A-7242118
Decided by Central Office November 4, 1949 Decided by Board January 25, 1950
Crime involving moral turpitude — Housebreaking and larceny (Larceny) — Northern Ireland (England) — Juvenile delinquency.
An alien over 18 years of age when he committed the offenses herein, (and, therefore, not a "juvenile" within the purview of the appropriate laws of England), who, upon a plea of guilty, was convicted in a Court of General Quarter Sessions of the Peace at Belfast, Northern Ireland, in 1947, on an indictment charging offenses for which he was liable to be sentenced to penal servitude or imprisonment, is subject to exclusion on the grounds stated below under the provisions of section 3 of the Immigration Act of 1917.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1917 — Admits crime prior to entry, to wit: Housebreaking and larceny.
Act of 1917 — Convicted of crimes prior to entry, to wit: Housebreaking and larceny.
BEFORE THE CENTRAL OFFICE
Upon consideration of the entire record, the findings of fact and conclusions of law stated by the Board of Special Inquiry at the close of the hearing are hereby adopted. No exceptions have been submitted.
Discussion: The record relates to a 21-year-old unmarried male, a native of Northern Ireland and a citizen of Great Britain. On July 8, 1949, he applied for admission to the United States. At the time, he was in possession of a British passport valid until April 29, 1954, and an immigration visa issued by the American consulate at Belfast, Northern Ireland, on June 24, 1949. He was excluded by the Board of Special Inquiry on the grounds stated in the caption and from the excluding decision he has appealed.
The appellant testified that he was convicted on January 28, 1947, in Northern Ireland of the crime of housebreaking and larceny. He stated that he was sentenced to 2 years in the Borstal Reformatory, which he stated is a reformatory for older boys, between the ages of 16 and 20.
A record of conviction was introduced into evidence which the appellant identified as relating to him. This record indicates that the appellant was convicted on his plea of guilty in a General Quarter Sessions Court of the Peace on January 28, 1947, on two charges. The first charge reads as follows:
That the said J---- J---- G---- with others between the first day of September 1946 and the second day of October 1946, being in the dwelling house of the late T---- C----, stole therein, one gold brooch of the value of 10 pounds and three cases of cutlery of the value of 22 pounds to the total value of 32 pounds, the property of the Representative of the late T---- C----.
The second charge alleges that the appellant:
Between the 30th day of November 1946 and 7th day of December 1946, at Bangor in the county of Down, broke and entered the dwelling house of one M---- McC----, and stole therein, one lady's gold wristlet watch, three lady's rings, a gold cross and chain, a string of pearls, a ring box and silver match box, of the total value of 105 pounds: 1:0 the property of said M---- McC----.
For the foregoing offenses, the appellant was indicted, and as previously indicated, convicted and sentenced to be kept under penal discipline in a Borstal institution for 2 years.
It is well established that the crime of larceny is a crime involving moral turpitude and that the crime of breaking and entering to commit a crime involving moral turpitude is also a crime involving moral turpitude. The only question presented in the instant proceedings is whether the appellant was, in fact, convicted of the afore-mentioned crimes or was treated as a juvenile delinquent. The question of juvenile delinquency is treated in the Children's Act of 1908, which provides for a special treatment of the young persons charged with criminal offenses. Under section 131, a "Young person" is defined as a person "who is 14 years of age or upward and under the age of 16." Section 111 of the same act creates juvenile courts and provides a summary jurisdiction with special provisions for the conduct of such persons.
From the record, it is clear that the appellant was not treated as a juvenile delinquent or young person. At the time of the trial and at the time the criminal acts were committed the appellant was over the age of 18 years. He was tried in a Court of General Jurisdiction for Criminal Offenses at which adult offenders are tried. He has admitted that there was no distinction accorded to him at his trial because of his age. The appellant was sentenced to a reformatory but such sentence provided that he be kept under penal discipline for 2 years. Under the Children's Act, a person under the age of 21 may be indicted and convicted the same as any other criminal but may be sentenced only according to the said act (secs. 94 to 113). Therefore, it would appear that the appellant being over the age of 16 was treated as an ordinary criminal and convicted as such and that his sentence was the only sentence permitted by law. It is concluded that he has been convicted of and admits crimes involving moral turpitude and was properly excluded by the Board of Special Inquiry.
Recommendation: It is recommended that the excluding decision of the Board of Special Inquiry be affirmed.
So ordered.
Discussion: This is an appeal from an order entered by the Acting Assistant Commissioner on November 4, 1949, affirming the appellant's exclusion on the above-stated grounds by a Board of Special Inquiry held at Boston, Mass., during October 1949.
The appellant, a native of Northern Ireland and a citizen of Great Britain, 21 years of age, male, unmarried, applied for admission into the United States at Boston, Mass., on July 8, 1949. He presented a British passport valid to April 29, 1954, and an immigration visa issued by the American consul at Belfast, Northern Ireland, on June 24, 1949. The evidence affirmatively establishes that the appellant was convicted on a plea of guilty by a Court of General Quarter Sessions of the Peace at Belfast, Northern Ireland, on January 28, 1947, of the crime of housebreaking and larceny. He testified that he was sentenced to 2 years in a Borstal institution. A record of his conviction was introduced into evidence.
