E-081282.
Decided by Board July 26, 1954.
Crime involving moral turpitude — Violation of 26 U.S.C. 404 (R.S. 3296) — Savings clause, effect on non-deportable status prior to December 24, 1952 — Good moral character, section 101 (f) (5) of Immigration and Nationality Act — Suspension of deportation, section 244 (a) (1) of the act.
(1) An offense in violation of 26 U.S.C. 404 (R.S. 3296) is not a crime involving moral turpitude.
(2) The savings clause, section 405 (a) of the Immigration and Nationality Act, does not preserve the non-deportable status of an alien subject to deportation under that act who was not deportable prior thereto. Hence, an alien who entered the United States in 1921 without inspection and without being in possession of a valid passport is deportable under the Immigration and Nationality Act, notwithstanding that he could not be found deportable prior to the effective date of that act because of expiration of time limitations.
(3) An alien who applied for suspension of deportation on March 11, 1954, pursuant to section 244 (a) (1) of the Immigration and Nationality Act, who was convicted on May 7, 1947, for "lottery" and on March 26, 1953, for "bookmaking and pool selling" is precluded from establishing good moral character under section 101 (f) (5) of the act, since he has been convicted of two or more gambling offenses committed within the period during which he is required to establish good moral character.
(4) Even without the specific provision contained in section 101 (f) of the act, an alien who has been arrested on seven occasions, the latest relating to his conviction on March 26, 1953, cannot be found to have established good moral character and his application for suspension of deportation under section 244 (a) (1) of the act would necessarily be denied as a matter of discretion.
CHARGES:
Warrant: Act of 1952 — Excludable at time of entry — No passport.
Act of 1952 — Entered without inspection.
Act of 1952 — Convicted of two crimes after entry — 26 U.S.C. 404 and conspiracy to violate 26 U.S.C. 2833 and 3321.
BEFORE THE BOARD
Discussion: This case is before us on appeal from the decision of a special inquiry officer on May 7, 1954, directing the respondent's deportation.
The respondent is a 54-year-old male, native and citizen of Italy, who claims that his only entry into the United States occurred on January 6 or 7, 1921. Counsel concedes that at that time he was not in possession of a passport or any travel document in lieu thereof and that he entered without inspection. The criminal charge is predicated on the respondent's conviction in 1934 on two counts of an indictment, both of which charged a violation of 26 U.S.C. 404 (R.S. 3296), and his conviction in 1940 of conspiracy to violate the Internal Revenue laws. In connection with the 1934 conviction, he was sentenced to imprisonment for 3 months and a sentence of 5 months was imposed in 1940. The conviction in 1940 involved a conspiracy to carry on the business of a distiller with the intent to defraud the United States of the taxes on distilled spirits, and counsel concedes that, in accordance with the decision in Jordan v. DeGeorge, 341 U.S. 223 (1951), this offense must be held to involve moral turpitude. The statutory provision under which the respondent was convicted in 1934 ( 26 U.S.C. 404; R.S. 3296) was as follows:
Whenever any person removes, or aids or abets in the removal of any distilled spirits on which the tax has not been paid, to a place other than the distillery warehouse provided by law, or conceals or aids in the concealment of any spirits so removed, or removes, or aids or abets in the removal of any distilled spirits from any distillery warehouse, or other warehouse for distilled spirits authorized by law, in any manner other than is provided by law, or conceals or aids in the concealment of any spirits so removed he shall be liable to a penalty of double the tax imposed on such distilled spirits so removed or concealed, and shall be fined not less than $200 nor more than $5,000, and imprisoned not less than 3 months nor more than 3 years.
Counsel contends that the crime, of which the respondent was convicted in 1934, is one which does not involve moral turpitude and the special inquiry officer, agreeing with this contention, has concluded that the criminal charge is not sustained. We concur in his conclusion that the criminal charge is not sustained and that the violation of R.S. 3296 does not involve moral turpitude. In Matter of P----, A-3748813, 2 IN Dec. 117, 121, decided June 23, 1944, we said, "one of the criteria adopted to ascertain whether a particular crime involves moral turpitude is that it be accompanied by a vicious motive or corrupt mind" and we also stated that it was in the intent that moral turpitude inheres. In Macklin v. United States, 79 F. (2d) 756 (C.C.A. 9, 1935), the court had under consideration a conviction under 26 U.S.C. 404 and reached a conclusion that this statutory provision did not include any element of intent to defraud the United States of revenue. We believe that the statutory provision quoted above is purely a regulatory enactment with a complete absence of any element which could be considered to denote baseness, vileness or depravity. No criminal intent is required to be established and we are satisfied, therefore, that this offense does not involve moral turpitude.
