A-10067903.
Decided by Board October 19, 1955.
Nonimmigrant — Conviction of disorderly conduct (jostling) is violation of nonimmigrant status.
An alien admitted as a nonimmigrant violates his nonimmigrant status and is deportable when he is arrested and convicted of disorderly conduct (jostling) and is imprisoned during the period for which he was admitted since such conduct is inconsistent with and not essential to the continuation of his status as a visitor. This is true even though such conviction is not one which could form the basis for exclusion or deportation.
CHARGE:
Warrant: Act of 1952 — Section 241 (a) (9) — Failed to maintain status — Visitor for pleasure.
BEFORE THE BOARD
Discussion: This case is before us on appeal from the special inquiry officer's order directing the respondent's deportation from the United States in the manner provided by law on the charge contained in the warrant of arrest, as above. The issue in the case is whether the respondent has, by his conduct, violated the status under which he was admitted to the United States, namely: that of a temporary visitor for pleasure.
The record relates to a 32-year-old single male alien, a native and citizen of Mexico. He last entered the United States at Los Angeles, California, on February 23, 1955. He was then admitted as a temporary visitor for pleasure, under the provisions of section 101 (a) (15) (B) of the Immigration and Nationality Act, for a period until April 22, 1955. He applied for and received an extension of his stay until June 30, 1955.
On May 3, 1955, respondent was arrested in a bus terminal at 41st Street and Eighth Avenue, New York City. He was charged with a violation of section 722, subparagraph 6, Penal Laws of the State of New York, to wit: disorderly conduct, jostling. He was tried before a Magistrate and found guilty, on May 11, 1955, and sentenced to 30 days in the workhouse. He served that sentence.
The special inquiry officer has pointed out in his opinion that one of the conditions of respondent's admission to the United States in the nonimmigrant status of a temporary visitor for pleasure is that while he is in this country he will not engage in any activity inconsistent with and not essential to said status ( 8 C.F.R. 214.2 (c)). The special inquiry officer has found that the activity of the respondent which resulted in his arrest and conviction for disorderly conduct was an activity inconsistent with and not essential to his status as a temporary visitor for pleasure. Therefore, the special inquiry officer concluded that the respondent was deportable on the ground that he has failed to maintain such status. Counsel, on the other hand, contends that a violation of section 722, subdivision 6, of the Penal Laws of the State of New York is an offense, not a crime, and, therefore, not a basis for deportation.
Section 722 of the Penal Laws of the State of New York bears the title "Disorderly Conduct" and reads as follows:
Any person who with intent to provoke a breach of the peace or whereby a breach of the peace may be occasioned, commits any of the following acts shall be deemed to have committed the offense of disorderly conduct:
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6. Interferes with any person in any place by jostling against such person or unnecessarily crowding him or by placing a hand in the proximity of such person's pocket, pocketbook or handbag.
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Section 723 of the Penal Laws of the State of New York is entitled "Punishment for Disorderly Conduct" and reads as follows:
The offense of disorderly conduct is punishable as follows:
1. By imprisonment in the county jail or workhouse for a term not exceeding six months, or by a fine not exceeding $50, or by both;
2. By placing on probation for a term not to exceed two years.
"Disorderly conduct" embraces certain minor offenses, usually defined by statute, consisting of disturbance of the peace and quiet of the public or communities, families, or a class of persons, or of conduct which tends to cause or provoke a breach of the peace or corrupt public morals, and a willful or unlawful purpose is not an element of the offense unless made so by statute ( Mulhern v. Kaufman, 1938, 165 Misc. 670, 1 N.Y.S. 2nd 362). Violation of this section is not a "crime," but is merely an "offense" and a conviction would not bar an enlistment in the armed forces by the offender ( People v. Sly, 1942, 39 N.Y.S. 2d 474). The offense of disorderly conduct under this section is limited by section 724 to cities, and jurisdiction to hear and determine such offense is limited to city magistrates ( People v. Murphy, 1934, 154 Misc. 290, 277 N.Y.S. 608).
In view of the foregoing, it is clear that counsel's contention that the respondent's conviction of a violation of section 722 (6) of the Penal Laws of the State of New York cannot serve as a basis for the respondent's deportation on a criminal charge is well taken. This is true because the provisions of the New York law in question clearly bring it within the purview of the provisions of section 4 of the act of September 3, 1954, P.L. 770. Under such circumstances, this Board has held that if such an alien were outside the United States and applying for admission, he would not be excludable by reason of such conviction and, therefore, is not deportable in expulsion proceedings (See Matter of C----, E-092142, B.I.A., October 8, 1954, Int. Dec. No. 635).
However, the fact is that this respondent is not being ordered deported on criminal grounds. His deportation may be the result of his conduct resulting in his conviction under section 722 (6) of the Penal Laws of the State of New York. But the precise question to be answered here is whether his conduct which resulted in his conviction under said section constitutes activity inconsistent with his status as a nonimmigrant visitor for pleasure, and not his deportability on a criminal charge.
The facts of this case appear to bring it in between two cases previously considered by this Board. While, because of the difference in the factual situations in the cases, those two decisions cannot serve as precedent here, they do serve to point out the proper approach to the problem with which we are here confronted.
In Matter of M----, 56152/470, 2 IN Dec. 43, we held that a nonresident alien whose avowed purpose in coming to the United States was to commit a crime is not a nonimmigrant within the meaning of section 3 (2) of the Immigration Act of 1924 even though he intends to remain only for one day; he must be considered an immigrant under section 3 of the above act. There, the alien intended to unlawfully transport a quantity of opium to El Paso and to return the same day. He received $50 for the job. He was convicted of having imported opium into the United States and of having concealed the same after importation. We therein pointed out that section 3 of the 1924 act provided that the term "immigrant" meant any alien departing from any place outside the United States destined to the United States except, inter alia, an alien visiting the United States temporarily as a tourist, or temporarily for business or pleasure. We did not believe that said provision of the act was intended to include in the exception an alien coming to the United States for the avowed purpose of committing a crime.
In Matter of C----, A-6811403, 3 IN Dec. 407, we held that an alien entering from Mexico with a commercial vehicle merely to purchase merchandise was not excludable on the ground that he was not properly classifiable as a bona fide visitor for business simply because he might not be able to pass through Texas without registering his vehicle in that state. The reason was that whether he was required to comply with the local laws of the state was a matter between him and the authorities of the state and not a matter within the purview of the immigration laws. However, we did point out in that opinion that an alien seeking entry as a nonimmigrant must confine his activities to those consistent with his status. The same is true with regard to aliens sought to be deported for violation of their nonimmigrant status.
The decisions in the foregoing cases clearly give effect to and are consistent with the intent and purpose of the immigration laws. The reasoning of those cases is equally applicable in determining whether an alien admitted as a visitor is properly maintaining his status as such. That is the situation we have here.
We hold that the respondent's conduct in violation of section 722 (6) of the Penal Laws of the State of New York is inconsistent with the continuation of his status as a visitor, under the immigration laws. While the laws of the State of New York classify it as a minor offense, the fact remains that it is criminal conduct. It is not merely a violation of a licensing or regulatory statute.
Accordingly, we conclude that the respondent is deportable on the ground urged by the special inquiry officer. Therefore, we will affirm his decision.
Order: It is ordered that the decision of the special inquiry officer directing the respondent's deportation from the United States in the manner provided by law on the charge contained in the warrant of arrest, as above, be and the same is hereby affirmed, and that this appeal be and the same is hereby dismissed.