There is a showing of record that the consul was aware of the appellant's conviction at the time he applied for an immigration visa but decided to issue the visa when it was shown that the offense had been committed while the appellant was a minor; that the appellant had been sent to a reformatory school instead of a penal institution and that he had been released on good behavior before his sentence was concluded. The consul also took into consideration the fact that the appellant had conducted himself properly since his release and had acquired a good reputation. Under these circumstances our sympathies are with the appellant, but a visa issued by a consular officer abroad does not guarantee admission into the United States; it is simply a prerequisite which must be in the possession of an alien when he presents himself at a port of entry. The appellant's admissibility must be determined in accordance with the requirements set forth by the Congress in the immigration laws of the United States.
Counsel during oral argument before this Board urged that under the Prevention of Crime Act of 1908 (8 Edw. VII, ch. 59) the appellant as a matter of law may have been treated as a juvenile delinquent and, therefore, not convicted of the aforementioned crime. We have carefully considered the question of juvenile delinquency in Northern Ireland and find no legal foundation for the position counsel has taken. A careful review of the legislation enacted by the parliament of Northern Ireland, which was created when the six northern counties refused their independence at the time of the creation of the Irish Free State, reveals that relatively few changes have been made since the creation of that body in the basic laws relating to juveniles.
Northern Ireland Public General Acts, the fifth and sixth sessions of Parliament of Northern Ireland, repealed secs. 35 and 103 of the Children's Act of 1908 by the enactment of the Criminal Justice Act of 1945 (8, 9, 10, Geo. VI).
The principal act consolidating the statutory law relating to children and young persons in Northern Ireland is still the Children's Act of 1908. (8 Edw. VII, ch. 67, pt. 5). The basic law in England and Wales was considerably amended by the Children's and Young Person's Acts of 1932 and 1933 but by express terms set forth therein they do not apply to Northern Ireland. Under the Summary Jurisdiction of Children (Ireland) Act of 1884 and the Children's Act of 1908 ( supra), the juvenile court hears all charges except homicide against children and young persons unless a person over 16 years of age is jointly charged. If during the proceedings in a juvenile court it appears that the person concerned is over 16 years of age, the court may nevertheless hear and determine the case if it thinks an adjournment undesirable. Similarily, if during proceedings in an ordinary court of summary jurisdiction it appears that the person concerned is under 16 years of age, the court is not prevented from hearing and determining the case (act of 1908, sec. 111 (2)).
Section 133 extends the act to Northern Ireland.
Section 131 defines a child as a person under 14 years of age. It defines a young person as one 14 years of age and upwards but under 16 years of age.
The statute referred to by counsel (8 Edw. VII, ch. 59, pt. I, sec. 1) reads in part as follows:
Where a person is convicted on indictment of an offense for which he is liable to be sentenced to penal servitude or imprisonment, and it appears to the court —
( a) that the person is not less than 16 nor more than 21 years of age; and
( b) that by reason of his criminal habits or tendencies, or association with persons of bad character, it is expedient that he should be subject to detention for such term and under such instruction and discipline as appears most conducive to his reformation and the repression of crime.
it shall be lawful for the court, in lieu of passing a sentence of penal servitude or imprisonment, to pass a sentence of detention under penal discipline in a Borstal institution for a term of not less than 2 (years) nor more than 3 years.
Section 18 of part 3 of this act extends it to Northern Ireland with certain modifications not pertinent here.
It is apparent from the foregoing that the Prevention of Crime Act ( supra) deals with youthful offenders who have been convicted on indictment and simply provides machinery for their committal to a Borstal institution by a court of quarter sessions and assizes. A Borstal institution is a place in which young offenders, while detained, may be given such industrial training and other instruction and be subjected to such disciplinary and moral influences as will conduce to their reformation and the prevention of crime (8 Edw. VII, ch. 59, pt. 1, sec. 4).
In the early years of the twentieth century, a scheme of industrial training and education for young prisoners was started as an experiment at Borstal in Kent, England, and in 1908 the establishment of permanent institutions for this purpose was sanctioned by the passing of the Prevention of Crime Act.
Inasmuch as there is an affirmative showing that the appellant was more than 18 years of age at the time of the commission of the crime in question and, therefore, not a juvenile within the purview of the appropriate laws of England, and following a plea of guilty was convicted in a Court of General Quarter Sessions of the Peace on an indictment charging offenses for which he was liable to be sentenced to penal servitude or imprisonment, we will affirm the action taken by the Assistant Commissioner and dismiss the appeal.
As stated above, our sympathies are with the appellant but we have no other alternative since under the immigration laws the conviction of a crime involving moral turpitude controls and not the type of institution wherein the alien was incarcerated. We might also add that while the conviction requires the appellant's exclusion under the Immigration Act of 1917, as amended, since this offense was committed when the alien was 18 years of age, and, therefore, not a juvenile under English law, it does not necessarily reflect on his moral character today. Indeed, apart from the conviction, the record is entirely favorable to the appellant, and the American consul at Belfast, Ireland, so found when the visa was issued.
Order: It is directed that the appeal be and the same is hereby dismissed.