A-8644043.
Decided by Board July 25, 1955.
Expatriation — Section 401 (g), Nationality Act of 1940 — Entry — Crime involving moral turpitude — Breaking and entering with intent to commit larceny, Massachusetts.
(1) A person who was convicted in 1950 by a general court-martial and dishonorably discharged from the United States Armed Forces for desertion occurring in 1945 in time of war, is subject to the expatriating provisions of section 401 (g) of the Nationality Act of 1940. The operation of the statute begins with the initial time of desertion, rather than the time of apprehension or conviction. On the other hand, the moment of expatriation occurs when the dishonorable discharge is accomplished.
(2) A person who entered the United States in 1926, derived United States citizenship in 1931 through his father, and was expatriated in 1950, is subject to deportation on criminal charges under section 241 (a) (4) of the Immigration and Nationality Act based upon his entry in 1926 as an alien.
(3) Breaking and entering with intent to commit larceny in Massachusetts is a crime involving moral turpitude since moral turpitude inheres in the criminal intent and larceny is a crime involving moral turpitude in Massachusetts.
CHARGE:
Warrant: Act of 1952 — Section 241 (a) (4) — Convicted after entry of two crimes involving moral turpitude: Attempted larceny; breaking and entering with intent to commit larceny (two offenses); larceny; and receiving stolen property.
BEFORE THE BOARD
Discussion: This case is before us on certification of the special inquiry officer dated February 15, 1955, in which he held respondent an expatriate under section 401 (g), but terminated the deportation proceedings on the ground that respondent's convictions took place while he was a United States citizen.
Respondent was born July 1, 1917, at Prince Edward Island, Canada, and last entered the United States on February 8, 1926, at Vanceboro, Maine. He derived United States citizenship through his father's naturalization on August 10, 1931, while respondent was a minor. On March 7, 1950, respondent was found guilty by a general court-martial, sitting at Fort Jay, New York, of desertion from the United States Armed Forces. According to the record, respondent deserted about March 15, 1945, and was absent until his apprehension on January 27, 1950. Respondent was sentenced to 10 years' imprisonment at hard labor and a dishonorable discharge, which occurred on April 7, 1950.
Section 401 of the Nationality Act of 1940 provides as follows:
A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by: * * *
(g) Deserting the military or naval forces of the United States in time of war, provided he is convicted thereof by a court-martial and as the result of such conviction is dismissed or dishonorably discharged from the service of such military or naval forces * * *. (Emphasis supplied.)
Since respondent's desertion occurred prior to the cessation of active hostilities and surrender during World War II, his desertion occurred "in time of war" in accordance with the phraseology of section 401 (g). While a conviction for desertion and a consequent dishonorable discharge are requirements for loss of citizenship under section 401 (g), the operation of the statute begins with the initial time of desertion, rather than the time of apprehension or conviction. On the other hand, the moment of expatriation occurs when the dishonorable discharge is accomplished. Hence, respondent became an expatriate on April 7, 1950, and at the present time is an alien.
Suspension of hostilities with Germany occurred on May 8, 1945, with the surrender formalized shortly thereafter. With Japan, hostilities ended August 14, 1945, and the formal surrender was signed September 3, 1945 (Pres. Procl. 2651, May 8, 1945, 10 Fed. Reg. 5169; Pres. Procl. 2660, August 16, 1945, 10 Fed. Reg. 10111). The state of war with Germany was ended December 31, 1946, although the state of national emergency continued (Pres. Procl. 2714, section 29, 12 Fed. Reg. 1, 50 U.S.C. (App.) 601n). Final termination of the German war came with the signing of the peace treaty and the restoration of Germany to its place in the family of nations (Pres. Procl., July 25, 1947). Similar steps relative to the Japanese war came by Pres. Procl. 2974, April 28, 1952, 17 Fed. Reg. 3813.
See, New York Life Ins. Co. v. Durham, 166 F. (2d) 874 (C.C.A. 10, 1948); Stinson v. New York Life Ins. Co., 167 F. (2d) 233 (C.A.D.C., 1948); Mutual Life Ins. Co. v. Davis, 79 Ga. App. 336, 53 S.E. 2d 571 (1949); National Life Acc. Ins. Co. v. Leverett, 215 S.W. 2d 939 (Tex.Civ.App., 1948).
Section 1, Act of January 20, 1944 (Public Law 221, 78th Congress).
Since the deportation charge is convicted after entry (as an alien) of two crimes involving moral turpitude, the remaining factors in the case, first, the type of entry last made by respondent and, second, the crimes involved. Mangaong v. Boyd, 205 F. (2d) 553 (C.A. 9, 1953), cited by the special inquiry officer, is distinguishable, for Mangaong entered as a United States national prior to the date of Philippine independence and was not deportable as an alien, unless he made the required "entry" as a Filipino alien.
Cert. den. November 9, 1953. See also, Gonzalez v. Barber, 347 U.S. 637 (1954).
Mangaong, unlike respondent, never entered as an alien. The present record clearly shows that respondent's last entry was in 1926 as an alien. The fact that respondent subsequently became a derivative citizen and continued in that status until 1950 does not change the character of the respondent's original entry as an alien or his present status as an alien.
