Matter of N-

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IN THE MATTER OF N

In EXCLUSION Proceedings A-6953557

Decided by Board August 26, 1949

Pardon "foreign"-Effect on exclusion ground for conviction of crime abroad involving moral turpitude for which he was pardoned there-Crime involving moral turpitude-Theft as a servant (Canada)-"Permanent taking"-Evi- dence (Matter of T-, 2, I. & N. Dec. 22)-Juvenile Delinquency (Province of Quebec, Canaga)-Age (Matter of O'N , distinguished, 2, I. & N. Dec. 319) . 1. An alien remains subject to exclusion as one convicted abroad of a crime involving moral turpitude even though he receives a pardon abroad as to such offense. 2. Where the evidence shows the crime of theft as a servant in Canada involved a permanent "taking," such offense is deemed to involve moral turpitude, and under the ruling in the Matter of T-, it is permitted to go behind the foreign record of conviction to ascertain whether the "taking" was of a permanent nature. 3. In the Province of Quebec, Canada, where the age limit for juveniles was raised by proclamation dated November 3, 1942, to cover persons who are or appear to be under 18 years of age, an alien who committed the above crime involving moral turpitude over a period of 6 months before November 3, 1942, and before he reached 18 years of age on November 12, 1942, who was arrested therefore on October 24, 1942, who was tried on January 12, 1943, was not a "juvenile" when he committed the crime and was arrested, nor was he a "juvenile" when tried and sentenced ( The Matter of O'N - supra, was distinguished) . ( See editor's note at end of decision re Proclamations in Canada regarding Juveniles. ]

EXCLUDED BY BOARD OF SPECIAL INQUIRY : Act of 1924-No immigration visa. Act of1917-Convicted of crime prior to entry, to wit : theft as a servant.

BEFORE THE BOARD

Discussion : The appellant, a 25-year-old native and citizen of Canada, applied for admission to the United States as a visitor for 6 months. After a hearing conducted on August 6, 1948, a Board of Special Inquiry excluded him on the grounds above stated. The appeal is now before us for consideration. Appellant is married to an American-born woman, and eventually he would like to come here with his wife in order to establish a home.

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Except for the commission of the offense which is now the basis for his exclusion, he has conducted himself satisfactorily, so far as we can determine from the record. If the second ground of exclusion set forth above, that is, conviction of a crime prior to entry, is sustained, under the now existing law he will never be able to establish a permanent residence in this country. This will be true even if he were to be pardoned for the offense committed by him in 1942 ( United States v. Smith, 17 F (2d) 543 ( C. C. A. 2, 1927) ; Weedin v. Hempel, 28 F. (2d) 603, C. C. A. 9, 1928) . On October 24, 1942, when the alien was 17 years and 11 months old, he was arrested in Montreal on a charge of "theft as a servant" for the taking of articles of clothing from his employer. He became 18 years of age 3 weeks after this arrest, that is, on November 12, 1942. On January 12, 1943, he was brought before a judge of the Sessions of the Peace in the city of Montreal. The record of the Court, signed by the Judge states : "Whereupon, having first obtained the deposition of which said prisoner was so committed, I stated to him that he was charged with the aforesaid offense, describing it to him and that he had the option to be tried forthwith before a judged without the intervention of a jury or to remain under bail to be tried in the ordinary way by the Court of King's Bench, whereupon the prisoner consented to be tried by the judge without a jury and being arranged upon the charge I fixed his arraignment for the second of February 1943. Whereupon on the second day of February 1943, the said prisoner being brought before me, judge of the Sessions of the Peace for the District of Montreal, acting in and for the said District, who being arraigned on the above-mentioned charge, pleaded guilty and on the second day of February 1943, with the consent of the Crown I suspended the sentence.

The alien has testified that he removed articles of clothing from the stock of the store in which he was employed from time to time over a period of 6 months, and that he sold these goods for $150. On December 11, 1942, shortly after his arrest, but before he was sentenced, the alien attempted to enter the United States as a temporary visitor for 29 days. A Board of Special Inquiry excluded him as an alien immigrant not in possession of an unexpired immigration visa. Notknowing that criminal proceedings were even then pending against appellant, this Board reversed that finding on January 6, 1943, but ordered that the excluding decision be affirmed, because the alien was not in possession of a visa or a nonresident alien's border-crossing card. The alien did not reapply for admission to the United States at that time. During the hearing before the Board of Special Inquiry he was asked, "Have you ever been arrested by the police or before the courts on any charge ? " His answer was, "No." When the alien applied for an immigration visa before the American consul in Quebec in 1948, he was asked if he had ever been arrested

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for any crime or had any criminal record, he submitted to the consul a letter on the stationery of the Quebec provincial police force reading : This is to certify that a search made today through the alphabetical index of our identification bureau has failed to reveal any data regarding the abovenamed person.

