A-8905703.
Decided by Special Inquiry Officer February 3, 1955. Decided by Board May 6, 1955. Reversed by Attorney General July 19, 1955.
Petty offenses — Section 4, Act of September 3, 1954 — Classification of offenses committed outside of United States.
(1) In determining whether an offense committed in a foreign country shall be considered a misdemeanor classifiable as a petty offense under section 4 of the Act of September 3, 1954, United States standards are applied; hence, recourse is had to the equivalent offense under United States law: Title 18 of the United States Code or, if the equivalent offense is not found therein, Title 22 of the District of Columbia Code.
(2) After the equivalent offense under United States law has been identified for the purpose of determining whether an offense committed abroad shall be considered a misdemeanor classifiable as a petty offense under section 4 of the Act of September 3, 1954, the definitions in 18 U.S.C. 1 are to be applied.
(3) Where an alien was convicted in Canada in 1927 of stealing $32.60 in violation of section 386 of the Canadian Criminal Code, which provides a punishment of not more than seven years' imprisonment, but was given a suspended sentence, the offense may be classified as a misdemeanor under section 4 of the Act of September 3, 1954, because such offense if committed in the District of Columbia would have constituted petty larceny under section 22-2201 of the District of Columbia Code (there being no comparable offense in Title 18 of the United States Code) and been punishable by a fine of not more than $200 or imprisonment for not more than one year, or both.
BEFORE THE SPECIAL INQUIRY OFFICER
(February 3, 1955)
Discussion: The applicant, a 47-year-old single male, is an alien, a native of Yugoslavia and a resident and citizen of Canada, who arrived at the port of Blaine, Washington, February 3, 1955, by auto and applied for admission to visit for pleasure for 29 days. He was accorded hearing at Blaine, Washington, on February 3, 1955, and was represented by counsel during such hearing.
The record reflects that the applicant was accorded a hearing and excluded from the United States at Blaine, Washington, on February 2, 1954, on the ground of having been convicted of a crime involving moral turpitude, to wit: theft, at Vancouver, B.C., June 1, 1927.
The facts of the applicant's case were set forth in decision entered at the time of such exclusion, February 2, 1954, and need not be repeated here. The record clearly reflects that the applicant has been convicted of only one criminal offense. The sole question for determination is whether the applicant does or does not fall within the exception from exclusion provisions of section 4, Act of September 3, 1954 (P.L. 770, 83d Congress), a statute enacted subsequent to the applicant's previous hearing.
The application of section 4, Act of September 3, 1954, apparently presents two methods of approach, i.e.:
Method A. Fitting the facts of a foreign offense into the provisions of some United States statute (city, State, or Federal), presumably some statute prevailing at the time of the foreign offense, and thereafter determining from the penal provisions of the United States statute, and from the punishment actually imposed by the foreign court, whether the foreign offense would, if committed in the United States, be classified as a felony, misdemeanor or petty offense as defined by section 1, Title 18, U.S.C., or
Method B. Testing the penal provisions of the applicable foreign statute against the definitions of felony, misdemeanor and petty offense contained in section 1, Title 18, U.S.C.
It is apparent from the record that the applicant was convicted under section 386, Criminal Code of Canada, which provides a liability to imprisonment of seven years upon conviction. Upon application of Method B above to the applicant's offense, it is seen that any offense under section 386, Criminal Code of Canada, is classifiable as a felony under section 1, Title 18, U.S.C.
However, upon application of Method A above, it is discovered that this offense is classifiable as a petty offense for the reason that the value involved in this offense (theft of money amounting to $32.60) is "less than $35," the valuation specified in Petit Larceny, section 22-2201, Title 22 of the Code of District of Columbia, in effect at the time of such offense. The court record of his conviction clearly shows that the applicant was "allowed to go on suspended sentence" and hence no actual imprisonment was imposed in his case. Accordingly, if the applicant had committed this offense in the District of Columbia, such offense would, under section 1, Title 18, U.S.C., be classified as a petty offense.
