A-5595280
Commissioner's Motion January 16, 1953 Decided by the Board October 12, 1953
Crime involving moral turpitude — Contributing to the delinquency of a minor, Oregon — Record of conviction — Used to determine moral turpitude where conviction is had under divisible statute.
(1) The crime of contributing to the delinquency of a minor in violation of Title 23, chapter 10, article 3, section 1034 of the General Laws of the State of Oregon may or may not involve moral turpitude.
(2) The term "Immoral conduct" contained in section 603 of title 93 of the General Laws of the State of Oregon is broad enough to encompass acts which do or do not involve moral turpitude.
(3) Where there is a broad divisible statute which may or may not involve moral turpitude, the determination as to whether the offense involves moral turpitude is based on the record of conviction which includes the charge (complaint, information or indictment), plea, verdict and sentence. When the record of conviction, as in this case, clearly shows lewd and lascivious acts involved in the commission of the crime, the particular offense involves moral turpitude.
CHARGE:
Warrant: Act of 1917 — Sentenced more than once for crimes involving moral turpitude, to wit: Assault with a dangerous weapon and contributing to the delinquency of a minor.
BEFORE THE CENTRAL OFFICE
(January 16, 1953)
MOTION TO THE BOARD OF IMMIGRATION APPEALS
Discussion: On September 3, 1952, an order was entered by the Board of Immigration Appeals, terminating the proceedings in this case, based on the conclusion that one of the crimes, namely, contributing to the delinquency of a minor, forming the basis of the charge shown above, was not an offense involving moral turpitude.
The sole issue involved in this case is whether the offense of contributing to the delinquency of a minor child, committed by respondent in the State of Oregon, is one involving moral turpitude. The Service is of the opinion that it does involve moral turpitude and, consequently, that respondent is deportable on the charge shown above.
Respondent is a 63-year-old married male, native and citizen of Italy, who has resided continuously in the United States since his admission for permanent residence at New York, N.Y. on June 14, 1913. On August 11, 1934, he was sentenced to imprisonment in the Oregon State Penitentiary for an indeterminate period of time not to exceed two years as a result of his conviction of the offense of assault with a dangerous weapon, committed on February 4, 1933. On June 6, 1951, he was sentenced to a term of imprisonment in the Oregon State Penitentiary for a period of time not to exceed five years, for the offense of contributing to the delinquency of a minor committed on February 28, 1951.
The information under which the respondent was convicted for contributing to the delinquency of a minor reads as follows:
The said F---- C---- then and there wilfully and C---- J---- being an unmarried female under the age of 18 years, the said F---- C---- did then and there unlawfully and feloniously do an act, to wit: did then and there play with the sexual organs with his hands and rub his sexual organs against the sexual organs of the said C---- J----, which said act did manifestly then and there tend to cause the said C---- J---- to become a delinquent child.
Under the provisions of title 23, ch. 10, article 3, section 1034 of the General Laws of the State of Oregon, causing or contributing to the delinquency of a child is defined as follows:
In all cases where a child shall be a delinquent child as defined by any statute of this State, any person responsible for, or by any act encouraging, causing or contributing to the delinquency of such child, or any person who shall by threats, command or persuasion, endeavor to induce any child to do or perform any act or follow any course of conduct which would cause such child to become a delinquent child (or any person who shall do any act which manifestly tends to cause any child to become a delinquent child), shall be guilty of a crime and, upon trial and conviction thereof shall be punished by a fine of not more than $1,000, or by imprisonment in the county jail for a period of not exceeding one year, or by both such fine and imprisonment, or by imprisonment in the State penitentiary for a period not exceeding 5 years.
Under the provisions of section 603 of title 93 of the General Laws of the State of Oregon, delinquency of a minor child is in part defined as follows:
Persons of either sex under the age of 18 years who violate laws of the State, or any city or village ordinance; or are guilty of immoral conduct; * * * are hereby classified as delinquent children and shall be subject to the legal relations and provisions of the juvenile court law and other laws for the care and control of delinquent * * *.
