Opinion · United States Board of Immigration Appeals
IN THE MATTER OF G----, 1 IN Dec. 59 (BIA 1941)
IN THE MATTER OF G----., 1 I. & N. Dec. 59 (Board of Immigration AppealsExecutive Office for Immigration ReviewU.S. Department of Justice 1941)
- Type
- Opinion
- Court
- United States Board of Immigration Appeals
- Jurisdiction
- Federal
- Date
- 1941-03-21
- Topic
- general
IN THE MATTER OF G----, 1 IN Dec. 59 (BIA 1941) IN THE MATTER OF G----. 56040/601Board of Immigration AppealsExecutive Office for Immigration ReviewU.S. Department of Justice Decided by the Board March 21, 1941.Approved by the Attorney General. Crime involving moral turpitude — Gambling (New York Penal Law, Sec. 974). Gambling by means of "lottery policies" in violation of section 974 of the New York Penal Law is not a crime involving moral turpitude. APPLICATION: For advance exercise of the seventh proviso to section 3 of the Immigration Act of 1917.
Citator
UpLaw has not yet analyzed IN THE MATTER OF G----, 1 IN Dec. 59 (BIA 1941). The absence of a flag is not a finding that it is good law.
IN THE MATTER OF G----,1 IN Dec. 59(BIA 1941)
IN THE MATTER OF G----.
56040/601
Board of Immigration Appeals
Executive Office for Immigration Review
U.S. Department of Justice
Decided by the Board March 21, 1941.
Approved by the Attorney General.
Gambling by means of "lottery policies" in violation of section 974 of the New York Penal Law is not a crime involving moral turpitude.
APPLICATION: For advance exercise of the seventh proviso to section 3 of the Immigration Act of 1917.
FOUND INADMISSIBLE BY UNITED STATES CONSUL:
Act of 1917 — Convicted of crime involving moral turpitude — violation of section 974 of the New York Penal Law.
BEFORE THE BOARD
Counsel in his appearance before the Board, asserted that the applicant had been in the United States illegally and returned to Cuba for the purpose of obtaining a nonquota immigration visa for permanent residence in the United States, but that the American consul refused him such document during August 1940 because of two convictions had against him in New York City on two misdemeanor charges. As the record appeared insufficient upon which to base a decision, it was directed that the Ellis Island office conduct an appropriate investigation bearing on the applicant's moral character and family status, with particular reference to the offenses for which he was allegedly convicted, and that there be incorporated in the record copies of the records of conviction.
There are now in the record certified copies of court records indicating that on May 3, 1933, L---- G---- pleaded guilty to the chargePage 60of "policy," presumably being in possession of "policy slips" in connection with the "numbers game," receiving a sentence of 10 days in the workhouse, which was suspended, and also indicating that he again pleaded guilty on January 28, 1937, to a similar offense and was sentenced to pay a fine of $200 or serve 60 days in prison. The fine was paid.
DISCUSSION: The sole question presented in this case is whether the offenses committed by the alien involve moral turpitude. If in the affirmative, the applicant is inadmissible to the United States unless he obtains a waiver thereof under the discretion contained in the seventh proviso. On the other hand, if in the negative, the application may not be considered.
Section 974, article 88, Gambling, McKinney's Consolidated Laws of New York, Annotated (Book 39 — Penal Law), under which the complaints against the applicant were apparently based, provides in part as follows:
A person who keeps, occupies, or uses, or permits to be kept, occupied or used, a place, building, room, table, establishment, or apparatus for policy playing * * * or who shall have in his possession, knowingly, any writing, paper, or document, representing or being a record of any chance, share, or interest in numbers sold, drawn, or selected, or to be drawn or selected, or in what is commonly called "policy," or who is the owner, agent, superintendent, janitor, or caretaker of any place, building, or room where policy playing or the sale of what are commonly called "lottery policies" is carried on with his knowledge * * * is a common gambler and guilty of a misdemeanor.
The applicant's offenses are essentially violation of the gaming law. Gaming is not an offenseeo nomine.It was not in itself a crime at common law unless conducted in so open a manner as to constitute a public nuisance. It is true that certain offenses, solely of a statutory class, may, nevertheless, carry therewith the element of moral turpitude, but, in those instances, we find an element that is contrary to public morals, such as fraud or like ingredientsmalum in se.There are apparently no judicial determinations on the exact point, namely, whether gambling, in violation of a statute prohibiting it, is a crime involving moral turpitude. The standard by which a misdemeanor, such as gambling, is to be judged, therefore, is that prevailing in the United States as a whole, regarding the common view of our people concerning its moral character.
We find that licensed gambling in connection with horse racing is permitted in Kentucky, Illinois, Maryland, Nevada, and possibly other States. People have a legal right to gamble until the legislature specifically decrees otherwise, and such right cannot be restricted to special forms or certain classes of people (Peoplev.Revolta(1937)295 N.Y.S. 102).Page 61
For example, section 987, article 88, Penal Laws of New York,supra,provides that:
All racing or trial of speed between horses or other animals for any bet, stake or reward,except such asis allowed by special laws(italics supplied) is a public nuisance, and violations thereof are classified as misdemeanors.
