E-131218
Decided by the Board February 10, 1954
Excludability — Section 212 (a) (9) of the Immigration and Nationality Act — Admission of crime or acts must be made prior to or at time of entry — Deportability under section 241 (a) (1) of the Immigration and Nationality Act.
To be effective as a ground of exclusion under section 212 (a) (9) of the Immigration and Nationality Act, an admission of having committed a crime involving moral turpitude or acts which constitute the essential elements of such a crime must have been made prior to or at the time of the alien's entry into the United States. Therefore, a warrant charge under section 241 (a) (1) of the Immigration and Nationality Act based on excludability under section 212 (a) (9) of that act by reason of an admission of acts constituting the essential elements of a crime involving moral turpitude is not sustainable where the admission is made at the warrant hearing after the alien's last entry.
CHARGE:
Warrant: IN Act — Admits crime prior to entry, to wit: Uttering and Publishing.
BEFORE THE BOARD
Discussion: This is an appeal from an order of the special inquiry officer finding the respondent deportable on the above charge and directing her deportation.
The record relates to a 20-year-old married female, a native and citizen of Canada, who last entered the United States at Detroit, Mich., on July 2, 1953, at which time she was admitted as a returning resident. She was originally admitted to the United States for permanent residence on July 18, 1951. During the course of the warrant hearing she testified that in February and March 1953 while working in a bank in Michigan she wrote three checks with fictitious names on accounts in such bank and thereafter endorsed these checks with her own name and cashed them. The special inquiry officer has concluded that she is deportable on the warrant charge on the ground that she has admitted the commission of the crime of uttering and publishing as defined in the Michigan statutes.
It appears that the respondent has made full restitution and that no formal criminal charge was ever pressed against her. Although the special inquiry officer in his decision has referred to the section of the Michigan statutes allegedly violated by the respondent, nowhere does the record contain the definition of the crime, the elements of which the respondent is charged with having admitted. Under the circumstances we feel that the record in its present state is insufficient to sustain the warrant charge.
However, there is a more basic reason as to why the warrant charge cannot be sustained. The Immigration and Nationality Act unlike section 19 of the Immigration Act of February 5, 1917, as amended, does not contain any specific provisions for the deportation of an alien who admits the commission of a crime prior to entry. Under the Immigration and Nationality Act such a person is deportable, if at all, only if he falls within the scope of section 241 (a) (1) which applies to all aliens excludable by the law existing at the time of their entry. It is therefore necessary to refer to the exclusion provisions of the Immigration and Nationality Act, since the respondent's last entry occurred after the effective date of that act. Section 212 (a) (9) of said act provides for the exclusion of aliens who admit having committed a crime involving moral turpitude or admit committing acts which constitute the essential elements of such a crime. Since this is an excluding provision it must necessarily be considered in terms of the facts existing at the time of the alien's application for admission into the United States. For, unless the grounds for exclusion existed at the time of the person's entry into this country, the alien would not be excludable at such time. Consequently, an admission to be effective as a ground for exclusion under section 212 (a) (9) of the Immigration and Nationality Act must have been made prior to the alien's last entry into the United States. Once the alien has entered this country the admission of a crime thereafter made cannot relate back so as to render the person excludable as of the date of his last entry. In the instant case the alien's admission was made at the warrant hearing after her last entry into this country. Accordingly, it does not furnish a basis for deportation. The appeal will therefore be sustained.
Order: It is ordered that the outstanding order of deportation be withdrawn.
It is further ordered that the proceedings be terminated.