Opinion · United States Board of Immigration Appeals
IN THE MATTER OF B----, 5 IN Dec. 538 (BIA 1953)
5 IN Dec. 538
- Type
- Opinion
- Court
- United States Board of Immigration Appeals
- Jurisdiction
- Federal
- Date
- 1953-11-23
- Topic
- general
IN THE MATTER OF B----, 5 IN Dec. 538 (BIA 1953) IN THE MATTER OF B----. In DEPORTATION Proceedings. E-89272Board of Immigration AppealsExecutive Office for Immigration ReviewU.S. Department of Justice Decided by the Board November 23, 1953 Deportability under section 241 (a) (4) of the Immigration and Nationality Act — Type of commitment not material — Crimes involving moral turpitude — Unlawfully aiding one to escape from jail, Massachusetts — Simple assault upon a police officer, Massachusetts. (1) Despite the fact that the respondent was committed to a State farm in Massachusetts as a defective delinquent, he stands convicted of the crimes leading to such commitment and the commitment is not a material factor in determining his deportability.
Citator
UpLaw has not yet analyzed IN THE MATTER OF B----, 5 IN Dec. 538 (BIA 1953). The absence of a flag is not a finding that it is good law.
IN THE MATTER OF B----,5 IN Dec. 538(BIA 1953)
IN THE MATTER OF B----. In DEPORTATION Proceedings.
E-89272
Board of Immigration Appeals
Executive Office for Immigration Review
U.S. Department of Justice
Decided by the Board November 23, 1953
(1) Despite the fact that the respondent was committed to a State farm in Massachusetts as a defective delinquent, he stands convicted of the crimes leading to such commitment and the commitment is not a material factor in determining his deportability. Under section 241 (a) (4) of the Immigration and Nationality Act, deportability may be predicated upon convictions of two crimes involving moral turpitude subsequent to entry, regardless of the sentences meted out for such convictions.
(2) Section 15 of chapter 268 of the Annotated Laws of Massachusetts (vol. 9) embraces several different types of misconduct, some of which might involve moral turpitude, under that section. A charge of unlawfully aiding one to escape from jail is not a crime involving moral turpitude when there is nothing in the record of conviction which brings the offense within any of the classes of cases which might involve moral turpitude under the statute.
(3) It is firmly established that the crime of simple assault does not involve moral turpitude. In Massachusetts, the fact that the assault is committed upon a police officer does not necessarily change the character of the crime to one involving moral turpitude (Ciambelli ex rel. Maranciv.Johnson,12 F. (2d) 465(D.C. Mass. 1926)). Consequently, in the instant case where the information did not charge that the respondent was armed with any type of weapon, it cannot be found that the assault committed by him involved moral turpitude.
CHARGE:
Warrant: Immigration and Nationality Act — Section 241 (a) (4) — Convicted more than once after entry-Assault with intent to commit rape; assault and battery on officer; unlawfully aiding prisoner to escape.
BEFORE THE BOARD
The respondent is a 36-year-old single male, a native and citizen of Canada, whose only entry into the United States occurred at St. Albans, Vt., on June 13, 1923, at which time he was admitted for permanent residence. On February 27, 1940, he pleaded guilty to thePage 539crime of assault with intent to commit rape and was sentenced by the Superior Court for Hampshire County, Mass., to the House of Correction for 2 years. On April 4, 1941, he pleaded guilty to the following offenses all committed on March 10, 1941:
1. Breaking and escaping from the House of Correction.
2. Unlawfully aiding a prisoner to escape from the House of Correction.
3. Assaulting and beating a guard.
It was thereupon ordered by the Superior Court of Hampshire County, Mass., that he be committed to the Massachusetts State Farm at Bridgewater as a defective delinquent under the provisions of chapter 123, section 113, General Laws (Tercentenary Ed.) (vol. 4). That section permits the court, in any case where it finds the person to be mentally defective and a habitual delinquent or tending toward delinquency, to consider such person as a "defective delinquent" and commit him to a department for defective delinquents. Under the Immigration and Nationality Act we need not consider the nature and effect of such commitment. Unlike the former act1which made an alien's deportation dependent upon a sentence to imprisonment, the present act contains no such requirement. Under section 241 (a) (4) of the Immigration and Nationality Act any alien is subject to deportation "who at any time after entry is convicted of two crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial." Under this section deportability may be predicated upon convictions for two crimes involving moral turpitude subsequent to entry, regardless of the sentences meted out upon such convictions. Despite the fact that the respondent was committed to a State farm as a defective delinquent, he nevertheless stands convicted of the crimes leading to such order of commitment.Matter of K----,A-4802875,3 IN Dec. 48(C.O. 1947). We therefore conclude that such commitment to a State farm is not a material factor in determining the respondent's deportability.
This brings us to a consideration of the question as to whether the crime for which the respondent was convicted involves moral turpitude. It is well established that the crime of rape, being one which inherently reflects moral depravity involves moral turpitude,Ng Sui Wingv.United States46 F. (2d) 755(C.C.A. 7, 1931). Likewise the crime of assault with intent to commit rape involves moral turpitude,Matter of M----,A-5963007,2 IN Dec. 629(B.I.A. 1946). As to the crimes committed on March 10, 1941, we shall consider each offense independently.
