56091/681
Decided by the Board January 19, 1943.
Crime involving moral turpitude — Unlawfully carrying on retail liquor business without paying tax (Section 3281, United States Revised Statutes).
Carrying on the business of a retail liquor dealer without having paid the special tax required by Section 3281 of the Revised Statutes of the United States ( 26 U.S.C., sec. 1397 (a) (1)) is not a crime involving moral turpitude, since the statute is merely a revenue or licensing statute.
CHARGES:
Warrant: Act of 1924 — Immigrant without an immigration visa. Act of 1917 — Entered without inspection; convicted prior to entry of a crime involving moral turpitude — defrauding the United States of internal revenue tax; entered within 1 year of exclusion and deportation without permission.
Mr. Leon Ulman, Board attorney-examiner.
STATEMENT OF THE CASE: The presiding inspector has found the respondent deportable on the above-specified charges. The district director concurs.
DISCUSSION: The respondent testified that he is a native and citizen of England, 48 years of age, married. He last entered the United States on November 12, 1941, at Fort Fairfield, Maine, for permanent residence. He states that he evaded inspection by walking through a field near the immigration office. He did not have an immigration visa. On October 17, 1941, the respondent was excluded because he did not have proper documents. On November 9, 1935, the respondent was indicted in the United States District Court, Northern Division of Maine, for a violation of Section 3281 of the Revised Statutes (sec. 1397 (a) (1), title 26, U.S.C.). He pleaded guilty and on November 14, 1935, was sentenced to imprisonment for a term of 8 months.
The indictment, so far as pertinent, reads:
T---- H---- * * * did in violation of Section 3281, United States Revised Statutes (sec. 1397 (a) (1), title 26, U.S.C.A.), unlawfully and knowingly carry on the business of a retail liquor dealer without having paid the special tax as required by law.
On November 6, 1936, the respondent was again indicted for a violation of Section 3281, and again pleaded guilty, and on November 17, 1936, was sentenced to a term of 8 months.
Section 3281, so far as relevant, provides:
Any person who shall carry on the business of a * * * retail liquor dealer * * * without having paid the special tax as required by law shall * * * be fined not less than $100 nor more than $5,000 and imprisoned not less than 30 days nor more than 2 years * * *.
We do not agree that a violation of Section 3281 of the Revised Statutes involves moral turpitude. In United States ex rel. Andreacchi v. Curran, 38 F.2d 498 (S.D.N.Y. 1926), the alien had been convicted of a violation of the Harrison Anti-Narcotic law of December 17, 1914 ( 26 U.S.C. 211, 691-707). In holding that such violation did not involve moral turpitude, the court said:
The crime consists not in engaging in narcotic traffic, but in merely failing to register, pay a tax, and comply with certain regulations of the Internal Revenue Commissioner. It is to be regarded solely as a revenue act whatever incidental results might accompany its enforcement. No case has been brought to my attention, nor do I find any which holds that the violation of a revenue or licensing statute involves moral turpitude. The fact that the thing may be done, providing a tax is paid to the Government, indicates that the act itself does not involve moral turpitude.
It would seem clear that Section 3281 is likewise merely a revenue or licensing statute. The situation here presented is distinguishable from that before the court in Maita v. Haff, 116 F.2d 337 (C.C.A. 9, 1940), in which it was held that an alien who had been convicted on a charge of engaging in the business of distilling alcohol with intent to defraud the United States of the tax on the spirits distilled, had committed a crime involving moral turpitude.
FINDINGS OF FACT: Upon the basis of all the evidence presented, it is found:
(1) That the respondent is an alien, a native and citizen of England;
(2) That the respondent last entered the United States on November 12, 1941, at Fort Fairfield, Maine, without inspection;
(3) That the respondent entered the United States for permanent residence;
(4) That at the time of his entry, the respondent did not have an immigration visa;
(5) That on October 17, 1941, the respondent had been excluded and deported from the United States;
(6) That the respondent did not obtain the consent of the Attorney General to reapply for admission to the United States at the time of his last entry;
(7) That on November 14, 1935, and on November 17, 1936, the respondent was convicted of a violation of Section 3281 of the Revised Statutes of the United States ( 26 U.S.C., sec. 1397 (a) (1)), to wit: unlawfully and knowingly carrying on the business of a retail liquor dealer without having paid the special tax as required.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under sections 13 and 14 of the Immigration Act of 1924 the respondent is subject to deportation on the ground that at the time of his last entry he was an immigrant, not in possession of an immigration visa;
(2) That under section 19 of the Immigration Act of 1917 the respondent is subject to deportation on the ground that he entered without inspection;
(3) That under sections 3 and 19 of the Immigration Act of 1917 the respondent is subject to deportation on the ground that he entered the United States within 1 year from the date of exclusion and deportation, consent to reapply for admission not having been granted;
(4) That under section 19 of the Immigration Act of 1917 the respondent is not subject to deportation on the ground that he has been convicted of a felony or other crime or misdemeanor involving moral turpitude prior to entry into the United States, to wit: violation of Section 3281 of the Revised Statutes of the United States ( 26 U.S.C., sec. 1397 (a) (1)) — unlawfully and knowingly carrying on the business of a retail liquor dealer without having paid the special tax as required;
(5) That under section 20 of the Immigration Act of 1917 the respondent is deportable to England at Government expense.
OTHER FACTORS: The respondent has formally applied for suspension of deportation and has executed and filed formal application and general information forms. The presiding inspector recommends denial of his application on the ground, among others, that he has failed to establish good moral character for the preceding 5 years. The district director concurs. As we have previously stated, the respondent is a native and citizen of England, 48 years of age. The respondent resided in the United States from 1904 to 1917. After serving in the Canadian Army from 1917 to 1919, he returned to the United States and has resided therein continuously since 1919 with the exception of short visits to Canada.
On June 19, 1929, the respondent married a citizen of the United States. The respondent has nine American-born minor children, some of them by a former marriage. The respondent has testified that his wife and children are dependent upon him for support. He operates a restaurant at Caribou, Maine, from which he derives an income of $50 to $60 per month.
He states that his assets are valued at $3,200. His family has received substantial assistance from public relief funds. The record establishes that the respondent has been arrested on 20 occasions. An analysis of the respondent's criminal record shows that these arrests resulted from various violations of State and Federal liquor laws, for gambling, and for disorderly conduct. He appears to have served some 16 months in prison on account of the foregoing. The Federal Bureau of Investigation shows nothing additional. The respondent is registered under the Alien Registration Act of 1940. An officer of the Immigration and Naturalization Service has submitted a report in which he states that he has interviewed a number of persons in the community in which the respondent resides. The report discloses that these persons have stated that while in the past the respondent had been addicted to the use of intoxicants and had quarreled frequently with his wife, that in the last year he had reformed to a great extent, and that he is a hard-working individual, a good provider, and except while serving sentences in jail, has supported his very large family. Two witnesses, each of whom have known the respondent for 5 years or more, have testified that he is hard working and well liked in the community. We do not believe that suspension of deportation should be ordered in this case. In view, however, of the respondent's large family, his long residence in the United States, and reputed reformation, we think an appropriate solution would be to authorize voluntary departure and preexamination.
ORDER: It is directed that an order of deportation not be entered at this time, but that the alien be required to depart from the United States, without expense to the Government, to any country of his choice within 90 days after notification of decision, conditioned upon arrangements being made with the local immigration office for verification of departure.
It is further directed, That preexamination be authorized conditioned upon approval by the Department of State of the alien's preliminary application for an immigration visa.