A-20871632
Decided by Board September 24, 1980
(1) Denial of a request for change of venue to permit presentation of expert witness testimony not error where there has been no showing of prejudice by affidavit or offer of proof to establish the witness' identity, qualifications, and proposed testimony.
(2) A foreign document to be admissible requires both a certification by a foreign official having legal custody of the document, as to its accuracy, and a certification by a United States Foreign Service officer stationed in the foreign country, as to the genuineness of the signature and official position of the certifying foreign official. See 8 C.F.R. 287.6.
(3) Failure to certify a foreign record of conviction under 8 C.F.R. 287.6 will not require setting aside the immigration judge's finding that alien was convicted where the alien has not repudiated his sworn admissions that he was so convicted nor challenged the accuracy of the facts contained in the foreign record of conviction.
(4) Prejudgment by the immigration judge is not established absent a showing that the alien was refused the opportunity to present evidence or that the immigration judge declined to consider the evidence presented.
(5) A conviction to defraud the public of money or valuable security under section 338(1) of the Canadian Criminal Code, which requires proof of intent to defraud as a necessary element of the offense, is a crime involving moral turpitude.
(6) A conspiracy to commit an offense involves moral turpitude when the underlying substantive offense is a crime involving moral turpitude.
(7) Alien's conviction of conspiracy to commit a crime involving moral turpitude established deportability under section 241(a)(1) of the Immigration and Nationality Act, 8 U.S.C. 1251(a)(1), as alien excludable at time of entry under section 212(a)(9) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(9).
CHARGE:
Order: Act of 1952 — Sec. 241(a)(1) [ 8 U.S.C. 1251(a)(1)] — Excludable at entry under sec. 212(a)(9) — Convicted of a crime involving moral turpitude
ON BEHALF OF RESPONDENT: Ira J. Kurzban, Esquire, 444 Brickell Avenue, Suite 1011, Miami, Florida 33131
BY: Milhollan, Chairman; Maniatis, Appleman, and Maguire, Board Members
In a decision dated May 18, 1978, an immigration judge found the respondent deportable under section 241(a)(1) of the Immigration and Nationality Act, 8 U.S.C. 1251(a)(1), as an alien excludable at the time of entry, having been convicted of a crime involving moral turpitude under section 212(a)(9) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(9). The respondent has appealed. The appeal will be dismissed.
The respondent is a 44-year-old native and citizen of Canada who last entered the United States at Lewiston, New York, on December 21, 1977, as a nonimmigrant visitor. At a deportation proceeding on February 6, 1978, in which the respondent was represented by an attorney, he denied the truth of the factual allegations contained in the Order to Show Cause, denied deportability, and designated Canada as the country of deportation.
On appeal, the respondent through counsel, submits that it was error for the immigration judge to deny his request for change of venue, to admit a foreign record of conviction not properly certified, to refuse to withdraw from deciding the case, and that a conviction for conspiracy to violate section 338(1) of the Canadian Criminal Code does not involve moral turpitude. Respondent further submits that the immigration judge's finding of deportability was error and that the proceedings should be terminated.
Prior to the deportation hearing, respondent sought a change of venue from Buffalo, New York, to Miami, Florida. Respondent stated that he wanted to present expert witness testimony on the issue of moral turpitude and that he was not able to produce the witness in New York. The request was denied. The respondent renewed the request during the hearing, and it was again denied. Neither the witness' identity nor his qualifications were presented to the immigration judge. Respondent made no attempt to submit an offer of proof related to the witness' testimony and qualifications, or to state his opinion by way of an affidavit. The respondent has at no time stated that his witness would have concluded that section 338(1) did not involve a crime of moral turpitude. There has been no showing of prejudice. We find no error in the denial of the respondent's request for change of venue.
During oral argument before this Board, the witness was only identified as a criminal law professor from the University of Miami.
The immigration judge found that the respondent had been convicted on March 5, 1976, of conspiracy to defraud the public of money or valuable security contrary to sections 423(1)(d) and 338(1) of the Canadian Criminal Code (1970). He based his finding on respondent's sworn statement (Form I-263B) (Exhibit 2) and the certificate of conviction certified as a true copy by the Clerk of the Provincial Court of Ontario (Exhibit 3). Respondent submits that as a foreign document, the certificate of conviction was not properly certified. We agree. See Matter of Nand, 13 I N. Dec. 336 (BIA 1969); 8 C.F.R. 287.6. We conclude, however, that failure to properly certify the certificate of conviction does not justify setting aside the immigration judge's finding that respondent was so convicted. He has not repudiated his sworn admissions that he was convicted in Canada of conspiracy to defraud the public. Nor has he challenged the accuracy of the facts contained in the record of conviction. The immigration judge's finding that the respondent was convicted of conspiracy to defraud the public will not be disturbed.
The respondent next argues that the immigration judge had in a previous case found the offense for which he was convicted to involve moral turpitude. He states that the immigration judge indicated that he was inclined to follow prior precedent decisions of this Board related to the issue of moral turpitude. The respondent concludes that these facts establish prejudgment by the immigration judge. Prejudgement is not established by these facts. There has been no showing that the respondent was refused the opportunity to present evidence or that the immigration judge declined to consider the evidence presented. He, in fact, granted respondent's request for an adjournment and withheld his final decision to permit respondent's counsel an opportunity to submit a brief on the issue of moral turpitude.
The record reflects that the respondent was convicted on March 5, 1976, Toronto, Ontario, Canada, of conspiracy to defraud the public of money or valuable security contrary to sections 423(1)(d) and 338(1) of the Canadian Criminal Code. These sections provide in relevant part:
423(1) Except where otherwise expressly provided by law, the following provisions apply in respect conspiracy, namely,
. . .
