A-6060587.
Decided by Board December 9, 1954.
Petty offense — Section 4 of P.L. 770 (83d Cong., 2d sess.) — Exemption applies when more than one offense committed provided only one involves moral turpitude — Petty theft, Texas.
(1) The words "provided that the alien has committed only one such offense" refer to an offense involving moral turpitude and do not render inadmissible an alien whose additional offenses do not involve moral turpitude.
(2) Where conviction record for petty theft in Texas does not show value of stolen property and alien was fined $25 for this offense, recourse to the Texas statutes and the fact that conviction was had in the Corporation Court establish that alien was convicted of a misdemeanor classifiable as a petty offense within purview of section 4 of P.L. 770.
CHARGE:
Warrant: Act of 1952 — Section 241 (a) (1) — Excludable at time of entry-prior conviction of crime — Petty theft.
BEFORE THE BOARD
Discussion: This case is before the Board on appeal from the decision of a special inquiry officer in which he ordered deportation.
The record relates to a 53-year-old married male, a native and subject of the Netherlands, who last entered the United States at Port Arthur, Texas, on January 8, 1953, as a member of the crew of the SS. Washington, at which time he was admitted as a returning resident alien. That arrival was from Puerto Rico. A record of admission for permanent residence was previously created following suspension of deportation proceedings. The date of that entry was recorded as of January 22, 1942.
There is contained in the record a certification that the respondent was convicted of petty theft on October 25, 1949, in the Corporation Court, Beaumont, Texas, at which time he was fined $25 plus $5.20 costs. Respondent admitted that this certification relates to him.
It is noted that deportability is based upon section 241 (a) (1) of the Immigration and Nationality Act because of excludability at the time of last entry. On September 3, 1954, Public Law 770, 83d Congress, 2d session, was enacted, section 4 of which provides that:
Any alien who is excludable because of the conviction of a misdemeanor classifiable as a petty offense under the provisions of section 1 (3) of Title 18, United States Code, by reason of the punishment actually imposed, or who is excludable as one who admits the commission of such misdemeanor, may hereafter he [be] granted a visa and admitted to the United States, if otherwise admissible: Provided, That the alien has committed only one such offense.
Section 1, Title 18, U.S.C.A., classifies the offenses under that Title:
Offenses classified —
Notwithstanding any Act of Congress to the contrary:
(1) Any offense punishable by death or imprisonment for a term exceeding one year is a felony.
(2) Any other offense is a misdemeanor.
(3) Any misdemeanor, the penalty for which does not exceed imprisonment for a period of six months or a fine of not more than $500, or both, is a petty offense.
The respondent is now in the United States. If he were outside the jurisdiction of this country and applying for admission he would not, if the crime of petty theft for which he was convicted was within section 4, be excludable by virtue of that conviction. We stated in Matter of C----, E-092142, October 8, 1954, Int. Dec. No. 635, that inasmuch as section 4 of Public Law 770 would be beneficial to a respondent should he be outside the United States seeking documentation to enter, we believed that by the same reasoning he should be relieved from deportation in expulsion proceedings. That leads us to a determination of two basic issues in this case: (1) whether the respondent's conviction for petty theft falls within the basic provisions of section 4 of Public Law 770, and (2) what is meant by the proviso in that section of law which reads " Provided, That the alien has committed only one such offense."
As to the first point, it is noted that the crime of theft in Texas is divided into two classes, one being a felony and the other a misdemeanor. The former involves theft of the value of $50 or more and carries punishment by confinement in the penitentiary of not less than 2 nor more than 10 years (O.C. 756; Acts 1895, p. 15). The crime of theft which is considered a misdemeanor reads as follows:
Theft of property under the value of $50 and over the value of $5.00 shall be punished by imprisonment in jail not exceeding two years, and by fine not exceeding $500, or by such imprisonment without fine; theft of property of the value of $5.00 or under shall be punished by a fine not exceeding $200. O.C. 757; Acts 1858, p. 181; Acts 1876, p. 242; Acts 1895, p. 15; Acts 1927, p. 432, Ch. 157, Sec. 1. (Vernon's Penal Code of Texas, Volume 3, Title 17, Chapter 8, Article 1422).
In the instant case the certification regarding the conviction does not show whether the value of the property was over or under $5.00 or, as a matter of fact, whether it was over $50. However, we must conclude that it was for property valued at $5.00 or less because the conviction was in the Corporation Court. The jurisdiction of the Corporation Court in criminal cases is limited to those in which punishment is by fine only, and where the maximum of such fine may not exceed $200 (Acts of 1899, p. 10 (Vernon's Code of Criminal Procedure of Texas, Volume 1, Title 2, Article 62)). It is, therefore, apparent that the respondent was convicted of a misdemeanor carrying with it possible punishment of a fine of not more than $200 and consequently the conviction is within the basic provision of section 4 of Public Law 770.
