56127/824
Decided by the Board June 3, 1943.
Crime involving moral turpitude — Failure to supply necessaries for minor children (Canada).
Failure of a parent to supply necessaries for his minor children in violation of section 242 (3) of the Canadian Criminal Code is not a crime involving moral turpitude.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — Immigrant without immigration visa.
Act of 1917 — Convicted of crime involving moral turpitude — Failure to supply necessaries for minor children — Likely to become public charge.
Executive Order 8766 — No passport.
Mr. Max Wilfand, Board attorney-examiner.
STATEMENT OF THE CASE: The appellant was accorded a hearing before a board of special inquiry at Blaine, Wash., in February and April 1943 to have his admissibility to the United States determined. The board of special inquiry excluded him on the grounds above stated, and he appeals.
DISCUSSION: The appellant, a 36-year-old native and citizen of Canada, seeks admission to the United States in order to clarify his immigration status so that he can enjoy the local crossing privilege. He has no intention of residing permanently in this country, and his home is now in Victoria, British Columbia, Canada, where he lives with his wife, a native and citizen of the United States, and his children. This alien is now gainfully employed by the Safeway Stores in Victoria as a butcher. Though he did apply for an immigration visa a few months prior to the first hearing accorded him in February 1942 he has now decided to remain and to make his home in Canada.
This evidence, we feel, justifies a finding that the appellant is a bona-fide nonimmigrant and that the ground of exclusion based on the 1924 act is therefore not sustained. Since the appellant is now steadily employed and is in good health, we do not feel that the ground of exclusion that he is likely to become a public charge is supported.
On May 25, 1940, a complaint was issued against this alien by a justice of the peace in and for the Province of Alberta, Canada, charging that between August 1, 1939, and January 4, 1940, he, being the father of three children, all under the age of 16 years, and as such under a legal duty to provide food, clothing, lodging, and other necessaries for said children, did without lawful excuse neglect to provide such necessaries for said children when in destitute and necessitous circumstances, contrary to section 242 (3) of the Criminal Code of Canada. On the same day the appellant was found guilty and fined $500 plus costs of prosecution, and in default thereof, to serve 1 year imprisonment at hard labor.
Section 242 (3) of the Canadian Criminal Code provides:
Every one is guilty of an offense and liable upon indictment on summary conviction to a fine of $500, or to 1 year's imprisonment or to both, who, ( a) as a husband or head of a family, is under a legal duty to provide necessaries for his wife or any child under 16 years of age; or ( b) as a parent or guardian is under a legal duty to provide necessaries for any child under 16 years of age; and who, if such wife or child is in destitute or necessitous circumstances, without lawful excuse, neglects or refuses to provide such necessaries.
The question presented here is whether the crime of which this appellant was convicted, involves moral turpitude. In March 1941 the District Court of the United States, Eastern Division of the Eastern Judicial District of Missouri considered, on habeas corpus, the question as to whether a violation of section 4026 of the Revised Statutes of Missouri 1929, involved moral turpitude ( In re T---- N---- (55693/375)). The pertinent portion of the foregoing statutory provision is as follows:
SEC. 4026. Abandonment of wife or children — penalty — evidence required. — If any man shall, without good cause, abandon or desert his wife or shall fail, neglect or refuse to maintain and provide for such wife; or if any man or woman shall, without good cause, abandon or desert or shall, without good cause, fail, neglect or refuse to provide the necessary food, clothing or lodging for his or her child or children born in or out of wedlock, under the age of 16 years, * * * then such person shall * * * be punished by imprisonment in the county jail not more than 1 year, or by fine not exceeding $1,000, or by both such fine and imprisonment * * * (R.S. 1919, No. 3274. Amended, Laws 1921, p. 282).
The court in the N---- case held that a violation of the Missouri statute did not involve moral turpitude, saying:
Looking at the reason and origin of this statutory crime of wife abandonment, I think it is fairly clear that a breach of this statute involves no moral turpitude, even though it is under the law of Missouri a misdemeanor punishable by a maximum of 12 months imprisonment in a common jail. When I look at the reasons which I find in the textbooks for the passage of laws of this character, I am more than ever convinced that it does not inherently, within the definition, involve moral turpitude. There is but little uniformity in the acts of the several States. Some of them make imprisonment conditional, that is to say, conditional upon the compliance of defendant with the order of the court requiring him to support the abandoned wife. The primary purpose of these statutes is undoubtedly to protect the public against the necessity of supporting the wives and children of husbands who are able, but who neglect or refuse to do so. The secondary purpose is said to be to relieve the wives and children from the necessity of supporting themselves. In many jurisdictions it is said that the chief object of these statutes of nonsupport is to provide directly for neglected wives and children, and by the fear of punishment, to deter husbands and fathers from leaving their families to undue privation. Other reasons may be found in the books, but these seem to be those which largely dominated legislative action in carrying out the offense (30 C.J. 1098 et seq.).
