55813/162
Decided by Board June 9, 1945. Approved by Attorney General June 13, 1945.
Crime involving moral turpitude — Canada — Breaking and entering and theft — Juvenile delinquent.
A crime committed by a minor in a foreign jurisdiction need not be held to involve moral turpitude, if under domestic standards the alien would have been treated as a juvenile delinquent and under the substantive law of the foreign country, the alien could have been considered as a juvenile delinquent, but because a juvenile court had not been set up in the locality in which the offense was committed, conviction necessarily occurred in the regular criminal court.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1917 — Admits commission and conviction of a crime: to wit, Breaking and entering and theft in violation of section 460 of the Canadian Criminal Code.
BEFORE THE BOARD
Discussion: This record involves a 31-year-old native and citizen of Canada, who, when he was 151/2 years of age, was convicted by a justice of the peace for the District of Rainy River, Ontario, Canada, of the indictable offense of breaking and entering the theft in violation of section 460 of the Canadian Criminal Code. The issue before us at the time we first considered the case was whether, in view of the provisions of the Canadian Juvenile Delinquents Act (R.S. 1927, ch. 108), the alien's tender years at the time of the commission of the offense, its petty nature, the disposition made by the court, and the otherwise good record of the alien, we would be justified in holding that no moral turpitude was involved in the offense of which he had been convicted. Since the specific problem presented affected not only Canadian youthful law-breakers, but also those of other foreign as well as domestic jurisdictions, the Board in its opinion of November 22, 1944, proposed the adoption of a uniform rule with respect to the determination of moral turpitude in the cases of all aliens who ran afoul of the criminal laws during their youth. The uniform rule proposed, and we quote from our prior opinion which is attached to the file, was as follows:
Most, if not all, juvenile laws are flexible and delegate to the court or the prosecuting officials some measure of discretion with regard to the manner in which a juvenile is to be treated. For that reason, we believe that in determining the presence or absence of moral turpitude as to a convicted minor alien, we may go behind the record of conviction and adopt a flexible standard. Before applying this standard, however, two conditions should be met: (1) The offense committed by the alien must not be a serious one, and (2) the alien must be under 18 years of age at the time of its commission. Where these conditions are fulfilled, then, irrespective of where the crime was committed, in the determination of moral turpitude, due regard should be given to the nature of the offense, the disposition made, the age of the alien at the time the offense is committed, the circumstances surrounding its commission, and the alien's conduct prior and subsequent to that time.
As indicated in our prior opinion, that uniform and general rule was proposed in order to avoid the inequities that would otherwise result because of the differences in the scope of jurisdiction in the various state and foreign juvenile laws. Because the Board believed that a question of difficulty was involved, the case was certified to the Attorney General for review. On January 5, 1945, it was returned to us for reconsideration in the light of an opinion by Attorney General Cummings on August 25, 1933, reported in 37 Op. Atty. Gen. 259, which, it was thought, when read in the light of the memoranda then before the Attorney General, might stand in the way of the adoption of the proposed rule.
This opinion was considered by us in our first decision of the case, but, because its language did not appear to relate to hte question of moral turpitude, we did not deem it controlling.
The Attorney General's opinion of August 25, 1933, involved an alien who, when he was 16 1/2 years of age, was convicted in Norway of the crime of theft. The Department of State, before determining the alien's eligibility for a visa, requested the Attorney General's opinion with respect to the following question:
Whether the fact that Mr. F---- (the alien) was a youth of only 161/2 years when he committed the offense of theft for which he was convicted in Norway, would justify this Department in instructing the consul at Bergen that the said offense should not be regarded as one "involving moral turpitude."
The Attorney General's reply, and we quote from his opinion (p. 260), read:
Whether the fact that Mr. F---- (the alien) was a youth of only 161/2 years years of age would not operate to prevent his exclusion from the United States as an inadmissible alien for it appears that under the laws of Norway his criminal responsibility is the same as that of adults, and under our immigration laws no exception is made in favor of the admission into this country of aliens who at the time of committing their offenses happen to have been minors ( Orabona v. Clark, 53 F. (2d) 101, 102, approved on the point here involved in Clark v. Orabona, 59 F. (2d) 187).