No regulations appear to have been issued by the Attorney General with regard to the application of section 4, Act of September 3, 1954, or if issued, have not as yet been received at Blaine, Washington. However, the State Department issued regulations in the Federal Register on October 21, 1954, as Part 42.42 (a) (9) (i) of Title 22, Code of Federal Regulations, which regulations in part read as follows:
An alien shall not be ineligible to receive a visa under the provisions of section 212 (a) (9) of the act (a) solely by reason of the conviction of a single offense which, if committed in the United States * * *. (Emphasis supplied.)
The only available precedent decision involving section 4, Act of September 3, 1954, is the Matter of C----, E-092142 Interim Decision No. 635 (B.I.A., October 8, 1954), which concerned an offense committed in the United States; however, the following language contained therein is believed to be pertinent to the instant case:
* * * specified that the benefits of the statute are intended for those who can meet two requirements or standards, namely, the crime must be an offense which if committed in the United States would be a misdemeanor * * *. (Emphasis supplied.)
It is conceivable that a foreign criminal statute could affix a very light penal provision which upon application of Method B above would be classified as a misdemeanor or petty offense, whereas upon application of Method A above, it would be found that the same offense is classifiable as a felony. For instance, in some foreign state the crime of arson might affix a penalty of not over one year imprisonment. Under Method B above, it would be necessary to classify the offense as a misdemeanor, whereas under Method A, the offense would be classified as a felony, District of Columbia Criminal Code, and section 1, Title 18, U.S.C. The difficulty and conceivable inequities of applying Method B to the criminal statutes of various and sundry foreign states, with attendant variation of penal provisions of such foreign statutes, is believed to be self-evident.
The instant case presents an example of the reverse of the foregoing proposition in that the penal provisions of the foreign statute are such that under Method B, his offense must be classified as a felony, whereas if he had committed the same offense and received the same suspended sentence in the District of Columbia, his offense would be classified as a petty offense.
While not herein pertinent, it is known that American consuls are following Method A above, in the issuance of visas to aliens destined to the United States, and are utilizing the Criminal Code of the District of Columbia, as the United States statute into which the facts of the foreign offense are fitted in order to determine the classification under section 1, Title 18, U.S.C., of the alien's foreign offense.
Accordingly, in view of all the foregoing, it is believed that the application of section 4, Act of September 3, 1954, requires the sole and exclusive use of Method A above. It is, therefore, believed that the applicant's case falls within the exception from exclusion contained in section 4, Act of September 3, 1954.
Findings of Fact:
On the basis of the testimony and evidence presented, it is found:
(1) That the applicant is an alien, a native of Yugoslavia, and citizen and resident of Canada, age 47 years;
(2) That the applicant is applying for admission to visit for pleasure for a period of 29 days;
(3) That the applicant has been convicted of only one criminal offense which occurred at Vancouver, B.C., Canada, on June 1, 1927, on a charge of theft of money amounting to $32.60, for which offense he was allowed to go on suspended sentence.
Conclusions of Law:
On the basis of the foregoing Findings of Facts, it is concluded:
(1) That under the provisions of section 1, Title 18, U.S.C., and section 22-2201, Petit Larceny, Title 22 of the District of Columbia Code, in effect in 1927, the applicant's offense, if committed in the United States, would be classified as a petty offense;
(2) That under the provisions of section 4, Act of September 3, 1954, the applicant is exempt from exclusion under section 212 (a) (9) of the Immigration and Nationality Act;
(3) That under the provisions of section 212.3 (a) (1), Title 8, C.F.R., the applicant is not required to present a passport or visa.Order: It is ordered that the applicant be admitted to the United States as a visitor for pleasure for a period of 29 days in accordance with the provisions of Part 236.13 (d) of Title 8, Code of Federal Regulations.
(May 6, 1955)
Discussion: On February 3, 1955, the special inquiry officer directed the applicant's admission as a temporary visitor and an appeal from that decision was thereafter filed by the Acting Officer in Charge at Blaine, Washington. The case is now before us for decision.
The applicant is a 47-year-old male, native of Yugoslavia and citizen of Canada. The question of whether or not he is admissible to the United States arises from his conviction on June 1, 1927, before a Police Magistrate at Vancouver, B.C., Canada, on the charge of stealing the sum of $32.60 from another person. A suspended sentence was imposed. While the record of conviction does not designate the particular section of the Canadian Criminal Code which was violated, we agree with the special inquiry officer that the conviction was under section 386 which provides a punishment of not more than seven years' imprisonment for thefts other than those specifically provided for elsewhere in the code. The applicant has no other criminal record.
