Opinion · United States Board of Immigration Appeals

IN THE MATTER OF M----, 2 IN Dec. 721 (BIA 1946)

2 IN Dec. 721

Type
Opinion
Court
United States Board of Immigration Appeals
Jurisdiction
Federal
Date
1946-09-04
Topic
general

IN THE MATTER OF M----, 2 IN Dec. 721 (BIA 1946) IN THE MATTER OF M----. In DEPORTATION Procceedings. A-2509877.Board of Immigration AppealsExecutive Office for Immigration ReviewU.S. Department of Justice Decided by Board September 4, 1946.Ruling by Attorney General October 14, 1946. Crime involving moral turpitude — Burglary, third degree — Section 404 of New York Penal Law.

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IN THE MATTER OF M----,2 IN Dec. 721(BIA 1946)
IN THE MATTER OF M----. In DEPORTATION Procceedings.
A-2509877.
Board of Immigration Appeals
Executive Office for Immigration Review
U.S. Department of Justice
Decided by Board September 4, 1946.
Ruling by Attorney General October 14, 1946.
Crime involving moral turpitude — Burglary, third degree —Section 404 of New York Penal Law.

The crime of burglary, third degree, in violation of section 404 of the New York Penal Law is not deemed to be an offense involving moral turpitude, where the conviction record does not indicate the particular crime that accompanied the breaking and entering, since the determinative factor is whether the crime intended to be committed at the time of entry or prior to breaking out involves moral turpitude.

CHARGES:

Warrant: Act of 1917 — Convicted and admits commission of crime prior to entry; larceny.

Lodged: Act of 1917 — Sentenced more than once after entry for crimes; Burglary, third degree, Burglary, third degree.
BEFORE THE BOARD
BEFORE THE BOARD
Discussion:This record relates to a 41-year-old native and citizen of Italy who has been living in the United States since his legal admission for permanent residence on December 2, 1914. His last entry occurred at Buffalo, New York, in the summer of 1920, when he was returning to resume his residence after a visit to Canada. While in Canada on this occasion he was arrested on a charge of stealing a suit of clothes from a friend. As a result he was convicted and sentenced to serve 30 days in the county gaol.

The Board of Review first considered the case on July 6, 1940. At that time it found the respondent subject to deportation on the warrant charge and directed his deportation to Italy. On August 17, 1943, pursuant to a request made by the Immigration and Naturalization Service, the hearing was reopened so that an additional charge could be lodged. This charge was based on allegations that the alien had been twice sentenced to imprisonment for a year or more because of his two convictions in the State of New York of the crime of burglary in the third degree. After the reopened hearing, the Presiding Inspector prepared a new memorandum in which he found the alien subject to deportation on the lodged as well as the warrant charge. Because we were not satisfied with the evidence of record, the hearingPage 722was reopened on two occasions, June 27, 1944 and March 23, 1945, for the purpose of adducing additional evidence with respect to the charges.

The Presiding Inspector, after the last reopened hearing found neither the warrant nor the lodged charge sustained and recommended that the proceedings be dismissed. The Commissioner, however, while agreeing with the Presiding Inspector as to the warrant charge, believes that the lodged charge is sustained. He has, accordingly, entered an order of deportation based on this charge.1

We agree with the Commissioner that the warrant charge cannot be sustained, in view of the fact that the record evidence does not disclose that the respondent intended to deprive the owner of the clothes of permanent possession thereof (Matter of T----,56156/249 (Feb. 24, 1944)). We cannot, however, agree with him that the lodged charge is valid. The difference of opinion between us and the Commissioner relates to whether burglary in the third degree, as defined in section 404 of the New York Penal Law, inherently or in its essence involves moral turpitude. In resolving this issue we have no occasion to and do not now determine whether first or second degree burglary as defined in the New York Penal Law involves moral turpitude. Again, we should not be misled by the fact that the label "burglary" is attached to the crime in issue. Third degree burglary in New York, as will be seen below, differs in several material respects from common burglary, which is defined as the breaking and entering of the dwelling house of another in the nighttime with intent to commit a felony.

