56048/653
Decided by the Board March 4, 1941. Approved by the Attorney General March 11, 1941.
Conviction of crime involving moral turpitude — Fraud — Foreign crime — Germany.
Although attempted fraud in violation of section 263 of the Criminal Code of the German Reich, as amended, involves moral turpitude, and although evidence to show the circumstances under which the crime was committed may not be considered when the alien has been convicted, exclusion under section 3 of the Immigration Act of 1917 will not be predicated on such conviction when the record reflects that the alien was convicted primarily because of political considerations, viz, that he was a Jew.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1917 — Convicted of crime — fraud (husband), likely to become a public charge (wife).
Mr. Louis E. Spiegler, of Washington, D.C., for the appellants.
BEFORE THE BOARD
STATEMENT OF THE CASE: The appellants arrived at the port of New York on November 19, 1940, on the S.S. Samaria, and applied for admission as quota immigrants. A board of special inquiry found them inadmissible under section 3, act of 1917, and excluded them on the grounds stated above. They appealed from this section with the result that on November 28, 1940, the case was ordered reopened by the board of special inquiry for the introduction of additional evidence relating to the male alien's conviction in Germany. On January 15, 1941, the case was reconsidered, and the port was instructed to introduce certain evidence at the reopened hearing. The record of the reopened hearing has now been received, and counsel above mentioned has again been heard. The aliens were reexcluded by the board of special inquiry on the same grounds.
Requests for the release of these aliens on parole under bond pending final disposition have been denied, and the aliens have been held at Ellis Island since arrival.
DISCUSSION: The appellants are a husband, aged 37 years, and his wife, aged 26 years. They testify that they are natives of Germany, of Hebrew race; that they have no nationality; that they have never been in the United States. On arrival they presented valid official documents in the nature of passports and valid quota immigration visas.
The husband's exclusion arises from the fact that he testified before the board of special inquiry that he had been convicted of attempted fraud in Germany in 1935. The wife's exclusion was predicated on a possibility that she would become a public charge in the United States if the husband, on whom she is dependent, were excluded and deported.
The husband has admitted that he was convicted in 1935 in Frank-ford-on-the-Main, Germany, of attempted fraud and was sentenced to imprisonment for 3 months; that he entered an appeal and then left Germany. In reply to a question he had the following to say, "I was falsely accused that I used a railroad ticket twice. This was one of the trumped-up Nazi charges."
The appellant professed inability to identify the section of the German Criminal Code under which convicted. However, he identified as truthful an affidavit introduced into evidence as Alien's Exhibit A. This affidavit was executed by Hugh J. Stern, a resident of New York City, on December 7, 1940. In this affidavit Stern sets forth that he was attorney for Mr. B---- in the penal courts in Germany in 1935-36. The affiant states that B---- was found guilty of attempted fraud (sec. 263 of the German Criminal Code) and sentenced to a term of imprisonment of 3 months. The affidavit contains no information as to the outcome of the appeal. Stern expresses an opinion that B---- was convicted only because he was a Jew.
There was introduced into evidence a translation from the German language into the English language of section 263 of the German Criminal Code made by a German interpreter employed by the Immigration and Naturalization Service at Ellis Island. Section 263 defines fraud and attempted fraud and provides for the punishment of these acts. It is as follows:
Criminal Code of the German Reich as of May 15, 1871. — Paragraph 4 of section 263 is an amendment as of May 26, 1933.
SECTION 263
1. Whoever, with the intent to procure an unlawful material benefit for himself or for another person, causes and maintains an error by false pretenses, by misrepresentation or by suppression of true facts, thereby causes detriment to the property of a third person, shall be punished for fraud by imprisonment, or concurrently with a fine and loss of citizenship rights and privileges.
2. In case of extenuating circumstances, only a fine may be imposed.
3. An attempt at fraud is punishable.
4. In particularly serious cases instead of imprisonment, a term not exceeding 10 years, in penitentiary may be imposed. A particularly serious case exists when the act has injured public welfare, or has caused exceedingly great damage, or if a person has acted with extraordinary cunning.
5. If fraud is committed against relatives, guardians, or educators, action shall be taken only at the request of the person who has sustained damage. Such a request may be withdrawn.
No. 43
If a person intends to commit a crime or misdemeanor, and his act constitutes only the beginning of a crime or misdemeanor, and if the intended crime or misdemeanor was not completed, he is punishable for an attempt only.