United States ex rel. Eichenlaub and Willumeit v. Shaughnessy, 338 U.S. 521 (1950). The instant case is somewhat analogous to, though considerably more persuasive than, the instance of a cancellation of naturalization and consequent deportation for crimes involving moral turpitude, committed while the person enjoyed citizenship status ( Matter of W----, E-137668, 5 IN Dec. 759, B.I.A., 1954, citing Matter of P----, A-4068102, 4 IN Dec. 373 (B.I.A., 1951); Matter of B----, A-2544646, 5 IN Dec. 405 (B.I.A., 1953); Matter of S----, A-8017222, 5 IN Dec. 678, B.I.A., 1954).
Next we must consider whether the crimes for which respondent has been convicted involve moral turpitude. On June 16, 1938, respondent was convicted in the Municipal Court, Roxbury District, Suffolk County, Massachusetts, on an admission of guilty of attempted larceny of an automobile valued at $3,000. He was sentenced to three months' imprisonment in the House of Correction at Deer Island, with the sentence being suspended on one year's probation, but revoked subsequently, May 15, 1939. This offense has been held as involving moral turpitude.
Matter of N----, A-1779952, 2 IN Dec. 201, 204 (B.I.A., 1944).
On January 15, 1940, respondent was convicted in the Municipal Court, Roxbury District, Suffolk County, Massachusetts, of larceny of meat, valued at $9.60, and sentenced to six months' imprisonment in the House of Correction at Deer Island. This crime definitely involves moral turpitude.
Matter of M----, 56205/971, 2 IN Dec. 530, 531 (B.I.A., 1946). When appellant was convicted of larceny in Massachusetts under section 30 of Chapter 266, Laws of Massachusetts, the maximum penalty was imprisonment for one year.
On January 15, 1940, respondent was convicted in the Municipal Court of Roxbury District, Suffolk County, Massachusetts, of receiving stolen goods and sentenced to six months' imprisonment in the House of Correction at Deer Island. It has repeatedly been held that the offense of receiving stolen property is an offense involving moral turpitude, if (as in the instant case) knowledge of the character of the goods is present.
United States ex rel. Feuer v. Day, 42 F. (2d) 127 (C.C.A. 2, 1930); United States ex rel. Rydberg v. Reimer, 17 F. Supp. 414 (S.D.N.Y., 1936); Matter of G----, 56158/190, 2 IN Dec. 235 (B.I.A., 1945). Cf., Tillinghast v. Edmead, 31 F. (2d) 81 (C.C.A. 1, 1929).
On April 9, 1940, respondent was convicted on a plea of guilty in the Superior Court for Boston, Suffolk County, Massachusetts, of breaking and entering with intent to commit larceny (not at night) of $1.80 and eight packs of cigarettes, valued at 15 cents each. He was sentenced to six months in the House of Correction, Deer Island.
On April 4, 1940, respondent was convicted on a plea of guilty in the Superior Court for Boston, Suffolk County, Massachusetts, of breaking and entering with intent to commit larceny (at night) of $2.00 and three packs of cigarettes, valued at 15 cents each. He was sentenced to six months' imprisonment, concurrent with the other sentence imposed on the same day.
The pertinent sections of Chapter 266 of the Laws of Massachusetts provide as follows:
Section 17. Entering, in nighttime, without breaking, or breaking, etc., in daytime.
Whoever, in the nighttime enters without breaking, or breaks and enters in the daytime, a building, ship or vessel, with intent to commit a felony, the owner or any other person lawfully therein being put in fear, shall be punished by imprisonment in the state prison for not more than 10 years.
Section 18. Entering dwelling house in nighttime, or breaking, etc., without putting in fear, in daytime.
Whoever, in the nighttime, enters a dwelling house without breaking, or breaks and enters in the daytime, a building, ship or vessel, with intent to commit a felony, no person lawfully therein being put in fear, shall be punished by imprisonment in the state prison for not more than 10 years or by a fine of not more than $500 and imprisonment in a jail for not more than two years.
While sections 17 and 18 read by themselves do not define a crime involving moral turpitude, a reading of the conviction record in conjunction with these statutes serves to make the words "with intent to commit a felony" more specific. Since moral turpitude inheres in the criminal intent and larceny is admittedly a crime involving moral turpitude in Massachusetts, both of the offenses in question for which respondent was convicted were definitely crimes involving moral turpitude.
United States ex rel. Mongiovi v. Karnuth, 30 F.2d 825 (W.D.N.Y., 1929); United States ex rel. Meyer v. Day, 54 F.2d 336 (C.C.A. 2, 1931); United States ex rel. Shladzien v. Warden, 45 F. 2d 204 (E.D. Pa., 1930).
Since respondent has been convicted of more than two crimes involving moral turpitude committed after entry, the warrant charge under section 241 (a) (4) is sustained. The order of the special inquiry officer is accordingly reversed as a matter of law and the alien's deportation is ordered on the warrant charge.
Order: It is hereby ordered that the order of the special inquiry officer be reversed and the alien be deported from the United States pursuant to law on the charge stated in the warrant of arrest.