Opinion · United States Board of Immigration Appeals
IN THE MATTER OF Z----, 7 IN Dec. 253 (BIA 1956)
MATTER OF Z----. In DEPORTATION Proceedings., 7 I. & N. Dec. 253 (Board of Immigration AppealsExecutive Office for Immigration ReviewU.S. Department of Justice 1956)
- Type
- Opinion
- Court
- United States Board of Immigration Appeals
- Jurisdiction
- Federal
- Date
- 1956-07-06
- Topic
- general
IN THE MATTER OF Z----, 7 IN Dec. 253 (BIA 1956) MATTER OF Z----. In DEPORTATION Proceedings. A-4566433Board of Immigration AppealsExecutive Office for Immigration ReviewU.S. Department of Justice Decided by Board July 6, 1956 Crime involving moral turpitude — Indecent assault, section 6052, General Statutes of Connecticut, Revision of 1930 — Receiving stolen goods, section 6116, General Statutes of Connecticut, Revision of 1930. (1) Conviction of indecent assault in violation of section 6052 of the General Statutes of Connecticut, Revision of 1930, is conviction of a crime involving moral turpitude.
Citator
UpLaw has not yet analyzed IN THE MATTER OF Z----, 7 IN Dec. 253 (BIA 1956). The absence of a flag is not a finding that it is good law.
IN THE MATTER OF Z----,7 IN Dec. 253(BIA 1956)
MATTER OF Z----. In DEPORTATION Proceedings.
A-4566433
Board of Immigration Appeals
Executive Office for Immigration Review
U.S. Department of Justice
Decided by Board July 6, 1956
(1) Conviction of indecent assault in violation of section 6052 of the General Statutes of Connecticut, Revision of 1930, is conviction of a crime involving moral turpitude.
(2) Conviction of the crime of receiving stolen goods in violation of section 6116, General Statutes of Connecticut, Revision of 1930, is conviction of a crime involving moral turpitude.
CHARGE:
Warrant: Act of 1952 — Section 241 (a) (4) (8 U.S.C. 1251(a) (4)) — After entry convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct, to wit: Indecent assault (2 counts), and receiving stolen goods.
BEFORE THE BOARD
The respondent was convicted in superior court at Waterbury, Connecticut, on June 8, 1939, of the crime of indecent assault on 2 counts committed April 22, 1939, and was sentenced on June 8, 1939, to concurrent terms of 3 months on each count. The certified copy of the record of conviction shows that he was first accused of the crime of rape upon the body of a female more than 16 years of age in violation of section 6240 of the General Statutes of Connecticut, Revision of 1930, but that another information was substituted charging him with the crime of indecent assault, 2 counts, in violationPage 254of section 6052 of the General Statutes of Connecticut, Revision of 1930. Section 6052 of the General Statutes of Connecticut provides:
Indecent assault.Any person who shall commit an indecent assault upon another person shall be imprisoned not more than ten years. The overt act or acts of which such assault consists need not be otherwise described in a complaint under this section than as an indecent assault, unless the accused shall request the court that it be particularly described in such complaint. It shall be no defense to a complaint under this section that the person assaulted shall consent to the act of violence or to the act of indecency, and this section shall not affect the penalty for sodomy.
From a reading of the foregoing statute, it is apparent that it is not a divisible statute and that the crime of indecent assault is not otherwise defined in the statute. However, recourse may be had to decisions of the court of the State of Connecticut to determine the nature of the offenses included within the crime of indecent assault. InStatev.Zimmaruk,128 Conn. 124, the court held that evidence that the accused attempted without success to force a female companion to have sexual intercourse with him and then compelled her by force to engage in an act of sexual perversion upon him, sustained a judgment of conviction for indecent assault. InStatev.Chicorelli,129 Conn. 601, the court held that the word "assault" was obviously not intended to be given its technical meaning of an offer or threat of violence to the person of another, as distinguished from the actual application of that violence, for it was clearly the intention to include the indecent touching of the body of another, otherwise there would be little distinction between an offense under this statute and that of lascivious carriage or behavior and no justification for the very much more severe penalty prescribed under this section than for lascivious carriage. The court went on to say that the expressions "committing an indecent assault upon" and "taking indecent liberties with" the person of another are but different ways of stating the same offense, and that consent is no defense; and that in view of the nature of the offense, it might well be questioned whether consent would justify a disregard of the invasion of the public welfare and morality of the state which would be caused by the acts forbidden, even in the absence of the statutory provision.
Notwithstanding the absence of definition, a binding and competent admission was held to have been made of the crime of gross indecency in violation of section 338, Public Acts of Michigan, 1931 (Matter of W----,A-5630998,5 IN Dec. 578). Deportation was upheld in the case of an alien who admitted the commission of the crime of taking indecent liberties with a female under 16 in violation of section 16854, Title 23, Compiled Laws of Michigan, which was later incorporated into section 28.3688, Title 28, Michigan Statutes Annotated (1938) (Matter ofG----,A-5707845,6 IN Dec. 461). This case held that taking indecent liberties with a female under 16Page 255in violation of section 28.3688, Michigan Statutes Annotated, Title 28, constituted a crime involving moral turpitude where the indecent liberties complained of were not stated in the information nor defined by statute on the basis of a court decision that indecent and improper liberties with the person of a child means liberties such as the common sense of society would regard as indecent and improper.1InMatter of S----,T-2733560,5 IN Dec. 686, indecent assault in violation of section 292 (a), Canadian Criminal Code, was held to involve moral turpitude, even though the offense was not defined in the code.