While this reply, in view of the question posed, might appear to stand in the way of the adoption of the equitable and uniform rule proposed by us, we believe that the instant case is not necessarily controlled by that opinion of the Attorney General, and that under the standards prevailing in the United States no moral turpitude was involved in the offense committed by the alien. The instant case is distinguishable in that under the substantive law of Norway, juvenile court jurisdiction did not extend to children over 16 years of age. Therefore, as the Attorney General stated in his opinion, the criminal responsibility of the alien there concerned was the same as that of an adult. Under the substantive law of Canada, however, Mr. O'N---- at the time of his difficulty with the police was a "child" as defined by the Canadian Juvenile Delinquents Act, supra, then in effect. His violation of section 460 of the Canadian Criminal Code established his status as that of a "juvenile delinquent" and the offense committed by him constituted a so-called "delinquency" rather than a crime. The application of this substantive law to Mr. O'N----'s case, as we said in our prior decision, would not therefore have resulted in his having committed a crime, much less convicted of one, within the scope of the Act of February 5, 1917. It is for those reasons, among others, that we have concluded that the instant case is not controlled by the Attorney General's opinion of August 25, 1933.
It is interesting to note that the Orabona case cited in the Attorney General's opinion to support his conclusion concerned an alien over 18 years of age when he committed the crime of assault with intent to murder. Our proposed rule would not have been in conflict with this case for two reasons: (1) It applied only to aliens under 18 years of age; (2) it related to offenses that were not serious-obviously assault with intent to murder is a serious crime.
A person actually or apparently under the age of 18 was deemed to be a "child" under section 2 (a) of the Juvenile Delinquents Act, supra. When this act was substantially reenacted in 1929, the age limit was lowered to sixteen with discretion given to certain officials to raise it to eighteen. See section 2 (a) of the Juvenile Delinquents Act, 1929.
Section 2 (g) of the Juvenile Delinquents Act, supra, provided that any child who violated any provision of the Criminal Code was a "delinquent."
Section 3 of the Juvenile Delinquents Act, supra.
Section 7 of the Juvenile Delinquents Act (now section 9 of the Juvenile Delinquents Act, 1929) provided that when the act complained of was an indictable offense and the accused child was apparently or actually over 14, the juvenile court could, in its discretion, order the child to be proceeded against by indictment in the ordinary courts. However, such procedure was to be followed only where the court was of the opinion that the good of he child and the interest of the community demanded it. In the instant case, considering the age of the alien, the petty nature of the offense, his otherwise good record, the underlying theory of the Act and the legislative mandate that it be liberally construed in favor of the child, we feel certain that this alien would not have been released from the jurisdiction of the juvenile court had there been one in existence in the District of Rainy River in 1929.
Notwithstanding the foregoing substantive provisions of Canadian law with respect to juvenile offenders, Mr. O'N----, though then only 151/2 years old and a first offender, actually was not treated and tried as a juvenile delinquent. He was brought before a regular criminal court and, on his plea of guilty, was convicted of breaking and entering and theft in violation of section 460 of the Canadian Criminal Code. Such action resulted because of the failure of the proper Canadian authorities to bring into operation in the District of Rainy River, where the offense was committed, by appropriate implementing legislation, or otherwise, the substantive provisions of the Juvenile Delinquents Act. Whatever may have been the reason why this Act was not made effective in that District, the failure to follow what we deem to be procedural provisions of Canadian law probably did result in the alien having been convicted of a crime within the meaning of the 1917 Act. Nevertheless, we still do not believe that under the circumstances here present, and in view of the prevailing standards in the United States, the crime need be considered to involve moral turpitude.
