T-1496858.
Decided by Board May 24, and July 29, 1955. Commissioner's Motions May 25, and August 25, 1955. Decided by Attorney General October 18, 1955.
Good moral character — Section 101 (f) (3) of Imm igration and Nationality Act — Effect of expungement of record of conviction in California.
While the expungement of a conviction record in California does not fully erase a finding of guilt for the particular crime, the offense may not then serve as a bar to the establishment of good moral character.
CHARGE:
Warrant: Act of 1924 — Remained longer — Seaman.
BEFORE THE BOARD
(May 24, 1955)
Discussion: This case is before us on appeal from the decision of the special inquiry officer dated January 7, 1955, directing deportation on the warrant charge. Respondent, a 26-year-old native and citizen of Belgium, last entered the United States at San Pedro, California, on August 4, 1949, as a seaman. On that occasion, he was discharged from a ship; he originally planned to reship on another vessel. However, respondent decided to remain in the United States but made no applications for extensions of his stay. Respondent is clearly deportable as an alien remaining longer than the permitted time as a seaman, contrary to sections 14 and 15 of the act of 1924.
The special inquiry officer found that respondent was statutorily ineligible for discretionary relief because of criminal convictions in 1951 and 1954, which he concluded cast "grave doubt" on the possibility of respondent's proving good moral character. On November 1, 1953, the American Vice Consul at Vancouver, B.C., Canada, advised respondent that he might be inadmissible under section 212 (a) (9), because his police certificate indicated conviction for two crimes in Belgium prior to his first entry.
Section 244 (e) requires that the alien prove that he has been a person of good moral character during the five years immediately preceding the alien's application for voluntary departure. In addition, section 101 (f) provides:
For purposes of this Act —
No person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be established, is, or was — * * *
(3) a member of one or more of the classes of persons, whether excludable or not, described in * * * paragraphs (9), (10), and (23) of section 212 (a), if the offense described therein, for which such person was convicted or of which he admits the commission, was committed during such period; * * *.
A person of a similar name to respondent was convicted on June 3, 1948, of theft of employee wages in Ghent, Belgium. Respondent has denied that this record relates to him, for he stated that he was employed as a seaman outside of Belgium at the time. Respondent also denies any connection with a conviction on May 19, 1949, by a military court for desertion in time of war. Respondent specifically states in this connection that he never served in the Belgium armed forces and could not have been subject to such a charge.
As it is not clear whether respondent was in fact in Belgium at the time these convictions were handed down (the fact that he was working as a seaman in the Canal Zone shortly after serves to lend credence to his testimony) or whether the records of these convictions actually relate to respondent, and since they occurred outside the statutory period of good moral character we will not dwell upon these convictions.
On December 7, 1948, at 1.40 a.m. respondent was arrested while intoxicated in the Canal Zone. It is reported that respondent maliciously damaged three automobiles in a residential area while drunk by damaging the wiring of one car, the horn ring of another, and the windshield wiper hose of a third. Respondent was allegedly booked on a charge of intoxication and three charges of malicious mischief. He elected to forfeit $40 collateral, rather than stand trial on these charges.
The offense of malicious mischief in the Canal Zone is classed as a misdemeanor punishable by a maximum imprisonment of 30 days or a maximum fine of $100, or by both. The offense of malicious mischief in the Canal Zone is clearly a "petty offense" within the meaning of the Act of September 3, 1954 (P.L. 770, 83d Cong.) and would not render respondent excludable under section 212 (a) (9).
Title 5, section 801 of the Canal Zone Code provides:
Malicious injury to property generally. Every person who maliciously injures or destroys any real or personal property not his own, in cases otherwise than such as are specified in this title, is guilty of a misdemeanor.
Title 5, section 26, Canal Zone Code.
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)).
