T-1943658
Decided by the Board January 7, 1954
Conviction for crime involving moral turpitude — Stealing (larceny) — England — Excludability under section 212 (a) (9) of the Immigration and Nationality Act.
Where the alien's actions constituted a violation of law in the place where they occurred and such misconduct was there punishable in a criminal proceeding, an adjudication by an English court, following a plea of guilty to a charge of theft, that the case had been proved and that the offender be given absolute discharge with costs, is a conviction for the purposes of the immigration laws, notwithstanding other provisions of the statute relating to release from certain penalties in England.
EXCLUDABLE:
Act of 1952 — Section 212 (a) (9) — One who admits commission of and has been convicted of a crime involving moral turpitude, to with Stealing (larceny).
BEFORE THE BOARD
Discussion: This case is before us on appeal from the special inquiry officer's order of May 4, 1953, directing that the subject alien be excluded from the United States on the above-stated grounds. The alien applied for admission to the United States for permanent residence, in possession of appropriate documents. Counsel has submitted a brief in support of the appeal.
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, the alien's excludability is predicated upon exhibit 1 of the record. It is a certified extract of the Register of the Court of Summary Jurisdiction for the Petty Sessional Division of Chertsey of the County of Surrey, England, sitting on October 24, 1951. It shows that the alien was charged with stealing six pieces of antique china of the value of £47.12, the property of ----, to which charge he pleaded guilty; the adjudication being "Case proved — absolute discharge, costs 15/----." On the basis thereof, the special inquiry officer concluded that the alien has been convicted, within the purview of the immigration laws, of a crime involving moral turpitude, to wit: Stealing (larceny).
Counsel submits that the Immigration and Nationality Act of 1952, in using the term "has been convicted of a crime" has reference to a decision of a court which amounts to a conviction of a crime under the law which the court was applying in rendering the decision. He further urges that it is a matter of law whether or not such a decision amounts to a conviction of a crime, within the purview of the immigration laws. He submits that in the present instance, the decision of the court of summary jurisdiction, sitting in Chertsey, England, does not, as a matter of law, amount to the appellant's conviction of a crime. That is, counsel, apparently relying on the court's decision in the case of Frieslinger v. Smith, 41 F. (2d) 707, urges that in considering whether or not there has been a conviction within the meaning of the immigration laws, we must consider the law of England which is involved in this case, and that under the law of that jurisdiction this alien has not been "convicted" of a crime within the meaning of the immigration statute and, therefore, is not inadmissible on the grounds urged by the special inquiry officer. In support of this position, he has submitted an affidavit executed by a Montreal attorney who states that he is a duly qualified member in good standing of the Bar of England and gives the opinion that under the law of England, except for the purposes of the proceedings in which the order was made, the subject is deemed not to have suffered a conviction by reason of the proceedings covered in exhibit No. 1.
Subsection 1 of section 7 of the Criminal Justice Act of 1948 (11 and 12 Geo. VI, ch. 58) makes provision for the method of dealing with a person who has been convicted which was resorted to in subject's case. It provides that, under certain circumstances, the court may put the person on probation, discharge him absolutely, or order that he be conditionally discharged. Subsection 1 of section 12 of that act makes specific provision as to the effect of the disposition of the case in accordance with subsection 1 of section 7. It reads as follows:
Subject as hereinafter provided, a conviction of an offense for which an order is made under this part of this act placing the offender on probation or discharging him absolutely or conditionally shall be deemed not to be a conviction for any purpose other than the purposes of the proceedings in which the order is made and of any subsequent proceedings which may be taken against the offender under the foregoing provisions of this act;
The remaining portions of section 12 are set forth in the affidavit attached to exhibit No. 2 of this record.
We have carefully considered the arguments of counsel, in the light of the pertinent provisions of the English statute. We have also exhaustingly examined English authorities on the subject. In the case of R. v. Harris (1950, 1 K.B. 107; 2 All E.R. 816) the court said:
In the opinion of the court, the intention of the legislature was to provide that this method of dealing with persons who have been convicted, viz, either putting them on probation, discharging them absolutely, or ordering that they be conditionally discharged, should not have the effect of a previous conviction for the purpose of other acts which render a person, who is convicted of an offense under one of them, subject to certain disabilities if he has already been convicted of an offense.
In this case, Harris was charged with an offense under section 4 of the Vagrancy Act of 1824, in which was necessary to prove intent on his part to commit a felony. The court refused to admit in evidence a certificate of his prior conviction, in which he had been conditionally discharged for a period of 12 months, as evidence of his known character to show the required intent.
In the case of R. v. Stobbart (1951, 2 All E.R. 753), the court said:
In view of section 12 (1) of the Criminal Justice Act, 1948, a conviction resulting in a probation order being made was not a conviction for the purposes of section 21 (1) of the act and, therefore, S---- could not be sentenced to corrective training.
S----, 21, was convicted of shopbreaking and sentenced to 3 years corrective training. On two previous occasions since he attained the age of 17 he had been convicted of indictable offenses punishable with imprisonment for a term of 2 years or more in respect of one of which he had been placed on probation. Section 21 (1) provides for corrective training and preventive detention where a person who is not less than 21 years of age (a) is convicted on indictment of an offense punishable with imprisonment for a term of 2 years or more; and (b) has been convicted on at least two previous occasions since he attained the age of 17 of offenses punishable on indictment with such sentence.
We also find the matter very well put in Morrison and Hughes on the Criminal Justice Act, 1948, page 35, where in a note to section 12, it is said: "The section absolves the offender from legal consequences which otherwise would flow from a conviction. * * * The conviction itself is not to be regarded for the purpose of any other case as a conviction."
We note that a similar question was previously considered by this Board, although perhaps only in passing. In the case of J---- A-9765214 (B.I.A. July 28, 1953), there was involved the case of an alien who had been charged with a crime and placed on probation. In that case, the hearing officer pointed out that actions under the Probation of Offenders Act of 1907 do not constitute a conviction, but merely an adjudication and, therefore, he could not find the respondent a person who had been convicted of a crime involving moral turpitude. On July 28, 1953, this Board, without comment on that question, authorized voluntary departure and preexamination. That act was repealed by S. 83 (2), (3) and tenth schedule, pt. 1 of the Criminal Justice Act of 1948. In commenting on the change effected by the new act, Halsbury's Statutes of England, 2d edition, 28, p. 353, has this comment: "Formerly, a court placing an offender on probation acted without proceeding to a conviction. Now, however, a conviction will precede the making of a probation order, though by sec. 12, post, a person placed on probation by any court is relieved of certain consequences of the conviction."
The unambiguous language of the English statute together with the cases interpreting it and the recognized authorities commenting on them make it abundantly clear that the alien's actions constituted a violation of law in the place where it occurred and that such misconduct was there punishable in a criminal proceeding. That is the determinative factor for purposes of our present consideration. In other words, here there has been a conviction for a particular criminal offense. We hold, counsel's contentions to the contrary notwithstanding, that it constitutes a conviction for purposes of the immigration laws. The provisions of the statute have nothing to do with whether or not there has been a conviction (which is our concern), but relate to release from certain penalties in England.
On the basis of the foregoing, we find that the alien is inadmissible to the United States on the grounds urged by the special inquiry officer. Therefore, the appeal must be dismissed and we will now so order.
Order: It is ordered that the appeal be and the same is hereby dismissed.