56017/465
Decided by the Board February 14, 1941. Reversed by the Attorney General March 7, 1941.
Admission of crime — Theft.
Alien who admits stealing money in Italy has not made admission of crime involving moral turpitude when there is no evidence of criminal intent or that alien's conduct constituted a crime.
CHARGE:
Warrant: Act of 1917 — Crime prior to entry — Theft.
FOUND INADMISSIBLE BY BOARD OF SPECIAL INQUIRY:
Act of 1917 — Crime prior to entry — Theft.
Mr. Neil Malarkey, of Portland, Oreg., for the respondent.
BEFORE THE BOARD
STATEMENT OF THE CASE: Warrant of arrest issued on October 4, 1939, on the charge above stated. On consideration of the case on April 18, 1940, the respondent was found deportable on the ground that he admits having committed the crime of theft prior to entry into the United States. He was at that time given permission to depart from the United States within 90 days from date of notification without a warrant of deportation and preexamination was authorized.
Preexamination was accorded the respondent on June 25, 1940, at Portland, Oreg. He was found to be inadmissible on the ground previously stated if he were applying for admission in possession of an immigration visa.
DISCUSSION: The respondent is a native and subject of Italy, 45 years of age, married, and a laborer. He entered the United States on April 3, 1914, ex-S.S. Konig Albert, when he was admitted for permanent residence. He has admitted that while serving in the Italian Army in 1911 he was convicted for stealing money from a fellow soldier (preliminary statement). In the deportation hearing there was introduced in evidence as exhibit D a communication from the Department of State. This communication enclosed a letter from the Royal Military Attorney for the territory of Turin, Italy, addressed to the American consul at Turin, which reads as follows:
This office regrets that it is unable to forward a copy of the sentence requested by the Honorable Consulate because its original was destroyed by a fire in the building of this Tribunal in 1921.
It is in a position, however, to communicate that L---- P---- son of N----, born on August 5, 1890, at Prizzi, was on June 17, 1911, denounced by the headquarters of the Fifty-fourth Infantry Regiment at Ivrea for theft, having robbed another soldier during the night of June 12 to 13, 1911, taking the latter's purse which contained 65 lire.
The relative procedure was definitely settled by a sentence of this Military Tribunal on July 7, 1911, with which P---- was sentenced to 1 year in the military prison. Such term, however, was not entirely served by the above-mentioned person because the term which he still had to serve, was condoned by the Royal Decree of March 7, 1912.
The respondent admitted that this communication relates to him and he was the person so convicted.
In the preliminary hearing the respondent admitted that he stole the money.
In the consideration of this case on April 18, 1940, on the basis of an opinion of the Solicitor of Labor (55871/359), which had been adopted by the Immigration and Naturalization Service, it was concluded that the respondent was not subject to deportation because he had been convicted of a crime for the reason that a conviction by a court martial was not considered a "conviction" under the immigration laws. It was then found, however, that the respondent had made an unequivocal admission that he committed the crime for which he was convicted, and he was, therefore, found deportable on the ground that he admits committing a crime involving moral turpitude, to wit: theft. [During] the preexamination hearing the following questions [were propounded] and answers [given]:
Q. According to the records you admit you stole that money; is that correct?
A. Oh! Yeah.
Q. Did you steal the money?
A. Yeah, I did steal the money.
It is concluded, therefore, on the basis of the record that the respondent has admitted committing the crime of theft.
FINDINGS OF FACT: On the basis of all the evidence produced at the hearing and upon the entire record in this case, it is found:
(1) That the respondent is an alien, a native and citizen of Italy;
(2) That the respondent has resided in the United States since April 3, 1914;
(3) That the respondent admits committing the crime of theft, which crime was committed prior to his entry into the United States;
(4) That the respondent was convicted by military court martial of the crime of theft prior to his entry into the United States.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 3 of the Act of February 5, 1917, the alien would be inadmissible to the United States were he now applying for admission, on the ground that he had admitted committing a crime involving moral turpitude, to wit, theft;
(2) That under section 3 of the Act of February 5, 1917, the alien would not be inadmissible to the United States were he now applying for admission, on the ground that he had been convicted of a crime involving moral turpitude, to wit: theft.
OTHER FACTORS: When the case was originally considered it was contemplated that the alien might adjust his status in the United States by voluntarily departing from the country and being readmitted under the provisions of the seventh proviso of section 3 of the Act of February 5, 1917. This action was based primarily on the fact that the alien was married to an American-born woman, which marriage occurred on October 23, 1923, and that he and his wife are the parents of two children born in this country. At the present time he owns property valued at from $1,500 to $2,000, has a $500 Treasury bond, and for the past 10 years has been steadily employed by one company. His record in this country, however, has not been without blemish.
