A-7355880
Decided by Board November 23, 1956
Deportability — Section 241 (a) (4), Immigration and Nationality Act — Conviction need not be in United States — Crime involving moral turpitude — Violation of article 121, Uniform Code of Military Justice, involves moral turpitude when respondent is charged with stealing.
(1) Conviction after entry of two crimes involving moral turpitude need not take place in the United States to sustain an order of deportation under section 241 (a) (4) of the act. Thus, conviction by a court martial in Germany will satisfy the requirements of the statute.
(2) Conviction for stealing under article 121 of the Uniform Code of Military Justice involves moral turpitude, as the only place in article 121 where the word "steal" appears is in subparagraph (a) (1) which defines the misconduct as taking another's property with intent permanently to deprive him of its use.
CHARGES:
Order To Show Cause: Act of 1952 — Section 241 (a) (4) ( 8 U.S.C. 1251 (a) (4)) — Convicted for crime committed within 5 years after entry and confined for 1 year or more-larceny (4 counts).
Lodged: Act of 1952 — Section 241 (a) (4) ( 8 U.S.C. 1251 (a) (4)) — Convicted of 2 crimes after entry-larceny (4 counts).
BEFORE THE BOARD
Discussion: This is an appeal from the order of the special inquiry officer finding the respondent to be deportable on the lodged charge. The charge in the order to show cause was not decided on the merits. The special inquiry officer did not find it necessary to determine its applicability because the respondent's deportability was established on the lodged charge. The respondent was found ineligible for discretionary relief.
Respondent, a 23-year-old male, native and citizen of Germany, was admitted to the United States for permanent residence on November 1, 1949. In the Spring of 1953 he enlisted in the United States Army. In the Fall of 1953 he was sent overseas under official orders and was stationed in Germany. There, between February 1954 and March 1954, on 4 separate dates, he stole personal items from fellow soldiers and one item from the Government of the United States. He was charged with violation of the Uniform Code of Military Justice, article 121. He was found guilty. On June 5, 1954, he was sentenced to be dishonorably discharged from the service, to forfeit all pay and allowances, and to be confined at hard labor for one year. He was sentenced to confinement in a disciplinary barracks located in Pennsylvania.
Deportation is sought under that portion of section 241 (a) (4) of the Immigration and Nationality Act which makes an alien deportable who after entry has been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct. Moral turpitude exists where there is a taking with intent to permanently deprive the owner of property. This is stealing or larceny. However moral turpitude is not found when the intent to deprive the owner of property permanently is not present.
The first issue raised by counsel is whether the respondent was charged with a permanent taking. He points out that article 121 of the Uniform Code of Military Justice contains two subdivisions, one relating to a taking with intent to deprive the owner of the property permanently and the other a taking without the intent to permanently deprive the owner of the use of the property. It is his contention that the record of conviction fails to show that respondent was convicted under the subdivision charging a permanent taking and it could well have been that the respondent was convicted under the second subsection which concerns a temporary taking.
Article 121 of the Uniform Code of Military Justice reads as follows:
Larceny and wrongful appropriation —
(a) Any person subject to this chapter who wrongfully takes, obtains, or withholds, by any means whatever, from the possession of the true owner or of any other person any money, personal property, or article of value of any kind —
(1) with intent permanently to deprive or defraud another person of the use and benefit of property or to appropriate the same to his own use or the use of any person other than the true owner, steals such property and is guilty of larceny; or
(2) with intent temporarily to deprive or defraud another person of the use and benefit of property or to appropriate the same to his own use or the use of any person other than the true owner is guilty of wrongful appropriation.
(b) Any person found guilty of larceny or wrongful appropriation shall be punished as a court-martial may direct. May 5, 1950, c. 169, § 1, 64 Stat. 140 (50 U.S.C. 715). [Emphasis added.]
Respondent was charged with violating article 121 on 4 counts or specifications, each essentially differing only in the description of the article stolen, the owner of the article, and the date of the commission of the offense. We shall, therefore, set forth only one of the specifications.
Specification 4: In that Private E-2 W---- E---- N----, U.S. Army, Headquarters Headquarters Company, 12th Infantry Regiment, did, at Gelnhausen, Germany, on or about 23 March 1954, steal one (1) General Electric radio of some value not in excess of $20.00, the property of Corporal T---- H---- Z----. [Emphasis added.]
The record of conviction charges the respondent with stealing. The only place in article 121 where the word "steal" appears is in subparagraph (1) where the taking with intent to permanently deprive an individual of his property is defined as a stealing. Since this is so, it is clear that the respondent was charged not with the wrongful appropriation but a stealing or larceny. It follows that he has been convicted of crimes involving moral turpitude.
Counsel intimates that the convictions were for crimes arising out of a single scheme of misconduct. The thefts for which respondent was convicted occurred on 4 separate dates and involved 4 different owners. Under such circumstances, it is settled that there is more than a single scheme of criminal misconduct ( Matter of J----, A-3203990, 6 IN Dec. 382).
Counsel contends that the convictions, to constitute a ground of deportation, must have taken place in the United States. Section 241 (a) (4) of the act, which is relied upon as the basis for this proceeding, provides in pertinent part that any alien in the United States shall be deported who:
* * * at any time after entry is convicted of two crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefore and regardless of whether the convictions were in a single trial.
It is to be noted that the law does not require the conviction to be in the United States. This is especially significant in view of the fact that the predecessor of section 241 (a) (4) did contain such a requirement for it provided that conviction had to be "in this country" ((8 U.S.C. 155) Act of February 5, 1917, c. 29, sec. 19, 39 Stat. 889). We, therefore, rule that conviction need not be in the United States to sustain an order of deportation under section 241 (a) (4) of the act.
The alien is ineligible for discretionary relief for the reason stated by the special inquiry officer. The appeal must be dismissed.
Order: It is ordered that the appeal be and the same is hereby dismissed.