A-7397881
Decided by Central Office December 11, 1950
Crime involving moral turpitude — Abandonment of minor child (Wisconsin).
Abandonment of a minor child in violation of section 351.30 of the Wisconsin Statutes is an offense involving moral turpitude. (See 2 IN 553).
CHARGES:
Warrant: Act of 1924 — No visa.
Act of 1917 — Sentenced more than once to imprisonment for a year or more for crimes committed subsequent to entry, to wit: Abandonment of child or wife; larceny of domestic fowl.
Lodged: Act of 1917 — Convicted and sentenced imprisonment year or more for crime committed within 5 years after entry, to wit: Abandonment of child or wife.
BEFORE THE CENTRAL OFFICE
Discussion: This record relates to a native and citizen of Canada, age 46, who last entered the United States at the port of Portal, N. Dak., during 1943. At the time of that entry he was not in possession of an immigration visa. He originally entered this country as a child during November 1908 and has resided here since with the exception of two short trips to Canada. No record of his original entry can be located. The documentary charge in the warrant of arrest is sustained.
On February 4, 1944, the respondent was convicted of violating section 351.30 of the Wisconsin statutes which relates to the abandonment of child or wife and was sentenced to the State prison for a term of not less than 1 and not more than 5 years. On January 25, 1949, he was convicted of violating section 343.174 of the Wisconsin statutes which relates to the larceny of domestic animals and was sentenced to the State prison for a term of not less than 1 nor more than 3 years.
The Hearing Examiner has concluded that a violation of section 351.30 of the Wisconsin statutes involves moral turpitude. We agree with that conclusion. Section 351.30 provides:
Any person who shall, without just cause, desert, or willfully neglect or refuse to provide for the support and maintenance of his wife in destitute or necessitous circumstances; or any person who shall, without lawful excuse, desert, or willfully neglect or refuse to provide for the support and maintenance of his or her legitimate or illegitimate minor child or children under the age of 18 years, in destitute or necessitous circumstances, shall be guilty of a crime and on conviction thereof shall be punished by fine not exceeding $500 or imprisonment in the State prison, county jail, or in the county workhouse not exceeding 2 years, or both in the discretion of the court. Proceedings under this section may be instituted upon complaint made under oath or affirmation by the wife or child or children, or either of them, the superintendent or acting superintendent or other officer in charge of public welfare agencies, the director of the department of public welfare or case work supervisor or by any other person or persons, or organization, against any person guilty of either of the above-named offenses.
The information upon which the respondent's conviction was predicated charges, in pertinent part, that he "did without just cause, willfully neglect and refused to support and maintain and provide for the support of his minor legitimate children, Betty, Robert, Billy, Irene, Merlin, Lawrence, Marlene, and Joseph, all under the age of 16 years and then and there in destitute and necessitous circumstances."
Statutes dealing with the abandonment of children have been examined in the past both by this Service and the Board of Immigration Appeals. In some cases the decision reached was that the statute did not involve moral turpitude, while the statutes of other States have been held to involve moral turpitude.
Matter of N----, 55693/375 (E.D. Mo., 1931), Missouri; Matter of Y----, 56064/472 (B.I.A. 1941), California; Matter of S----, 56080/651 (B.I.A. 1942), California; Matter of H----, 56127/824 (B.I.A. 1943), Canada; and Matter of E----, 56063/394 (B.I.A. 1944), Ohio.
Matter of L----, 56081/222 (B.I.A., 1942), Colorado; Matter of S----, A-1675763 (B.I.A., 1946), New York; and Matter of S----, A-5510145 (C.O., 1947), New Jersey.
An examination of the past decisions indicates that in each case where a statute was held to be one involving moral turpitude with the exception of the Colorado statute, the statute specifically required that the failure to provide support be willful and that the child be in destitute circumstances. One or the other or both of these elements were absent in each of the cases wherein the decision was reached that the statute under consideration was one which did not involve moral turpitude. Although the decision based upon the Colorado statute was that it was a statute that did involve moral turpitude, it is noted that the statute under consideration while requiring the failure to provide support be willful did not provide in specific terms that the child be in destitute circumstances. The decision in that case was based upon what the Board of Immigration Appeals found to be "the narrow application of the Colorado statute."
The Missouri statute did not require either of the two elements mentioned. The California statute did not require the child to be in destitute circumstances. The Canadian statute did not require that the failure to provide support be willful. The Ohio statute did not require either of the two elements mentioned.
The Wisconsin statute under consideration in the instant case clearly indicates that the failure to provide support must be willful and that the child be in destitute or necessitous circumstances. Both elements being present, the conclusion is warranted that that statute is one involving moral turpitude. That the section under consideration is not merely a "nonsupport" statute is evidenced by the fact that the Wisconsin statutes in effect at the time of this alien's conviction for "abandonment" contained a separate provision in section 247.095 for a civil action compelling support by a husband which, if successful, resulted in a judgment enforcible by contempt proceedings. The attorney general of Wisconsin ruled that this civil statute, unlike the criminal statute under consideration, did not legally charge the husband with "abandonment" and no showing was required as to "destitute or necessitous circumstances" (29 Op. Atty. Gen. 89).
Further indication that the section under consideration in the instant case is not merely a "nonsupport" provision is the fact that it is contained in chapter 351 which is entitled "offenses against chastity, morality, and decency."
Section 351.30 of the Wisconsin statutes has been on the statute books since at least 1927 without change in the substantive provisions of the offense. The law today was the law in 1929 and 1933. In Matter of A----, 55794/339, the then Board of Review without discussion held on September 7, 1934, that the crime of "abandonment" under the 1929 Wisconsin statute was an offense involving moral turpitude. In Matter of W----, 55896/351, the then Board of Review held on March 21, 1936, that the crime of "abandonment" under the 1933 Wisconsin statute was an offense involving moral turpitude. We agree with those decisions for the reasons set forth herein.
Upon consideration of the entire record, the findings of fact and conclusions of law proposed by the hearing examiner and served upon the respondent and the examining officer, are hereby adopted.
Other Factors: The respondent's father was naturalized a citizen of the United States on January 7, 1922, during the minority of the respondent. However, as there is no record of the respondent's admission to the United States for permanent residence, he is not deemed to have acquired United States citizenship through his father's naturalization. The respondent is married to a citizen of the United States and they are the parents of 9 children. In addition to the 2 crimes mentioned in the foregoing, he was previously convicted for nonsupport, drunkenness as a repeater, and assault and battery. He cannot establish that he has been a person of good moral character for the past 5 years and there is no alternative, therefore, to ordering that he be deported. Order: It is ordered that the alien be deported from the United States pursuant to law on the charges contained in the warrant of arrest and on the following additional charge:
The act of February 5, 1917, in that on or after May 1, 1917, he has been sentenced to imprisonment for a term of 1 year or more because of conviction in this country of a crime involving moral turpitude committed within 5 years after entry, to wit: Abandonment.