It was not until the American consul had questioned appellant further that he discovered that appellant did have a record, not in Quebec, but in the city of Montreal. The vice consul advised the Immigration Service that perjury was not considered in the case, but that the visa was refused solely on the ground of the commission of a crime involving moral turpitude. Counsel argues before this Board that appellant should have been treated as a juvenile delinquent at the time of his trial. At the time of the commission of the crime a "child" was defined in the Province of Quebec as anyone who was or appeared to be under 16 years of age. By a proclamation of November 3, 1942, the age limit for juveniles in Quebec Province was changed to cover persons who are or appear to be under 18 years of age. It is our opinion that respondent was not a juvenile under any theory of law. At the time he committed the crime above described he was under the age of 18 years, but the statute at that time defined juveniles in a manner which did not include him. By the time he was sentenced, the definition had been changed to cover persons up to 18 years of age, but by that time he was over the age of 18. It is quite clear from the record that appellant was not tried by the court as a juvenile. It is equally clear that on the facts the court was not in error, as claimed by counsel, in treating him as an adult offender. We have been generous in the matter of granting discretionary relief to persons who have been convicted of crimes and misdemeanors while they are children. Juvenile delinquency is not a deportable or excludable offense (Matter of E , 56041/272, Apr. 7, 1944) . The subject of juvenile delinquency was considered at great length in Matter of O'N-, 55813/162 (approved by the Attorney General June 9, 1945) . In that case we admitted O'N- to the United States in spite of the fact that he had been convicted of theft under the Canadian criminal statute, and had not been treated and tried as a juvenile delinquent. The reason for having treated O'N- as a juvenile delinquent even though he had been tried in a regular criminal court before a justice of the peace was as follows : It was shown that in the district of Rainy River, where O'N - committed his offense and was tried, there was no juvenile court and detention home for delinquent children. That district was sparsely populated. It was presumed that the authorities had not established a juvenile court for the reasons that there was a low incidence of crime, and such a court

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and detention home would be so little used as to make it impractical to have provided such special facilities for the treatment of children. The decision was that the alien would have been treated and tried, not as an adult criminal but as a juvenile offender in a state of delinquency, had the proper facilities existed. The instant case is distinguishable from the O'N - case. It is pre- sumed that the city of Montreal, of all places in Canada, has established juvenile courts in which appellant would have been tried if the court had felt that he was entitled to such treatment. O'N- was 1512 years old at the time he was sentenced, whereas appellant was 18 years old. In spite of counsel's claim, appellant was not entitled to consideration as a juvenile delinquent. Counsel argues that the crime committed by appellant was not a crime involving moral turpitude. Larceny and theft, whether petty or grand are always held to be crimes involving moral turpitude. The leading case on the subject of theft in Canada is Matter of T-, 56156/249 ( Jan. 27, 1944) by this Board; reversed February 24, 1944, by the Attorney General which is referred to in the opinion of the Assistant Commissioner in the instant case. There was a dissenting opinion in the T case based on the fact that the sections of the Canadian criminal code defining theft (sec. 347) and providing the penalty for theft (sec. 386) make no distinction between a permanent and a temporary taking, as did the common law and the theft statute in this country, that these sections of the code have, therefore, abandoned the true common law concept of larceny (which does not include a temporary taking), and that the Canadian statute, then covers crimes which do as well as those which do not involve moral turpitude. The Attorney General sustained the dissent and held that it is permissible to go beyond the indictment and consider such facts as may appear from the record of conviction to determine whether or not the offense is one which, under our law, involves moral turpitude. The conclusion to be drawn from that particular controversy is that theft under the Canadian law involves moral turpitude if the taking was permanent. When we are dealing with a conviction under the Canadian theft statute, then, we must go behind the record for the purpose of discovering whether or not the taking was a permanent one-and for that purpose and to that extent only.* *Editor's note. As to the ruling in Matter of T-, 56156/249, February 24, 1944, mentioned above, the recent decision (unreported) of the B. I. A.; May 19, 1950, Matter of M , A-7427610, discussed a violation of section 355 (1) of the Canadian criminal code reading as follows : "Every one commits theft who, having received any money or valuable security or other thing whatsoever, on terms requiring him to account for or pay the same, or the proceeds thereof, or any part of such proceeds, to any other person, though not requiring him to deliver over in specie the identical money, valuable security or other thing received, fraudulently