The special inquiry officer held that, under the circumstances of this case, the offense of theft involved moral turpitude and in this we concur. However, we do not agree that the crime may be classified as a petty offense and that the applicant may be admitted by virtue of the provisions of section 4 of the Act of September 3, 1954 ( 68 stat. 1145). That statutory provision is as follows:
Sec. 4. Any alien who is excludable because of the conviction of a misdemeanor classifiable as a petty offense under the provisions of section 1 (3) of Title 18, United States Code, by reason of the punishment actually imposed, or who is excludable as one who admits the commission of such misdemeanor, may hereafter he [be] granted a visa and admitted to the United States, if otherwise admissible: Provided, That the alien has committed only one such offense.
18 U.S.C. 1 ( 62 Stat. 684), referred to in the above-quoted enactment, is entitled "Offenses classified" and is as follows:
Notwithstanding any Act of Congress to the contrary:
(1) Any offense punishable by death or imprisonment for a term exceeding one year is a felony.
(2) Any other offense is a misdemeanor.
(3) Any misdemeanor, the penalty for which does not exceed imprisonment for a period of six months or a fine of not more than $500, or both, is a petty offense.
The special inquiry officer concluded that the possible applicability of section 4 of the Act of September 3, 1954, should be decided by examining the same United States crime (either a State or Federal crime) and determining how the United States crime would be classified under 18 U.S.C. 1. In holding that the applicant's conviction in 1927 was for a petty offense, the special inquiry officer resorted to section 22-2201 of the District of Columbia Code which, in 1927, provided that petit larceny (larceny of property worth less than $35) was punishable by a fine of not more than $200 or imprisonment for not more than one year, or both. We hold that, using the standards specified in 18 U.S.C. 1, the penalty, prescribed by the laws of the jurisdiction in which the conviction actually occurred, is the determinative factor.
Preliminarily, we might point out certain inherent difficulties or deficiencies in the procedure suggested by the special inquiry officer. First, although the District of Columbia Code consists of laws enacted by Congress, these laws are applicable only to the District of Columbia. They are not the Federal criminal laws, these being contained in Title 18 of the United States Code. We can see no greater reason for relying on the District of Columbia Code than on the laws of any one of the 48 States. This is particularly true since we have already held that, if the offense is committed in the United States, we will look to the maximum punishment prescribed for the crime by the law of the State in which the conviction occurred. It logically follows that, where the offense was committed in a foreign country, the governing factor in determining whether the offense is a felony or a misdemeanor is the punishment prescribed for the crime by the laws of the foreign country.
Matter of C----, E-092142, Int. Dec. No. 635, decided October 8, 1954; Matter of H----, A-6060587, Int. Dec. No. 658, decided December 9, 1954.
Secondly, the offense of theft in Canada includes offenses which would not be so characterized in our law. In addition, the difficulty of making a determination on the basis of the District of Columbia Code is illustrated by the fact that the offense committed by the applicant could conceivably also constitute a felony, punishable by imprisonment for a maximum of fifteen years.
Matter of T----, 56156/249, 2 IN Dec. 22, 42, A.G., February 24, 1944.
In the District of Columbia, under section 22-2901 of the Code, robbery includes a taking "by sudden or stealthy seizure or snatching."
The special inquiry officer indicated that he was led to his conclusion by a regulation of the Department of State and by certain language in Matter of C----, ( supra), (footnote 1). The State Department regulation is, in pertinent part, as follows:
22 C.F.R. 42.42 (a) (9) (i) effective October 21, 1954 ( 19 F.R. 6785).
An alien shall not be ineligible to receive a visa under the provisions of section 212 (a) (9) of the act (a) solely by reason of the conviction of a single offense which, if committed in the United States, would be a misdemeanor punishable by imprisonment not to exceed one year, and for which the penalty actually imposed was imprisonment not to exceed six months or a fine not to exceed $500, or both; or * * *.
