A-8017222
Decided by the Board February 10, 1954
Expatriation — Service in Canadian military forces — Excludability under section 212 (a) (9) of the Immigration and Nationality Act when conviction occurred while a United States citizen.
(1) A dual national who enlisted in the Canadian military forces prior to the effective date of the Orders in Council issued by the Governor General of Canada to the effect that an oath of allegiance was not required to be taken by a person who was a citizen of a foreign country if the taking of such oath would, under the laws of the country in question, have forfeited his citizenship therein, is presumed to have taken an unqualified oath of allegiance to the British Crown and to have expatriated himself under the provisions of the act of March 2, 1907, by virtue of his own voluntary actions.
(2) Excludability under section 212 (a) (9) of the Immigration and Nationality Act is established when the individual is found to be an alien and to have been convicted of a crime involving moral turpitude. The fact that the alien was convicted of such a crime while he was a United States citizen does not affect his present excludability.
EXCLUDED:
Section 212 (a) (9) — Immigration and Nationality Act — Convicted of crime involving moral turpitude, to wit: Theft on three occasions.
BEFORE THE BOARD
Discussion: This case is before us on appeal from the special inquiry officer's decision of October 29, 1953, excluding the subject from the United States on the above-stated grounds.
The facts of this case have been succinctly set forth in the opinion of the special inquiry officer and there is no need to repeat them all here. Briefly, this case presents a threefold issue: First, whether the subject is a citizen of the United States or an alien; second, whether, if an alien, the subject has been convicted of crimes involving moral turpitude, within the purview of the immigration laws; third, the subject's marital status. If the first issue is resolved in favor of the subject, then, of course, the other two questions are of no moment here.
The special inquiry officer's conclusion of alienage is predicated on a finding that the subject swore allegiance to the British Crown upon enlistment in the Canadian Army on September 25, 1939, thus effecting his expatriation under the provisions of the act of March 2, 1907. Counsel, however, contends that the government has not met the onus of showing expatriation. He urges that the only evidence on this point is the question appearing on page 15 of the transcript, "Did you swear allegiance to the British Crown upon your enlistment in the Canadian Army?" and the answer, "I must have, yes." He urges that this evidence is not sufficient to establish the burden which rests upon the Government to show expatriation.
There is no question in our minds but that this subject was required to take an unqualified oath of allegiance to the British Crown concomitant with the commencement of his military service on September 25, 1939. It is true that by Executive agreement concluded during World War II between the United States and Canada (April 8, 1942), persons possessing dual nationality of the United States and Canada could have served in the Canadian military forces without having been required to take an oath of allegiance to the British Crown. By virtue of orders in Council issued by the Governor General of Canada, an oath of allegiance was not required to be taken by a person who was a citizen of a foreign country if the taking of such an oath would, under the laws of the country in question, have forfeited his citizenship therein. The orders in Council referred to are P.C. 2399 of June 7, 1940, with regard to the air force, and P.C. 3511 of July 30, 1940, with regard to the naval forces of Canada, and P.C. 3294 with respect to Army service was in effect from July 20, 1940. However, it is clear that the orders in Council referred to were not in effect on the date of this appellant's entering into military service in the Canadian armed forces which took place on September 25, 1939. Hence, as to him, there was no dispensation with the requirement of an oath of allegiance. Since the oath of allegiance was required at the time this appellant commenced his Canadian military service, there is no reason to presume that an exception to the requirement was made in his case. As a matter of fact, his testimony in this respect referred to by counsel is indicative of the fact that he did comply with the requirement. Furthermore, we note that the appellant's Canadian military service and the concomitant oath of allegiance resulted from his act of enlisting. To us, the foregoing clearly, convincingly and, indeed, overwhelmingly establishes that this subject expatriated himself under the provisions of the act of March 2, 1907, by virtue of his own voluntary actions.
With regard to the question of whether the subject has been convicted of crimes involving moral turpitude within the purview of the immigration laws, counsel has advanced two contentions. First, it is urged that at the time the offenses were committed the subject was not an alien, but a citizen of the United States. That is, counsel urges that the appellant is not excludable because he has never been convicted of a crime as an alien.
