A-7570596
Decided by the Board December 1, 1953
Crime involving moral turpitude — Willful party to continued use of premises as a brothel, England.
A summary conviction for being willfully a party to the continued use of premises as a brothel is a felony or other crime or misdemeanor within the provisions of section 19 (c) of the Immigration Act of 1917 and is a conviction for a crime involving moral turpitude.
CHARGES:
Warrant: Act of 1924 — Visa procured by fraud or misrepresentation.
Act of 1917 — Convicted of crime prior to entry — Keeper of a brothel.
BEFORE THE BOARD
Discussion: This case is before us on appeal from the hearing officer's decision of January 19, 1953, directing the subject's deportation from the United States, pursuant to law, on the above-stated charges.
The facts of this case have been succinctly set forth in the opinion of the hearing officer and there is no need to repeat them all here. Briefly, the subject's deportability on the charge laid under the Immigration Act of 1917, as amended, is predicated on exhibit No. 4 which is a Memorandum of Conviction of F---- E---- A---- in the Court of Summary Jurisdiction, sitting at Marylebone Magistrates Court in England on February 11, 1939. The memorandum describes the charge as follows: "Being the landlord of 59 Upper Berkeley Street were (sic) willfully a party to the continued use of the above as a brothel." The record discloses that the respondent was not arrested or admitted to bail upon the charge cited, but was summoned into court and, without being represented by counsel, entered a plea of guilty and was ordered to pay a fine of £40 and costs of £21. No imprisonment was imposed. Deportability under the Immigration Act of 1924 is based upon the subject's failure to reveal that conviction in his application for a nonquota immigration visa which was issued to him at London, England, on July 17, 1951.
The first issue to be considered is whether a violation of the statute under which the respondent was convicted is a "felony or other crime or misdemeanor" within the purview of section 19 of the Immigration Act of 1917, as amended. The record is devoid of evidence naming the statute under which the respondent was convicted. The section of law violated does not appear in the memorandum of conviction or in the testimony. However, it appears, as is conceded by counsel, that the conviction was had under the following statute:
CRIMINAL LAW AMENDMENT ACT, 1885
(48 and 49 Victoria c. 69)
An act to make further provision for the Protection of Women and Girls, the suppression of brothels, and other purposes
* * * * * * *
PART II
13. Any person who —
(1) keeps or manages or acts or assists in the management of a brothel, or
(2) being the tenant, lessee, or occupier (or person in charge) of any premises, knowingly permits such premises or any part thereof to be used as brothel or for the purposes of habitual prostitution, or
(3) being the lessor or landlord of any premises, or the agent of such lessor or landlord, lets the same or any part thereof with the knowledge that such premises or some part thereof are or is to be used as a brothel, or is willfully a party to the continued use of such premises or any part thereof as a brothel, [emphasis added.]
shall on summary conviction in manner provided by the Summary Jurisdiction Acts be liable —
*(a) to a fine not exceeding £100 or to imprisonment with or without hard labour for a term not exceeding 3 months.
*(b) On a second or subsequent conviction, to a fine not exceeding £ 250 or to imprisonment with or without hard labour for a term not exceeding 6 months, or, in any case, to both fine and imprisonment.
*Penalties substituted for original ones by amendment passed in 1922. The original Act imposed a fine not exceeding £20 or 3 months imprisonment for the first conviction, and a fine not exceeding £40 or 4 months imprisonment for second and subsequent convictions.
On the basis of the foregoing, it is clear that the respondent was convicted of a violation of the last clause of subsection 3 of section 13 of the Criminal Law Amendment Act.
