A-2821682
Decided by Board November 27, 1957
Crime involving moral turpitude — Lascivious carriage, section 8553 of the General Statutes of Connecticut (Revision of 1949) — Section 241 (a) (4) of Immigration and Nationality Act — Conviction therefor may not be used to sustain deportability.
(1) Whether an offense is one involving moral turpitude is determined from the inherent nature of the crime, as defined by statute or interpreted by the courts, and as limited and described by the record of conviction. Where doubt exists, the burden of proving deportability has not been met.
(2) The offense, lascivious carriage, is not defined by section 8553 of the General Statutes of Connecticut (Revision of 1949) and the court decisions are not so unambiguous as to permit a finding free from doubt as to whether the offense involves moral turpitude. Hence, a conviction therefor will not support a ground of deportation under section 241 (a) (4) of the Immigration and Nationality Act.
CHARGE:
Order: Act of 1952 — Section 241 (a) (4) ( 8 U.S.C. 1251 (a) (4)) — Convicted of two crimes after entry — Adultery and lascivious carriage.
BEFORE THE BOARD
Discussion: The case comes forward on appeal from the order of the special inquiry officer entered July 2, 1957, ordering respondent deported on the charge contained in the order to show cause.
The record relates to a native and citizen of Canada, 37 years old, female, married, who was admitted for permanent residence at the port of Houlton, Maine, on November 25, 1922, and has since resided in this country.
On June 5, 1946, respondent was convicted in the Superior Court of Hartford, Connecticut, of adultery and was sentenced to imprisonment for a period of 4 months. On January 23, 1953, she was convicted in the Police Court of Hartford, Connecticut, of lascivious carriage and was fined $50, and sentenced to 3 months' imprisonment, sentence suspended, placed on probation on good behavior for a period of one year.
In order to deport the respondent on the charge stated in the order to show cause, it is necessary to establish that the above 2 crimes of which respondent was convicted involve moral turpitude. The conviction for adultery presents no problem since it clearly involves moral turpitude.
Matter of A----, A-1636772, 3 IN Dec. 168; United States ex rel. Tourney v. Reimer, 8 F. Supp. 91; Pollard v. Lyon, 91 U.S. 225; Ex parte Rodriguez, 15 F. (2d) 878.
As we indicated in our prior order of March 6, 1957, we are concerned with the question of whether the crime of lascivious carriage involves moral turpitude. The offense is not defined but is coupled with fornication in section 8553 of the General Statutes of Connecticut (Revision of 1949) and provides that any person who shall be guilty of fornication or lascivious carriage or behavior shall be fined not more than $100 or imprisoned not more than 6 months or both. We referred to the decided cases in Connecticut involving this offense and after setting forth the holdings therein remanded the case for a copy of the complaint and information on which the conviction was based and, if possible, an opinion from the Attorney General of the State of Connecticut as to the nature of the crime of lascivious carriage. At the reopened hearing it was ascertained that there was no record of any information or complaint in the Police Court in the City of Hartford, Connecticut, other than that already contained in the record and the Attorney General declined to render an opinion as to whether lascivious carriage involves moral turpitude, nor was he of any assistance in furnishing information as to the nature of the acts which must be proved to obtain a conviction of that crime.
Deportation has been characterized as a drastic measure, at times, the equivalent of banishment or exile. Where a doubt exists courts have been reluctant to impose this severe consequence and have resolved the doubt against the Government and in favor of the respondent.
Fong Haw Tan v. Phelan, 333 U.S. 6; Delgadillo v. Carmichael, 332 U.S. 338.
Fong Haw Tan v. Phelan, supra.
In our previous order we referred to the case of Fowler v. Connecticut, 5 Day 81, in which the court noted different shades of criminality attending the offense of lascivious carriage. In State v. Chicorelli, 129 Conn. 601, the court noted the distinction between the offense of indecent assault and that of lascivious carriage or behavior and observed otherwise there would be no justification for the very much more severe penalty prescribed for indecent assault. In the case of Nicewicz v. Nicewicz, 104 Conn. 125, the court held that lascivious carriage has never been regarded as an infamous crime and such a conviction could not be used for the purpose of attacking the credibility of a witness. It is not clear whether the court was using the term "infamous crime" as one which involves the factor of moral turpitude or whether it was using it as analogous to a felony as distinguished from a misdemeanor, since in Connecticut there was no statutory definition of felonies or misdemeanors but crimes were divided into those that were infamous and those that were not.
Report of the Attorney General for the State of Connecticut, "Moral Turpitude — Infamous Crimes," p. 309.
It is the inherent nature of the crime as defined by the statute or interpreted by the courts and as limited and described by the record of conviction which determines whether the offense is one involving moral turpitude.
In the instant case the crime is not defined by statute and the court decisions are not so clear or unambiguous as to enable a finding free from doubt as to whether or not the offense of lascivious carriage involves moral turpitude. While the reported decisions referred to in our previous order in some instances show that the conviction clearly embraces conduct which involved moral turpitude, yet there are indications that lesser acts of different shades of criminality may come within the scope of the offense and that the crime has never been regarded as an infamous crime. Upon the record before us we are unable to resolve a doubt that the offense of lascivious carriage involves moral turpitude, and we are therefore unable to determine that the crime of lascivious carriage involves moral turpitude. In view of this doubt, we are unable to conclude that the Service has borne its burden of establishing a case of deportability upon the basis of a preponderance of reasonable, substantial and probative evidence. Accordingly, the proceedings will be terminated.
Order: It is ordered that the proceedings be and the same are hereby terminated.