In 1951, the respondent was convicted in San Mateo of petty theft, contrary to section 488 of the California Penal Code. According to the record, respondent on July 9, 1951, took the personal property of another (a brass line-cutter tool, the property of Sears, Roebuck and Co.), valued at $2.25. As a result, a store security officer "arrested" him shortly after he had left the premises. Respondent was released on probation with the record of conviction being expunged under section 1203.4 of the Penal Code on November 14, 1952. The crime of theft is defined in section 484 of the California Penal Code as follows:
Every person who shall feloniously steal, take, carry, lead or drive away the personal property of another * * * is guilty of theft. (Enacted 1872; Am. Stats. 1927, p. 1046; Stats. 1935, p. 2194.)
According to sections 487, 488, 489, 490 (a), petty theft includes property generally valued at less than $200 or domestic fowl, avocados, citrous or deciduous fruits valued at $50 or less, but excluding certain animals and automobiles. The California courts have determined that a fraudulent intent to deprive the owner of his property is an essential characteristic of the offense of theft — larceny ( People v. Simon, 107 Cal. App. (2d) 105, 236 P. (2d) 855 (1951)). Hence, since moral turpitude inheres in the criminal intent, a conviction for theft is for a crime involving moral turpitude ( United States ex rel. Mongiovi v. Karnuth, 30 F. (2d) 825 (W.D.N.Y., 1929); United States ex rel. Meyer v. Day, 54 F. (2d) 336 (C.C.A. 2, 1931); United States ex rel. Shladzien v. Warden, 45 F. (2d) 204 (E.D. Pa., 1930)).
The punishment for petty theft is a maximum inmprisonment in the county jail of six months, a maximum fine of $500, or both. Respondent's conviction in 1951 for petty theft is also a petty offense within the meaning of the Act of September 3, 1954 (P.L. 770, 83d Cong.) and does not constitute a ground of exclusion under section 212 (a) (9).
Respondent was convicted on August 16, 1954, on a plea of guilty of violating the California Unemployment Security Act by willfully making false statements to obtain unemployment benefits to which he was not entitled (contrary to section 101 of the California Unemployment Insurance Act). Respondent was sentenced to 60 days' imprisonment, restitution of the $65 obtained, and was placed on probation for one year. This offense, which has been held to be a crime involving moral turpitude is a misdemeanor under California law, is punishable by a maximum imprisonment of six months and a maximum fine of $500, or both (section 19, California Penal Code).
Matter of L----, T-2760542, 5 IN Dec. 705.
The record of conviction for this crime was also expunged under section 1203.4 of the California Penal Code on December 6, 1954. This crime is also a "petty offense" within the meaning of the Act of September 3, 1954 (P.L. 770, 83d Cong.) and does not constitute a ground of exclusion under section 212 (a) (9).
Moreover, it has been held that action under section 1203.4, California Penal Code, to expunge a conviction record will nullify the conviction as a basis of deportation and that such an expungement is equivalent to a pardon ( Matter of O---- T----, A-4355094, 4 IN Dec. 265 (C.O., 1951); Matter of E---- V----, 1610-9315, 5 IN Dec. 194.). Furthermore, being in the nature of a pardon, an expungement of the record removes the statutory bar to proving good moral character under section 101 (f) (3) ( Matter of Z----, E-072431, 23 Law Week 2164 (B.I.A., 1954)).
On the other hand, this expunging of the record in California does not completely obliterate the fact that the unlawful acts occurred (Cf., Meyer v. Board of Medical Examiners, 34 Cal. (2d) 62, 206 P. (2d) 1085 (1949)). However, in the present situation, the onus of the 1951 and 1954 offenses are overcome by the fact that these crimes are only "petty offenses" within the meaning of the Act of September 3, 1954 (P.L. 770, 83d Cong.) and should not militate against respondent's being granted a visa. Hence, it is concluded that on the basis of respondent's generally good record, he has established that he is a person of good moral character.
Since respondent has resided in this country more than five years, has a citizen wife and 4-year-old citizen child, has been a good provider for his family, and also has an otherwise good, constructive record, we feel that he should be granted voluntary departure.
Order: It is ordered that the outstanding order of deportation be withdrawn and the alien be permitted to depart from the United States voluntarily without expense to the Government, to any country of his choice, within such period of time, in any event not less than 30 days, and under such conditions as the officer in charge of the district deems appropriate, conditioned upon consent of surety, if any.
