Opinion · United States Board of Immigration Appeals
IN THE MATTER OF S---- B----, 4 IN Dec. 682 (BIA 1952)
IN THE MATTER OF S---- B----. In EXCLUSION Proceedings., 4 I. & N. Dec. 682 (Board of Immigration AppealsExecutive Office for Immigration ReviewU.S. Department of Justice 1952)
- Type
- Opinion
- Court
- United States Board of Immigration Appeals
- Jurisdiction
- Federal
- Date
- 1952-07-21
- Topic
- general
IN THE MATTER OF S---- B----, 4 IN Dec. 682 (BIA 1952) IN THE MATTER OF S---- B----. In EXCLUSION Proceedings. A-5496423Board of Immigration AppealsExecutive Office for Immigration ReviewU.S. Department of Justice Decided by Board July 21, 1952 Crimes involving moral turpitude, Federal — Desertion in violation of the 58th Article of War. (1) Desertion from armed forces of United States in time of war in violation of the 58th Article of War is not an offense involving moral turpitude.
Citator
UpLaw has not yet analyzed IN THE MATTER OF S---- B----, 4 IN Dec. 682 (BIA 1952). The absence of a flag is not a finding that it is good law.
IN THE MATTER OF S---- B----,4 IN Dec. 682(BIA 1952)
IN THE MATTER OF S---- B----. In EXCLUSION Proceedings.
A-5496423
Board of Immigration Appeals
Executive Office for Immigration Review
U.S. Department of Justice
Decided by Board July 21, 1952
(1) Desertion from armed forces of United States in time of war in violation of the 58th Article of War is not an offense involving moral turpitude.EXCLUDED:
Act of 1924 — Ineligible to citizenship.
Act of 1917 — Conviction of crime involving moral turpitude, to wit: Desertion from the armed forces during war.
Act of 1917 — Admission of crime involving moral turpitude, to wit: Desertion from armed forces in time of war.
BEFORE THE BOARD
The appellant is a 36-year-old married male, a native and citizen of Mexico, who has sought admission into the United States as a temporary visitor for the purpose of visiting his citizen wife and other relatives. On or about October 26, 1949, before a general court-martial, he was convicted of a violation of the 58th Article of War in that on or about May 20, 1943, at Fort Sam Houston, Tex., he deserted the service of the United States and remained absent in desertion until he surrendered himself to military authorities at Matamoros, Mexico, on or about August 15, 1949. He was sentenced to be dishonorably discharged, to forfeit pay and allowances, and to be confined at hard labor for 5 years. On review, the period of confinement was reduced to 1 year. He admits the commission of the offense.
As the appellant is seeking to enter the United States only as a temporary visitor and is not an immigrant, he is not excludable under section 13 (c) of the Immigration Act of 1924.
With regard to whether the offense of which he has been convicted is a crime involving moral turpitude, the Acting Assistant CommissionerPage 683in a similar case,Matter of L----,A-6414937, in an opinion dated July 5, 1951, took the position that the offense was not one involving moral turpitude. Although we agree with this conclusion, we do not agree with the reasoning by which it was reached. As the statute does not make motive an element of the offense, whether it may have been cowardice, religious scruples, or a like motivation that impelled the person to desert is immaterial in the determination of whether moral turpitude is involved in the offense.
The 58th Article of War, prior to its repeal effective May 31, 1951, provided as follows:
Any person subject to military law who deserts or attempts to desert the service of the United States shall, if the offense be committed in time of war, suffer death or such other punishment as a court-martial may direct, and, if the offense be committed at any other time, any punishment, excepting death, that a court-martial may direct (10 U.S.C.A. 1530).
The Manual for Courts Martial of the United States, 1949, defines desertion as:
Absence without leave accompanied by the intention not to return, or to avoid hazardous duty, or to shirk important service (par. 146 (a)).
That same volume states that the elements of the offense of desertion are absence without leave and the specific intent not to return, or to avoid hazardous duty, or to shirk important service (par. 140 (a)). The specification in the instant case indicates that the respondent's offense was absence without leave with the intention not to return, and that avoidance of hazardous duty or the shirking of important service was not involved. (Cf. specifications Nos. 6 and 7, p. 314, op. cit.)
No court cases have been found dealing with the question of whether moral turpitude is involved in the offense under consideration. We can only resort, therefore, to what we believe would be the common view of our people concerning its moral character. Although the death penalty may be imposed as a punishment for the offense, the determinative factor in the imposition of penalty is the urgency of the situation at the time of the commission of the offense, and not any heinousness inherent in the act itself. We cannot say that the elements of the offense are such that the commission thereof would be commonly regarded as a manifestation of personal depravity or baseness on the part of the respondent. Accordingly, we find that the offense does not involve moral turpitude and the appeal will be sustained.Order:It is ordered that the appeal be sustained and that the appellant be admitted to the United States as a temporary visitor for a period not to exceed 1 week, under such terms and conditions as the admitting port may deem necessary.Page 684