A-7138424 (husband/father).A-7192353-4 (wife and son)
Decided by Board June 10, 1949
Crime involving moral turpitude — "Stealing" (England) — Violation of Larceny Act of 1916 (6 7 Geo. V, Ch. 50 (1929) — Evidence as to nature of crime — Vitiation of visa for failure to reveal conviction of foregoing offense when applying for such visa.
Alien likely to become public charge — Section 3 of the Immigration Act of 1917 — Evidence.
1. The offense of "stealing" (a fur) in violation of the Larceny Act of 1916 (England) of which the alien was convicted in 1929 involves a criminal intent to permanently deprive another of property or something of value, and therefore involves moral turpitude.
2. Where a record of conviction is introduced in the immigration proceeding, the nature of the crime is conclusively established by the record of conviction and this rule precludes inquiry outside the record of conviction as to facts favorable and unfavorable to the alien.
3. Where the alien failed to reveal his conviction of the above offense when procuring his immigration visa, such suppression was material because had it been known by the consul, the consul would have been required by law to refuse to issue the visa to this convictee, and such conduct vitiated the alien's visa.
4. Where such excludable alien was accompanied by his alien wife and minor son, they were not deemed excludable as persons likely to become public charges, in the absence of substantial evidence they were likely to be supported at the expense of the public because of poverty or some physical handicap.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Section 13 (a) (1), Act of 1924 — No visas.
Section 22, Act of 1924 — Visas obtained by fraud.
Section 3, Act of 1917 (husband/father) — Admits crime or has been convicted of crime — Stealing fur.
Section 3, Act of 1917 (wife and son)-likely to become public charges.
BEFORE THE BOARD
Discussion: This case is before us on appeal from an order entered by the Assistant Commissioner on May 10, 1949, affirming the exclusion of the above-named appellants who arrived at the port of New York on February 16, 1949, ex S.S. Queen Elizabeth. Counsel on appeal urges that the appellants are not excludable as a matter of law and/or fact.
The appellants are a family group consisting of the husband, 48 years of age, his wife, 46 years of age, and their son, 16 years of age, all natives and citizens of Great Britain. They are applying for admission for permanent residence and are in possession of valid British passports. They presented quota immigration visas issued at London, England, by the vice consul of the United States on February 7, 1949, valid for 4 months from the date of issue.
There was introduced in evidence a record of the adult male appellant's conviction on February 2, 1929, in Old Street Police Court, London, England, of the crime of "stealing a fur" for which he was fined £ 5 and ordered to pay £ 5-10-0 costs or 1 month imprisonment. This appellant also admits that he was arrested about the year 1932 in London, England, in connection with the theft of furs, but was acquitted and released. The evidence also establishes that the facts pertaining to these two arrests and the one conviction were not disclosed to the American consul by the adult male appellant in connection with the procurement of the immigration visa which he presented upon his arrival.
The crime for which the appellant was convicted is defined by the Larceny Act of 1916 (6 7 Geo. V, ch. 50). A certified copy of this act reads as follows:
1. For the purposes of this act —
(1) A person steals who, without the consent of the owner, fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof: Provided that a person may be guilty of stealing any such thing notwithstanding that he has lawful possession thereof, if, being a bailee or part owner thereof, he fraudulently converts the same to his own use or the use of any person other than the owner.
* * * * * * *
2. Stealing for which no special punishment is provided under this or any other act for the time being in force shall be simple larceny and a felony punishable with penal servitude for any term not exceeding 5 years, and the offender, if a male under the age of 16 years, shall be liable to be one privately whipped in addition to any other punishment to which he may by law be liable.