Thereafter, on July 9, 1941, this Board considered whether a violation of a California statute similar to the Missouri statute quoted above involved moral turpitude ( In re F---- Y---- (56064/472) [ see page 137, this volume]). The only material difference in the Missouri and California statutes is that in the latter the words "without lawful excuse," are used in lieu of the words "without good cause" appearing in the former statute. We held in the Y---- case that if the Missouri statute was phrased too broadly to permit a holding that the crime therein defined involved moral turpitude, it was a fortiori that the California crime also did not involve moral turpitude. In our decision in the California case, we pointed out that under its statutory provision, criminal liability was not avoided by reason of the fact that the mother or any other person was supporting the children in question, and for that reason it was difficult to find that a violation thereof involved moral turpitude.
The Missouri and California statutes differ from the Canadian provision in that in the latter the crime is committed only if the "wife or child is in destitute or necessitous circumstances." It might, therefore, appear that if the wife or child is being supported by others and is not in destitute or necessitous circumstances, the statute is not being violated, though, the existence of such facts would not be a defense to a complaint charging a violation of the California or Missouri statutes. However, an examination of the Canadian law as it relates to a conviction under the statutory provision in question reveals that prosecutions thereunder are successful notwithstanding that the wife or child may be receiving necessaries from other people. In the case of Algiers v. Tracey (1916), 26 Can. Cr. Cas. 178, the wife had received a judgment against her husband ordering the latter to pay $15 monthly for her support. Thereafter she lived with her parents who were fairly well to do and who supplied her with food and lodging. In addition, the wife received $10 monthly from her father-in-law. After the husband ceased his payments he was prosecuted under section 242A (now sec. 242 (3)). In discussing the conviction the court said:
But under section 242A negligence alone is made an offense. It is true that the criminal law is not to be used, as a general rule, for the enforcing of civil obligations; yet in the present case, it must necessarily have that effect * * *.
It is true that probably, in the event of the complainant's father and mother being unwilling or unable to further give the complainant her food and lodging, some charitable society would do the same thing rather than see her starve in their midst. But if the complainant has no legal claim upon her father and mother for the support which she is now receiving from them, and if, as is proved, they are little able to provide that support, it cannot be said that she is not in necessitous circumstances because she has been receiving from them her daily food and lodging.
In the case of Rex v. Wilson (1933), 60 Can. Cr. Cas. 309, a husband and wife entered into a separation agreement whereby the husband promised to pay the the wife $20 monthly for her support. After a few months the husband ceased his payments. The wife after the separation lived with her daughters upon whom she was entirely dependent for support and was apparently maintained by them. The court, in upholding a conviction under section 242 (3) of the Canadian Criminal Code, expressly disavowed the dictum in Rex v. Bullard (1924), 41 Can. Cr. Cas. 397, insofar as the latter case was thought to relate to prosecutions under said section 242 (3), where the court said: "and the fact that she is maintained by the charity of others or gains her livelihood by her own means or exertions forms no grounds for a prosecution under the code, which was not intended as a means of enforcing the husband's responsibility for the wife's necessaries, either at her own insistence or that of those who supply them." The court in the Wilson case said the following:
The fact that one is receiving support from daughters or other relatives is by no means conclusive of whether one is in destitute or necessitous circumstances. Other facts would have to be taken into account.
In view of the interpretation given to section 242 (3) of the Canadian Criminal Code by the courts of that country, we are of the opinion that that statutory provision does not differ substantially from those previously considered in the N---- and Y---- cases. Hence, we must conclude that a violation of this criminal provision does not involve moral turpitude.
The alien, however, is not now in possession of a passport or other official document in lieu thereof, nor does he have a border-crossing card to support his application for the local crossing privilege. Because he does not have these documents we shall affirm the excluding decision on those grounds, but without prejudice to a reapplication for admission when in possession of the necessary documents.
FINDINGS OF FACT: Upon the basis of the evidence, it is found:
(1) That the appellant is an alien, a native and citizen of Canada;
(2) That the appellant seeks the local crossing privilege;
(3) That the appellant will observe the terms of his admission;
(4) That the appellant is not in possession of a passport or other official document in lieu thereof, or a border-crossing card;
(5) That the appellant was convicted of the crime of failing to supply necessaries for his minor children in violation of section 242 (3) of the Canadian Criminal Code;
(6) That the appellant is gainfully employed in Canada and is in good health.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 3 of the Immigration Act of 1917, the appellant is not inadmissible as likely to become a public charge;
(2) That under section 13 (a) of the Immigration Act of 1924, the appellant is not inadmissible as an immigrant not in possession of an immigration visa;
(3) That the crime of failing to provide necessaries for minor children as set forth in section 242 (3) of the Canadian Criminal Code does not involve moral turpitude;
(4) That under section 3 of the Immigration Act of 1917, the appellant is not inadmissible as having been convicted of a crime involving moral turpitude, to wit: failure to supply necessaries for minor children in violation of section 242 (3) of the Canadian Criminal Code;
(5) That under Executive Order 8766 of June 3, 1941, the appellant is inadmissible as not in possession of a passport or other official document in lieu thereof;
(6) That under section 30 of the Alien Registration Act of 1940, the appellant is inadmissible as not in possession of a border-crossing card.
OTHER FACTORS: The alien is now living with and supporting his wife and children. His personal record is otherwise satisfactory.
ORDER: It is ordered that the excluding decision be affirmed, without prejudice to his reapplying for admission within 1 year when in possession of the appropriate documents, on the grounds —
That the alien is not in possession of a passport or other official document in lieu thereof and is not in possession of a border-crossing card.