It is further ordered that if the alien does not depart from the United States in accordance with the foregoing, the order of deportation be reinstated and executed.
(May 25, 1955)
Discussion: Deportability is clearly established in this case. The only question presented is whether the respondent is precluded from establishing good moral character so as to make him statutorily ineligible for voluntary departure.
On December 7, 1948, in the Canal Zone he was arrested on a charge of intoxication and also on three charges of malicious mischief in violation of Title 5, section 801 of the Canal Zone Code. He elected to forfeit $40.00 collateral rather than stand trial on these charges. He was again arrested at San Mateo, California, on July 9, 1951, for petty theft in violation of section 488 of the California Penal Code. He was convicted on August 22, 1951, as a result of which he received a suspended sentence and was placed on probation for three years. On August 16, 1954, at San Mateo, California, the respondent entered a plea of guilty to violation of the California Unemployment Insurance Act in that he willfully made false statements to obtain unemployment benefits to which he was not entitled. Upon conviction he was sentenced to imprisonment for a period of 60 days, to make restitution in the sum of $65.00, and he was placed on probation for one year. The respondent testified that he was not required to serve the sentence to imprisonment because he made the restitution.
Respondent has been convicted of two offenses involving moral turpitude within the period for which good moral character must be established in order to obtain voluntary departure. Section 101 (f) (3) precludes a showing of good moral character by an alien convicted of an offense of the type described in section 212 (a) (9) within the provable period whether the alien is excludable or not. Consequently, it would appear that the provisions of the Act of September 3, 1954, have no application to this case where good moral character and not excludability is the pertinent issue. But even assuming that the Act of September 3, 1954, may be applied in determining whether an alien is precluded from establishing good moral character, the act is expressly limited to cases where "the alien has committed only one such offense." In this case the respondent has been convicted of three petty offenses of which two were committed within the period for which good moral character must be established.
That the records of conviction in two of the cases were expunged pursuant to the provisions of section 1203.4 of the California Penal Code in no way aids the respondent. Expunging the record does not obliterate the record of conviction and is not the equivalent of a pardon sentence. The acts which formed the basis of the conviction have always been considered in connection with the question of good moral character irrespective of whether the conviction would sustain a charge of deportation or exclusion. Cases supporting this view are set forth in Matter of O---- T----, A-4355094, 4 IN Dec. 265 at pages 267 and 268.
In view of the foregoing, it is concluded that the respondent is precluded from establishing good moral character in this case and that he is statutorily ineligible for voluntary departure.
Motion is hereby made that the Board of Immigration Appeals reconsider and withdraw its order granting the respondent the privilege of voluntary departure and that it order the respondent deported from the United States.
(July 29, 1955)
Discussion: This case is before us on motion of the Commissioner of the Immigration and Naturalization Service for reconsideration of our order of May 24, 1955, holding the respondent to be a person of good moral character and granting voluntary departure. Respondent, a 26-year-old native and citizen of Belgium, last entered the United States at San Pedro, California, on August 4, 1949, as a seaman. He is deportable as an alien remaining longer than the permitted time as a seaman, contrary to sections 14 and 15 of the act of 1924.
The special inquiry officer found that respondent was statutorily ineligible for discretionary relief because of criminal convictions in 1951 and 1954, which he concluded casts "grave doubts" on the possibility of respondent's proving good moral character under section 101 (f) (3). According to the record, respondent has been convicted of several crimes during recent years. Respondent was arrested in 1948 in the Canal Zone and charged with three charges of malicious mischief, but elected to forfeit collateral rather than stand trial.
In 1951, respondent was convicted of petty theft, a crime involving moral turpitude, contrary to section 488 of the California Penal Code. In 1954, he was convicted on a plea of guilty of making false statements to obtain unemployment benefits, contrary to section 101 of the California Unemployment Insurance Act. The records of conviction of the latter two offenses were expunged under section 1203.4 of the California Penal Code on November 14, 1952, and December 6, 1954.
