T-2760542
Decided by the Board March 5, 1954
Crime involving moral turpitude — Section 101 (a) of the California Unemployment Insurance Act.
Conviction of violating section 101 (a) of the California Unemployment Insurance Act is a conviction of a crime involving moral turpitude.
CHARGE:
Warrant: Act of 1924 — No immigrant visa.
BEFORE THE BOARD
Discussion: This case is before us on appeal from the decision of the special inquiry officer dated February 16, 1953, directing deportation. Respondent, a 40-year-old native and citizen of Mexico, last entered the United States near El Paso, Tex., on March 10, 1933. Respondent is clearly deportable as an alien entering without a visa. (Secs. 13, 14, act of 1924.)
Respondent has applied for suspension of deportation under section 19 (c) (2) (a) of the act of 1917 on the ground that his deportation would cause serious economic detriment to his citizen wife and eight citizen children. Respondent's application for suspension was made in 1949. He married his citizen wife on December 16, 1938. His wife and children are all completely dependent upon respondent for support. The special inquiry officer found that under the circumstances serious economic detriment did exist. However, in order to be eligible for relief through suspension, respondent must prove that he has been a person of good moral character during the past 5 years.
On February 14, 1950, respondent was convicted in Municipal Court for the City and County of Sacramento, Calif., of violating section 101 (a) of the California Unemployment Insurance Act. The information stated that on March 31, 1949, respondent "willfully and unlawfully and with intent to defraud, (did) collect unemployment benefit payments in the amount of $90.00 for the period of February 2, 1949, to March 30, 1949, inclusive while during that same period he was employed." Respondent was sentenced to 90 days' imprisonment or a fine of $200, with the fine being paid.
The pertinent sections of the California Unemployment Insurance Act (Stats. 1935, ch. 325, p. 1226, as amended; Deering's General Laws, 1943, Supp., Act 8780d) provides as follows:
SEC. 101. Willful false statement. It is a misdemeanor: (a) Willfully to make a false statement or representation or knowingly fail to disclose a material fact to obtain, increase, reduce, or defeat any benefit or payment under the provisions of this act, whether for the maker or for any other person or for the purpose of lowering or avoiding any contribution required of the maker or any other person or to avoid becoming or remaining subject to this act * * *.
SEC. 9.2. When individual deemed unemployed. An individual shall be deemed "unemployed" in any week during which he performs no services and with respect to which no wages are payable to him, or in any week of less than full-time work if the wages are payable to him with respect to such week are less than his weekly benefit amount. Authorized regulations as may be necessary shall be prescribed applicable to unemployed individuals making such distinctions as may be deemed necessary in the procedures as to total unemployment, part-total employment; partial unemployment of individuals attached to their regular jobs, and other forms of short-time work. For the purpose of this section only the term "wages" includes any and all compensation for personal services whether performed as an employee or as an independent contractor. (Amended by Stats. 1945, ch. 546, sec. 1; Stats. 1949, ch. 1441, sec. 3.)
In People v. Armstrong, 100 C.A. (2d) 852, 224 P. 2d 490 (1950), a California district court of appeals ruled that the essential elements of the offense defined in section 101 (a) are an intent to defraud and the utilization of the false statements for the purpose of perpetrating the fraud and obtaining money benefits.
In People v. Haydan, 106 C.A. (2d) 105, 234 P. 2d 720 (1951), the court cited the Armstrong case and discussed section 101 (a) as follows:
In comparing merely the words "with intent to defraud" with the "knowingly" and "willfully," there is a difference of meaning and the latter do not necessarily include the former. However, if a person willfully or knowingly submits a claim, knowing it to be false, to the commission for the purpose of obtaining, increasing, reducing or defeating any benefit under the act, he necessarily does so to defraud. He evidences a purpose or willingness to present a false claim to affect the payment under the act and hence is presenting such claim with intent to defraud. Again, one who presents a false claim with intent to defraud is willfully and knowingly presenting such false claim with intent to obtain, etc., a benefit or payment under the act.
Since the Supreme Court has determined that offenses containing an inherent fraud element involve moral turpitude, the instant conviction is one for a crime involving moral turpitude ( Jordan v. DeGeorge, 341 U.S.223 (1951)).
It is noted in passing that counsel contends that, because respondent was not represented by an attorney in the 1950 judicial proceeding, respondent's conduct there was not an intelligent and valid plea or conviction. However, since we are bound by the record of conviction, we cannot go behind this judicial determination, Tillinghast v. Edmead, 31 F. (2d) 81 (C.C.A. 1, 1929); United States ex rel. Meyer v. Day, 54 F. (2d) 336 (C.C.A. 2, 1931). Also, the fact that respondent made restitution is similarly immaterial.
Hence, because respondent was convicted of a crime involving moral turpitude in February 1950, a finding of good moral character during the past 5 years is impossible and he is statutorily ineligible for suspension of deportation. Therefore, although respondent has resided here for 20 years and has a United States citizen wife and eight citizen children, discretionary relief through suspension is unavailable to him. The appeal is accordingly dismissed.
Order: It is hereby ordered that the appeal be and the same is dismissed.