56156/336
Decided by the Board February 24, 1944.
Crime Involving Moral Turpitude — Lesiones — Violation of Article 193 of the Penal Code of Sonora, Mexico.
Where the statutory definition of lesiones embraces crimes which would involve moral turpitude and crimes which would not, but recourse to the record of conviction shows that the alien was convicted of inflicting injuries which endanger life in the course of a robbery, he has been convicted of a crime involving moral turpitude.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1917 — Convicted of crime involving moral turpitude — lesiones;
Act of 1924 — No immigration visa.
BEFORE THE BOARD
Discussion: The appellant applied for admission at the port of Nogales, Ariz. on July 19, 1943, and was then excluded by a Board of Special Inquiry. At the direction of the Central Office of the Immigration and Naturalization Service, the case was reopened. After a reopened hearing was conducted before a Board of Special Inquiry on November 18, 1943, the appellant was excluded on the above grounds, and he appeals.
The appellant is a native and citizen of Mexico, 24 years old. He presents a Mexican Form 5 — C in lieu of a passport and a nonresident alien's border crossing card issued in Nogales on June 17, 1943. He states that he wishes to enter the United States to make purchases and to arrange for employment here. He is not now employed in Mexico; he had been a Mexican Customs Officer but was suspended. He states that if permitted to enter the United States he would work here and live in Mexico. He is therefore to be regarded as an immigrant and is required to have an immigration visa.
The appellant testified that he was suspended from his job as Customs Officer because of some trouble which he had in Sasabe, Sonora, Mexico. He states that he was accused of assault and battery on the wife and child of his brother-in-law. He denies having committed this offense and testifies that he did not plead guilty. After serving a year and four months of his sentence commencing on January 18, 1942, he was pardoned for the balance of a six-year prison sentence. There has been introduced in evidence a transcript of the record on appeal to the Supreme Tribunal of Justice of the State of Sonora in the proceedings against the appellant for the crimes of theft and lesiones. In the lower court he had been found guilty of both crimes and was sentenced to 15 years imprisonment. Because of some inadequacies in the record and procedural defects the appeal court decided that the defendant could be found guilty only of the crime of lesiones and sentenced him to 6 years' imprisonment. He was convicted under article 193 of the Penal Code of the State of Sonora. The following is a translation of articles 191 and 193 of that Code, furnished by the port and made part of the record at the direction of the Central Office of the Immigration and Naturalization Service:
ARTICLE 191. — Lesion is that which is anything done to the human body that leaves material scars and all other alterations of health produced by an external cause.
ARTICLE 193. — To anyone who inflicts a lesion that endangers life, a prison term of three to fifteen years is applicable.
The question arises whether the appellant was convicted of a crime involving moral turpitude. According to the statutory provision quoted above, the essence of the crime is the injury suffered by the victim without any reference to the circumstances of the infliction of the injury. If a crime consists only in the result of the offender's actions without any regard to what those actions were or his state of mind at the time, it would be difficult to find that the crime involves moral turpitude. For this reason this Board has found it necessary to consult further the Mexican code in question. The following is a translation of articles 5 through 8 of the Penal Code of the State of Sonora. These sections are part of title 1 which bears a general title "Criminal Liability".
ARTICLE 5 — Crimes may be
1. Intentional.
2. Negligent.
ARTICLE 6 — Criminal intent is presumed unless there is proof to the contrary.
ARTICLE 7 — A presumption that a crime is intentional is not destroyed although the accused prove
1. That he did not intend to injure a definite person, providing he had intention to cause injury.
2. That he did not intend to cause the greater injury that resulted providing he could have foreseen it, or if he resolved to violate the law no matter what the consequences.
ARTICLE 8 — Negligent injury is that which is committed without intention, through negligence, with lack of foresight, unskillfully, or through carelessness.
While these sections provide for criminal liability broadly, applying as they do to many different crimes, it can be seen that in connection with the particular offense with which we are here concerned, the circumstances of the infliction of the injury become an element of the crime since otherwise criminal liability would not attach. In effect then the crime is defined by the general statutory provisions on criminal liability together with the specific provisions of articles 191 and 193 on lesiones. Considering all those sections together and observing the broad provisions of articles 5 through 8, it can readily be seen that they define many different offenses depending upon what it was the accused did to cause the injury and his state of mind at the time. The injury might have been caused unintentionally, or it may have been deliberately inflicted under circumstances showing baseness and depravity. Embraced within the statutory definition are crimes which would involve moral turpitude and crimes which would not. The record of conviction is then to be consulted to determine whether the offense of which the alien was convicted was one which did or did not involve moral turpitude ( U.S. ex rel. Zaffarano v. Corsi, 63 F. (2d) 757 (C.C.A. 2d, 1933)). In the instant case the court stated that the accused "being possessed with the idea of robbery and aggression caused the lesiones inflicted on the injured person". The record of conviction shows that the appellant had struck a woman and a child upon the head in the course of a robbery. Such being the offense, we are satisfied that the appellant was convicted of a crime involving moral turpitude.
Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That the appellant is an alien, a native and citizen of Mexico;
(2) That the appellant wishes to enter the United States to seek work;
(3) That the appellant is not in possession of an immigration visa;
(4) That the appellant was convicted in Mexico in January 1942 of the crime of lesiones (inflicting injuries which endanger life in the course of a robbery).Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 13 (a) of the Immigration Act of 1924, the appellant is inadmissible on the ground that he is an immigrant not in possession of an immigration visa;
(2) That under section 3 of the Immigration Act of 1917, the appellant is inadmissible on the ground that he has been convicted of a crime involving moral turpitude, to wit: Lesiones (inflicting injuries which endanger life in the course of a robbery).Order: The excluding decision of the Board of Special Inquiry is affirmed.