The language appearing in Matter of C----, ( supra), referred to by the special inquiry officer, was almost an exact quotation of a statement in Representative Walter's letter of August 20, 1954, to former Senator McCarran which was read into the Congressional Record of the Senate during the discussion of the bill which became the Act of September 3, 1954. The pertinent part of the letter is as follows:
Congressional Record of August 20, 1954 (unbound p. 14609).
* * * my amendment * * * is intended to require the meeting of two standards, namely, the offense must be an offense which is (if) committed in the United States would be a misdemeanor (not punishable by imprisonment for one year or more), and, second, the offense must be one for which the actual penalty imposed in the particular case was imprisonment not to exceed six months or a fine not to exceed $500, or both. * * *
It is apparent that the phrase "if committed in the United States" appearing in the State Department regulation quoted above, had its genesis in Representative Walter's letter to Senator McCarran. However, when Representative Walter discussed his amendment in the House of Representatives on the same day, he did not speak of a crime which would be a misdemeanor if committed in the United States, but the pertinent part of his statement is as follows:
Congressional Record of August 20, 1954 (unbound p. 14506).
The purpose of my amendment is to modify, or rather clarify, the purport of paragraph (9), subsection (a) of section 212 of the Immigration and Nationality Act, so as to bring it in conformity with section 1 of Title 18, United States Code, as enacted into positive law on June 25, 1948. In other words, I want to make certain that section 212 (a) (9) of the Immigration and Nationality Act will be administered in accordance with American legal standards as set out in Title 18 of United States Code, which classifies offenses and draws a very clear line between a felony, a misdemeanor, and a minor offense.
The crucial phrase in the statute is "because of the conviction of a misdemeanor classifiable as a petty offense under the provisions of section 1 (3) of Title 18, United States Code, by reason of the punishment actually imposed * * *." Consequently, in these cases, two questions must be determined, namely (1) whether the offense is a misdemeanor and (2) whether it is a petty offense. As to the later, the statute directs that the matter be determined in accordance with 18 U.S.C. 1 (3) and based on the punishment actually imposed. Hence, the determination of whether the punishment imposed did not exceed imprisonment of six months or a fine of not more than $500 or both can be readily determined by consulting the foreign record. It is only the question of whether the offense is a felony or a misdemeanor which presents any problem.
We do not believe that the chance use of the words "if committed in the United States" should form the basis for completely disregarding the punishment fixed by the laws of the foreign jurisdiction for the precise crime of which the person was convicted, nor should it constitute a reason for arbitrarily adopting the punishment fixed by some other statute in the United States (state or Federal). In addition, the procedure suggested by the special inquiry officer could not be rationalized, under any circumstances, unless the foreign crime and the United States crime were identical. Yet the crime of the theft in Canada, for which the applicant was convicted, is basically dissimilar from the crime of theft in the United States, the latter involving moral turpitude while the former may or may not.
We can perceive no logical basis for employing a legal fiction that a man was convicted in the United States of a crime which was committed in Canada and of which he was convicted in that country. Furthermore, to speak of an offense committed in the United States lacks specificity because a crime which is a misdemeanor in one State may be a felony in another and vice versa.
We think that the phrase in Representative Walter's letter reading, "if committed in the United States," when considered with the parenthetical statement immediately appended, has only the meaning which would be conveyed if the full statement were paraphrased to read, "The offense must be an offense which would be a misdemeanor under 18 U.S.C. 1 because punishable by imprisonment not exceeding one year." It is our opinion that the statement in Representative Walter's letter was merely another way of expressing what he had said earlier that day in the House of Representatives relative to applying the standards in 18 U.S.C. 1, and that all that was intended was that that statutory provision was to be the yardstick for measuring whether a particular crime was a felony, a misdemeanor or a petty offense.
