A-1636772
Decided by Board February 9, 1948
Crime involving moral turpitude — Abatement of nuisance — Place maintained, which is resorted to for prostitution — Violation of sections 4 and 5, chapter 139, Laws of Massachusetts (1928) — Evil intent or guilty knowledge involved — Test whether it is crime involving moral turpitude — Adultery (Massachusetts) — Violation of section 14, chapter 272 — Lewd, wanton, lascivious person in behavior — Violation of section 53, chapter 272, Laws of Massachusetts.
(1) Because of the broad interpretation the courts of Massachusetts have placed upon sections 4 and 5 of chapter 139, it may not be found that a violation in every instance is accompanied by an evil intent to practice immorality for hire and, therefore, involves moral turpitude; nor does the complaint here furnish sufficient detail for a determination as to whether this violation is accompanied by such evil intent.
(2) The alien was convicted of the crime of adultery (Massachusetts 1928) in violation of section 14, chapter 272, Laws of Massachusetts, and the courts have held this offense involves moral turpitude.
(3) The crime of lewdness as defined by section 53, chapter 272, Laws of Massachusetts, connotes moral turpitude.
CHARGES:
Warrant: Act of 1917 — Admits crime prior to entry, to wit: Nuisance, keeping house of ill fame, adultery, lewd, wanton, and lascivious person in behavior.
Act of 1917 — Convicted of crime prior to entry, to wit: Nuisance, keeping house of ill fame, adultery, lewd, wanton, and lascivious person in behavior.
BEFORE THE BOARD
Discussion: The respondent, a native and citizen of Canada, female, testified that she first entered the United States during 1913 and has resided here almost continuously since that time. She was lawfully admitted for permanent residence at the port of Newport, Vt., on November 10, 1926. She testified that prior to that date she had been absent from this country for approximately 2 years and that her only absence since entry in 1926 was in 1930, when she went to Canada to be married. She last entered at the port of Jackman, Maine, on or about August 26, 1930.
The respondent identified as relating to her a complaint filed in the First District Court of Essex, Mass., charging that on March 20, 1928, and on divers other days the respondent "did knowingly and willfully keep and maintain a certain common nuisance, to wit: a tenement then and on said other days and times there resorted to for prostitution and lewdness, to the great damage and common nuisance of all the peaceable citizens of said commonwealth there residing, passing, and being." The reverse side of this complaint indicates that on May 21, 1928, upon a plea of not guilty, the respondent was found guilty and it was ordered that the complaint be filed.
There is no question but that the complaint aforementioned is laid under sections 4 and 5 of chapter 139, Laws of Massachusetts, Annotated, volume 4. Chapter 139 provides for the abatement of divers common nuisances, such as burnt or dangerous buildings (section 1), buildings resorted to for illegal gaming, etc. (section 14), prostitution (sections 4 and 5), liquor nuisances (section 16A). Section 24 of chapter 272, volume 9, Laws of Massachusetts, Annotated, contemplates the crime of "keeping a house of ill fame" and is found in the chapter, "Crimes Against Chastity, Morality, Decency, and Good Order."
"Every building, part of a building, tenement, or place used for prostitution, assignation, or lewdness, and every place within or upon which acts of prostitution, assignation, or lewdness are held or occur, shall be deemed a nuisance.
"Whoever keeps or maintains such a nuisance shall be punished by a fine of not less than $100 nor more than $1,000 and by imprisonment for not less than 3 months nor more than 3 years.
"Whoever keeps a house of ill fame which is resorted to for prostitution or lewdness shall be punished by imprisonment for not more than 2 years."
The Supreme Judicial Court of Massachusetts, in commenting upon the two offenses, has said:
Every "house of ill fame" is "a building, place, or tenement," and, therefore, comes within the definition of section 4, chapter 139; but every "building, place, or tenement resorted to," etc., is not a "house of ill fame," and, therefore, does not come within the definition of (sec. 24, ch. 272). This chapter (272) contains an element that is not in (ch. 139), that is, that the building, place or tenement resorted to for the illegal purpose shall be a house of ill fame, and this element was deemed so important by the legislature that it increased the penalty two-fold * * *. The one is punished as a common nuisance, and, therefore, must be allowed to be such; the other is punished as a house of ill fame, and need not be alleged to be a common nuisance.
