A-6621066.
Decided by Central Office April 17, 1947. Decided by Board May 15, 1947.
Crime involving moral turpitude — Wilfully damaging mail boxes and other property — Violation Subdivision d-3 and d-5 of Section 510 of the Criminal Code of Canada.
The offense of wilfully damaging mail boxes and damaging other property in violation, respectively, of subdivision d-3 and d-5 of section 510 of the Criminal Code of Canada are not shown to involve moral turpitude, where the statutory provisions do not require base or depraved conduct, the records of convictions do not allege such conduct, and the acts described by the offender do not show base or depraved conduct, it being noted that the term "wilfully," as contained in section 510 ( supra), is defined so broadly that it covers a case of what courts in the United States would regard as gross or wanton negligence.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1917 — Admits commission and convicted of crimes; Violation of section 510, subdivision d-3 and d-5 of the Criminal Code of Canada (wilfully damaging mail boxes and other property).
Act of 1924 — No immigration visa.
Executive Order No. 8766 — No passport.
BEFORE THE CENTRAL OFFICE
Upon consideration of the entire record, the findings of fact and conclusions of law of the Board of Special Inquiry read to the alien at the close of the hearing on March 31, 1947, are hereby adopted with the following modifications:
Conclusions of Law:
(1) That under section 3 of the Immigration Act of February 5, 1917 you are not inadmissible as one who admits the commission of crimes involving moral turpitude, namely, wilfully damaging mail boxes, a violation of section 510, subdivision d-3, and wilfully damaging property, a violation of section 510, subdivision d-5, of the Canadian Criminal Code;
(2) That under section 3 of the Immigration Act of February 5, 1917, you are not inadmissible as one who has been convicted of crimes involving moral turpitude, namely, wilfully damaging mail boxes, a violation of section 510, subdivision d-3, and wilfully damaging property, a violation of section 510, subdivision d-5, of the Canadian Criminal Code.Discussion: The subject, a native citizen of Canada, 25 years of age, arrived at the port of Detroit, Mich., on March 21, 1947 and applied for admission into the United States but, following hearings before a Board of Special Inquiry on March 21 and March 31, he was excluded on the above designated grounds. He appealed.
There were admitted in evidence certified copies of court records establishing that on September 27, 1940 the appellant was convicted in Chatham, Kent County, Province of Ontario, on his pleas of guilty to charges of wilfully damaging mail boxes belonging to four individuals in violation of section 510, subdivision d-3 of the Canadian Criminal Code, and of wilfully damaging by night property belonging to two individuals valued at about $25 in violation of section 510, subdivision d-5, of the Canadian Criminal Code.
Section 510, supra, provides that "everyone is guilty of the indictable offense of mischief who wilfully destroys or damages any of the property in this section mentioned, and is liable to the punishment in this section specified * * *." Subdivision (d) of this section provides for 5 years imprisonment if the object damaged is
(3) any street or other letter box or any receptacle, article, machine or device established by or used by the authority of the Postmaster General in connection with the business of the Post Office Department, or
(5) any property, real or personal, corporeal or incorporeal, for damage to which no special punishment is by law prescribed, damaged by night to the value of twenty dollars.
A violation of subdivision (d) (5), supra, has been held by the Board of Immigration Appeals to be a crime involving moral turpitude. ( Matter of G----, 56127/617, June 29, 1943) but in the Matter of C----, decided by that Board on March 3, 1947, it was concluded that a violation of a similar Canadian statute, i.e., section 539 of the Canadian Criminal Code did not involve this element because said statute was so broad that it covers gross negligence and a violation thereof cannot therefore be regarded as inherently base, vile or depraved (A-6362465). In this decision the Board discussed the G---- case, supra, and cited a Canadian case of reckless driving which was prosecuted apparently under section 510, supra, and concluded that the term "wilfully" contained in both sections 510 and 539 is defined by Canadian statute "so broadly that it covers a case of what courts in the United States would regard as gross or wanton negligence."
Applying the reasoning of the Board of Immigration Appeals in the C---- case to section 510 of the Canadian Criminal Code, it is concluded that a violation of said statute may or may not involve moral turpitude dependent upon the degree of negligence manifested in the commission of a violation thereof. The Attorney General has held in connection with the crime of theft in Canada that, in determining the presence or absence of moral turpitude, consideration is not limited to "a mechanical application of the definitions found in the Canadian statutes" and that we are "entitled to look beyond the statutes to consider such facts as may appear from the record of conviction or the admission of the alien and to reach an independent conclusion as to whether the offense is one which under our law involves moral turpitude" ( Matter of T----, 56156/249, February 24, 1944).
Section 510, supra, is a divisible statute and subdivision (d) thereof relates to the lesser offenses which may be committed under said section.
The appellant testified that he and five other fellows, the oldest of whom was 21 years of age, broke metal mail boxes off of wooden posts, tipped over haystacks, and damaged gates to property as well as a cultivator and a clover while under the influence of liquor but fully cognizant of their acts. He further testified that restitution was made to the property owners affected and the records of convictions establish that sentences were suspended upon the payment of costs. The appellant denied that the conduct on the night complained of was premeditated or that any member of the group of boys had any grievance against any of the property owners involved, explaining that they acted solely on "impulse."
It is concluded that the statutes under which the appellant was convicted do not require base or depraved conduct, that the records of convictions do not allege such conduct, and that the acts described by the alien could not be said to have involved moral turpitude. The criminal grounds for exclusion designated above will not, therefore, be sustained.
The appellant testified that he desires to make his permanent home in the United States and that he has made application for an immigration visa for this purpose but that the American Consul, without refusing him a visa, suggested that he apply for admission at a port of entry in order to "see about this police record." He stated that he had a passport but that same was not in his possession, having been left with the American Consulate in Windsor. It is concluded that the documentary grounds for exclusion designated above are sustained.
On August 3, 1946, the appellant married an alleged citizen of the United States who is an expectant mother. His usual occupation has been farming with his father but he testified that a friend of his family had promised him employment in the event he immigrates to this country. The subject served in the Canadian Armed Forces from October 15, 1942 until May 23, 1944 when he was discharged by reason of being unable to meet the required physical standards. He has no criminal record other than the convictions discussed above. Order: It is ordered that the excluding decision of the Board of Special Inquiry be affirmed only on the following grounds:
The Immigration Act of May 26, 1924, in that, at the time of entry, he was an immigrant not in possession of a valid immigration visa and not exempted from the presentation thereof by said act or regulations made thereunder.
The Passport Act approved May 22, 1918, as amended, and Executive Order No. 8766, in that, at the time of entry, he did not present an unexpired passport or official document in the nature of a passport issued by the government of the country to which he owes allegiance or other travel document showing his origin and identity, as required by Executive order in effect at time of entry.It is further ordered, That this action is without prejudice to a reapplication for admission within one year when in possession of appropriate documents.
In accordance with 8 C.F.R. 90.3 this case is referred to the Board of Immigration Appeals for consideration.
Upon consideration of the entire record, it is ordered that the decision of the Commissioner be and the same is hereby affirmed.