In 1921 the alien was arrested and convicted on a charge of assault with intent to rob and was sentenced to the Oregon State Penitentiary for a term of 1 year. He, however, received an unconditional pardon for this offense. During the years 1931 and 1932 the respondent was arrested and convicted on three occasions for violation of the prohibition laws, receiving fines varying from $50 to $150.
The enactment of the Alien Registration Act of 1940, which act was approved June 28, 1940, raises the question whether the seventh proviso may be applied in conjunction with preexamination proceedings.
Before proceeding to a consideration of this phase of the case, another point requires attention. In the L---- case (56019/808) [ see page 1, this volume] the Attorney General held that the benefits of the seventh proviso of section 3 of the act of 1917 could be applied in deportation proceedings in a case in which at the time of last entry an alien could have been admitted by the Attorney General under this provision of law. The Attorney General held that the exercise of the seventh proviso nunc pro tunc amounts to little more than a correction of a record of entry, which is a frequent and indispensable practice in many and varied situations. We do not believe, however, that the theory of the L---- case is of any benefit to the respondent. He has entered the United States on only one occasion. There is not involved here the case of a nunc pro tunc exercise of the seventh proviso, since, obviously, that proviso had no application at the time the respondent first entered the United States. The proviso is contained in an immigration act which became law about 3 years subsequent to the alien's entry. But even if the respondent had entered the United States after the act of 1917 became effective, there would still be no opportunity to utilize the seventh proviso on the theory enunciated in the L---- case. The respondent had no prior domicile in the United States.
We do not believe that the L---- decision could be extended so that it may be applied to deportation cases in which an alien did not have a prior domicile of 7 years preceding last entry. The seventh proviso clearly relates to the right of an alien to enter. It has no application to deportation proceedings. As we construe it, the L---- case does not hold that the seventh proviso applies in deportation cases. It only holds that there is a power in the Attorney General to exercise the seventh proviso in relation to the right of an alien to enter the United States subsequent to the physical entry of that alien. It did not say, nor do we so construe it as meaning, that any deportation case arising under the 1917 act may be canceled under the seventh proviso if action is not taken until after an alien has been in the United States for at least 7 years.
The amendments to section 19 of the act of 1917 contained in the Alien Registration Act of 1940 raise the question of whether the alien may be permitted to depart from the United States voluntarily in lieu of deportation. Although previously permission to leave without a warrant was authorized, that action was taken before the Alien Registration Act of 1940 became law. The time within which departure under the preceding order was to be effected has expired. Any action that may be taken in this case must be governed by the provisions of section 19 of the act of 1917, as amended. Readmission under the seventh proviso of section 3 in a preexamination case cannot be authorized if departure in lieu of deportation is not permissible.
Section 19 (c) of the Immigration Act of 1917, as amended by the Alien Registration Act of 1940, provides in part as follows:
In the case of any alien (other than one to whom subsection (d) is applicable) who is deportable under any law of the United States and who has proved good moral character for the preceding 5 years, the Attorney General may permit such alien to depart the United States to any country of his choice at his own expense, in lieu of deportation. * * *
Subdivision (d) of section 19, so far as pertinent here, provides as follows:
The provisions of subsection (c) shall not be applicable in the case of any alien who is deportable under * * * (4) any of the provisions of so much of subsection (a) of this section as relates to criminals, prostitutes, procurers, or other immoral persons, the mentally and physically deficient, anarchists, and similar classes; * * *.
The provisions of section 19 (a) relating to criminals are as follows:
* * * except as hereinafter provided, any alien who is hereafter 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 the entry of the alien to the United States, or who is hereafter sentenced more than once to such a term of imprisonment because of conviction in this country of any crime involving moral turpitude, committed at any time after entry; * * * any alien who was convicted, or who admits the commission, prior to entry, of a felony or other crime or misdemeanor involving moral turpitude; * * * shall, upon the warrant of the Attorney General, be taken into custody and deported: * * *
It will be observed that deportation is predicated upon the second of the two clauses above quoted, and particularly that part of the second clause that relates to the admission of the commission of a crime.
Although not raised in this case, it had been contended in the case of R---- (56030/974) that it was not the intent of Congress to deny the relief permitted in section 19 (c) to aliens who may be subject to deportation because of the admission of the commission of a crime. It was then contended that by the use of the word "criminals" in section 19 (d) Congress was referring only to aliens who had been convicted of a crime and were deportable under section 19 (a) because of a criminal conviction.
The Board of Immigration Appeals took the view that the word "criminals" in section 19 (c) included an alien deportable because of the admission of the commission of a crime. The case was certified to the Attorney General for review of the Board's decision. Without discussing or passing on this issue, the Attorney General reversed the Board's decision.