In another case the Massachusetts Supreme Court found that the mischief the statute (secs. 4 and 5, ch. 139, supra) seeks to prevent is the existence of the places which their temptations and vices encouraged.
In another action under this section the defendant on appeal alleged reversible error because she was not furnished with a sufficient bill of particulars revealing the identity of the persons who resorted to the premises, the court said: "It is the use of the premises that is condemned by the statute * * *." An indictment for keeping a tenement in violation of this section is supported by proof of the use of any part thereof for the illegal purpose.
Commonwealth v. Anna Martin, 304 Mass. 320, 321 (1939).
Commonwealth v. Howe, 79 Mass. 26.
From the foregoing it is apparent that sections 4 and 5 of chapter 139 have for their purpose the abatement of a nuisance. Section 4 of the statute deems that the use of any building, part of a building, tenement, or place used for prostitution, assignation, or lewdness is a nuisance. Section 5 of the statute imposes criminal liability upon whoever keeps or maintains such a nuisance without regard to evil intent or guilty knowledge. Under the statute it is the use to which the building is put that determines its status. The owner who rents, as well as the lessee who occupies the premises, is bound to comply with the law. "And if the evidence shows and the judge finds, that the building, place, or any part of it has been so used, it is legally wholly immaterial that the owner did not know it."
Chase v. Proprietors of Revere House, 232 Mass. 88, 95 (1919).
Commonwealth v. Baker, 155 Mass. 287.
Supra footnote 7. Although we may not go behind the record of conviction, it is interesting to note that the respondent testified that she rented a room to a third party, that when she discovered that the third party was practicing prostitution, she "sent them away," that she herself did not engage in the practice of prostitution, and that a portion of the premises occupied by herself were not used for the practice of prostitution.
Because of the broad interpretation the courts of Massachusetts have placed upon sections 4 and 5 of chapter 139, we are unable to find that a violation in every instance is accompanied by an evil intent to practice immorality for hire and, therefore, involves moral turpitude. The complaint here considered charges the crime in the words of the statute and is not of sufficient detail for such a determination. The charges predicated upon the respondent's conviction May 21, 1928, for maintaining a certain common nuisance in violation of sections 4 and 5 of chapter 139, Laws of Massachusetts, are not sustained.
The respondent, on May 21, 1928, was convicted in the First District Court of Essex, Mass., of the crime of adultery in violation of section 14, chapter 272, Laws of Massachusetts, Annotated, volume 9.
A married man who has sexual intercourse with a woman not his wife, an unmarried man who has sexual intercourse with a married woman or a married woman who has sexual intercourse with a man not her husband shall be guilty of adultery and shall be punished by imprisonment in the State prison for not more than 3 years or in jail for not more than 2 years, or by fine of not more than $500.
The Attorney General in Matter of E----, 56107/653, July 11, 1945, ( 2 IN Dec. 328) in referring to the issue of whether the crime of bigamy involves moral turpitude said: "* * * This Department in making administrative decisions on questions of law should be guided by the decisions of the appellate courts on any point that has been judicially determined." The courts on several occasions have said that the crime of adultery involves moral turpitude. U.S. ex rel. Tourney v. Reimer, 8 F. Supp. 91 (D.C.N.Y., 1934), citing Pollard v. Lyon, 91 U.S. 225, 228, 23 L. Ed. 308, Ex parte Rodriguez, 15 F. (2d) 878, 879 (D.C.S.D. Tex., 1926).
The respondent during August of 1928 was convicted on a complaint charging that she "was a lewd, want (on) and lascivious person in-behavior." This crime is contemplated under section 53 of chapter 272, Laws of Massachusetts, Annotated, volume 9. The respondent does not admit that she was a lewd, wanton, and lascivious person in behavior as charged in the indictment. Her plea upon arraignment was "Not guilty." The Circuit Court of Appeals for the First Circuit has held that the crime of lewdness as defined by section 53 ( supra), connotes moral turpitude.
"Rogues and vagabonds * * * lewd, wanton, and lascivious persons in speech and behavior * * * may be punished by imprisonment in the Massachusetts Reformatory * * *."
Lane ex rel. Cronin v. Tillinghast, 38 F. (2d) 231 (C.C.A. 1, February 17, 1930).