The essence of this offense is fraud. Crimes involving fraud have been held to involve moral turpitude. ( Mercer v. Lence, 96 F. 2d 122; United States ex rel. Medich v. Burmaster, 24 F. 2d 57.)
The appellant in fact claims that he was guilty of no wrongdoing. It appears that he asked to be recompensated for a ticket which he claims he had not used, but which on close examination bore a defacement stamp. The story related by the appellant and that told by Hugh J. Stern, his counsel at the trial in Germany, would question the correctness of the conviction. This, however, is not a matter that may be inquired into. We are bound by a record of conviction ( United States ex rel. Meyer v. Day, 54 F. 2d 336).
Furthermore, in determining whether the crime is one involving moral turpitude, we are precluded from considering evidence offered at this time to show the circumstances under which the crime was committed, but are bound by the record of conviction ( United States ex rel. Zaffarano v. Corsi, 63 F. 2d 757).
From the testimony of the appellant and from the testimony of his counsel, Mr. Stern, the conclusion is warranted that a conviction was had in this case primarily because the appellant was a Jew. It is, of course, a matter of common knowledge of which we may take judicial notice that the German Government has discriminated against Jews as a race and as a matter of expressed political philosophy. This tenet of political belief on the part of the German Government extended back to 1935, the year in which the conviction in question occurred.
In 39 Op. Atty. Gen. 59, Attorney General Cummings had occasion to consider whether an alien who knowingly made a false statement in an affirmation concerning the amount of money in his possession which is punishable under article 156 of the German Criminal Code [committed a crime that] involved moral turpitude. Section 156 of the German Criminal Code reads as follows:
Any person who knowingly makes a false affirmation before an official competent to take a solemn affirmation, or knowingly gives false testimony invoking such an affirmation shall be punished by imprisonment for from 1 month to 3 years.
Attorney General Cummings concluded that because of political conditions existing in Germany, the crime did not involve moral turpitude and in the course of his opinion stated:
However, in view of the claim made in this case that the crime was political in nature or had political aspects, the question whether in its essence it is one debarring the alien from entry, is a question which if presented to a court in the United States would in my opinion require consideration in the light of the present-day situation in Germany. I do not think that the case should be divorced from the realities of the world or that opinions rendered heretofore in this country dealing with the moral qualities of crimes of which persons have been convicted by foreign tribunals in tranquil times should be followed in the letter to conclusions antagonistic to the spirit of our immigration law and foreign to the intent of the Congress in passing it.
The case before us is somewhat different from that considered by Attorney General Cummings in that here we are dealing with a routine fraud case while Attorney General Cummings was considering perjury in relation to a violation of an economic decree of the German Government. However, we believe that from a realistic viewpoint in this case, as in the case considered by Attorney General Cummings, conviction occurred primarily because of political considerations, to wit: the fact that the defendant was a Jew.
It is, therefore, the conclusion of the Board of Immigration Appeals that based on the reasoning of the Attorney General's opinion above cited, in this case, the crime should be held to be one not involving moral turpitude. Except for this conviction, J---- B---- is entitled to admission. His wife was excluded as one likely to become a public charge, predicated solely on the fact that her husband had been found inadmissible. The finding we have made in his case removes the ground of inadmissibility in relation to the wife. Although we believe that admission in this case is the proper action, the case does involve the extension of a new principle in immigration cases, and we therefore feel that it should be presented to the Attorney General for his consideration.
FINDING OF FACTS: Upon the basis of all the evidence produced at the hearing, it is found:
(1) That the appellants are aliens, natives of Germany and stateless;
(2) That the appellants are of the Hebrew race;
(3) That the appellant, J---- B----, was convicted of attempted fraud, to wit: violation of section 263 of the German Criminal Code;
(4) The fact that J---- B---- was a Jew was a material element resulting in his conviction for the aforementioned crime;
(5) That L---- I---- B---- is not likely to become a public charge.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 3 of the Act of February 5, 1917, J---- B---- is not inadmissible to the United States on the ground that he has been convicted of a felony or other crime or misdemeanor involving moral turpitude, to wit: violation of section 263 of the German Criminal Code;
(2) That under section 3 of the Act of February 5, 1917, L---- I---- B---- is not inadmissible as a person likely to became a public charge.
OTHER FACTORS: There are no other factors.
ORDER: It is ordered that the appeal be sustained and appellants admitted for permanent residence.
The foregoing decision and order of the Board were approved by the Attorney General.