56096/344
Decided by the Board December 15, 1941.
Crime involving moral turpitude — Bastardy.
Bastardy is not a crime involving moral turpitude.
APPLICATION: For advance exercise of the seventh proviso to section 3 of the Immigration Act of 1917.
FOUND INADMISSIBLE BY BOARD OF SPECIAL INQUIRY:
Act of 1917 — Convicted prior to entry of crime involving moral turpitude — Bastardy.
Mr. Paul J. Leahy, of Newton, Mass., for the applicant.
Mr. Anthony L. Montaquila, Board attorney-examiner.
STATEMENT OF THE CASE: Counsel asserts that the applicant entered the United States illegally during 1932; that with a view to bringing about an adjustment of his immigration status, the necessary documents for an immigration visa were filed with the American consul at Fredericton, New Brunswick, Canada, and that official has raised the question as to whether the applicant's conviction on the charge in question is one involving moral turpitude. It is stated that the applicant is a resident of Waltham, Mass., but is presently in Canada, where he journeyed in connection with his application for an immigration visa.
DISCUSSION: Section 3, Act of February 5, 1917, as amended, requires the exclusion from the United States of aliens who have been convicted of or admit the commission of a crime involving moral turpitude prior to entry into the United States. Under the seventh proviso of said section, the Attorney General may admit to the United States, under conditions as he may prescribe, aliens returning after a temporary absence to an unrelinquished United States domicile of 7 consecutive years.
If bastardy is an offense involving moral turpitude, then it is clear that the applicant falls within section 3. If, on the other hand, it is not moral turpitude, section 3 would have no application and this Board would be without jurisdiction to consider the case under the seventh proviso, supra.
It is stated in the attorney's letter dated September 10, 1941, that "this man was convicted of a bastardy charge in Newton District Court of Massachusetts in 1934, and was under a court order to pay $3 a week for 6 years. He has lived up to the terms of this order and has no other court record."
This case was before the legal branch, and they have referred the matter to this Board for consideration under the seventh proviso, supra, for the reason that "it is the understanding of this branch that such a crime has been held to be one involving moral turpitude."
The legal branch presumably has reference to the case of L---- Z---- (55863/179) which involved the deportation of an alien on the ground that subsequent to May 1, 1917, he had been sentenced to imprisonment more than once for a term of 1 year or more for the commission subsequent to entry of a crime involving moral turpitude, to wit: bastardy and burglary. The decision in that case merely recites that "On November 12, 1920, he pleaded guilty to the charge of bastardy in the Circuit Court of Baltimore, Md., and he was ordered to pay $15 a month for 12 months for the support of his child and a certain sum to the mother, in default of which it was ordered that he be confined in the Maryland House of Correction for 2 years." He was committed to the house of correction. On May 17, 1921, he was released from prison on condition that he marry the mother of his child, a native-born citizen of the United States. The wife has been interviewed, and she states the alien deserted her in November 1925, before the birth of their youngest child, and he has not supported her and the children since.
It will be observed that decision referred to did not specifically decide whether the charge of bastardy was one involving moral turpitude, although such a conclusion may be inferentially drawn on the basis of the action taken against the alien, to wit: deportation.
We do not feel that the question of whether bastardy involves moral turpitude was conclusively settled in the decision referred to, nor do we feel that the application of that case would be decisive of the issue presented in the case now before this Board.
In Bouvier's Law Dictionary, volume 1, page 729, a crime is defined as a wrong that the Government notices as injurious to the public and punishes in what is called a criminal proceeding in its own name. A complaint in a bastardy proceeding is generally held to be a civil action. It is generally said that the object of such a proceeding is not the imposition of a penalty for an immoral or unlawful act, but merely to compel the putative father to provide for the support of his off-spring, and thus secure the public against such support ( People v. McFarline, 50 App. Div. 95; 7 C.J. sec. 58, p. 967.
At most, bastardy is a quasi crime, which is defined as an offense not constituting a crime or misdemeanor, but it is in the nature of a crime ( Wiggins v. Chicago, 68 Ill. 372). It includes "a class of offenses against the public which have not been declared crimes, but wrongs against the local or general public, which it is proper should be repressed or punished by forfeitures and penalties ( Southern Ry. Co. et al. v. McNeeley, 44 Ind. App. 126; 88 N.E. 710).
Unless forbidden by a particular statute, the mother of an illegitimate child may, by fair settlement with the putative father, on a reasonable consideration, preclude herself, and in some jurisdictions the county, from the right to maintain bastardy proceedings. In some States it is held that a settlement is not a bar to proceedings by the public authorities ( Spalding v. Felch, 1 Root 319; Commonwealth v. Schultz, 19 Pa. Dist. 906. Marriage to the putative father results in abatement of the proceedings (7 C.J. sec. 71, p. 972)).
Except in a few jurisdictions where the proceeding must be brought by the public authorities, the mother may institute a proceeding, but in some jurisdictions she is the only one who can do so. This right to prosecute has been held optional by the mother (7 C.J. sec. 73, pp. 972-973).
A decision in a bastardy proceeding is merely a finding by a justice that the complaint is true, or that the respondent is guilty, and is equivalent to a finding that he is the father of the child (7 C.J. sec. 90, p. 981).
A complaint or indictment for bastardy usually recites that the defendant is the father of the child, the residence of the mother and child, etc.
The imprisonment of the defendant in a bastardy proceeding, upon failure to abide by the terms of the court order regarding payment or payments for the child and mother is merely a means of enforcing such order of maintenance and, moreover, such imprisonment is not confinement for debt within the meaning of the constitutional provision, but predicated on the theory that such failure to pay is contempt of a court order ( People v. Stowell, N.Y. 2 Den. 127; 8 Cyc. 879, Constitutional Law and 17 Cyc. 1490, executors).
On the basis of the foregoing, the conclusion is obvious that bastardy is not a crime in the criminal sense, but more akin to a private wrong for which there is redress to the party wronged in the form of maintenance, either to the child or mother or both. There is another element presented, but not raised as a possible ground of exclusion, namely, fornication. However, it has been the consistent position that the latter offense is not one involving moral turpitude. ( See In re C---- R---- G----, 55950/392.)
We conclude, therefore, that the complaint filed against the applicant in bastardy proceedings, which resulted in a finding against him and an order for maintenance, did not involve a crime and therefore moral turpitude within the meaning of section 3 of the Immigration Act of February 5, 1917, as amended. On this basis the application must be denied.
ORDER: It is ordered that the application be denied on the ground that the subject is not inadmissible to the United States on the ground stated within the meaning of section 3, Act of February 5, 1917, and amended.