Predicated on the foregoing opinion the conclusions of law proposed by the Presiding Inspector and served on the respondent October 17, 1947, and thereafter amended by the Acting Commissioner in his opinion dated November 10, 1947, are restated as follows:
(1) That under section 19, of the Immigration Act of 1917, the respondent is subject to deportation in that she has been convicted of a felony or other crime or misdemeanor involving moral turpitude committed prior to entry into the United States, to wit: Being a lewd, wanton, and lascivious person in behavior: Adultery;
(2) That under section 19 of the Immigration Act of 1917 the respondent is not subject to deportation in that she admits having committed a felony or other crime or misdemeanor involving moral turpitude prior to entry into the United States, to wit: Adultery, maintaining a certain common nuisance, and being a lewd, wanton, and lascivious person in behavior;
(3) That under section 19 of the Immigration Act of 1917 the respondent is not subject to deportation in that she has been convicted of a felony or other crime or misdemeanor involving moral turpitude prior to entry into the United States, to wit: Maintaining a certain common nuisance;
(4) That under section 20 of the Immigration Act of 1917 the respondent is deportable to Canada at Government expense.Other Factors: The respondent's husband is a naturalized citizen of this country. They admit that they had been living together as man and wife for about 11 years prior to their marriage on April 4, 1945. We do not find from the record, however, that their relationship for the preceding 5 years was prompted by lust. It appears to have been one of permanence, stability, and apparent respectability. Their marriage in 1945, following the removal of the impediment, bears out this conclusion. The respondent has not been arrested for any offense since 1928. An investigation conducted September 15, 1947, indicates that respondent has apparently rehabilitated herself. Her husband testified that he is retired and receives an old-age pension of $63 a month. In view of her long residence, her advanced age, the fact that she appears to have rehabilitated herself, and the fact that her deportation would result in serious economic detriment to her naturalized citizen husband, we are of the opinion that the case warrants the exercise of discretion.
Cf. Petition of Rudder, 159 F. (2d) 695 (C.C.A. 2, January 1947).
The respondent testified, "Since 1913 I have always lived in the United States, but I have been back and forth on visits several times." The record of her admission for permanent residence at Newport, Vt., on November 10, 1926 relates that she previously resided in the United States at Salem, Mass., November 12, 1913 to July 10, 1925, and that she was returning to her husband, J---- B---- C----, who resided at 49 North Street, Salem, Mass. Although the record with regard to continuity of domicile is not all that is desired, we are of the opinion that the foregoing evidence is sufficient for a finding that respondent has had continuous domicile in the United States since 1913. The respondent, therefore, at the time of her last entry, August 26, 1930, could have been admitted upon a waiver by the Secretary of Labor of the criminal grounds of exclusion under the seventh proviso to section 3 of the 1917 act, inasmuch as she was returning to a previously established domicile of 7 years. Under the rules set forth in Matter of L----, 56019/808 (Aug. 29, 1940, 1 IN Dec. 1), where there is a record of entry for permanent residence, this waiver may be exercised nunc pro tunc. Accordingly, under the authority vested in the Attorney General, by the seventh proviso to section 3 of the Immigration Act of 1917, we will deem the respondent to have been lawfully admitted for permanent residence at the port of Jackman, Maine, on August 26, 1930, upon the nunc pro tunc exercise of the seventh proviso to section 3 of the Immigration Act of 1917 to remove the following criminal grounds, to wit: An alien who admits and/or has been convicted of the crime of adultery committed in the State of Massachusetts during the year 1928 and the crime defined by section 53, chapter 272, Laws of Massachusetts, in that she was a lewd, wanton, and lascivious person in behavior committed during the year 1928.
Order: It is directed that the proceedings under the warrant of arrest issued March 19, 1947, be and the same are hereby terminated, the alien to be deemed as having been admitted at the port of Jackman, Maine, on August 26, 1930, upon the nunc pro tunc exercise of the seventh proviso to section 3 of the Immigration Act of 1917, notwithstanding her inadmissibility as one who admits and/or has been convicted of the crimes of adultery committed in the State of Massachusetts, during the year 1928 and that she was a lewd, wanton, and lascivious person in behavior, defined by section 53 of chapter 272, Laws of Massachusetts, for which she was convicted during August of 1928; subject to revocation in the discretion of the Attorney General, after hearing, if the alien subsequently commits any offense.