A-6616401.
Decided by Board June 6, 1947.
Crime involving moral turpitude — Breaking and entering and theft (Canada) — Violation of section 458 (a) of the Criminal Code of Canada-"Joy — Riding" (Canada) — Violation of section 285-3 of the Criminal Code of Canada.
1. The offense of breaking and entering and theft, committed as a single offense in violation of section 458 (a) of the Criminal Code of Canada, will not be deemed to involve moral turpitude, when there is affirmative evidence showing that the "theft" did not involve a permanent taking.
2. The offense of "joy-riding" in violation of section 285-3 of the Criminal Code of Canada does not involve moral turpitude.
EXCLUDED BY BOARD OF SPECIAL INQUIRY
Act of 1917 — Admits commission of and convicted of breaking and entering and theft in violation of section 458 (a) of the Canadian Criminal Code (1941).
Act of 1917 — Admits commission of and convicted of "joy-riding" in violation of section 285-3 of the Canadian Criminal Code (1947).
BEFORE THE BOARD
Discussion: The appellant is a native and citizen of Canada, 22 years of age, and seeks admission to the United States for 1 day to visit Watertown, N.Y.
The appellant was excluded January 18, 1947, after a hearing by a Board of Special Inquiry at Thousand Islands Bridge, N.Y., on the grounds set forth above. From that decision he has appealed.
The Commissioner found the appellant inadmissible solely on the ground that he was convicted, and admits the admits the commission, of the offense of breaking and entering and theft in violation of section 458 (a), Criminal Code of Canada, during 1941.
We agree that the appellant is not inadmissible because of his conviction in Canada in 1947 for violation of section 285 (3), Criminal Code of Canada. It has been determined that such statute is similar to the various statutes in this country covering "`joy riding" and does not comprehend theft of automobile or intent to deprive the owner thereof permanently, and, therefore, does not involve moral turpitude, a prerequisite under the statute to a finding of deportability ( Matter of B----, A-5892480, Atty. Gen. (Sept. 5, 1946), Michigan; Matter of B----, 56080/914, Oct. 28, 1943, 1943, Wash.; Matter of McS----, 56131/916, June 9, 1944, Wisc.; Matter of T---- R----, 56196/354, Oct. 3, 1945, Calif.; Compare Matter of T----, 56156/106, Oct. 9, 1943, and Matter of H----, 56172/816, April 19, 1945, Canada, both involving auto theft under section 377, Canadian Criminal Code).
We also find, however, that on the evidence of record, the appellant is not inadmissible as one who has been convicted of or admits the offense of breaking and entering and theft during 1941 in Canada in violation of section 458 (a), Criminal Code of Canada.
In Matter of J----, 4935243 (March 20, 1946), involving the offense of breaking and entering and theft, under the Canadian Statute, when committed as a single offense, we held it would be presumed that the theft involved a permanent taking, unless there is affirmative evidence to the contrary.
The appellant testified that he entered the home of a Mrs. C---- in Rockport, Ontario, Canada, through an open window, to obtain a victrola for use at a party and thereafter return same. He admitted that he did not secure Mrs. C----'s permission, since she was then residing in the United States. The evidence establishes that the taking was purely a temporary one and a presumption to the contrary is not justified by the evidence ( Matter of T----, 56156/249, February 24, 1944; Matter of J----, supra).
We shall, therefore, authorize the appellant's admission as a visitor.
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 Canada;
(2) That the appellant desires to enter the United States as a visitor for pleasure;
(3) That the appellant was convicted in Canada in 1947 of joyriding under section 285 (3), Criminal Code of Canada;
(4) That the appellant was convicted in Canada in 1941 of breaking and entering and theft in violation of section 458 (a), Criminal Code of Canada.Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That the offense under section 458 (a), Criminal Code of Canada, is not one involving moral turpitude.
(2) That the theft in 1941 did not involve a permanent taking;
(3) That under section 3, Immigration Act of 1917, the appellant is not inadmissible because of his convictions or admissions of the offenses set forth above.Order: It is ordered that the appellant be admitted to the United States as a visitor.