We have indicated above why we do not believe that this isolated phrase in the remarks of Representative Walter should be seized upon as a basis for disregarding the punishment prescribed by the laws of the foreign country. In any event, we believe that the language of the statute is plain and that there can be no justification for an attempt to add to it words importing the fiction that a crime committed in a foreign country was actually committed in the United States. In Caminetti v. United States, 242 U.S. 470, 485 (1917), it was said: "Where the language is plain and admits of no more than one meaning the duty of interpretation does not arise and the rules which are to aid doubtful meanings need no discussion." In that case, although the words of the statute were plain, it was contended that the court should construe the act as applying only to the transportation of women for pecuniary gain because section 8 of the act provided that it should be known as the White-Slave Traffic Act, and the report accompanying the introduction of the legislation in the House of Representatives set forth that the legislation was needed to put a stop to the interstate and international traffic in women and girls. The court rejected this contention and said (p. 490):
Reports to Congress accompanying the introduction of proposed laws may aid the courts in reaching the true meaning of the legislature in cases of doubtful interpretation, Blake v. National Banks, 23 Wall. 307, 319; Bate Refrigerating Co. v. Sulzberger, 157 U.S. 1, 42; Chesapeake and Potomac Telephone Co. v. Manning, 186 U.S. 238, 246; Binns v. United States, 194 U.S. 486, 495. But, as we have already said, and it has been so often affirmed as to become a recognized rule, when words are free from doubt they must be taken as the final expression of the legislative intent, and are not to be added to or subtracted from by considerations drawn from titles or designating names or reports accompanying their introduction, or from any extraneous source. In other words, the language being plain and not leading to absurd or wholly impracticable consequences, it is the sole evidence of the ultimate legislative intent.
For the reasons stated above, we hold that the determination of whether a foreign crime is a felony or misdemeanor must be made by looking to the punishment prescribed by the law of that country for the particular crime and using the standard set forth in 18 U.S.C. 1. In other words, if a foreign offense is punishable by death or imprisonment for a term exceeding one year, it is a felony and otherwise it is a misdemeanor. If the offense is a misdemeanor and the punishment actually imposed does not exceed that mentioned in 18 U.S.C. 1 (3), the crime is a petty offense. Applying these principles to the applicant's case, we must hold that the offense of theft in Canada, being punishable by imprisonment for not more than seven years, is a felony and the Act of September 3, 1954, has no application. Accordingly, the appeal of the acting officer in charge will be sustained.
Order: It is ordered that the appeal of the acting officer in charge be sustained and that the applicant be excluded from the United States under section 212 (a) (9) of the Immigration and Nationality Act on the ground that he has been convicted of a crime involving moral turpitude, to wit: theft.
(July 19, 1955)
By memorandum of the Board of Immigration Appeals dated May 31, 1955, the above-captioned case was certified to the Attorney General for review pursuant to section 6.1 (h) (1) (iii), Title 8, Code of Federal Regulations.
The decision of the Board is reversed. The available legislative history supports the view that section 4 of the "Sheepherder's Act" (Public Law 770, 83d Congress) renders an alien admissible who would be otherwise excludable because of the conviction of one misdemeanor which is classifiable as a petty offense, as if committed in the United States, under the provisions of 18 U.S.C. 1 (3).
It is clear from the statement of the sponsors that section 4 was meant to liberalize procedures established by the Immigration and Nationality Act which have resulted harshly in cases where the alien's record contains only one petty offense and where he is not excludable for any other reason.
Although ambiguity in the language used in section 4 leaves uncertain whether classification of the single offense as a misdemeanor, and therefore a petty offense under 18 U.S.C. 1 (3), is to be according to the laws of the foreign jurisdiction or the law of the United States, there is ample evidence that the sponsors intended that United States standards be applied and that the offense be examined in the light of a similar offense "if committed in the United States."
Section 4 was developed as a "floor" amendment. There are, therefore, no committee reports from Senate or House. The sponsors explained their interpretation to the House and Senate and no change was suggested in the language proposed. (See excerpts from the Congressional Record quoted in accompanying Department of State Instruction numbered 487 and dated September 8, 1954.)
The statement of the draftsman of proposed legislation as to his understanding of its nature and effect has been accepted in the courts as indicative of the legislative intent where the meaning is obscure ( United States v. Coca Cola Co., 241 U.S. 265, 281-283; see United States v. Whyel, (C.C.A. 3) 28 F. (2d) 30, and cases cited; see also Sutherland, Statutory Construction (3d ed.), Vol. II, § 5009).