T-2739931
Decided by the Board July 10, 1953
Juvenile delinquencies — Effect of Immigration and Nationality Act on previous administrative holdings that they are not crimes involving moral turpitude — Applicability of section 212 (a) (9) of the Immigration and Nationality Act to juvenile delinquents.
(1) The Immigration and Nationality Act makes no change in previous administrative holdings that juvenile delinquencies are not considered to be crimes within the meaning of the immigration laws.
(2) Section 212 (a) (9) of the Immigration and Nationality Act applies to persons under 18 years of age who have been convicted as criminals rather than as juvenile offenders.
EXCLUDABLE:
Not excludable under section 212 (a) (9) — Admits commission of crime involving moral turpitude: Theft.
BEFORE THE BOARD
Discussion: The case comes forward on appeal filed by the officer in charge, Calexico, Calif., under section 236 (b) of the Immigration and Nationality Act and 8 C.F.R. 236.16 from the decision dated January 27, 1953, of the special inquiry officer finding the applicant not inadmissible as one who admits the commission of a crime involving moral turpitude, to wit: Theft.
The record relates to a native and citizen of Mexico, male, single, born July 12, 1932, who seeks admission to the United States for permanent residence. He is in possession of a valid unexpired passport and immigrant visa. He was previously under the mistaken impression that he was a citizen of the United States through his mother and had resided in this country since May 29, 1935, until August 1950 when he departed for the purpose of adjusting his immigration status.
The evidence establishes and the applicant admits that on April 9, 1949, when he was under 17 years of age, the applicant and two other minors stole approximately two cases of beer from a warehouse. The applicant was given a hearing before a judge who found him to be a juvenile under 18 years of age at the time of the commission of the offense and the case was thereafter handled by the county probation officer, county of Imperial, El Centro, Calif. The report of the probation officer indicates that the applicant was not tried or convicted of any crime but was charged as a juvenile delinquent; that on April 22, 1949, he was placed on probation to his parents; restitution to the amount of $2, his share of the beer stolen was made, and on June 23, 1950, the case was dismissed.
Under the previous Immigration Act of February 5, 1917, relating to persons who have been convicted of or admit having committed a felony or other crime or misdemeanor involving moral turpitude it was well established that juvenile delinquency was not considered to be a crime within the meaning of sections 3 and 19 of the Immigration Act of February 5, 1917, as amended. Matter of F----, A-6194022, 2 IN Dec. 517, 518 (B.I.A., 1946). It appears that the American consul at Mexicali, Mexico, was fully aware of the offense the applicant had committed, inasmuch as a copy of the report of the probation officer appears in the visa file, but nonetheless found the applicant admissible and issued him an immigrant visa. The special inquiry officer indicates that a more detailed exposition appears warranted in deference to the specific mention made of juveniles by section 212 (a) (9) of the Immigration and Nationality Act which might be construed to comprise juvenile delinquents within its proscription because the provisions of said section provide for the admission of some juveniles and by inference other juvenile criminal offenders might be inadmissible.
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., 1943); Matter of E----, 56041/272 (B.I.A., 1944; Atty. Gen. April 14, 1944).
It is believed that the special inquiry officer, who correctly concluded that the applicant was not inadmissible, was needlessly apprehensive on this point. At the outset, it is to be noted that the particular section does not in fact refer to juveniles or to juenvile delinquents. Section 212 (a) (9) of the Immigration and Nationality Act 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; * * *.
The purpose of this provision forgiving the commission of a crime committed while under the age of 18 years under certain circumstances is disclosed by reference to the legislative history of this section. Thus the report of the Committee of the Judiciary pursuant to Senate Resolution 137 states that the subcommittee recommends that the exclusion provision (conviction of a crime involving moral turpitude or admission of acts constituting essential elements of such a crime, or admissions tantamount to a confession of such a crime) be made inapplicable to an alien who committed only one such crime while under 18 years of age if the crime occurred more than 5 years prior to the date of application for visa or if the crime resulted in confinement in a prison or correctional institution and such alien was released from confinment more than 5 years prior to the date of application for a visa. Later congressional comments also indicated that the bill excepted from the excludable class "aliens who have committed only one such crime while under the age of 18 years" under special circumstances.
H. Rept. No. 1365 (82d Cong., 1st sess.), p. 48; S. Rept. 1137 (82d Cong., 2d sess.), p. 9.
This provision in section 212 (a) (9) refers to crimes committed while under the age of 18 years. It is, of course, well recognized that a juvenile delinquency is not a crime. In a case involving similar circumstances relating to the admission of the commission of a crime where the California juvenile court law provided that the juvenile court had jurisdiction of persons under 18, it was held that respondent could have been found guilty in such a proceeding only of a juvenile delinquency and not of a crime, and he was therefore not subject to proceedings.
Matter of O'N----, 55813/162 2 IN Dec. 319 (A.G., 1945).
Matter of A----, 56038/313 (B.I.A., Aug. 7, 1943).
We therefore read the provisions of section 212 (a) (9) relating to the commission of crimes while under the age of 18 years in the plain and unambiguous sense in which the words appear; namely, that this language refers not to juvenile delinquencies but to those cases in which persons under 18 years of age have been tried and convicted as criminals rather than as juvenile offenders. In the cases of persons under 18 years of age who have been convicted as criminals, the provisions of section 212 (a) (9) would apply. But as to persons who have been found to be juveniles and have been treated as juvenile offenders in the disposition of their cases, we find that this provision has no application. We hold that this provision therefore makes no change in the previous administrative holdings that juvenile delinquencies are not considered to be crimes within the meaning of the immigration laws and charges relating to the conviction of or the admission of the commission of crimes are inapplicable in such cases. The appeal will therefore be dismissed.
Order: It is ordered that the appeal be and the same is hereby dismissed and that the applicant be admitted for permanent residence.