Counsel has pointed out that in enacting part II of the Criminal Law Amendment Act the legislators did not characterize the prohibited conduct either as a felony or a misdemeanor, but simply declared the offender to be liable to a fine or imprisonment upon summary conviction. He also points out that the offense was not indictable at common law and was not made so by statute. Moreover, he points out that the maximum imprisonment which could have been imposed in the respondent's case was 3 months. Furthermore, he points out that the respondent's conviction was had under a mere nuisance statute. In addition, he argues that the respondent was convicted under a section of law which is quasi-civil and quasi-criminal in nature because the payment of a fine provided for may be enforced by imprisonment or by distress and, in default of distress, by imprisonment, citing a prior decision of this Board ( Matter of C----, A-5536201, 2 IN Dec. 367). Finally, in this connection, he points out that the Summary Jurisdiction Act of 1848 (11 and 12 Victoria c. 43), which governed proceedings in the respondent's case, provides for the commencement thereof by the laying of an information or complaint without any oath or affirmation; and that thereafter the justice may issue a summons directing a person to appear at a certain time and place.
In the first place, it is so well recognized as to obviate further discussion that it is immaterial that the crime is not a felony or a misdemeanor. Section 19 of the Immigration Act of 1917, as amended, clearly and unambiguously makes provision for an offense that is neither. The fact that the offense of which the respondent was convicted was not indictable, either at common law or by statute, is equally unimportant and the punishment prescribed by the statute is of no substantial consequence. Furthermore, the fact that the respondent may have been convicted under a nuisance statute is not dispositive of the issue, and counsel's argument that the law under which the respondent was convicted is quasi-civil and quasi-criminal is not compelling.
We have carefully considered the evidence of record in relation to the arguments advanced by counsel. It is clear to us that the alien's conduct constituted a violation of law in the place where it occurred, and that his misconduct was there punishable in a criminal proceeding. That is the correct criterion applicable to this initial issue. In other words, we find that the offense of which the respondent was convicted is a "felony or other crime or misdemeanor" within the meaning of section 19 of the Immigration Act of 1917, as amended.
Furthermore, we find that the evidence of record does not substantiate counsel's argument that the procedure under which the respondent's conviction was obtained deprived him of due process of law. It appears that he was properly charged by an information or complaint, albeit perhaps not in writing, and was duly informed of the nature of the charge. He was present in the court at the time of conviction and there has been revealed nothing to demonstrate that he was denied representation by counsel. No showing has been made that the procedure followed in obtaining the respondent's conviction disregarded the fundamental principles of justice that are so deeply rooted in the tradition of Anglo-Saxon law and embodied in the United States Constitution. In short, we find that the procedure followed afforded the respondent due process of law.
The next question we are called upon to consider is whether the crime of which the respondent was convicted involves moral turpitude. In this connection, counsel contends that moral turpitude is not inherent in the statutory language and that an evil intent or a depraved or vicious mind is not required to sustain a conviction. He urges that the statute does no more than compel the landlord to abate the temptations and vices encouraged by the existence of the tenement or portion thereof being utilized as a brothel, and that the landlord must see that there is compliance with the law and his liability is imposed without regard to evil intent or guilty knowledge. He argues that the situation in the present case is analogous to that in a case previously considered by this Board ( Matter of A----, A-1636772, 3 IN Dec. 168, 170). In short, he contends that the statute under which the respondent was convicted is merely one for the abatement of a nuisance and, as such, cannot be held to be a crime involving moral turpitude, particularly since the word willfully as used in the statute merely connotes negligence.
With regard to the second issue, the record establishes that the respondent's conduct which led to his conviction was willful. The word "willful" has been defined as an action which is premeditated, malicious, done with an evil intent, with a bad motive or purpose, with indifference to natural consequences, unlawful or without legal justification. The words "maliciously," "unlawfully," and "feloniously" will supply the place of "willfully" in an indictment (Black's Law Dictionary, 3d ed., p. 1849). Hence, it is clear that the respondent was convicted because of conduct involving an evil intent.