Section 404 of the New York Penal Law reads:

A person who:
1. With intent to commit a crime therein, breaks and enters a building, or a room, or any part of a building; or,
2. Being in any building, commits a crime therein and breaks out of the same, is guilty of burglary in the third degree.


The word "break" is defined in section 400 of the Penal Law as meaning and including, among other things, "opening for the purpose of entering therein * * * any outer door of a building", "obtaining an entrance into * * * a building or apartment, by any * * * artifice * * *, or by collusion with any person therein." Again, in the same section, "building" is defined as including, among other structures, a booth, tent, * * * inclosed ginseng garden, or other erection or inclosure." Lastly, the word "enter" includes in part "the entrance of the offender into such building or apartment, or the insertion therein of any part of his body."Page 723

It has been the Board's constant administrative practice to hold that crimes like the one in issue do not inherently or in essence involve moral turpitude. We have always maintained that these offenses may or may not involve moral turpitude, the determinative factor being whether the crime intended to be committed at the time of entry or prior to the breaking out involves moral turpitude. (Matter of D----(Mich.) 56130/68 (March 18, 1943);Matter of L----(Mich.) CF-45705 (Sept. 6, 1945);Matter of G----(Cal.), 56124/148 (April 27, 1944).) In fact, inMatter of P----,56140/941 (Nov. 4, 1943). we expressly held that section 404 of the New York Penal Law involved moral turpitude only if the crime intended to be committed at the time of entry or the one committed prior to breaking out involved such conduct. See alsoMatter of R----,56121/994 (September 4, 1943). For the reasons to follow, we still adhere to that view.

There is nothing inherently immoral, base, vile, or depraved in unlawfully breaking and entering a building in the State of New York when viewed in the light of the definition of those terms as set forth in section 400 of the Penal Law. For example, pushing ajar the unlocked door of an unused structure and putting one's foot across the threshold would constitute a breaking and entering. Certainly such an act, in and of itself, should not be stigmatized as base, vile or depraved. The only remaining element in the statute is the particular crime which accompanies or precedes the act of breaking out. It is this element alone that has any significance in the determination of moral turpitude. Thus, if the crime accompanying the breaking and entering is larceny, then this violation of section 404 would involve moral turpitude, since larceny is an offense which has been universally held to involve such conduct. This is the rationale, as is clear from counsel's brief, that is the basis for the court's dictum inU.S. ex rel. Andreacchiv.Curran,38 F. (2d) 498(S.D.N.Y., 1926) that third degree burglary in New York involves moral turpitude.

But, it must be remembered, larceny is not anecessaryelement in third degree burglary in New York, though probably, statistically speaking, it is present in the great majority of cases. The crime which may accompany the breaking and entering may be any one of countless New York offenses and these offenses may be either misdemeanors or felonies. For example, a group of boys opening the unlocked door of an abandoned barn with the intention of playing cards in violation of one of the many New York wagering laws, could all be convicted of third degree burglary. Yet, we do not think that such persons should be deemed to be base, vile, or depraved. SeeU.S. ex rel. Guarinov.Uhl,107 F. (2d) 399(C.C.A. 2, 1939), where the court, on similar reasoning, found that unlawful possession of burglar's tools in violation of section 408 of the New York Penal Law did not inherentlyPage 724involve moral turpitude. See also the unreported decision of Judge Coffey of the Southern District of New York inMatter ofC----,55802/712 (December 1, 1933) in which he granted a writ of habeas corpus on the ground that the crime of unlawfully entering a building in New York in violation of section 405 of the New York Penal Law did not inherently involve moral turpitude. Judge Coffey apparently held that section 405 might or might not involve moral turpitude, depending upon the nature of the crime intended to be committed at the time of the unlawful entry. This decision has always been followed by us and by the Service. (SeeMatter of G----,56122/766 (January 21, 1943).)