Section 36 of the Juvenile Delinquents Act provided that that act was to become effective in any province, or part of a province, by proclamation only after the appropriate provincial legislature had passed an act providing for the establishment of juvenile courts and detention homes for children. In addition, section 37 of the act provided that if the provincial legislatures did not enact the necessary legislation, the Act could be made effective in any city, town or other part of a province by proclamation, if the Governor in Council was satisfied that proper facilities for the carrying out of the provisions of the act had been provided in such locality by the appropriate officials. The Crown Attorney for the District of Rainy River has advised us that at the time the alien violated section 460 of the Criminal Code, the Juvenile Delinquents Act was not in effect in the District of Rainy River.
The reasons were presumably practical. Canada is geographically a large country and is sparsely populated in many of its areas. Some districts in the Dominion have so few people and as a consequence probably such a low incidence of crime, especially among children, that to have required each local community to make provision for a juvenile court and a detention home for delinquent children would have been impracticable and unreasonable. The District of Rainy River is located in the extreme western portion of the Province of Ontario, north of the State of Minnesota. In 1941, 12 years after this alien had difficulties with the local police authorities, it had a total population, adult and children, of only 19,132. Its area in square miles was then and is now 7,276. Simple calculation shows that the density of the population of the District in 1941 was 2.63 persons per square mile and undoubtedly it was lower in 1929. Apparently the authorities concluded, and there would seem to have been a sound basis for such conclusion, that the establishment of a juvenile court and detention home under those circumstances would have been unjustified.
Whether a foreign crime involves moral turpitude is to be determined according to the standards prevailing in the United States (39 Op. Atty. Gen. 215, 220 and cases there cited). And as the Attorney General said in his memorandum of January 5, 1945, such a determination in this case does not depend "solely upon whether a juvenile court has been set up under the Canadian statute in the place where the child was tried." To make that fact determinative of the question in issue would in effect mean that the substantive law of Canada and the prevailing United States standards were being wholly disregarded. Thus, form would be exalted over substance and the adjective law of a foreign country would be the standard employed in the determination of moral turpitude. Such a result would be obviously unsound and, as the Attorney General implied in his memorandum, is not required by existing law.
The prevailing standards in the United States with respect to the treatment of youthful law violators are, generally speaking, in accord with those set forth in the substantive Dominion law. Under those standards, considering all the circumstances set forth in this record, we are convinced that the alien would have been treated and tried, not as an adult criminal, but as a juvenile offender in a state of delinquency. Accordingly, when we view this case in the light of the substantive provisions of the Canadian law and the concepts that prevail throughout the United States with respect to the treatment of youthful transgressors of the law, we conclude that the offense committed by this alien in 1929 did not involve moral turpitude.
In this country modern penologists and criminologists have become increasingly aware of the influence that social and environmental forces play in the creation of a criminal class, especially with respect to youthful transgressors. As a result of their studies and research, specialized methods of treating juveniles who have run afoul of the law have been created. Such juveniles are kept apart from adult lawbreakers and are not classed as criminals. They are not convicted of any crimes and their cases are handled in special courts where judges trained in handling of youths sit. The jurisdiction of these courts in the great majority of States extends to all children under 18 years of age. Under the Federal Juveile Delinquency Act (act of June 16, 1938, 52 Stat. 766, 18 U.S.C. 921-929), those under 18 may be regarded as juveniles. The present tendency is to raise the jurisdictional age limit (see pp. 3-4 of our prior opinion). The aim of the juvenile courts is not to punish but to attempt to reclaim and reform the child so that he may become a useful member of society. The statutes creating those special rights for children are always construed liberally in favor of the child.
Order: It is ordered that the appeal be sustained and the alien admitted as a visitor for pleasure for a period not to exceed 29 days.
As a question of difficulty is involved, in accordance with the provisions of title 8, section 90.12, Code of Federal Regulations, the Board refers the case to the Attorney General for review of its decision.
The decision of the Board of Immigration Appeals in the abovenamed case, upon reconsideration, is hereby affirmed.