There are no published decisions relating to the offense of contributing to the delinquency of a minor in the State of Oregon insofar as this crime pertains to immigration matters. However, the offense has been construed under statutes of other States in various immigration cases: Washington, Matter of P---- A-3748813, 2 IN Dec. 117 (B.I.A., 1944); California, Matter of V---- T----, A-596331, 2 IN Dec. 213 (B.I.A., 1944), Matter of C----, 56094/542, 2 IN Dec. 220 (Atty. Gen., 1944), Matter of P----, A-4915916, 3 IN Dec. 290 (B.I.A., 1949), and Matter of R---- P----, A-4386040, 4 IN Dec. 607 (B.I.A., 1952). In the latter Matter of P----, reference is also made to this offense under the laws of Michigan and Illinois. In the cited cases, it was concluded that the statutes involved were extremely broad in scope, including offenses which might or might not involve moral turpitude and that it was therefore, necessary to examine the information or indictment in each situation to determine whether the particular offense committed by the individual was one involving moral turpitude. Thus, the Board in construing a series of cases involving the crime of contributing to the delinquency of a minor, has established the rule that the turpitudinous nature of the offense is to be determined by an examination of the information or indictment of record.
In the instant case, the Board of Immigration Appeals in its decision of September 3, 1952, stated that the respective definitions in section 1034 of title 23 and section 603 of title 93 of the General Laws of the State of Oregon were broad enough to include acts which did and which did not involve moral turpitude. It was further stated that the statute must be taken at its minimum and, consequently, that the issue was confined to the question of whether any person who should do any act which manifestly tended to cause any child under 18 years of age to be guilty of immoral conduct had committed a crime necessarily involving moral turpitude. The decision by the Board makes no mention of any cases decided in the State of Oregon wherein the phrase "immoral conduct" has been construed. The Board does suggest that the term "immoral" may include all acts contrary to moral law, for example, as lying or as one's manner of dressing. However, we have been unable to find any decisions in Oregon to indicate that convictions for contributing to the delinquency of a minor have been predicated upon such conduct on the part of a child. Furthermore, it should be noted that, following the views expressed by the Board in the order of September 3, 1952, the crime of contributing to the delinquency of a minor in the State of Oregon could never be regarded as an offense involving moral turpitude, even if the conduct charged in the information or indictment were of the most vile, depraved or base nature.
The word "immoral" has been variously defined as "inconsistent with rectitude, purity, or good morals; contrary to conscience or moral law; wicked; vicious; licentious" (Webster's New International Dictionary, 2d Ed.), "contrary to good morals; inconsistent with the rules and principles of morality" (Black's Law Dictionary, 3d Ed.).
In the State of Louisiana it has been held that a statute relating to contributing to the delinquency of a juvenile which was defined as causing such juvenile to "perform any immoral act" was unconstitutional because the word "immoral" was so vague, indefinite and uncertain that a person sought to be accountable would not know whether his conduct was such that it fell within the purview of the statutory prohibition ( State v. Vallery, 212 La. 1095, 34 So.2d 329 (1948); State v. Truby, 211 La. 178, 29 So.2d 758 (1947)).
It might be argued that following some of these definitions and considering the offense of contributing to the delinquency of a minor at its minimum, moral turpitude would not be inherent in commission of the crime. However, in construing the Oregon statute involved in the instant case, we should be guided by the decisions of the courts in the State of Oregon and should not be bound by the decisions of the courts in other States. Nor should we be bound by the published decisions relating to the offense of contributing to the delinquency of a minor, as construed in immigration cases in jurisdictions other than the State of Oregon.
The decisions of the courts of the State of Oregon construing the provisions of law involved herein are few in number and we have been unable to find any cases giving precise definitions of the term "immoral conduct." However, in the case of State v. Stone, 111 Ore. 227, 226 P. 430 (1924), the Supreme Court of Oregon held that, in a prosecution for contributing to a child's delinquency, instructions by the judge to the jury telling them as a matter of law that the acts of the defendant did tend to contribute to a child's delinquency constituted reversible error. The Supreme Court of that State stated:
In view of the diverse factors that enter into such cases, it becomes a question of fact to be left to the jury, as safely it may be, to determine from all the circumstances of the case as disclosed by the testimony whether the act charged in the indictment as a fact to be proved, has the tendency condemned by the statute. The challenged instruction was a palpable invasion of the province of the jury. No judge ought to allow his outraged sense of decency as a man to carry him into the jury box. Even extreme cases do not justify judicial interference with the legitimate functions of the 12 jurors to whom as the tribunal peculiarly of the people our system of government has committed the decision of questions of fact.