In this connection it is interesting to note that section 405 of the New York Penal Law reads as follows:
A person who, under circumstances or in a manner not amounting to burglary, enters a building, or any part thereof, with intent to commit a felony or a larceny, or any malicious mischief, is guilty of a misdemeanor.


The difference between third degree burglary and unlawful entry has been expressed inPeoplev.Miller,128 N.Y.S. 549(1911), as follows:
So far as concerns the commission of the act a breaking as well as an entry is necessary to constitute the crime of burglary, while entry alone is sufficient for the misdemeanor. As to the intent with which the act is done, however, the definition of the misdemeanor is narrower than that of the felony. For the latter it is sufficient if the intent be to commit any crime, while to constitute the misdemeanor the intent must be to commit one of the crimes mentioned in section 405. Consequently there may well be cases wherein the elements necessary to establish the crime of burglary in the third degree, outside of the breaking, would not suffice to constitute an unlawful entry, because the intent of the entry, while criminal, would not be to commit one of the crimes specified in section 405.


As we have indicated above, the element of breaking alone, by reason of its very broad definition, is not vital in determining the existence of moral turpitude in a violation of section 404 of the New York Penal Law. Insofar as moral turpitude is concerned, then, third degree burglary in New York is a much broader crime than unlawful entry. Since the narrower offense, unlawful entry, as we pointed out above, does not inherently or in essence involve moral turpitude, the much broader crime of third degree burglary should not.

Whether in this case the particular violations of section 404 involve moral turpitude must, under the applicable and settled judicial precedents, be determined from an examination of the records of convictions (U.S. ex rel. Myliusv.Uhl,210 Fed. 860 (C.C.A. 2, 1914);U.S. ex rel. Robinsonv.Day,51 F. (2d) 1022(C.C.A. 2, 1931);U.S. ex rel. Zaffaranov.Corsi,63 F. (2d) 757(C.C.A. 2, 1933)). The hearing testimony and matters outside the records of conviction cannot be considered in making this determination. Here the twoPage 725third-degree burglary indictments to which the respondent pleaded guilty do not indicate the particular crimes that accompanied the breaking and entering. The indictments merely state that the respondent committed the crime of burglary in the third degree in violation of section 404 of the New York Penal Law. That being the case, we are bound to find that the third-degree burglary offenses of which the alien was convicted do not involve moral turpitude. Accordingly, as the Presiding Inspector and the District Director both recommended, the warrant of arrest must be canceled and the proceedings dismissed.Order:It is directed that the order of July 6, 1940 and the warrant of deportation predicated thereon be withdrawn; that the delivery bond be canceled; and that the proceedings be dismissed.
R.M. Charles,Member, dissenting.
The subject hereof is a male person born in Cervguola, Italy, June 5, 1903, and is a citizen of Italy. He first came to the United States during the year 1914. While residing here it appears that he deserted the United States Army, proceeded to Canada and while there endeavored to conceal his identity by using the name of J---- Y----.

While in the Dominion of Canada and just prior to his last return to the United States in 1920, the respondent was convicted and sentenced to thirty days' imprisonment in the county gaol for larceny.

This matter of expulsion was considered on a number of occasions. The Board of Review on July 6, 1940, found the respondent subject to deportation on the charge contained in the warrant of arrest. Upon reconsideration of the case on August 17, 1943, the Presiding Inspector found the respondent subject to deportation on all charges hereinabove set forth. On the reopened hearing the Presiding Inspector found neither the charge in the warrant of arrest nor the lodged charge sustained.

The respondent testified that the larceny which he committed in Canada consisted of a mere borrowing of a suit of clothes. The record of conviction, however, is not available and for that reason the charge contained in the warrant of arrest is deleted from consideration.

