Opinion · United States Board of Immigration Appeals
IN THE MATTER OF G----, 1 IN Dec. 403 (BIA 1943)
1 IN Dec. 403
- Type
- Opinion
- Court
- United States Board of Immigration Appeals
- Jurisdiction
- Federal
- Date
- 1943-01-21
- Topic
- general
IN THE MATTER OF G----, 1 IN Dec. 403 (BIA 1943) IN THE MATTER OF G----. IN DEPORTATION PROCEEDINGS. 56122/766Board of Immigration AppealsExecutive Office for Immigration ReviewU.S. Department of Justice Decided by the Board January 21, 1943. Crime involving moral turpitude — Unlawfully entering a building (New York) — Entry without inspection — Seamen. 1. Entering a building in violation of section 405 of the New York penal law, as amended September 1, 1935, does not involve moral turpitude unless the record of conviction shows that the entry was made with intention to commit a crime involving moral turpitude. 2.
Citator
UpLaw has not yet analyzed IN THE MATTER OF G----, 1 IN Dec. 403 (BIA 1943). The absence of a flag is not a finding that it is good law.
IN THE MATTER OF G----,1 IN Dec. 403(BIA 1943)
IN THE MATTER OF G----. IN DEPORTATION PROCEEDINGS.
56122/766
Board of Immigration Appeals
Executive Office for Immigration Review
U.S. Department of Justice
Decided by the Board January 21, 1943.
1. Entering a building in violation of section 405 of the New York penal law, as amended September 1, 1935, does not involve moral turpitude unless the record of conviction shows that the entry was made with intention to commit a crime involving moral turpitude.
2. Since under section 34 of the Immigration Act of 1917 seamen landing contrary to the provisions of that act must be brought before a board of special inquiry to determine their qualifications for admission, as to seamen the act of entering without inspection is not a ground of deportation.
CHARGES:
Warrant: Act of 1924 — Immigrant without an immigration visa. Act of 1917 — Sentenced to imprisonment 1 year or more for conviction within 5 years after entry of a crime involving moral turpitude — unlawfully entering a building; convicted of crime prior to entry — petit larceny.
DISCUSSION: The respondent is a native and citizen of Cuba, 24 years of age, single, and occupationally a seaman. He last entered the United States at Philadelphia, Pa., on July 7, 1941, as a member of the crew of the S.S.Miraflores.At that time he gained admission by falsely claiming that he was a citizen of the United States. He intended to reside permanently in this country and was not in possession of an unexpired immigration visa. He has never been admitted to this country at any time for permanent residence.
Under section 34 of the Immigration Act of 1917, alien seamen who landed in the United States contrary to the provisions of the 1917 act must be brought before a board of special inquiry to determine their qualifications for admission to the United States, and if not admitted they are then to be deported. This procedure definitely contemplatesPage 404that as to seamen the act of entering the United States without the required inspection is not to be a basis for deportation. Inasmuch as the respondent was a seaman at the time of his last entry he is not subject to deportation on the ground that he entered the United States by false and misleading statements, thereby entering without inspection. However, the warrant charge based on the Immigration Act of 1924 is supported by the record.
On January 21, 1938, the respondent was convicted of the crime of petit larcency in the Court of Special Sessions of the city of New York.
On November 14, 1941, the respondent was indicted by the grand jury of the State of New York on six counts, charging: (1) burglary in the third degree, (2) petty larcency, (3) possession of burglar's instruments after prior conviction, (4) robbery in the first degree, (5) assault in the second degree, (6) assault in the second degree. On January 7, 1942, the respondent was permitted to plead guilty to the crime of unlawfully entering a building, committed on October 25, 1941, and was sentenced on January 22, 1942, to the New York County prison for a maximum period of 3 years.
Section 405 of the penal law of New York defines the crime of unlawfully entering a building 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 crime is guilty of a misdemeanor.
The presiding inspector concluded that on the basis of the indictment record, which, in his opinion, clearly set forth the intent of the respondent, the crime of unlawfully entering a building involved moral turpitude.
Prior to its amendment on September 1, 1935, section 405 of the New York penal law read that the entry must be "with intent to commit a felony or a larceny, or any malicious mischief." While the statute in this form was in effect, Judge Caffey of the United States District Court for the Southern District of New York, in a case involving facts similar to those in the present case (W----C---- (55802/712)), on December 1, 1933, granted a writ of habeas corpus and discharged the alien, apparently on the ground that the crime of unlawfully entering a building did not involve moral turpitude. In that case the alien was also permitted to plead guilty to this crime after he had been indicted on three counts charging: (1) burglary in the third degree, (2) grand larceny, second degree, (3) criminally receiving stolen property. The Attorney General, upon the advice of the United States attorney for that district and the Solicitor of the Department of Labor, did not appeal this decision upon the theory that the crime was not inherently one involving moral turpitude and might or might not involve the same, depending upon the intent. Whether such a crime involvedPage 405moral turpitude could only be determined by a consideration of the contents of the indictment, plea, verdict, and sentence, a rule laid down by the United States Circuit Court of Appeals for the Second Circuit in the case ofUnited States ex rel.Zaffaranov.Corsi,63 F. 2d 757, and consistently followed thereafter. In the circumstances of theC---- case,supra,it was determined that the record of conviction did not disclose that the crime involved moral turpitude. Since that decision by Judge Caffey, the Immigration and Naturalization Service and we have consistently taken the position that unless the record of conviction shows that the particular crime that the alien intended to commit upon his unlawful entry into a building involved moral turpitude, the crime defined by section 405 of the New York penal law, spondent, the crime of unlawfully entering a building involved moral turpitude. (Seefiles 55863/415; 55845/606; 55865/450.)