The first charge referred to in the information alleges that the respondent "being lawfully imprisoned in the House of CorrectionPage 540* * * did break therefrom and escape." The pertinent portion of the Massachusetts statute relating to this crime is contained in chapter 268, section 16 of the Annotated Laws of Massachusetts (vol. 9). We have previously construed this statute and have held that an attempt to escape from prison in violation of this section is not a crime involving moral turpitude,Matter ofJ----,A-1843782, B.I.A., August 18, 1951,4 IN Dec. 512. See alsoUnited States ex rel. Manzellav.Zimmerman,71 F. Supp. 534(D.C. Pa. 1947);Matter of M----,A-4783029,2 IN Dec. 871(B.I.A. 1947).
The second offense of which the respondent was convicted is based on the charge that he "unlawfully did aid one F---- H---- T---- who was then and there a prisoner held in custody at the jail for the County of Hampshire * * * to escape from said jail." Chapter 268, section 15, of the Annotated Laws of Massachusetts provides as follows:
Whoever conveys into the State prison, the Massachusetts Reformatory, or reformatory for women, or into a jail, house of correction, house of reformation, or like place of confinement, a disguise, instrument, tool, weapon, or other thing which is adapted or useful to aid a prisoner in making his escape, with intent to aid the escape of a prisoner, or whoever by any means, aids or assists such prisoner in endeavoring to escape therefrom, whether such escape is effected or attempted or not, and whoever forcibly or fraudulently rescues or attempts to rescue a prisoner held in custody upon a conviction or charge of crime, shall, if the prisoner whose escape or rescue was effected or intended is a convict under sentence in the State prison or is charged with a felony, be punished by a fine of not more than $500 or by imprisonment in the State prison for not more than 10 years; but if he is a convict under sentence in any other of said institutions, by imprisonment in the State prison for not more than 7 years; and if he is charged with a misdemeanor then by a fine of not more than $500 or by imprisonment in jail for not more than 2 years.
This section on its face embraces several different types of misconduct, some of which might involve moral turpitude. It is well settled that where a statute is sufficiently broad to include offenses which do and do not involve moral turpitude and the record of conviction fails to show with sufficient particularity what offense was actually committed, it may not be concluded that the offense for which the person was convicted involves moral turpitude,Matter of M----,56196/229,2 IN Dec. 469(C.O. 1946);United States ex rel. Myliusv.Uhl,210 Fed. 860 (C.C.A. 2, 1914);United States ex rel. Zaffaranov.Corsi,63 F. (2d) 757(C.C.A. 2, 1933). The information in this case merely charges that the respondent unlawfully aided one to escape from jail, an offense which does not inherently require any evil intent. We find nothing in the record of conviction which brings the respondent's offense within any of the classes of cases which might involve moral turpitude under the statute. We therefore conclude that the conviction based on the said offense does not involve moral turpitude.
In connection with his escape from prison, it was also charged that the respondent "did assault and beat C---- L---- B----, who was aPage 541guard at the House of Correction for the County of Hampshire and who was in the lawful discharge of his duties as such officer * * * and knowingly resisted and obstructed him in the discharge of his lawful duties." Although the Massachusetts statute provides for certain types of aggravated assaults,2the respondent in the instant case does not appear to be charged with any offense other than simple assault. It is firmly established that simple assault does not necessarily involve moral turpitude,Matter of E----,56065/3071 IN Dec. 505(B.I.A. 1943);United States ex rel. Morlacciv.Smith,8 F. (2d) 663(D.C.N.Y. 1925). Likewise, aggravated assault where the use of a deadly or dangerous weapon is not involved is not regarded as a crime involving moral turpitude,United States ex rel.Zaffaranov.Corsi,63 F. (2d) 757(C.C.A. 2, 1933);UnitedStates ex rel. Griffov.McCandless,28 F. (2d) 287(D.C. Pa. 1928). It has been held that in Massachusetts the fact that the assault is committed upon a police officer does not necessarily change the character of the crime to one involving moral turpitude,Ciambelli ex rel. Maranciv.Johnson,12 F. (2d) 465(D.C. Mass. 1926). In that case it was held that under an indictment charging that the alien armed with a certain dangerous weapon, to wit, a razor, did assault and beat a police officer who was in the lawful discharge of his duties as such officer did not involve moral turpitude, in the absence of a charge that the assault was made with the weapon. Consequently, in the instant case where the information did not charge that the respondent was armed with any type of weapon, it cannot be found that the assault committed by him involved moral turpitude.
Inasmuch as the respondent was convicted of only one crime involving moral turpitude, to wit, assault with intent to commit rape, and since this crime was committed more than 5 years after his entry into the United States, we agree with the conclusion of the special inquiry officer that the warrant charge is not sustained. We will therefore terminate the proceedings.Order:It is ordered that the proceedings be terminated.Page 542