The subject hereof was convicted and sentenced in New York State for two offenses of burglary in the third degree. The record also shows that subsequent to his release from the Clinton Prison, Dannemora, N.Y., on May 12, 1944, the respondent was taken to Newton, N.J., where he pleaded guilty to a charge of larceny. A sentence of 2 years' imprisonment was imposed but execution of that sentence was suspended and in addition thereto the respondent paid a fine of $100.Page 726

The only question here presented is whether or not the two offenses of burglary, third degree, committed in New York State for which offenses the alien was sentenced in Orange County, Goshen, N.Y., on July 6, 1939, for a period from 2 to 4 years and on May 10, 1943, from 1 year to 1 year and 6 months involve moral turpitude.

The majority of the Members of the Board of Immigration Appeals are of the opinion that the offenses do not involve moral turpitude. The Commissioner of Immigration and Naturalization is of the opinion that the offenses do involve moral turpitude and I agree with the conclusion of the Commissioner for the reasons hereinafter set forth.

Section 19 of the Immigration Act of February 5, 19171provides for the deportation of an alien who has been sentenced more than once to imprisonment for a year or more for the commission after entry to the United States of crimes involving moral turpitude.

The intention of Congress as set forth in Report 352 to accompany H.R. 19384, 64th Congress, 1st session, Senate Reports, vol. 2, is as follows:
As the act now stands the House has added, at the suggestion of its committee (vol. 53, Congressional Record, pp. 5932-5933), a provision intended to reach the alien who after entry shows himself to be a criminal of the confirmed type, such aliens to be deported without limitation on the length of time after entry when they commit a second serious offense (p. 43, lines 6-9); * * *.


Moral turpitude has been variously defined.2The definition set forth in the footnote as to moral turpitude is supported by many adjudicated cases.3

Burglary is not a mere label in the State of New York. Burgi Latrocinium in Ancient English Law, at Common Law, is defined as the breaking and entering the dwelling house of another in the night with intent to commit some felony within the same whether the feloniousPage 727intent be executed or not.4Burglary is said to be a combination of the Saxon terms "burg" which means house and "laron" which means theft and originally meant the robbing of a dwelling house.5The important points to be considered in the offenses of burglary are: (1) The time, (2) The place, (3) The manner of entry, and (4) The intent of the accused.6

Burglary in the third degree in the State of New York is defined as follows (McKinney's Consolidated Laws of New York Annotated):

A person who:
(1) with intent to commit a crime therein breaks and enters a building, or
(2) being in any building, commits a crime therein and breaks out of the same, is guilty of burglary, third degree.


Indictments filed April 21, 1939, and June 11, 1940, accuse the respondent of the crimes of "burglary in the third degree" committed contrary to the provisions of section 404 of the Penal Law of the State of New York, and; of the crime of burglary, third degree, in violation of section 404 of the Penal Law of the State of New York.

The respondent's testimony is to the effect that the first offense consisted not only of the mere breaking and entering but also of the larceny of approximately 200 chickens and the second offense of the larceny of approximately 32 chickens. Consideration of the testimony of the alien in explanation of the facts concerning the offense is not contrary to the decisions of the courts in cases ofU.S. ex rel. Robinsonv.Day,51 F. (2d) 1022;U.S. ex rel. Zaffaranov.Corsi,63 F. (2d) 757;U.S. ex rel. Meyerv.Day,54 F. (2d) 336; andU.S. ex relMyliusv.Uhl,203 Fed. p. 152.

In the offense of burglary there must be a breaking and entering, with a felonious intent and the burglary is complete by the breaking and entering with that felonious intent.7

The examples given by the majority of the Members of the Board of Immigration Appeals do not constitute burglary in the third degree under the laws of the State of New York. In the instant case, however, we need only go to the offense committed by the respondent which in addition to the breaking and entering establishes a felony, a larceny.

It is the felonious intent that is of particular importance in the commission of burglary, third degree, in the State of New York. Intent in burglary as in other criminal offenses is to be inferred from the facts.8If the respondent actually committed a felony as shownPage 728in the case under consideration the facts in connection therewith may be considered. Certainly the crime committed by the respondent was inherently wrong, contrary to justice, honesty and good morals. In the offense there was an act of baseness and vileness contrary to the customary right and duty between man and man.

