A-4935243.
Decided by Board March 13, 1946.
Crime involving moral turpitude — Breaking and entering and theft in Canada — Presumption as to "theft."
It will be presumed, unless there is affirmative evidence to the contrary, that the crime of theft in Canada coupled with the act of breaking and entering, relates to a permanent taking, when determining whether the crime of "Breaking and entering and theft" in Canada, committed as a single offense, involves moral turpitude.
CHARGES:
Warrant: Act of 1924 — Immigrant without immigration visa.
Act of 1924 — Remained longer — visitor.
Lodged: Act of 1917 — Admits commission and convicted of crime prior to entry; Breaking and entering and theft.
Act of 1917 — Admits commission and convicted of crime prior to entry; Theft.
Act of 1917 — Admits commission of crime prior to entry; Shoplifting and theft.
BEFORE THE BOARD
Discussion: This Board on December 5, 1941, found respondent subject to deportation on the ground that, at the time of his entry, he was an immigrant not in possession of a valid immigration visa and accorded him the privilege of voluntary departure. Thereafter it was ordered that the case be reopened for the purpose of lodging an additional charge against respondent as a result of his conviction in Canada of what was apparently shoplifting and theft prior to entry. The case has since been ordered reopened under two subsequent orders for the purpose of lodging appropriate charges against respondent arising from his said conviction in Canada.
Respondent, an alien, a native of England, subject of Great Britain, male, 35 years of age, unmarried, last entered the United States at Detroit, Mich., on June 15, 1937, from Canada and gained admission by claiming to be a Canadian citizen coming to the United States for a 1-day visit. Respondent, at the time of his last entry, intended to return to Canada after attending a show, but has remained continually in this country since June 15, 1937. A certificate of conviction discloses that on June 28, 1929, respondent was convicted in the Magistrate's Court, Toronto, Canada, of the offense that he "did break and enter the shop, warehouse, or counting house of the Arena Lunch, Ltd., and steal therein a quantity of cigarettes and chocolates, the property of the Arena Lunch, Ltd., contrary to section 460, Criminal Code," committed on June 16, 1929.
Section 460 of the Criminal Code provides that "Everyone is guilty of an indictable offense and liable to 14 years' imprisonment, who either by day or night breaks and enters and commits any indictable offense in a * * * store * * *."
Respondent admits the commission of breaking and entering and theft, of which he stands convicted. As all of the charges lodged against respondent at the various reopened hearings are the result of the commission and conviction of the one offense, it is obvious that only the charges lodged on October 18, 1945, are appropriate.
The question to be determined is whether or not the offense of breaking and entering and theft in Canada involves moral turpitude. It is well established that the crime of breaking and entering in and of itself does not involve moral turpitude ( Gomes v. Tillinghast, 37 F. (2d) 935 (Mass. 1930); Matter of D----, 56130/68 (March 13, 1943)). It is also well established that theft in this country is not committed in the absence of an intent to deprive the owner of his property (52 L.R.A. (N.S.) 1014 (1914) and cases cited thetrein). Relative to whether or not the crime of theft as defined by Canadian statute relates to a permanent or temporary taking, the Attorney General in the Matter of T----, 56156/249 (Feb. 24, 1944), stated: "We may look beyond the statute to consider such facts as may appear from the record of conviction or the admission of the alien and * * * reach an independent conclusion as to whether the offense is one which under our law involves moral turpitude." Therefore, in considering the crime of breaking and entering and theft in Canada when committed as a single offense, we will presume that the crime of theft coupled with the act of breaking and entering relates to a permanent taking unless there is affirmative evidence to establish the contrary.
Canadian Criminal Code, section 347: "Theft for stealing is the act of fraudulently and without colour of right taking, or fraudulently and without colour converting to the use of any person, anything capable of being stolen with intent (a) to deprive the owner, or any person having any special property or interest therein, temporarily or absolutely of such thing or of such property or interest; * * *
Respondent, at his original hearing on October 8, 1940, testified that he had never been arrested. His only explanation of the offense of breaking and entering and theft is that the "store was already broken into and I helped the fellows carry away the stuff." This testimony is no reasonable explanation of the circumstances surrounding the commission of the offense sufficient to rebut the presumption that the respondent intended to permanently deprive the owner of the possession of the articles taken, and the offense of which he stands convicted is therefore held to involve moral turpitude.
Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That the respondent is an alien, a native of England, a subject of Great Britain;
(2) That the respondent last entered the United States at the port of Detroit, Mich., on or about June 15, 1937;
(3) That at the time of the last entry the respondent intended to remain for less than 1 day;
(4) That the respondent was admitted as a temporary visitor for a period of 1 day;
(5) That the respondent admits the commission of the crime of breaking and entering and theft at Toronto, Canada, on June 16, 1929;
(6) That the respondent was convicted at Toronto, Canada, on June 28, 1929, for the crime of breaking and entering and theft;
(7) That the respondent was not convicted at Toronto, Canada, on June 28, 1929, of shoplifting and theft, or of theft;
(8) That the respondent has not admitted the commission of the crimes of shoplifting and theft or theft.Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under sections 14 and 15 of the Immigration Act of May 26, 1924, the respondent is subject to deportation on the ground that he has remained in the United States for a longer time than permitted under the said act or regulations made thereunder;
(2) That under sections 3 and 19 of the Immigration Act of 1917, as amended, the respondent is subject to deportation on the ground that he admits having committed a felony or other crime or misdemeanor involving moral turpitude prior to entry into the United States, to wit: Breaking and entering and theft;
(3) That under sections 3 and 19 of the Immigration Act of 1917, as amended, the respondent is subject to deportation on the ground that he has been convicted of a felony or other crime or misdemeanor involving moral turpitude prior to entry into the United States, to wit: Breaking and entering and theft;
(4) That under sections 13 and 14 of the Immigration Act of May 26, 1924, the respondent is not subject to deportation on the ground that at the time of his entry he was not in possession of an unexpired immigration visa;
(5) That under sections 3 and 19 of the Immigration Act of February 5, 1917, the respondent is not subject to deportation on the ground that he admits the commission of a felony or other crime or misdemeanor involving moral turpitude prior to entry into the United States, to wit: Theft;
(6) That under sections 3 and 19 of the Immigration Act of February 5, 1917, the respondent is not subject to deportation on the ground that he has been convicted of a felony or other crime or misdemeanor involving moral turpitude prior to entry to the United States, to wit: Theft;
(7) That under sections 3 and 19 of the Immigration Act of February 5, 1917, the respondent is not subject to deportation on the ground that he admits the commission of a felony or other crime or misdemeanor involving moral turpitude prior to entry into the United States, to wit: Shoplifting and Theft;
(8) That under section 20 of the Immigration Act of February 5, 1917, the respondent is deportable to Canada, if practicable, otherwise to England, at Government expense.Other Factors: The respondent's marriage to a citizen of the United States on September 20, 1943, was terminated by a divorce in September 1944. He has no close relatives in the United States who are dependent upon him for support. The respondent was convicted, upon his plea of guilty, of forgery committed in Los Angeles, Calif., on or about September 5, 1944, and was sentenced to serve a term of 1 year in jail. The respondent is subject to deportation under provisions of law stated in section 19 (d) of the act of February 5, 1917, and his application for voluntary departure will be denied.
Order: It is ordered that the application for voluntary departure be, and is hereby, denied.
It is further ordered, That the alien be deported to Canada at Government expense on the following charges:
The Immigration Act of 1924, in that he has remained in the United States for a longer time than permitted under the said act or regulations made thereunder;
The act of February 5, 1917, in that he admits having committed a felony or other crime or misdemeanor involving moral turpitude prior to entry into the United States, to wit: Breaking and entering and theft;
The act of February 5, 1917, in that he has been convicted of a felony or other crime or misdemeanor involving moral turpitude prior to entry into the United States, to wit: Breaking and entering and theft.