(d) every one who conspires with anyone to commit an indictable offense not provided for in paragraph (a), (b) or (c) is guilty of an indictable offence and is liable to the same punishment as that to which an accused who is guilty of that offence would upon conviction, be liable. 1953-54, c. 51, s. 408.
A conviction of conspiracy to violate the provisions of section 338(1) is not within paragraphs (a), (b), or (c) of section 423(1).
338.(1) Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, defrauds the public or any person, whether as certained or not, of any property, money or valuable security,
(a) is guilty of an indictable offence and is liable to imprisonment for ten years, where the subject-matter of the fraud is a testamentary instrument or where the value thereof exceeds two hundred dollars; or (b) is guilty
(i) of an indictable offence and is liable to imprisonment for two years, or
(ii) of an offence punishable on summary conviction, where the value of the property of which the public or any person is defrauded does not exceed two hundred dollars. 1974 75-76, c. 93, s. 32.
(2) Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, with intent to defraud, affects the public market price of stocks, shares, merchandise or anything that is offered for sale to the public, is guilty of an indictable offence and is liable to imprisonment for ten years. 1953-54, c. 51, s. 323.
The immigration judge found the respondent's conviction was for a crime involving moral turpitude. Respondent argues that a conviction under section 338(1) does not necessarily require proof of criminal intent or intent to defraud and is therefore not a crime involving moral turpitude. He points to the language of section 338(1), not requiring "false pretence" as a necessary element of the offence, and the inclusion of "intent to defraud" as a necessary element in sections 338(2) and 319(1) (the crime of false pretence) to support his position. He also cites several Canadian judicial decisions, suggesting that they demonstrate criminal intent or intent to defraud is not required for a conviction under section 338(1).
Section 319(1) provides in relevant part:
319.(1) A false pretence is a representation of a matter of fact either present or past, made by words or otherwise, that is known by the person who makes it to be false and that is made with a fraudulent intent to induce the person to whom it is made to act upon it. 1953-54, c. 51, s. 303.
Fraud has, as a general rule, been held to involve moral turpitude, Jordan v. DeGeorge, 341 U.S. 223 (1951) (defrauding the United States of taxes on distilled spirits); Mercer v. Lence, 96 F.2d 122 (10 Cir. 1938) (defrauding a person of a large sum of money); U.S. ex rel. Berlandi v. Reimer, 30 F.Supp. 767 (S.D.N.Y. 1939), aff'd, 113 F.2d 429 (2 Cir. 1940) (defrauding the United States of taxes on distilled spirits); U.S. ex rel. Amato v. Commissioner of Immigration, Ellis Island, New York Harbor, 18 F.Supp. 480 (S.D.N.Y. 1937) (petty larceny); U.S. ex rel. Portada v. Day, 16 F.2d 328 (S.D.N.Y. 1926) (issuing of checks without sufficient funds, with intent to defraud); Ponzi v. Ward, 7 F.Supp. 736 (D.Mass. 1934) (use of the mails to defraud); Matter of Flores, Interim Decision 2752 (BIA 1980) (uttering and selling false or counterfeit paper relating to registry of aliens); Matter of McNaughton, 16 I N. Dec. 569 (BIA 1978) (fraudulently affecting public market price of stocks); Matter of Martinez, I N Dec. 336 (BIA 1977) (passing counterfeit money); Matter of P----, 3 I N. Dec. 56 (CO 1947; BIA 1948) (obtaining money by false pretenses); Matter of F----, 2 I N. Dec. 754 (CO 1946; BIA 1947) (defrauding the government of customs duties). From these cases it can be seen that whenever a crime has involved intent to defraud, it has been found to involve moral turpitude. The Court in DeGeorge, supra, stated:
In view of these decisions, it can be concluded that fraud has consistently been regarded as such a contaminating component in any crime that American courts have, without exception, included such crimes within the scope of moral turpitude.
Whatever else the phrase "crime involving moral turpitude" may mean in peripheral cases, the decided cases make it plain that crimes in which fraud was an ingredient have always been regarded as involving moral turpitude. . . . Fraud is the touchstone by which this case should be judged. The phrase "crime involving moral turpitude" has without exception been construed to embrance fraudulent conduct.
Intent to defraud is a required element to obtain a conviction under section 338(1). Regina v. Zaritec Industries Ltd. And 3 Others, 24 C.C.C.(2d) 180 (Alberta Supreme Court 1975). The term "defraud" means deliberate dishonest acts resulting in the deprivation or loss of another's proprietary right. Regina v. Olan, Hudson and Hartnett, 41 C.C.C.(2d) 145 (Supreme Court of Canada 1978).
The respondent was convicted of a conspiracy (section 423(1)(d)) to defraud the public (section 338(1)). A conspiracy to commit an offense involves moral turpitude when the underlying substantive offense is a crime involving moral turpitude. See Jordan v. DeGeorge, supra; Matter of Flores, supra; Matter of McNaughton, supra; Matter of M----, 8 I N. Dec. 535 (BIA 1960); Matter of C----, 7 I N. Dec. 114 (BIA 1956); Matter of S----, 2 I N Dec. 225 (BIA 1944).
We conclude that a conviction under section 338(1) is for a crime involving moral turpitude and that respondent's conviction for conspiracy to violate section 338(1) involves a crime of moral turpitude under the above authority. We further conclude that respondent's deportability under section 241(a)(1) of the Act has been established by clear, convincing, and unequivocal evidence.
The decision of the immigration judge was correct. Accordingly, the appeal will be dismissed.
ORDER: The appeal is dismissed.