If the offense committed by the respondent were a mere unlawful entry as indicated in the opinion of the majority, he would have been so charged under the provisions of section 405, chapter 41 of the Penal Law of the State of New York,9but he was not so charged because section 405, chapter 41 of the Penal Law of the State of New York, specifically concerns offenses other than burglaries. The offenses of burglary and mere unlawful entry have been distinguished by the courts of the State of New York in the case ofPeoplev.Miller,128 New York Supplement 549 (1911), wherein the court said among other things:
So far as concerns the commission of the act a breaking as well as an entry is necessary to constitute the crime of burglary, while entry alone is sufficient for the misdemeanor. As to the intent with which the act is done, however, the definition of the misdemeanor is narrower than that of the felony. For the latter it is sufficient if the intent be to commit any crime, while to constitute the misdemeanor the intent must be to commit one of the crimes mentioned in section 405. Consequently there may well be cases wherein the elements necessary to establish the crime of burglary in the third degree, outside of the breaking, would not suffice to constitute an unlawful entry, because the intent of the entry, while criminal, would not be to commit one of the crimes specified in section 405.


If the entry were unlawful and a mere trespass involved a misdemeanor, and nothing more is established, the offense is not burglary in New York.

The Board of Review and the Board of Immigration Appeals for the past 29 years, subsequent to the passage of the Immigration Act of 1917, have consistently held that the offense of burglary, third degree, committed in the State of New York involves moral turpitude.10If the reasoning of the majority were to be accepted, it would, in my opinion, be necessary to conclude that burglary in the first and second degrees, in the State of New York, do not necessarily involve moral turpitude; but the Federal courts support the conclusion that the offense of burglary in the third degree in the State of New York is one involving moral turpitude. United States District Judge Goddard in the case ofUnited States ex rel Andreachiv.Curran,38 F. (2d) 498-9, of March 22, 1926, said among other things:
* * * on May 5, 1923, he was sentenced by the court of general sessions, New York, to four years on the conviction of the charge of burglary, third degree,Page 729* * *. It is conceded that the sentence for burglary does involve moral turpitude. * * *.


Dependence in the determination of what offenses involve moral turpitude is laid upon the case ofMyliusv.Uhl, supra,by the majority. The court said:
Immigration authorities * * * must follow definite standards and apply general rules. Consequently, in classifying offenses I think that they must designate as crimes involving moral turpitude those which in their inherent nature include it. Their function is not, as it seems to me, to go behind judgments of conviction and determine with respect to the acts disclosed by the testimony the questions of purpose, motive and knowledge which are often determinative of the moral character of the acts.


In that case the alien there concerned was an applicant for admission to the United States. It was established that he had been convicted in England of the offense of criminal libel in that he had published defamatory statements regarding His Majesty the King. The officials examined the report of the proceedings of the trial, and determined therefrom that the acts of the petitioner involved moral turpitude. Thereupon they found that he had been convicted of a crime embracing moral turpitude and was ordered excluded. The court said among other things:
If the petitioner be discharged it will be solely because I regard the offense of criminal libel as not involving in its inherent nature moral turpitude * * *.


