56133/115
Decided by the Board December 3, 1943.
Crime involving moral turpitude — Selective Training and Service Act of 1940 (title 50 U.S.C., sec. 311).
Knowingly and deliberately making a false statement as to citizenship in a Selective Service questionnaire for the purpose of evading military service in violation of the Selective Training and Service Act of 1940 (title 50 U.S.C., sec. 311) is a crime involving moral turpitude.
CHARGE:
Warrant: Act of 1917 — Convicted of crime involving moral turpitude committed within 5 years after entry — violation of title 50 United States Code, section 311 (false statement in Selective Service questionnaire).
Mr. Leon Ulman, Board attorney-examiner.
STATEMENT OF THE CASE: The presiding inspector proposes that the respondent be found subject to deportation on the charge above specified. The district director concurs. The Central Office recommends the warrant of arrest be canceled.
DISCUSSION: The respondent is a native and citizen of Germany, 38 years of age, married. He last entered the United States on September 11, 1936, at New York, N.Y., on the S.S. Europa as a passenger and was admitted as a citizen of the United States. The respondent acquired citizenship by naturalization on November 16, 1934. On September 23, 1942, his certificate of naturalization was canceled by order of the United States District Court for the District of Colorado. On August 23, 1941, the respondent was indicted in the United States District Court for the District of Colorado for a violation of section 11 of the Selective Training and Service Act of 1940 (50 U.S.C.A. App. sec. 311) in that he made a false statement in a questionnaire for the purpose of evading service and induction in the land forces of the United States. On his plea of nolo contendere, he was convicted on August 25, 1941, and sentenced to imprisonment for a term of 18 months.
Section 19 of the Immigration Act of 1917 (8 U.S.C. 155) requires the deportation of any alien "sentenced to imprisonment for a term of one year or more because of conviction in this country of a crime involving moral turpitude, committed within 5 years after the entry of the alien to the United States,". The indictment charged that the respondent, having registered under the Selective Training and Service Act, received a questionnaire from his local board, which he answered and returned to the board on March 12, 1941; that "for the purpose of evading service and induction into the land forces of the United States of America * * * in answer to question 5, Series IX — citizenship, he did knowingly, willfully, unlawfully, and feloniously make a false statement, to wit: "I am a citizen or subject of German Reich," whereas in fact the respondent was then a citizen of the United States.
The crime having been committed within 5 years after the respondent entered the United States and the sentence being for more than 1 year, the question presented is whether the crime is one involving moral turpitude. At the time the respondent filled out the questionnaire "every male citizen of the United States, and every male alien residing in the United States who has declared his intention to become such a citizen between the ages of 21 and 36" was liable for training and service in the armed forces of the United States (Selective Training and Service Act, section 3; 50 U.S.C.A., App., section 303). Section 11 of the Selective Training and Service Act of 1940 punishes with a maximum of 5 years' imprisonment and a fine of not more than $10,000:
Any person charged as herein provided with the duty of carrying out any of the provisions of this act, or the rules or regulations made or directions given thereunder, who shall knowingly fail or neglect to perform such duty, or having and exercising any authority under said act, rules, regulations, or directions who shall knowingly make or be a party to the making, of any false, improper, or incorrect registration, classification, physical or mental examination, deferment, induction, enrollment, or muster, and any person who shall knowingly make, or be a party to the making of, any false statement or certificate as to the fitness or unfitness or liability or nonliability of himself or any other person for service under the provisions of this act, or rules, regulations, or directions made pursuant thereto, or who otherwise evades registration or service in the land or naval forces or any of the requirements of this act, or who knowingly counsels, aids, or abets another to evade registration or service in the land or naval forces or any of the requirements of this act, or of said rules, regulations, or directions, or who in any manner shall knowingly fail or neglect to perform any duty required of him under or in the execution of this act, or rules or regulations made pursuant to this act, or any person or persons who shall knowingly hinder or interfere in any way by force or violence with the administrations of this act or the rules or regulations made pursuant thereto, or conspire to do so * * *.
It seems clear that the statute creates several distinct crimes, including the following: (1) Failure or neglect to perform the duties required by the act or regulations; (2) making false registrations, classification, physical or mental examination, etc.; (3) making false statements as to fitness or liability for service; (4) otherwise evading registration or service or any of the requirements of the act, or aiding or abetting in evasion; (5) hindering or interfering in any way by force or violence with the administration of the act; (6) conspiracy to commit any of the foregoing.
It may be noted that the Department of Justice in discussing violations of the Selective Training and Service Act classifies the offenses for statistical purposes. ( See annual report of the Attorney General, 1941, p. 95.) The following subdivisions were made: (1) Failure to register; (2) false registration; (3) failure to have registration card; (4) failure to return questionnaire; (5) false statements in questionnaire; (6) failure to report for physical examination; (7) failure to report for induction; (8) counseling evasion; (9) interference by force; (10) offenses by officials; (11) miscellaneous. Many of the foregoing are merely negative offenses; and of the approximately 18,000 cases reviewed, affirmative offenses constituted only 7.6 percent.