The issue of whether one who is deportable because he admits committing a crime is comprehended within subsection (4) of section 19 (d) is one that is frequently raised. Although the Board adheres to the position it has taken in the R---- case, it nevertheless feels that the matter should again be referred to the Attorney General. We again take the view that section 19 (d) (4) applies to an alien who is deportable because of the admission of the commission of a crime as well as one who is deportable because of the conviction of a crime. In the R---- case we stated:
Counsel argues it was not the intent of Congress to deny the relief permitted in section 19 (c) (2) to aliens who may be subject to deportation because of the admission of a crime. He contends that by use of the word "criminals" in section 19 (d), Congress was referring only to aliens who had been convicted of a crime and were deportable under section 19 (a) because of a criminal conviction.
Counsel cites no authority for the proposition that the word "criminal" as a noun may be applied only to one convicted of a crime. On the contrary, the word is defined as including persons who have committed criminal offenses as well as those who may have been legally convicted of a crime or adjudged guilty of a crime (Black's Law Dictionary, 3d Ed., 1933; Encyclopedia Law Dictionary, 3d Ed., 1940). Likewise, Webster's Dictionary defines this word as "one who has committed a crime, especially one found guilty; malefactor, felon." Clearly, therefore, the use by Congress of the word "criminal" does not necessarily mean that Congress was referring only to aliens deportable because of the conviction of a crime. More than the literal language of the statute is necessary to support the position taken by counsel.
In section 19 (d) Congress was not attempting to define with accuracy classes of aliens who were deportable. It was referring to other provisions of law where the classes mentioned in section 19 (d) are minutely described. Thus when Congress referred to criminals deportable under section 19 (a), it seems clear to the Board of Immigration Appeals that Congress was referring to all aliens who, under section 19 (a), are deportable because of a crime. More positive language in section 19 (d) would be required, in the opinion of the Board, to justify an interpretation that only certain classes of aliens deportable because of crime were to be comprehended within the word "criminals."
The purpose of section 19 (d) is set forth in the conference report that accompanied the bill that later became the Registration Act of 1940 (H.R. Rept. No. 2683, 76th Cong., 3d sess.), as follows:
"Subsection (c) provides that in certain cases, generally those in which aliens are deportable solely because of illegal entry, the Attorney General may allow aliens to depart at their own expense, or may, subject to Congressional review, suspend orders of deportation where deportation would result in unwarranted hardship. Subsection (d) provides that the provisions of subsection (c) shall not be extended to aliens who are deportable on grounds which may be generally described as those grounds which indicate that such aliens are likely to be undesirable residents."
The undesirability of an alien rests not upon the fact of conviction of a crime but upon the commission of a crime. That one may be apprehended and punished for a crime committed, makes him no more undesirable than he was when the crime was committed. The conference report gives no justification for a belief that Congress intended to distinguish between aliens deportable because of the conviction of a crime and aliens deportable because of the admission of the commission of a crime.
Counsel contends that if his view is not adopted, the result will be the imposition of the stigma of "criminal" by administrative action as opposed to court action involving conviction after a fair and impartial trial. There is, however. no power under the immigration laws for the Attorney General to find an alien guilty of a crime. The alien must make an unqualified admission of the commission of a crime prior to entry into the United States before he is deportable in the absence of a conviction ( Howes v. Tozer, 3 F. 2d 849). It is the alien who stigmatizes himself as a criminal, not the Attorney General. But where an alien has so stigmatized himself, and where the crime is one involving moral turpitude and was committed prior to the alien's last entry to the United States, by virtue of the provisions of section 19 (a) above quoted, he becomes subject to deportation.
Upon the issue before us, we see no logical basis for differentiating between aliens deportable because of the admission of a crime and those deportable because of the conviction of a crime. We hold, therefore, that section 19 (d) in referring to criminals deportable under section 19 (a), applies to both classes.
As the respondent in this case is deportable as a criminal, it becomes necessary to enter an order of deportation.
ORDER: It is ordered that the decision of the board of special inquiry in the preexamination hearing be affirmed on the ground that the alien admits committing a crime involving moral turpitude, to wit: theft.
It is further ordered, That the alien be deported to Italy at Government expense on the ground:
That he is in the United States in violation of the Act of February 5, 1917, in that he admits having committed a felony or other crime or misdemeanor involving moral turpitude prior to entry into the United States, to wit: theft.
Respondent's deportation is recommended by the Board of Immigration Appeals on the ground that he admitted the theft of a small sum of money in Italy in the year 1911. This sum amounted to but a few dollars. Respondent has lived in the United States since 1914 and has been employed by the same company for the past 10 years. His wife and two children are native American citizens.
There is nothing in the record that indicates precisely what crime respondent is alleged to have admitted. It is true that respondent admitted on examination before the board of special inquiry "I did steal the money." This is simply respondent's own conclusion. It is an admission that respondent took the money, but the record is bare of evidence indicating that he took it with a criminal intent, or that respondent's conduct in the army would have constituted a civil crime under Italian law.
Since respondent has not admitted all the elements of a crime involving moral turpitude it is my judgment he has not been proved deportable.
I therefore reverse the decision of the Board of Immigration Appeals and direct that the warrant of arrest be canceled.