Secondly, in this connection, the respondent's conduct which led to his conviction, and which was performed with an evil intent, was being a party to the continued use of premises as a brothel. The words "brothel" and "bawdyhouse" are synonymous ( Thaler v. United States, 261 Fed. 746, 749; United States v. Casey, 247 Fed. 362, 364). Conducting a bawdyhouse is a form of commercialized vice involving the practice of immorality for hire, and it is accompanied by an evil intent and involves moral turpitude ( Dosset v. State, 94 Texas Cr. Rep. 145, 1923). Substituting the word "brothel" for the word "bawdyhouse," since the two are synonymous, we arrive at the proposition that the conducting of a brothel is a form of commercial vice involving the practice of immorality for hire, which is accompanied by an evil intent and involves moral turpitude.
On the basis of the foregoing, we conclude that this respondent has been convicted of a crime involving moral turpitude. Nor, do we find that the prior decision of this Board ( Matter of A----, 3 IN Dec. 168) calls for a different conclusion. In that case we were confronted with a conviction under sections 4 and 5 of chapter 139, Laws of Massachusetts, Annotated, volume 4, related to nuisances. We therein pointed out, however, that because of the broad interpretation the courts of Massachusetts placed upon those sections, we were unable to find that a violation in every instance is accompanied by an evil intent to practice immorality for hire and, therefore, involved moral turpitude. We also pointed out in that decision, that the Massachusetts law also contained a section contemplating the crime of "keeping a house of ill fame." It is section 24 of chapter 272, volume 9, Laws of Massachusetts, Annotated, which reads as follows: "Whoever keeps a house of ill fame which is resorted to for prostitution or lewdness shall be punished by imprisonment for not more than 2 years." That section of the Massachusetts law corresponds to subsection 1 of section 13 of part II of the Criminal Law Amendment Act of 1885 ( supra).
The next issue we are called upon to resolve is whether or not the respondent committed fraud or misrepresentation in procuring his immigration visa. In this connection, counsel urges that when the respondent failed to reveal the conviction which we have just discussed in applying for his immigration visa, that it was his honest belief that the offense was merely a civil penalty and not a crime involving moral turpitude. That is, counsel urges that the respondent did not associate the charge with criminal proceedings and, hence, that his negative response was made in good faith and not in perpetration of any fraud or misrepresentation. However, the fact remains that he did conceal or failed to reveal his conviction and it was material. Therefore, he is deportable on the charge laid under the Immigration Act of 1924.
Finally, counsel contends that favorable exercise of discretionary relief provided for under the 7th proviso to section 3 of the Immigration Act of 1917, as amended, nunc pro tunc, is warranted. He urges that the character of the respondent, considered as a whole, plus his sobriety, industriousness, and devotion to his children whom he reared without the help of the mother, points to his eligibility for this form of relief.
The hearing officer has pointed out, in this connection, that the respondent allegedly has a $70,000 equity in a trailer park, supposedly valued at $272,500; that he claims to have about $25,000 invested in trust deeds and between $2,000 and $3,000 in cash; that he has two children in the United States, one, a son, serving in the United States Army Air Force, and a married daughter; that the married daughter and her husband are employed by the respondent in connection with his trailer park; and that the children are not dependent upon him for support. However, the hearing officer felt, as a matter of administrative discretion, that nunc pro tunc exercise of 7th proviso relief should not be granted in this case. He based his denial of administrative discretion on the fact that the respondent perpetrated fraud on the Government of the United States, and on his own government, in withholding information as to his conviction for a crime involving moral turpitude; that he had, in the past, secured a passport in the name of another and traveled under that passport; and on the basis of all the other information contained in the record which the hearing officer clearly set forth in his opinion.
We have carefully considered all factors in this case in relation to the petition for discretionary relief. As a matter of administrative discretion, we do not feel that the factors presented by this case are essentially such as to merit for the respondent favorable exercise of the discretionary relief requested.
On the basis of the foregoing, the appeal will be dismissed.
Order: It is ordered that the appeal be and the same is hereby dismissed.