Opinion · United States Board of Immigration Appeals

IN THE MATTER OF K----, 2 IN Dec. 90 (BIA 1944)

IN THE MATTER OF K----. In DEPORTATION Proceedings., 2 I. & N. Dec. 90 (Board of Immigration AppealsExecutive Office for Immigration ReviewU.S. Department of Justice 1944)

Type: Opinion
Court: United States Board of Immigration Appeals
Jurisdiction: Federal
Date: 1944-05-08
Topic: general

IN THE MATTER OF K----, 2 IN Dec. 90 (BIA 1944) IN THE MATTER OF K----. In DEPORTATION Proceedings. A-3565857 (56113/804)Board of Immigration AppealsExecutive Office for Immigration ReviewU.S. Department of Justice Decided by the Board on May 8, 1944. Crime involving moral turpitude — Possession of stolen property — Germany. 1.

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IN THE MATTER OF K----,2 IN Dec. 90(BIA 1944)

IN THE MATTER OF K----. In DEPORTATION Proceedings.

A-3565857 (56113/804)

Board of Immigration Appeals

Executive Office for Immigration Review

U.S. Department of Justice

Decided by the Board on May 8, 1944.

Crime involving moral turpitude — Possession of stolen property— Germany.

1. Crime in Germany of receiving stolen property differs from such crime as known in the United States in that conviction may result from negligent receipt of property by person acting in good faith.

2. Crime in Germany of possessing stolen property will not be found to involve moral turpitude where the evidence of record indicates property was acquired without guilty knowledge and without wrongful intent.

CHARGE:

Warrant: Act of 1917 — Crime prior to entry — Possession of stolen goods (Germany).

BEFORE THE BOARD

Discussion:Warrant of arrest in this case was issued June 5, 1942, served, and hearing accorded the alien January 7, 1943. Continued hearings were held January 26, April 15, July 16, and November 6, 1943. The Presiding Inspector recommends deportation to Germany. The Central Office concurs with the recommendation of the District Director that the alien be permitted to depart voluntarily and readmitted under the seventh proviso to section 3 of the 1917 act.

This record relates to the case of a native and citizen of Germany, male, married, 44 years of age, who last entered the United States at San Pedro, Calif., June 18, 1924.

The respondent testified that in 1920 or 1921 in Frankfurt-am-Main, Germany, he was charged with possession of stolen property, convicted and sentenced to one year in jail upon his plea of guilty. He denies having taken the articles in question and related the circumstances as follows:

He was a customer of a nightclub which was raided by police, the lights were turned off and the patrons tried to leave to avoid arrest for violating a curfew law. His overcoat was hanging on a wall near where he was sitting, he took it and tried to make his way out but the police stopped him and took from the pocket of his overcoat a box of jewelry which was later found to be stolen property. He denies having stolen the jewelry and states his belief that it was placed in his pocket while the lights were out by someone who was in fear of being apprehended with it in his possession. He pleadedPage 91guilty upon the advice of counsel, he states, because he thought he would be dealt with leniently. He denies having received any stolen property.

We do not have before us, nor are we able to obtain, the full record of conviction setting forth the precise basis for the prosecution of the alien for receiving stolen property. Section 259 of the German criminal code provides as follows:

Who conceals purchase, takes as pledge or otherwise, or who participates in the sale of goods of which he knowsor must assume on the basis of the givenconditions that they have been acquired by means ofany criminal act, shall be punished withimprisonment.[Italics supplied.]

A careful analysis of the above quoted section indicates that the crime of receiving stolen property in Germany differs from our conception of the crime in that a conviction may be founded upon the negligent receipt of property by a person acting in good faith. Under German law a person who receives stolen property without knowledge that it is stolen, but under circumstances which should lead him to make inquiry, is nevertheless guilty of the crime. Where property is acquired without knowledge that it is stolen or without intent to deprive the rightful owner of his possession, the offense does not involve moral turpitude.

The alien admits that he was convicted of possession of stolen property but he does not admit any facts which indicate that he acquired the property with wrongful intent. On the contrary it affirmatively appears, if his version is accepted, that he was not guilty at all.

We therefore conclude that the evidence is not sufficient to sustain the charge that the crime for which he was convicted involves moral turpitude.Findings of Fact:Upon the basis of all the evidence presented, it is found:

(1) That the respondent is an alien, a native and citizen of Germany;

(2) That the respondent last entered the United States June 18, 1924, at San Pedro, Calif.;

(3) That the respondent was convicted of possession of stolen property in Frankfurt-am — Main, Germany, in 1920 or 1921.

Conclusion of Law:Upon the basis of the foregoing findings of fact, it is concluded:

(1) That under section 19 of the Immigration Act of 1917, the respondent is not subject to deportation on the ground that he has been convicted of a crime involving moral turpitude prior to his entry, to wit: Possession of stolen property.

Other Factors:There are no other factors.Order:It is ordered that the warrant of arrest in this case be cancelled and the proceedings thereunder closed.Page 92