It appears therefore, that in Oregon whether or not the acts committed by a defendant charged with the crime of contributing to the delinquency of a minor are such as to warrant a conviction under the statute is a matter to be decided by the jury. Consequently, each case must be determined under its individual circumstances. We cannot and should not speculate as to what is "minimum" conduct under the Oregon statute in order to determine whether moral turpitude attaches. Moreover, it should not be assumed that an individual can be convicted under the Oregon statute because of his conduct in causing a child to lie or to dress in a particular manner. The proper test seems to us to be this: that we must look to the information of record to determine whether the particular offense involves moral obloquy. In other words: does the respondent's offense as set forth in the information, evince an act of baseness, depravity, or vileness so as to warrant a conclusion that moral turpitude is involved?
The Board itself views "with abhorrence the offence committed by the respondent," and we believe it is incontestable that the respondent's conduct outrages the public sense of morals and decency. Consequently, it must be concluded that the offense committed by respondent was one involving moral turpitude and he is properly deportable on the charge stated in the warrant of arrest.
Motion is hereby made that the Board of Immigration Appeals reconsider and withdraw its order of September 3, 1952, and enter an order affirming the decision of this Service dated March 19, 1952, for the deportation of respondent pursuant to law on the charge stated in the warrant of arrest.
(October 12, 1953)
Discussion: The case comes before us on motion of the Assistant Commissioner requesting reconsideration and withdrawal of our order of September 3, 1952, in which we terminated proceedings, and further requesting the entry of an order finding the respondent deportable on the charge stated in the warrant of arrest.
The facts are fully set forth in our prior order of September 3, 1952, and in the motion filed by the Service. There is no quarrel with the first of the two crimes which form the ground of deportability. A controversy centers around the second conviction and sentence in the Circuit Court of the State of Oregon in Tillamook, Oreg., on June 6, 1951, of the crime of contributing to the delinquency of a minor, committed February 28, 1951, as a result of which respondent was sentenced to imprisonment for a term not to exceed 5 years.
Causing or contributing to the delinquency of a child is defined as a crime under the provisions of title 23, chapter 10, article 3, section 1034 of the General Laws of the State of Oregon and the provisions of this statute were set out in full in our previous order. Under section 603 of title 93 of the General Laws of the State of Oregon, delinquency of a minor child is defined in pertinent part as follows:
Persons of either sex under the age of 18 years who violate laws of the State, or any city or village ordinance; or are guilty of immoral conduct; * * * are hereby classified as delinquent children and shall be subject to the legal regulations and provisions of the juvenile court law and other laws for the care and control of delinquent * * *.
In considering these statutes covering the crime of contributing to the delinquency of a minor child in the state of Oregon, we concluded that the language contained therein was broad enough to include acts which did and acts which did not involve moral turpitude. We stated that an examination of the information filed on May 14, 1951, clearly showed the commission of certain lewd and lascivious acts which involve moral turpitude, yet the record of conviction merely stated that the respondent was convicted of the crime of contributing to the delinquency of a minor, and since the record of conviction did not indicate the applicable part of the statutory language, the crime could not be regarded as involving moral turpitude unless each degree or subdivision of the statute required an evil intent or depraved motive. We examined the statute, section 603, and found the applicable language came under "immoral conduct" proscribed in the statute. However, we stated that we must look to the statute, and under the statute every violation thereof must involve moral turpitude before it could be held that a violation of the statute necessarily involves moral turpitude. Since the term "immoral conduct" was broad enough to encompass acts which do and do not involve moral turpitude, we concluded that under applicable legal principles the crime did not involve moral turpitude, the proper test being whether contributing to the delinquency of a minor, accomplished by the least imaginable acts of encouragement, inducement, threats, commands or persuasion involved moral turpitude.