The adult appellant during the hearing sought to explain the offense for which he was convicted on February 2, 1929. In reaching a conclusion that this crime involves moral turpitude it is well settled that where a record of conviction is introduced in the immigration proceedings the nature of the crime is conclusively established by the record of conviction ( U.S. ex rel. Zaffarano v. Corsi, 63 F. (2d) 757, 758 (C.C.A. 2d, 1933)). This rule precludes inquiry outside the record of conviction as to facts favorable and unfavorable to the alien ( U.S. ex rel. Robinson v. Day, 51 F. (2d) 1022 (C.C.A. 2d, 1931)). It is true that in some cases this rule results in the deportation of an alien who has committed a petty offense which does not necessarily indicate moral obliquity and in a finding of nondeportability in some very few cases where the offense is indicative of bad character. "But such results always follow the use of fixed standards and such standards are * * * necessary for the efficient administration of the immigration laws" ( U.S. ex rel. Mylius v. Uhl, 203 Fed. 152, 154, S.D.N.Y. 1913, aff'd 210 Fed. 860 (C.C.A. 2); cf. Tillinghast v. Edmead, 31 F. (2d) 81, 84 (C.C.A. 1, 1929); 27 F. (2d) 438, 439).
All crimes do not involve moral turpitude but only those which are accompanied by an evil intent or a depraved motive. In determining moral turpitude, the crime as defined by statute or applicable common law and as limited by the record of conviction must inherently and necessarily involve an evil intent or a depraved motive ( U.S. ex rel. Mongiovi v. Karnuth, 30 F. (2d) 825 (W.D.N.Y. 1925); U.S. ex rel. Meyer v. Day, 54 F. (2d) 336 (C.C.A. 2, 1931)). It is apparent from the above-cited statute that the offense of "stealing" as defined by the Larceny Act of 1916 ( supra) involves a criminal intent to permanently deprive another of property or something of value and therefore involves moral turpitude ( U.S. ex rel. Rizzio v. Kinney, 50 F. (2d) 418 (D.C. Conn. 1931)). Accordingly, we find no merit to counsel's contention that inquiry into the facts is permitted to determine whether or not the acts committed which serve as the basis of the charge against the adult male appellant and his subsequent conviction thereon involve moral turpitude.
Counsel also urges that the visa presented upon arrival by the adult male appellant is not vitiated by his failure to reveal his conviction and arrests in his application for said visa for the reason that since inquiry into the facts may be made as to whether moral turpitude is involved in the crime and since moral turpitude is not involved, the failure to reveal lacks the essential element of materiality. We have found, however, that the suppressed conviction does involve a turpitudinous crime. It was material because had it been known by the consul, he (the consul) would have been required by law to refuse to issue the visa ( U.S. ex rel. Lamp v. Corsi, 61 F. (2d) 964 (C.C.A. 2, 1932); Daskaloff v. Zurbrick, 103 F. (2d) 579 (C.C.A. 6, 1939)).
Accordingly, the Assistant Commissioner's conclusion that the adult male appellant is inadmissible to the United States under section 13 (a) of the Immigration Act of 1924 in that the immigration visa which he presented was not valid because procured by misrepresentation and the conclusion that this appellant is also inadmissible under section 3 of the Immigration Act of 1917 in that he is a person who has been convicted of a crime or misdemeanor involving moral turpitude, to wit, stealing a fur, is hereby affirmed.
We agree with counsel that there is no substantial evidence of record that the wife (female appellant) and son (minor male appellant) would be likely to become public charges if permitted to enter the United States. They have indicated that they desire to enter the United States for permanent residence independent of the adult male appellant. In order to sustain the ground of exclusion urged against them, there must be substantial evidence that these aliens are likely to be supported at the expense of the public because of poverty or some physical handicap ( In re Kirshishian 299 Fed. 804, 805 (S.D.N.Y. 1924); Ex parte Mitchel, 256 Fed. 229, 230 (N.D.N.Y. 1919)). In addition to the assurances which have been given by relatives and which appear to be in good faith although they are not legally liable, we find that the female appellant is quite capable of earning her own livelihood independent of her husband and that the minor male appellant has had considerable training in the tailoring industry which presents a wide field for employment in this country. The finding that the female and minor male appellants are inadmissible to the United States under section 3 of the Immigration Act of 1917 as persons likely to become a public charge will not be sustained.
Order: It is directed that the appeal insofar as it relates to the alien H---- T---- be and the same is hereby dismissed (husband/father).
It is further directed that the appeal insofar as it relates to the aliens E---- A---- T---- and J---- E---- T---- be and the same is hereby sustained, these two last named aliens to be admitted as immigrants in possession of duly issued immigration visas (wife and son).