A-7966307
Decided by the Board January 22, 1954
Crime involving moral turpitude-Exemption contained in section 212 (a) (9) of the Immigration and Nationality Act does not apply where more than one crime was committed while under the age of 18 years.
An alien convicted prior to entry of two crimes involving moral turpitude committed while under the age of 18 years is not eligible for relief from deportation under section 212 (a) (9) of the Immigration and Nationality Act since the exemption contained in that subsection relates to persons who have committed only one crime involving moral turpitude while under the age of 18 years.
BEFORE THE BOARD
Discussion: This case is before us on motion of counsel for reconsideration of the board's orders of July 17 and October 23, 1953. Respondent, a 26-year-old native and citizen of Canada, last entered the United States at Detroit, Mich., on November 24, 1950, for permanent residence. On April 21, 1945, respondent was convicted on a plea of guilty in magistrate's court, Windsor, Ontario, Canada, on two theft charges. Respondent violated section 386 of the Canadian criminal code by stealing cigarettes from the same store on two occasions, April 13 and April 20, 1945. He was given a suspended sentence of 2 years' imprisonment.
Respondent was held deportable by the Acting Assistant Commissioner on September 12, 1952, as an alien who had admitted the commission of crimes prior to entry, two charges of theft (sec. 19 (a), act of 1917) and as an alien who had been convicted of crimes prior to entry, two charges of theft (sec. 19 (a), act of 1917). The Board affirmed the finding of deportability on July 17, 1953, holding that respondent took the cigarettes with the intention of depriving the owner of them permanently and had therefore been convicted of crimes involving moral turpitude. The Board also held that respondent was treated as a criminal and not as a wayward juvenile in 1945. Thereafter, counsel filed a motion to reconsider, which was denied by the Board on October 23, 1953.
Counsel again broaches the question of whether respondent was considered a juvenile offender in the above-mentioned instance, rather than a criminal, and hence should not be considered as an alien convicted of crimes involving moral turpitude under the rule in Matter of O'N----, 55813/162, 2 IN Dec. 319 (Atty. Gen., 1945).
Citing Matter of S----, 56052/519 (B.I.A. May 11, 1942); Matter of B----, 56106/828 (B.I.A. Jan. 22, 1943); Matter of M----, 56137/862 (B.I.A. April 10, 1943); Matter of A----, 56038/313 (B.I.A. Aug. 7, 1943); Matter of E----, 56041/272 (A-4626745) (B.I.A. April 7, 1944), Atty. Gen. April 14, 1944.
In the Province of Ontario on April 21, 1945, the date of appellant's conviction for theft, the definition of a male "child" was governed by section 2 of the Canadian Juvenile Delinquency Act of 1929 (ch. 46, Statutes of Canada, 1929; 19-20 Geo. V). Although section 2 (a) provided that the maximum age in the definition of a "child" could be raised to 18 for a given province by proclamation, the Province of Ontario has not seen fit to extend this definition. Consequently, since the age for juvenile treatment of a boy on April 21, 1945, was 16 years or under and because respondent was 17 years 10 months old on that occasion, he was not in fact a child and was treated as a criminal.
(a) "Child" means any boy or girl apparently or actually under the age of 16 years: Provided, That in any Province or Provinces as to which the Governor in council by proclamation has directed or may hereafter direct, "child" means any boy or girl apparently or actually under the age of 18 years: Provided further, That any such proclamation may apply either to boys only or to girls only or to both boys and girls.
For the above reasons, respondent was clearly deportable under section 19 (a) of the act of 1917, as an alien who has admitted the commission of and was convicted for two theft offenses in violation of section 386 of the Canadian Criminal Code.
Counsel contends that since respondent was under 18 at the time the thefts were committed, he cannot be deported by virtue of the provisions of section 212 (a) (9) of the act of 1952. This section provides as follows:
Aliens who have been convicted of a crime involving moral turpitude (other than a purely political offense), or aliens who admit having committed such a crime, or aliens who admit committing acts which constitute the essential elements of such a crime; except that aliens who have committed only one such crime while under the age of 18 years may be granted a visa and admitted if the crime was committed more than 5 years prior to the date of the application for a visa or other documentation, and more than 5 years prior to date of application for admission to the United States, unless the crime resulted in confinement in a prison or correctional institution, in which case such alien must have been released from such confinement more than 5 years prior to the date of the application for a visa or other documentation, and for admission, to the United States; * * *. [Emphasis supplied.]
However, by the very terms of section 212 (a) (9), respondent is not eligible for relief from deportation as an alien who committed a crime while under 18 years, for respondent has committed two offenses of theft. The statute requires that the alien must have committed only one crime while under the age of 18 in order to merit relief from deportation. Cf., Matter of C---- M----, Int. Dec. No. 481, T-2739931 (B.I.A., 1953); Matter of R----, Int. Dec. No. 502, E-89656 (B.I.A., 1953).
22 Law Week 2055.
The record makes it clear that respondent made a complete disclosure of all the facts surrounding his conviction for the two theft offenses when applying for his original visa. Thereafter, respondent was admitted to the United States for permanent residence in 1950. While it is unfortunate that respondent was initially issued the visa and then admitted for permanent residence, the law makes it clear that respondent's deportation is inescapable. The motion is accordingly denied.
Order: It is hereby ordered that the motion be denied.