The Assistant Commissioner in his present motion disputes this conclusion and contends that under the precedents established by court and administrative holdings, the proper test in a case such as this is to look to the information of record to determine whether the particular offense involves moral obloquy; that is, to base a conclusion as to moral turpitude on whether the respondent's offense as set forth in the information evinces an act of baseness, depravity, or vileness. In support of its argument the Assistant Commissioner cites a number of administrative decisions involving similar contributing statutes in other states in which the statutes involved were extremely broad in scope, including offenses which did and did not involve moral turpitude, and pointed out that this Board in construing a series of these cases involving the crime of contributing to the delinquency of a minor, stated that the turpitudinous nature of the offense is to be determined by an examination of the information or indictment. In view of the representations made, we deem it appropriate to reconsider our position in this case.
Matter of P----, 2 IN Dec. 117 (B.I.A., 1944); Matter of C----, 2 IN Dec. 220 (Atty. Gen., 1944); Matter of P----, 3, P. N. Dec. 290 (B.I.A., 1949); Matter of R---- P----, 4 IN Dec. 607 (B.I.A., 1952).
Examining once more the record of conviction, we find that the information therein charges the respondent with the crime of contributing to the delinquency of a minor and specifically sets forth certain acts which without a doubt are lewd and lascivious in nature and in themselves involve moral turpitude. We rejected the use of the information as a test of moral turpitude relying upon United States ex rel. Mylius v. Uhl. Upon reexamination of the Mylius case, we note that the court reached the conclusion that the question as to moral turpitude must be determined from the judgment of conviction and not from the testimony adduced at the trial; and that the law must be determined upon broad general lines and if a crime does not in its essence involve moral turpitude, a person found guilty of such a crime cannot be excluded because he is shown, aliunde the record, to be a depraved person.
210 Fed. 860 (C.C.A. 2, 1914).
Upon closer scrutiny of the decision in United States ex rel. Mylius v. Uhl, ( supra), we are of the opinion while we cannot go to the evidence or testimony outside the record of conviction to determine moral turpitude, it is entirely proper to determine moral turpitude upon the record of conviction itself. Along this line particularly appropriate is the comment of the court in United States ex rel. Zaffarano v. Corsi, in denying a petition for rehearing. Commenting on its prior opinion in the case of United States ex rel. Robinson v. Day the court stated as follows:
63 F. (2d) 757 (C.C.A. 2, 1933).
51 F. (2d) 1022.
It was there [ United States ex rel. Robinson v. Day] said that the particular circumstances under which the crime was committed may not be considered, and that, "when by its definition it does not necessarily involve moral turpitude, the alien cannot be deported because in the particular instance his conduct was immoral." This language means that neither the immigration officials nor the court reviewing their decisions may go outside the record of conviction to determine whether in the particular instance the alien's conduct was immoral. And by the record of conviction we mean the charge (indictment), plea, verdict, and sentence. The evidence upon which the verdict was rendered may not be considered, nor may the guilt of the defendant be contradicted.
These judicial pronouncement appear to postulate the rule that in these broad divisible statutes which involve acts which do and acts which do not involve moral turpitude, while it is improper to go to testimony or evidence as to the nature of the particular act, it is entirely correct and eminently fitting to base a determination of moral turpitude upon the record of conviction, i.e., the complaint information or indictment, plea, verdict, and sentence. Indeed, we are precluded from going outside the record of conviction. Where the record of conviction is of no assistance in determining the moral obloquy of the crime, a finding of moral turpitude cannot be made. But, where, as in the instant case, the record of conviction clearly shows lewd and lascivious acts involved in the commission of a crime contained in a divisible statute, we are justified in basing thereon a conclusion that the crime involved moral turpitude. Accordingly, the motion will be granted.
Cf., Matter of S----, A-5530239, 2 IN Dec. 559, 570 (Atty. Gen., 1947).
Order: It is ordered that the motion be granted and the alien be deported pursuant to law on the charge stated in the warrant of arrest.