Gambling has been in existence since time immemorial. Card playing for small stakes is a common accompaniment of social life; small bets on horse racing and the "policy or numbers games" are diversions of the masses. That such enterprises exist surreptitiously is a matter of common knowledge. Many countries permit it under a license system. In ancient times laws were enacted to discourage people from gambling on the theory that the State had first claim upon their time and energy, and at later dates antigambling laws were aimed especially at the activity as practiced by the working classes. Present-day movements to suppress gambling are also tinged with other considerations. In urban communities in the past few decades the purely religious opposition to gambling has tended to become less violent because certain activities, highly reputable according to prevailing social standards, have come more and more to resemble it. Prohibition against gambling has had something of a police rather than a truly penal character. At all times an important fact in arousing antagonism in gambling has been the association, almost inevitable, with sharp practice. In established societies more or less serious attempts are everywhere made, however, to prohibit or to regulate gambling in its more notorious forms.
It would appear that statutes permitting gambling, such as those under discussion, rest primarily on the theory that they are in the interest of public policy: That is to regulate and restrict any possible abuse, to obviate cheating and other corrupt practices that may result if uncontrolled.
Moral turpitude is defined in Corpus Juris (41 C.J. 212) as follows:
It is a vague term, its meaning depending, to some extent, upon the state of public morals. It is defined as anything done contrary to justice, honesty, principle, or good morals; an act of baseness, violence, or depravity in the private and social duties which a man owes to his fellow man, or to society in general, contrary to the accepted and customary rule of right and duty between man and man. * * * Moral turpitude implies something immoral in itself, regardless of the fact whether it is punishable by law. It must not merely bemalumprohibitumbut the act itself must be inherently immoral. The doing of the act itself, and in its prohibition by statute, fixes the moral turpitude. Everything done contrary to justice, honesty, modesty, or good morals, is done with turpitude.
The words "involving moral turpitude," as long used in the law with reference to crimes, refer to conduct that is inherently base, vile, or depraved, contrary to accepted rules of morality, whether it is or is not punishable as a crime. They do not refer to conduct that, beforePage 62it was made punishable as a crime, was not generally regarded as morally wrong or corrupt, as offensive to the moral sense as ordinarily developed.
A parallel analogy may be found in connection with cases involving violations of the then National Prohibition Act. InCoykendallv.Skrmetta,22 F. 2d 120, it was held that a violation of the then Prohibition Act did not involve moral turpitude. The court in that case pointed out that before the enactment of the statute on the subject, the making, selling, or possession of wine was not generally regarded as morally wrong; that from the fact that those acts have by statute been made punishable as crimes, it does not follow that they are inherently immoral and involve moral turpitude within the meaning of the provision in question.
In the opinion of this Board the reasoning in theSkrmettacase,supra,with reference to violation of the then National Prohibition Act is equally applicable to the question involved in the case under discussion.
It must be concluded on the basis of the foregoing that the applicant's offenses were punishable, not because they were evil in themselves, but by reason of the fact that they were forbidden by law. In other words, they may be classified asmalumprohibitumas distinguished frommalum in se.
It will be observed that, while the conclusion has been reached that the offenses for which the applicant was convicted do not involve moral turpitude so as to render him inadmissible to the United States in the event he were to apply in possession of an appropriate immigration visa, the fact appears to remain that a visa has been refused him by the American consul in Cuba by reason of his conviction of said offenses. The Department of State is apparently of the view that the offenses do involve moral turpitude and, therefore, refuses issuance to the applicant of an immigration visa.
Reorganization Plan No. V, transmitted to Congress May 22, 1940, pursuant to the provisions of the Reorganization Act of 1939, provides:
In the event of disagreement between the head of any department or agency and the Attorney General concerning the interpretation or application of any law pertaining to immigration, naturalization, or nationality, final determination shall be made by the Attorney General.
To the end that a final determination on the issue raised by the record may be reached, binding alike on the Immigration and Naturalization Service, as well as the Consular Service of the Department of State, a final decision should be rendered by the Attorney General. The Board of Immigration Appeals finds that a question of difficulty is involved and refers the case to the Attorney General for review of its decision.Page 63
FINDINGS OF FACT: Upon the basis of all the evidence presented, it is found:
(1) That the applicant is an alien;
(2) That on May 3, 1933, the applicant was convicted on the charge of being in possession of "policy slips" and received a suspended sentence of 10 days in the workhouse;
(3) That on January 28, 1937, he was again convicted on a similar charge for which he paid a fine;
(4) That the applicant thereafter departed to Cuba where he is presently located for the purpose of obtaining an immigration visa for permanent residence in the United States;
(5) That he has been denied a visa by the American consul by reason of his conviction of the offenses in question;
(6) That prior to departure from the United States, the applicant had resided here for a period in excess of 7 years.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That the offenses for which the applicant has been convicted, namely, being in possession of "policy slips" in connection with the "numbers game," in violation of section 974, article 88, Penal Law of New York,supra,are not considered to involve the element of moral turpitude;
(2) That by reason of the foregoing conclusion, the applicant would not be inadmissible to the United States solely on the ground of this conviction for the offenses stated;
(3) That by reason of the foregoing, the application for waiver of inadmissibility under the seventh proviso by virtue of the offenses in question is not necessary.
OTHER FACTORS: The applicant's wife testified that she is a native of Cuba and married the applicant in New York City on April 29, 1927; that their two minor children were born in the United States. She presented proof of these facts. The record indicates that she entered the United States on July 10, 1920, and that on August 12, 1940, she filed declaration of intention to become a citizen of the United States. She further testified that she is unemployed and is existing on money left by her husband and that she has $500 left. She stated that her husband departed to Cuba for the purpose of obtaining an immigration visa, and that prior to such departure he was the operator of a barber shop in partnership with another person.