If, as we conclude, the crime of unlawfully entering a building, prior to the amendment of section 405, does not inherently involve moral turpitude,a fortiori,the crime, as it has been defined since its amendment and of which the respondent was convicted, does not inherently involve the same. For the crime as it is presently defined is much more broad than it was at the time of the decision by Judge Caffey in theC---- case. This view is supported by the dictum of the Circuit Court of Appeals for the Second Circuit in the case ofUnited Statesex rel. Guarinov.Uhl,107 F. 2d 399, wherein the court, in holding that the crime of possession of a jimmy with intent to commit a crime did not necessarily involve moral turpitude, said at page 400:
Any "intrusion" upon a city lot is a misdemeanor in the State of New York (Penal Law, sec. 2036); so is a forcible entry anywhere (Penal Law, sec. 2034);sois entering a building to commit a crime(Penal Law, sec. 405) * * * Such crimes by no means "inherently" involve immoral conduct; * * * [Italics supplied.]
Therefore, under the ruling in theZaffaranocase,supra,we shall look at the record of conviction; that is, the indictment, plea, verdict, and sentence, in order to determine whether the respondent has committed a crime involving moral turpitude. The indictment in this case does charge the respondent in some of its counts with the commission of crimes involving moral turpitude. If these charges were admitted by the respondent's plea of guilty to the charge of unlawfully entering a building, there would be some basis for contending that the respondent was convicted of a crime involving moral turpitude. However, the respondent's plea of guilty cannot necessarily be said to be such an admission. He might have merely admitted the unlawful entry to commit a crime that may or may not have involved moral turpitude. Since we cannot, under the ruling in theZaffaranocase,supra,go beyond the record of conviction to ascertain the actual facts, itPage 406necessarily follows that the crime of unlawfully entering a building, under the circumstances of this case, does not involve moral turpitude. Accordingly, only the second criminal charge in the warrant of arrest can be sustained.
FINDINGS OF FACT: Upon the basis of all the evidence adduced at the hearing, and upon the entire record in the case, it is found:
(1) That the respondent is an alien, a native and citizen of Cuba;
(2) That the respondent last entered the United States at Philadelphia, Pa., on July 7, 1941, as a member of the crew of the S.S.Miraflores;
(3) That the respondent entered the United States for permanent residence;
(4) That the respondent was not in possession of an unexpired immigration visa at the time of his last entry;
(5) That the respondent was convicted on January 21, 1938, of the crime of petty larceny;
(6) That the respondent was convicted on January 7, 1942, of the crime of unlawfully entering a building, said crime having been committed on October 25, 1941;
(7) That for the foregoing offense the respondent was sentenced to imprisonment in the New York County prison for a maximum period of 3 years.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under sections 13 and 14 of the Immigration Act of 1924 the respondent is subject to deportation on the ground that at time of entry he was not in possession of an unexpired immigration visa;
(2) That under section 19 of the Immigration Act of 1917 the respondent is subject to deportation on the ground that he has been convicted of a felony or other crime or misdemeanor involving moral turpitude prior to entry into the United States, to wit: petty larcency;
(3) That under section 19 of the Immigration Act of 1917 the respondent is not subject to deportation on the ground that subsequent to May 1, 1917, he has been sentenced to imprisonment for a term of 1 year or more because of conviction in this country of a crime involving moral turpitude committed within 5 years after entry, to wit: unlawfully entering a building;
(4) That under section 19 of the Immigration Act of 1917 the respondent is not subject to deportation on the ground that he entered the United States by means of false and misleading statements, thereby entering without inspection;Page 407
(5) That under section 20 of the Immigration Act of 1917 the respondent is deportable to Cuba at steamship expense, if practicable; otherwise at Government expense.
OTHER FACTORS: The respondent is single and has no close family ties in the United States.
ORDER: It is ordered that the alien be deported to Cuba at steamship expense, if practicable; otherwise at Government expense on the following charges:
That he is in the United States in violation of the Immigration Act of 1924, in that at the time of his entry he was not in possession of an unexpired immigration visa.
That he is in the United States in violation of the Immigration Act of 1917, in that he has been convicted of a felony or other crime or misdemeanor involving moral turpitude prior to entry into the United States, to wit: petit larceny.It is further ordered,That execution of warrant be deferred until alien is released from imprisonment.Page 408