A-7645205
Decided by the Board August 1, 1952.
Crimes involving moral turpitude: Frustrated theft, Cuba — Crimes involving moral turpitude, Foreign: Cuba: Frustrated theft — Crimes: Effect of foreign amnesty — Pardon: Effect of foreign amnesty or pardon on deportability.
(1) The crime in Cuba of frustrated theft is an offense involving moral turpitude.
(2) An amnesty or pardon for crime committed abroad does not affect deportability on a criminal charge.
CHARGES:
Warrant: Act of 1924 — No immigration visa. Act of 1917 — Convicted of crime prior to entry: Frustrated theft.
BEFORE THE BOARD
Discussion: This case is before us on appeal from a decision of the Acting Assistant Commissioner dated February 1, 1952, directing the alien's deportation.
The respondent is a 43-year-old male, a native and citizen of Cuba, who last entered the United States on January 2, 1950, when he was admitted upon the presentation of a reentry permit. He was first admitted to the United States for permanent residence on December 11, 1944, at which time he was in possession of a nonquota immigration visa. The respondent, while serving in the armed forces of Cuba, was convicted by a general court-martial on November 17, 1938, of the offense of frustrated theft and a sentence of imprisonment of 6 months was imposed, which the respondent served.
Counsel, in his oral argument, contended that the respondent had been framed in connection with the offense of which he was convicted by court-martial; that this Board, under the circumstances, may look behind the record of conviction; and that the crime, if any, was wiped out by a Cuban amnesty law of December 21, 1938.
From the record of conviction, it appears that the respondent entered a bar during the absence of the owner, unlocked a cashbox and appropriated three 1-dollar bills. He was apprehended in the bar immediately after the commission of the offense. It is well settled that the crime of theft (or larceny) involves moral turpitude. It is also clear that where a particular crime involves moral turpitude, an attempt to commit such crime involves moral turpitude ( U.S. ex rel. Meyer v. Day, 54 F. (2d) 336 (C.C.A. 2, 1941)). In the respondent's case, there was an actual theft and not merely an attempted theft, and the use of the word "frustrated" adds only the additional factor that the respondent did not succeed in escaping but that the theft was thwarted by reason of his apprehension. We are satisfied, therefore, that the crime involves moral turpitude. We have previously held that the word "convicted" in section 19 (a) of the Immigration Act of 1917, as amended, includes a conviction by court-martial ( Matter of W----, 1 IN Dec. 485, June 22, 1943).
Art. 520 of the Cuban Penal Code of 1900 is translated as follows: "Persons are guilty of the offense of theft who, for purposes of profit, take possession of movable property of others by means of violence or intimidation of persons or using force on things."
The statements appearing in the record of conviction, which show that the respondent was apprehended immediately after he had appropriated the money, do not lend support to counsel's assertion that the respondent was framed. Even if we found some basis for believing that the respondent had been erroneously convicted, we would not be in a position to go behind the record of conviction for the purpose of determining his guilt or innocence.
With respect to the effect of the Cuban amnesty law of December 21, 1938, upon the respondent's case, we find it unnecessary to determine whether the words "amnesty" and "pardon" have precisely the same legal meaning. An amnesty is a pardon granted to all persons, in general, who have committed or been convicted of certain offenses. A pardon is granted to a specific individual covering a specific offense which he has committed. It would seem that an amnesty, pardoning a group of persons for various offenses, would have no greater effectiveness in obliterating a conviction than a specific pardon for the particular offense. In any event, we hold that, for immigration purposes, an amnesty has no greater effect than would a pardon issued to an alien covering a particular conviction. It is well settled that a foreign pardon is not effective to prevent deportation ( Mercer v. Lence, 96 F. (2d) 122 (C.C.A. 10, 1938) cert. den. 305 U.S. 611). We conclude, therefore, that the second charge stated in the warrant of arrest is sustained.
The first charge is that the respondent was not in possession of a valid immigration visa and that he was not exempted from presenting such document. The immigration visa which he presented at the time of his original admission on December 11, 1944, contained the statement that he had never been in prison whereas he had actually served a sentence of imprisonment of approximately 6 months in 1938. His failure to disclose this arrest to the American consular officer amounted to fraud and misrepresentation in the procurement of the immigration visa. His entry in 1944, was therefore, not a lawful entry and he was not entitled to the reentry permit which he presented upon the occasion of his last entry. At the time of his last entry, he was not in possession of an immigration visa and was not exempted from the presentation thereof. We conclude, therefore, that the first charge stated in the warrant of arrest is also sustained.
At the oral argument, counsel stated that the respondent is now married to a citizen of the United States and that a child has been born of this marriage. He requested that voluntary departure be authorized and that the 7th proviso to section 3 of the Immigration Act of 1917 be exercised in favor of the respondent. No independent investigation was conducted in this case, and the record does not contain evidence relating to the respondent's marriage or concerning his moral character and residence. Accordingly, the hearing will be reopened for the purpose of permitting the respondent to make such application for relief as he may desire and in order that the necessary evidence may be included in the record.
Order: It is ordered that the order entered by the Acting Assistant Commissioner on February 1, 1952, be and the same is hereby withdrawn.
It is further ordered that the hearing be reopened for further proceedings in accordance with the foregoing.