A-6685343
Decided by Board August 4, 1947
Crime involving moral turpitude — Indecent assault (Canada) — Section 292 (a) of the Criminal Code of Canada — Evidence.
Where a court record of conviction in Canada was not available, but the alien testified he was charged with rape, was permitted to plead guilty to the lesser offense of indecent assault, "imagined" he was permitted to plead guilty to violation of section 292 ( a) of the Criminal Code of Canada, and the alien introduced a letter (as pertaining to him) from the Royal Canadian Mounted Police, indicating he was convicted on the above occasion in Toronto, Canada, of the crime of indecent assault, there is sufficient evidence to justify a finding that he was convicted of indecent assault upon a female (without her consent), (sec. 292 (a) of the Criminal Code of Canada) an offense which involves moral turpitude.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1917 — Convicted and admits commission of indecent assault.
Act of 1924 — No visa.
Executive Order 8766 — No passport.
BEFORE THE BOARD
Discussion: The appellant, a native and citizen of Canada, age 43, arrived at the port of Detroit, Mich., June 4, 1947, and sought admission for permanent residence. He was excluded by a Board of Special Inquiry on the above grounds. The matter is now before us on appeal.
The appellant was not in possession of an unexpired immigration visa and was, therefore, properly excluded on the documentary charges.
However, the Commissioner concluded that the Board of Special Inquiry erred in also excluding the appellant on the criminal ground.
The basis for this ground arises under section 3, Immigration Act of 1917, which requires the exclusion of an alien who committed, or who admits the commission, of a crime or other misdemeanor involving moral turpitude.
There was introduced into the record by appellant a copy of a letter from the Royal Canadian Mounted Police (marked "Exhibit 1"), and identified by the appellant as relating to him, indicating that he was convicted on April 28, 1927, in Toronto, Canada, of the crime of indecent assault, and for which he received a jail sentence of 30 days.
Appellant presented such letter for determination of his status under the immigration laws of the United States.
It is indicated that a court record covering the offense in question is not available. The appellant, however, testified that he was originally arrested on a charge of rape, but was permitted to plead guilty to the lesser offense of indecent assault; that proceedings were had in a police court in Toronto.
Section 292 of the Canadian Criminal Code provides:
Indecent assault — Everyone is guilty of an indictable offense and liable to 2 years' imprisonment and to be whipped, who —
(a) indecently assaults any female; or
(b) does anything to any female by her consent which but for such consent would be an indecent assault, if such consent is obtained by false and fraudulent representation as to the nature and quality of the act; or
(c) assaults and beats his wife or any other female and thereby occasions her actual bodily harm.
The appellant stated, in answer to the question as to which of the foregoing subdivisions he was permitted to plead guilty, "I imagine it would be the first one — without consent — because the original charge was rape."
In finding that appellant is not inadmissible on the criminal ground, the Commissioner stated:
The foregoing statute includes crimes which do and those which do not involve moral turpitude, Matter of D----, 56175/518 (May 22, 1945) and Matter of H---- 56112/223 (September 15, 1943). The record does not contain a copy of the information or indictment setting forth the circumstances surrounding the commission of the offense. Exhibit No. 1, previously referred to, does not show under which part of the statute the appellant was convicted. He has testified that he does not know. It is alleged that the court records pertaining to the conviction are not obtainable.
The appellant's testimony concerning the circumstances surrounding the commission of the offense has no probative value as it has been determined that we cannot go behind the record to ascertain whether or not moral turpitude is involved, U.S. ex rel. Zaffarano v. Corsi, 63 F. (2d) 757 (C.C.A., New York, 1933). As the offense may or may not involve moral turpitude and the record does not disclose the circumstances of the conviction, the above stated criminal charge cannot be sustained.
The Zaffarano case involved a conviction for crime in New York. The indictment was not part of the record. Proof of conviction consisted of alien's admissions before an immigrant inspector and a certificate of the clerk of Bronx County Court to the effect that the relator was indicted, tried, and found guilty of assault, second degree. Since there was no indictment available covering that offense (alien had been indicted for rape and had been permitted to plead to assault, second degree) and the statute being broad, that is, it included assaults not involving moral turpitude, the court held that the record was not sufficient upon which to determine the issue of moral turpitude. In so holding, the court observed that neither the immigration officials nor the courts sitting in review of their action may go beyond the record of conviction (citing U.S. ex rel. Meyer v. Day, 54 F. (2d) 336, C.C.A. 2d; and U.S. ex rel. Robinson v. Day, 51 F. (2d) 1022, C.C.A. 2d).
It is well settled that the crime is conclusively established by the record, consisting of the charge, the indictment, the plea, verdict, and sentence. Thus, inquiry outside the record of conviction as to facts favorable or unfavorable to the alien is precluded ( U.S. ex rel. Mylius v. Uhl, 203 Fed. 152, S.D.N.Y. 1913, affirmed 210 Fed. 860).
Here we are dealing with an exclusion case and with a foreign conviction. The general rule, enunciated above, applicable in deportation cases, finds some relaxation in exclusion cases (see Bridges v. Wixon, 326 U.S. 154 (1945); U.S. ex rel. Ng Kee Wong v. Corsi, 65 F. (2d) 564, C.C.A. 2d).
A record of conviction in a foreign country, of course, is conclusive evidence of conviction of crime ( U.S. ex rel. Mylius v. Uhl, supra; 39 Op. Atty. Gen. 95, 215). And a certificate from a court of alien's native country (Italy) showing that he was convicted of rape has been held sufficient to sustain a finding that he was convicted of an offense involving moral turpitude ( Siniscalchi v. Thomas, 195 Fed. 701, C.C.A. 6th, 1912). However, a communication from a foreign police official relating to a particular crime, introduced in evidence, and identified by the alien as relating to him, has been held to constitute a valid admission of that crime ( Matter of B----, 6216204, April 4, 1946). And where the only evidence is an alien's admission of the commission of a crime, whether in this country or abroad, such testimony is sufficient upon which to base a determination for exclusion from admission to the United States ( U.S. ex rel. Rosen v. Williams, 200 F. 538, C.C.A. 2d, 1912; U.S. v. Williams, 203 F. 155, D.C.S.D.N.Y., 1913).
For example, in the Matter of T----, 56156/249 (1944) (2, I. N. Dec. 22), which involved a conviction for theft in Canada, it was held that the general rule applicable to convictions for crime in the United States did not preclude consideration of matters aliunde, or alien's admission, where the offense under the foreign statute was not known by that name under our laws. To the same effect see Matter of W----, 5-956502 (1946).
Thus we hold that it is proper to consider the communication from the Royal Canadian Mounted Police, and the appellant's own testimony, that he was convicted in that country of indecent assault, to justify a finding that he is also inadmissible as one who has been convicted of and admits the commission of an offense involving moral turpitude, to wit: indecent assault. We, of course, hold that the offense is one involving moral turpitude, and this is justified even though the statute is broad, since it is clearly divisible, and the evidence, consisting of the communication in question, supplemented by alien's testimony, clearly establishes that his offense involved an indecent assault upon a female. It will be recalled that the alien testified that he had originally been charged with rape. Our position, as shown, does not compromise the ruling in the Zaffarano case, since here, to repeat, we are dealing with an exclusion case involving a crime committed in a foreign country.
Upon consideration of the entire record, the findings of fact and conclusions of law proposed by the Commissioner are adopted, except that conclusions of law (1) and (2) are amended by deleting the word "not" between the words "is" and "inadmissible."
Order: The excluding decision of the Board of Special Inquiry is affirmed.