This contention is completely without merit. S----'s exclusion under the Immigration and Nationality Act is not precluded because of the circumstance that he was a citizen at the time he was convicted of the crimes in question. The proper scope of the Immigration and Nationality Act of 1952 as applied to this case is found in the ordinary meaning of its words. The words of the act require that all persons to be excluded thereunder shall be aliens. They do not limit its scope to aliens who have never been citizens. They do not exempt those who have been citizens, but have suffered expatriation. They do not suggest that such persons are not as clearly "aliens" as those who have never been citizens. No distinction is evidenced in the words of the statute. S----'s conviction of a crime involving moral turpitude is a condition precedent to his excludability and his status as an alien is a necessary further condition. When both conditions are met and they are here (the question of whether the crimes involve moral turpitude will be disposed of hereinafter), the Act is satisfied. (See Eichenlaub v. Shaughnessy, 338 U.S. 521 (1950), involving deportability.)
The provisions of that act, here pertinent, are as follows: "Sec. 212. (a) Except as otherwise provided in this act, the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States: * * * (9) Aliens who have been convicted of a crime involving moral turpitude (other than a purely political offense), or aliens who admit having committed such a crime, or aliens who admit committing acts which constitute the essential elements of such a crime; except that aliens who have committed only one such crime while under the age of 18 years may be granted a visa and admitted if the crime was committed more than five years prior to the date of the application for a visa or other documentation, and more than five years prior to date of application for admission to the United States, unless the crime resulted in confinement in a prison or correctional institution, in which case such alien must have been released from such confinement more than five years prior to the date of the application for a visa or other documentation, and for admission, to the United States; * * *."
We do not think that the Mangaoang Case ( Mangaoang v. Boyd, 205 F. (2d) 553; cert. den., 346 U.S. 876), controls here for the reasons set forth in [3] of that decision, p. 555.
Counsel next urges that the crimes here involved do not constitute moral turpitude. He has eloquently pointed out the petty nature of the substantive crimes of theft involved in each instance, the circumstances and motives surrounding the crimes in each instance, and the light sentences imposed therefor. He then calls our attention to certain cases wherein we have held that crimes which he considers much more serious than those which the subject here stands convicted of did not involve moral turpitude.
With regard to the convictions here in question, the fact remains that this alien was convicted of theft on three occasions. While the convictions for theft were in Canada, the fact also remains that the crimes involve a permanent taking. Therefore, they involve moral turpitude ( Matter of N----, A-6953557, 3 IN Dec. 723). The fact that the thefts may have been petty is immaterial ( Tillinghast v. Edmead, 31 F. (2d) 81 (C.C.A. 1, 1929)).
Furthermore, no argument has been advanced that these crimes were purely political in nature and it is clear that they were not. Thus, we may not inquire into the motive behind the crimes. In addition, while the first two convictions as to this subject were had prior to his 18th birthday, no showing has been made that he was treated as a juvenile offender. The convictions occurred in the Province of Quebec in 1935. It was not until November 3, 1942, that by proclamation the age limit was raised to 18 years of age so far as juvenile offenders in the Province of Quebec are concerned. Prior to that date, juvenile offenders in that province were defined in the Canadian Juvenile Deliquents Act, 1929, which defines the term "child" as any boy or girl apparently or actually under the age of 16 years. Hence, the alien is excludable because of conviction of those crimes ( Matter of N----, supra). Moreover, this alien committed more than one crime while under the age of 18 years and hence would still be excludable on the stated charge even had he not committed or been convicted of a crime subsequent to his becoming 18 years of age, which in fact he did.
Finally, counsel has raised the issue of the special inquiry officer's expression of doubt concerning the legality of the subject's marital status. However, this question had no bearing on the special inquiry officer's decision. It is of no moment here and needs no further discussion.
On the basis of the foregoing, we find that the subject is an alien and that he is excludable on the grounds urged by the special inquiry officer. No other questions remain for our consideration. Therefore, we will dismiss the appeal.
Order: It is ordered that appeal from the special inquiry officer's decision excluding the subject from the United States on the grounds stated above be and the same is hereby dismissed.