In a memorandum accompanying its recommendation for cancellation of the warrant, the Central Office states:
The essence of the alien's crime was his attempt to avoid military service. As a citizen of this country, which he then was, such conduct was reprehensible and deserving of severe punishment. However, when the motives that impel persons to a like course of action are considered, such as religious scruples, cowardice, an innate feeling that they cannot fight against their fatherland, etc., it is difficult to find that such crime can be described as "an act of baseness, vileness, or depravity in the private and social duties to his fellow men or to society" — one of the commonly accepted definitions of moral turpitude. ( See United States ex rel. Mylius v. Uhl, 203 F. 152, affirmed 210 F. 860.)
The approach of the Central Office to the case seems to be predicated on the proposition that no distinction can be made among the offenses specified in section 11. We do not accept that approach. It may be that some of the violations of the Selective Training and Service Act and the regulations made thereunder, particularly those merely of a negative nature, such as failure to have a registration or classification card, failure to return a questionnaire or to report for physical examination, do not involve moral turpitude. On the other hand, we think that certain affirmative violations may embrace that element, because the particular criminal conduct proscribed is an act of baseness, vileness, or depravity in the private and social duties of the offender to his fellow man and to society. And, in the present case the issue is whether a knowing and deliberate false statement as to one's liability for military service is such an act. We think essentially the respondent's crime is akin to fraud, i.e., an endeavor to alter rights by deception. It is well settled that crimes of fraud ordinarily involve moral turpitude ( United States ex rel. Millard v. Tuttle, 46 F. 2d 342; United States ex rel. Popoff v. Reimer, 79 F. 2d 513; Mercer v. Lence, 96 F. 2d 122 and cases cited; 39 Op. Atty. Gen. 221).
United States v. Reimer, 79 F. 2d 513, supra, is germane. There the inquiry was whether the crime of knowingly aiding a person not entitled thereto to apply for naturalization, involved moral turpitude.
In holding that the crime did involve moral turpitude, the court said (p. 514):
Although the appellant's crime did not involve perjury, it necessarily involved aiding the applicant to commit a fraud upon the government and giving such aid knowingly. * * * That the fraud relates to obtaining rights of citizenship rather than to property does not, we think, make it any the less contrary to community standards of honesty and good morals. In our opinion the inherent nature of the offense of fraudulently aiding an alien not entitled to naturalization to apply for or obtain citizenship involves the moral turpitude requisite for deportation.
Likewise, we conclude that a fraudulent attempt to evade military service involves 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 and citizen of Germany;
(2) That the respondent last entered the United States on September 11, 1936, at the port of New York, N.Y., on the S.S. Europa as a passenger;
(3) That on August 25, 1941, the respondent was convicted in the United States District Court for the District of Colorado of a violation of section 11 of the Selective Training and Service Act of 1940 (50 U.S.C.A. App. sec. 311) in that on March 12, 1941, he knowingly, willfully, and feloniously made a false statement in his Selective Service questionnaire for the purpose of evading service and induction into the land forces of the United States;
(4) That for the foregoing offense the respondent was sentenced to imprisonment for a term of 18 months.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 19 of the Immigration Act of 1917, the respondent is subject to deportation on the ground that on or after May 1, 1917, he has been sentenced to imprisonment for a term of 1 year or more because of conviction in this country of a crime involving moral turpitude committed within five years after entry, to wit: violation of section 11 of the Selective Training and Service Act of 1940 (50 U.S.C.A. App. sec. 311) in knowingly, willfully, and feloniously making a false statement in Selective Service questionnaire for the purpose of evading service and induction into the armed forces of the United States;
(2) That under section 20 of the Immigration Act of 1917 the respondent is deportable to Germany at Government expense.
OTHER FACTORS: The respondent has been interned as an alien enemy since November 14, 1942. His wife is a citizen of the United States, but she resides in Germany with the respondent's two minor children who were born in the United States. The respondent has no relatives in this country.
ORDER: It is ordered that the alien be deported to Germany at Government expense on the following charge: That he is in the United States in violation of the Act of February 5, 1917, in that on or after May 1, 1917, he has been sentenced to imprisonment for a term of 1 year or more because of conviction in this country of a crime involving moral turpitude committed within 5 years after entry, to wit: violation of section 11 of the Selective Training and Service Act of 1940 (50 U.S.C.A. App. sec. 311) in knowingly, willfully, and feloniously making a false statement in Selective Service questionnaire for the purpose of evading service and induction into the armed forces of the United States.