too obscene and too gross, citing unreported Matter of I----, 56030/27 (B.I.A., April 15, 1941), which involved a conviction of assault and taking indecent liberties with a child in violation of section 65, c. 48, 1945 Colorado Statutes Annotated; to the same effect unreported Matter of T----, A-3809544 (B.I.A., April 26, 1946), indecent liberties with a female child under the Michigan Statutes held to involve moral turpitude even though not defined by statute nor set out in the indictment.
Section 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.
In view of the above-cited authorities, we conclude that the respondent's conviction of gross indecency in violation of section 206 of the Canadian Criminal Code involved moral turpitude. The visa was procured by fraud because what he failed to disclose was material and relevant to his admissibility, and since inadmissible, he was not entitled to the visa which he obtained by suppression of the true facts.
Order: It is ordered that the respondent be deported pursuant to law on the warrant and lodged charges.