The second issue in the case, as previously pointed out, involves the construction of the proviso to section 4 which makes the basic portion of that section applicable if the alien has "committed only one such offense." Does the proviso relating to one such offense refer only to a crime involving moral turpitude or does it relate to any offense. That is important in the case because the respondent was convicted of drunken driving on 3 occasions, disturbing the peace once, apparently beating his wife once, and for falsely representing himself to be a United States citizen in violation of section 346 (a) (18) of the Nationality Act of 1940 (8 U.S.C. 746 (a) (18)). For this last offense, he was on March 4, 1946, sentenced to one year's imprisonment, which sentence was suspended for five years and he was put on probation. That conviction was known and referred to in the order granting suspension of deportation. It does not involve moral turpitude ( Matter of K----, A-6092065, 3 IN Dec. 69). It has not been shown that any of the other offenses mentioned in this paragraph involve moral turpitude. In view of the foregoing, if the proviso to section 4 of Public Law 770 relates only to crimes involving moral turpitude, the respondent in the instant case would not be deportable.
We think that the proviso relates only to offenses involving moral turpitude for the following reasons:
(1) The use of the words "such offense" relates to the opening clause of section 4 which deals with excludability because of conviction, etc., of an offense classifiable under 18 U.S.C. 1 (3) and such a conviction, in order to be a ground of excludability in the first instance, must be for a crime involving moral turpitude.
(2) Debates on the floor of the House reflect that section 4 of Public Law 770 was intended to deal with grounds of exclusion relating to section 212 (a) (9) of the Immigration and Nationality Act. Congressman Walter stated that it is the only vehicle available to bring about a modification of section 212 (a) (9); Congressional Record, August 20, 1954 (unbound) p. 14506. That section of the Immigration and Nationality Act deals only with crimes involving moral turpitude. Congressman Walter went on to say that he wanted to make it perfectly clear that the amendment would apply not only to the beneficiaries of that bill but to any alien who may be excludable under section 212 (a) (9). He amplified his statement by saying that section 212 (a) (9) already drew a distinction between the youthful offender guilty of only one crime and the alien whose transgression occurred after he reached the age of 18 years. In analyzing section 212 (a) (9), the one crime referred to is a crime involving moral turpitude and there the law relates clearly to "one such crime" which would indicate that any added crimes short of crimes involving moral turpitude, would not be considered in the case of an alien who committed one crime involving moral turpitude while under the age of 18 years. To hold otherwise would require the exclusion of an alien under the age of 18 years who was convicted of a crime involving moral turpitude classifiable as a petty offense under 18 U.S.C. 1 (3) if he was also convicted of a crime such as, for example, simple assault which does not involve moral turpitude, if simple assault were classifiable under 18 U.S.C. 1 (3).
(3) In the Senate, the late Senator McCarran stated that the purpose of section 4 of what became Public Law 770 was to exempt from certain exclusion clauses an alien who is excludable solely because of the commission of a misdemeanor, etc., Congressional Record, August 20, 1954 (unbound) p. 14609. Since he refers to excludability solely because of that offense, it is clear to us that the proviso relating to "only one such offense" must relate to an offense involving moral turpitude because the original offense must be one involving moral turpitude; otherwise, the alien would not be excludable.
(4) Section 1 of Title 18 of the United States Code, which is referred to in section 4 of Public Law 770, contains 3 gradations of offense without relation to the question of moral turpitude. It is the least serious of the 3 which is referred to in section 4 of Public Law 770. In view of that fact, it might also be argued that it would not be necessary for the proviso to use the words "such offense" unless it was contemplated that moral turpitude would inhere, because the use of the term "any offense" (under section 1 (3)) would otherwise adequately cover the situation.
In view of the foregoing, we conclude that the words " Provided, That the alien has committed only one such offense" does not render inadmissible an alien whose additional offenses do not involve moral turpitude. Lest we be misunderstood, we wish to make clear that if the alien is excludable under section 212 (a) (10) which relates to two or more offenses irrespective of moral turpitude, for which the aggregate sentences to confinement actually imposed were five years or more, section 4 of Public Law 770 does not relate. In the instant case the aggregate sentences to confinement actually imposed for all the offenses committed by the respondent do not aggregate five years or more. Therefore, section 212 (a) (10) plays no part in this case for that reason and for the additional reason that it was not a ground for exclusion at the time the respondent made his last entry.
For all the reasons set forth above the proceedings must be terminated.
Order: It is ordered that the proceedings be and the same are hereby terminated.