As we have previously indicated, counsel concedes that when the respondent entered the United States in or about 1921, he was not in possession of a valid passport or any other document in lieu thereof and that he entered without inspection. However, counsel asserts that there was a time limitation upon the deportation of aliens on these charges; that the respondent was not deportable prior to the Immigration and Nationality Act; and that this non-deportable status was preserved by the provisions of section 405 (a) of that act. Congress has plenary power over aliens and may direct their deportation even on grounds nonexistent at the time of their entry. We have previously considered the precise contentions urged by counsel and they must be rejected on the basis of our decisions in Matter of M----, A-2669541, 5, I. N. Dec 261 (June 1, 1953); Matter of I----, E-25308, A-4771776, 5 IN Dec. 343 (July 21, 1953); and Matter of M----, E-118717, 5 IN Dec. 642 (January 26, 1954). We find no merit in counsel's contention that the statutory provision would be unconstitutional for vagueness because the question of whether the respondent should be deported would be dependent upon whether the Attorney General exercised his discretion to grant registry under section 249 of the Immigration and Nationality Act. We hold, therefore, that the respondent is deportable on the first two charges stated in the warrant of arrest.
Carlson v. Landon, 342 U.S. 524, 536 (1952); Harisiades v. Shaughnessy, 342 U.S. 580, 587 (1952); Marcello v. Ahrens, 212 F. (2d) 830, 836 (C.A. 5, May 6, 1954), rehearing denied May 25, 1954.
Counsel has requested that, if this Board finds the alien to be deportable, a conclusion be reached by us that he is eligible for registry under section 249 and that the case be remanded to the Service for reconsideration of his registry application. The respondent has applied for registry on two occasions and these applications were denied on October 26, 1948, and September 2, 1953. The latest application was denied on the ground that the applicant had failed to "satisfy the Attorney General" that he had entered and resided in the United States continuously since prior to July 1, 1924; that he is a person of good moral character; and that he is not subject to deportation. This Board has no jurisdiction relative to applications under section 249 of the Immigration and Nationality Act and any request for reopening or reconsideration of that decision must be made pursuant to 8 C.F.R. 8.1 (a) and 8 C.F.R. 8.11 (a).
The remaining question in this case is whether suspension of deportation should be granted. The respondent testified that he has never been married. He has been arrested on seven occasions, the latest of which relates to a conviction on March 26, 1953, for "bookmaking and pool selling" for which he was sentenced to 90 days' imprisonment. The application for suspension of deportation was executed on March 11, 1954, and under section 244 (a) (1) of the Immigration and Nationality Act, the respondent is required to establish, among other matters, good moral character subsequent to March 11, 1947. Included among the seven arrests mentioned are an arrest on May 7, 1947, for "lottery," at which time he was sentenced to pay a fine of $500 and costs, an arrest on February 28, 1948, for "traffic in lottery," at which time he was discharged, and an arrest on January 26, 1951, at which time he was discharged and paid costs of $7.05. The convictions on May 7, 1947, and March 26, 1953, bring the respondent within the purview of section 101 (f) of the Immigration and Nationality Act which precludes a finding of good moral character in the case of an alien who has been convicted of two or more gambling offenses committed within the period during which he is required to establish good moral character. Even if it were not for this specific provision, we would find it necessary to hold that the respondent has not established good moral character for the required period because of his arrest record.
In Matter of M----, 5 IN Dec. 261, ( supra), we referred to the more stringent requirements of section 244 (a) in connection with the change in phraseology to "exceptional and extremly unusual hardship." The respondent's deportation would not, in our opinion, result in exceptional and extremely unusual hardship to him. Although we hold that the respondent does not meet the statutory requirements prescribed in section 244 (a) of the Immigration and Nationality Act, we find the circumstances of this case to be such as would necessitate the denial of the application as a matter of administrative discretion. In view of the foregoing, we will direct that the appeal be dismissed.
Order: It is ordered that the appeal be and the same is hereby dismissed.