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A signal distinction between the T-- case and the instant case is that T- never pleaded guilty. He maintained his own innocence at all times, stating that his companion took the motorcycle coil, the stolen article in controversy, but that he, T-, was convicted of theft in view of the fact that he was one year older than the other boy. T- received a suspended sentence. N- , on the other hand, pleaded guilty. It is clear that the "taking" by N- was a permanent taking. The fact that he sold these goods for a substantial sum of money is consonant only with an intent permanently to deprive the rightful owner of the property. The act of selling the property would be incongruous with a temporary taking. The T- case was followed in Matter of C , 56158/190 (Jan. 13, 1945 ; Matter of L , 6236906 (June 3, 1946) ; Matter of S--, 55995/373 (Nov. 29, 1946) ; Matter of B , 56175/712 (Mar. 13, 1946) ; Matter of C—, 56156/283 (Sept. 9, 1944) ; Matter of G-, 6202052 (Aug. 4, 1947) . In all these cases it was held by this Board that where the facts disclosed a permanent taking theft and larceny under the Canadian statutes were offenses involving moral turpitude. The appellant having been found guilty in a Canadian court of a crime involving moral turpitude is inadmissible to the United States for permanent residence. This is not a case in which we will exercise administrative discretion to grant temporary admission to an otherwise inadmissible alien under the ninth proviso to section 3 of the 1917 act. Order : The application is denied and the appeal is dismissed. omits to account for or pay the same or any part thereof, or to account for or pay such proceeds or any part thereof, which he was required to account for or pay as aforesaid." After stating this had been held to be an offense involving moral turpitude (Matter of F , 56175/113, B. I. A. Mar. 22, 1945) , the Board said : "However, if the crime as defined by statute necessarily involves moral turpitude, no evidence is competent to show that moral turpitude was not involved ( U. S. ex rel. Robinson v. Day, 51 F. (2d) 1022) . The statute in this case is akin in its basic elements to the crime of embezzlement as we know it in the United States, and clearly is an offense involving moral turpitude. "Counsel in argument to us made reference to the decision of the Attorney General in the Matter of T——, 2, I. & N. Dec. 22. This involved a determination of whether theft as defined by section 347 of the Canadian criminal code involved moral turpitude. Theft as there defined differs from the crime of theft or larceny in the United States, in that under section 347 of the Canadian law one is guilty of theft if he deprives a person temporarily of his property as well

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as if he deprives one permanently of his property. The ruling in the T- case was to the effect that section 347 encompasses larceny as we know it in the United States as well as civil trespass, which is not a crime in the United States. It being unnecessary to prove whether the taking was permanent or temporary, convictions under this section in Canada failed to reveal whether the taking was temporary or permanent. The ruling of the Attorney General went only so far as to permit immigration officers to make independent inquiries to determine whether the conviction was for an offense which under our law would involve moral turpitude. This has been construed to mean an independent inquiry to determine whether the taking involved was permanent as distinguished from temporary. We are not confronted with a similar dilemma in reference to section 355 of the Canadian criminal code and, therefore, we find as to this offense that the ruling in the Matter of T- , supra, has no application. Accordingly, it is necessary for us to dismiss the appeal." APPENDIX

The following Orders in Council and Proclamations have been issued under section 2 ( a ) of the Juvenile Delinquents Act : 1. Proclamation dated the 7th day of February, 1922, raising the age limit of juveniles in British Columbia to eighteen. 2. P. C. 2409 dated the 7th day of December, 1929, and Proclamation dated the 12th day of March, 1930, raising the age limit for girls in Alberta to eighteen. 3. P. C. 1200 dated the 9th day of March, 1935, and Proclamation dated the 9th day of May, 1935, raising the age limit for boys and girls in Alberta to eighteen. 4. P. C. 9999 dated the 28th day of November, 1942, and Proclamation dated the 3d day of November, 1942, raising the age limit for juveniles in Quebec to eighteen.

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