While the expunging of a conviction record in California does not fully erase a finding of guilt for the particular crime, the offense may not then serve as a bar to the establishment of good moral character. Hence, such an expungement makes it possible in the instant case to consider all the evidence of record, including the fact that the alien was convicted for the two offenses (later expunged from the record) during the statutory period of good moral character, and to arrive at a definite conclusion on the issue of good moral character.
Meyer v. Board of Medical Examiners, 34 Cal. (2d) 62, 206 P. (2d) 1085 (1949); Matter of Z----, E-072431, 23 L.W. 2164 (B.I.A., 1954); Matter of O---- T----, A-4355094, 4, I. N. Dec. 265 (C.O., 1951).
Section 244 (e) of the act of 1952 requires that the alien prove that he has been a person of good moral character during the five years immediately preceding the alien's application for voluntary departure. In addition, section 101 (f) provides:
(f) For the purposes of this Act —
No person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be established, is, or was — * * *
(3) a member of one or more of the classes of persons, whether excludable or not, described in * * * paragraphs (9), (10), and (23) of section 212 (a), if the offense described therein, for which such person was convicted or of which he admits the commission, was committed during such period.
In this connection, we observed in our decision of May 24, 1955, that all three offenses fall in the category of a "petty offense" as the term is used in the Act of September 3, 1954 (Public Law 770, 83d Cong.). However, because this statute specifically applies to only one "petty offense" committed by an alien, the "petty offense" test is not effective to overcome more than one ground of exclusion under section 212 (a) (9).
The 1948 conviction was for malicious mischief in the Canal Zone. The punishment under Title 5, sections 26 and 801 of the Canal Zone Code is a maximum imprisonment of 30 days. In connection with the 1951 conviction for petty theft in California, sections 484, 487, 488, 489, and 490 (a) relate to property generally valued at less than $200 and involves a maximum sentence of imprisonment of six months. Respondent was also convicted for the 1954 offense of willfully making false statements to obtain unemployment benefits, contrary to section 101 of the California Unemployment Insurance Act and was sentenced to six months' imprisonment, the maximum statutory sentence.
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., pp. 14505, 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)).
Section 4 of Public Law 770 states:
Any alien who is excludable because of the conviction of a misdemeanor classifiable as a petty offense * * * 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.
Upon consideration of the circumstances of respondent's case, we feel that he has a generally good record, notwithstanding his expunged 1951 and 1954 convictions for petty theft and false statements, and conclude that respondent has established that he has been a person of good moral character during the five-year period required by statute as a basis for discretionary relief. The motion is accordingly denied.
Order: It is hereby ordered that the motion be denied.
(August 25, 1955)
Discussion: The Service in its motion dated May 25, 1955, challenged the finding of the Board that the subject alien was not precluded from establishing good moral character by the terms of section 101 (f) (3) of the Immigration and Nationality Act. While the Board now agrees with the Service that section 4 of the Act of September 3, 1954, relating to "petty offenses" does not apply to the instant case, the Board adheres to its view that the expunging of a conviction record in California, while it "does not fully erase a finding of guilt for the particular crime," makes it possible to find that the alien has been a person of good moral character during the five-year period required by statute as a basis for discretionary relief. The Service disagrees with this conclusion as to the effect of the expungement procedure.
In Matter of Z----, E-072431, 23 L.W. 2164 (B.I.A., 1954), the Board held that a full and unconditional pardon not only serves as a bar to deportation but also wipes out the crime insofar as discretionary relief is concerned. The Service does not agree with this determination but review was precluded by the departure of the alien from the United States so that the proceedings could not be reactivated.
Moreover, irrespective of the applicability of section 101 (f) (3) of the Immigration and Nationality Act to the issue herein presented, the Service cannot agree that this habitual criminal alien has a "generally good record" as asserted by the Board in its order denying the Service motion.
Request is hereby made that this case be referred to the Attorney General for review pursuant to the provisions of 8 C.F.R. 6.1 (h) (1) (iii).
(October 18, 1955)
The decisions and orders of the Board of Immigration Appeals in the above-captioned case, dated May 24, and July 29, 1955, are sustained.