The court went on to say:
We come then to the fundamental inquiry: Does the crime of criminal libel in its nature imply personal depravity or baseness upon the part of its perpetrator? In my opinion the answer to this question depends upon that which must be shown to establish his guilt.
Undoubtedly there may be cases inwhich the factswill show upon the part of the libeler a malignity of purpose and depravity of disposition conclusively indicating moral turpitude. But if it be necessary to establish such purpose or disposition to make out the crime of criminal libel, it can not be said in its nature to involve them or the conclusion to be drawn from them. If only the persons who publish false and defamatory libels with intent to injure were criminally liable for them there would be no difficulty in finding moral turpitude in the offense. The evil intent would enter into it. But the law of libel for the protection of society goes far beyond this. Editors and publishers have in the past been held criminally responsible for the publication of libels wholly without their knowledge. In such cases a finding of guilt does not establish moral depravity. And now in England and in this country the same liability exists if the libel came into the newspaper through their want of care. But here the basis of liability is really one of negligence and does not in itself show moral baseness. Corporations are convicted of criminal libel but their guilt hardly implies their moral obliquity. So a mistake of facts or innocent intention does not excuse; malice does not imply personal ill will and the truth cannot be shown to exculpate unless — according to theEnglish law— it appear that the public interests required the publication. Upon such requirements of proof it seems manifest that a conviction of libel establishes little concerning the moralPage 730status of the person convicted. All this, however, does not tend to minimize the serious character of criminal libels. The very grievousness of the wrongs they inflict and the difficulty of reaching responsible persons forces the imputation of responsibility. The well-being of society requires that persons only indirectly responsible should be held liable and that few obstacles should stand in the way of establishing their guilt. But every step in the direction of widening the scope of the law of libel and of eliminating defenses of the want of personal participation is a step away from establishing the crime as one involving personal baseness or depravity. Upon the whole I am compelled to the conclusion that the offense of criminal libel does not in its inherent nature involve moral turpitude and that in classifying it under the immigration laws, it must be designated as one which does not possess that element. [Italics supplied.]


The majority emphasize the foregoing case as to the method in determining whether or not the offense committed involves moral turpitude, but the curt was concerned with a criminal libel committed in England and the determination of whether or not criminal libel when committed in a foreign country is one involving moral turpitude. That case has but little persuasion when applied to the matter of burglary, third degree, as defined by the New York statutes and whether or not such offense is one involving moral turpitude. But even if we do apply this reasoning in our determination we find the court said: "Undoubtedly there may be cases in which the facts will show upon the part of the libeler a malignity of purpose and depravity of disposition conclusively indicating moral turpitude."

The offense of burglary, third degree, as defined in section 404 of the Penal Law is a much more serious offense than that of mere unlawful entry as defined in section 405, chapter 41, of the Penal Law. Consequently, after careful consideration of all the evidence of record and for the reasons hereinabove set forth it is my conclusion that the two offenses of burglary in the third degree committed in the State of New York both involve moral turpitude and the respondent is, therefore, subject to deportation.

As a dissent has been recorded, the Board, in accordance with 8 C.F.R. 90.12, certifies its decision to the Attorney General for review.
BEFORE THE ATTORNEY GENERAL
The decision and order of the Board of Immigration Appeals are hereby approved.Page 731
  1. Since an order and warrant of deportation were still outstanding, the Commissioner's order should have provided for an appropriate amendment thereof. ↩
  2. 39 Stat. 889-890and 8 U.S.C., section 155. ↩
  3. (41 C.J. 212) "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, vileness, 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 bemalaprohibita,but the act itself must be inherently immoral. The doing of the act itself, and not its prohibition by statute, fixes the moral turpitude. Everything done contrary to justice, honesty, modesty, or good morals is done with turpitude." ↩
  4. U.S.v.Uhl,203 Fed. 152;Coykendallv.Skrmetta,22 F. (2d) 120; andSippv.Coleman,179 Fed. 997. ↩
  5. Wharton's Criminal Law, p. 1187, sec. 9986. ↩
  6. Bensonv.McMahon127 U.S. 457affirming 34th Fed. 649. ↩
  7. See 2 Russell Crimes 7th Eng. and 1st Can. Ed. 1065. ↩
  8. See Wharton on Criminal Law, sec. 970, vol. 2, p. 1190-1. ↩
  9. Wharton on Criminal Law, sec. 1025, p. 1224;Peoplev.Larned,7 N.Y. 445(1852). ↩
  10. SeeMatter of C----,55802/712. ↩
  11. T---- R---- alias A---- J----, 56121/994, September 11, 1943; B---- P----, 56140/941, November 4, 1943. ↩