An indecent assault has many of the elements of an assault with intent to rape, but falls short of the latter in that there is no intent to commit the graver offense. An indecent assault consists of the act of a male person taking indecent liberties with the person of a female or fondling her in a lewd and lascivious manner without her consent and against her will, but with no intent to commit the crime of rape (1American Jurisprudence,section 27). Viewed against the background of reported state court decisions and precedent decisions, it is concluded that the respondent's conviction of the crime of indecent assault involves moral turpitude.
The respondent was next convicted on January 29, 1941, by the trial justice for the town of Plymouth, Connecticut, of the crime of receiving stolen goods, committed January 25, 1941, and fined $25. The complaint charged that the respondent willfully and feloniously received stolen goods knowing them to be stolen. The crime of receiving stolen goods is set forth in section 6116, General Statutes of Connecticut, Revision of 1930, which provides:
Receiving stolen goods.Any person who shall receive and conceal any stolen goods or articles, knowing them to be stolen, shall be prosecuted and punished as a principal, although the person who committed the theft shall not be convicted thereof.
The essential elements of the offense are: (1) the property must have been stolen, (2) it must have been received by the accused with the knowledge that it was stolen, (3) it must have been concealed within the meaning of the law, and (4) it must have been received and concealed by the accused with a felonious intent (Statev.Newman,127 Conn. 398). It is apparent that the crime of receivingPage 256stolen goods in violation of section 6116, General Statutes of Connecticut, Revision of 1930, involves moral turpitude. The charge stated in the warrant of arrest is sustained.Discussion as to eligibility for suspension of deportation:Respondent was married on October 26, 1927, to a native-born citizen of the United States. They have one married daughter and two grandchildren who are native-born citizens of the United States and, in addition, his mother and 4 sisters reside in this country. Respondent is employed as a machine operator at an average salary of $85. His assets consist of an automobile worth $700; furniture, $3,500; and clothing and other personal effects, $1,000. Respondent has resided in the United States since he was 5 years old. He has been in poor health and out of work for about 5 months. In August 1955, he underwent an operation for a tumor of the lung and suffers from bronchogenic carcinoma and pulmonary tuberculosis, minimal activity. He fears to return to Poland on account of physical persecution because of his political opinions as an anti-Communist and because of his religion. It is concluded that the respondent has established that his deportation would result in exceptional and extremely unusual hardship to him and to his wife.
The respondent's last arrest and conviction of an offense was on January 21, 1948, when he was fined $18 for a motor vehicle violation. He was arrested on September 25, 1929, at Stamford, Connecticut, charged with nonsupport, but he was not convicted of this offense. He also has an arrest which occurred on November 29, 1928, at Stamford, Connecticut, for breach of the peace, but he was not convicted of this offense. There is no evidence of his ever having been a member of any subversive group. He served in the United States Army from September 8, 1920, until September 10, 1921, when he received an honorable discharge. He registered for military service under the Selective Training and Service Act of 1940, as amended, and he is not presently required to register under the Universal Military Training and Service Act of 1951, as amended. Affidavits of witnesses, a report of a character investigation conducted by an officer of this Service, and other evidence of record conclusively establish that the respondent has been a person of good moral character during the preceding 10 years; and that he has physically resided here continuously for more than the past 10 years. Hence, he has established statutory eligibility for the privilege of suspension of deportation pursuant to section 244 (a) (5) of the Immigration and Nationality Act of 1952.
On the basis of the respondent's extended residence in the United States ever since 1909, when he was but 5 years of age, the condition of his health, the exceptional and extremely unusual hardship that would result to him and to his citizen wife if he were deported, andPage 257the fact that he has rehabilitated himself of any criminal tendencies which existed earlier, it is believed that a grant of suspension of deportation is warranted.Order:It is ordered that the deportation of the alien be suspended under the provisions of section 244 (a) (5) of the Immigration and Nationality Act.It is further orderedthat if the Congress approves the suspension of the alien's deportation, the proceedings be cancelled and the alien, if a quota immigrant at the time of entry and not then charged to the appropriate quota, be so charged as provided by law.It is further orderedthat in the event Congress fails to take action approving suspension of the alien's deportation, the alien shall be granted the privilege of voluntary departure at his own expense in lieu of deportation and that if the alien, after notification, fails to depart when and as required, the privilege of voluntary departure shall be withdrawn without further notice or proceedings and the alien shall be deported from the United States in the manner provided by law on the charge contained in the warrant of arrest.Page 258
- In unreportedMatter of F----,A-4529296 (B.I.A., Apr. 3, 1946), it was held that a conviction of the crime of taking indecent liberties with a child in violation of section 37.083, Illinois Statutes, was base, vile, and depraved and involved moral turpitude even though the acts were not defined by statute or set out in the record of conviction because too obscene and too gross, citingMatter of I----,56030/27 (B.I.A., Apr. 15, 1941), which involved a conviction of assault and taking indecent liberties with a child in violation of section 65, c. 48, Colorado Statutes Annotated, 1945. ↩