A-4386040
Decided by Board January 25, 1952
"Crime" involving moral turpitude — Contributing to delinquency of minor — Section 702 of California Welfare and Institutions. Code of May 25, 1937.
The offense of contributing to the delinquency of a minor in 1950 in violation of Section 702 (k) of the California Welfare and Institutions Code of May 25, 1937, is one involving moral turpitude, it being noted that the immoral acts involved very young children. (See 3 IN Dec. 290.)
CHARGES:
Warrant: Act of 1917 — Crime within 5 years — Contributing to delinquency of a minor.
BEFORE THE BOARD
Discussion: This case is before us on appeal from a decision of the Acting Assistant Commissioner dated July 5, 1951, directing respondent's deportation.
Respondent, a 64-year-old native and citizen of Mexico, was admitted to the United States for permanent residence at Nogales, Ariz., on September 7, 1920. He has resided here continuously, except for occasional brief visits to Mexico. Respondent's last entry occurred at San Ysidro, Calif., on December 28, 1949, after a visit in Mexico of a few hours. At that time, respondent was admitted as a returning resident upon presentation of a valid resident alien's border crossing card.
On November 14, 1950, an information was filed against respondent, charging respondent with committing lewd and lascivious acts upon the body, members, and private parts of two 8-year-old girls on October 6 and 8, 1950 (sec. 288, California Penal Code).
On February 15, 1951, respondent was convicted on a plea of guilty, of two counts of contributing to the delinquency of a minor on the basis of the above facts. He was sentenced to 1 year's imprisonment for each offense, with the sentence to run concurrently. We have been advised that the alien was scheduled to be released from confinement on December 16, 1951.
On March 1, 1951, a warrant of arrest in deportation was issued, charging that respondent is deportable as an alien sentenced to imprisonment for 1 year or more for a crime involving moral turpitude, committed within 5 years of entry (sec. 19 (a), act of 1917).
The crime of contributing to the delinquency of a minor is defined in section 702 of the California Welfare and Institutions Code of May 25, 1937, and provides as follows:
Any person who commits any act or omits the performance of any duty, which act or omission causes or tends to cause or encourage any person under the age of 21 years to come within the provisions of any of the subdivisions of section 700 or which act or omission contributes thereto, or any person who, by any act or omission, or by threats, commands, or persuasion, induces or endeavors to induce any person or ward of the juvenile court under the age of 21 years to fail or refuse to conform to a lawful order of the juvenile court, or to do or to perform any act or to follow any course of conduct or to so live as would cause or manifestly tend to cause any such person to become or to remain a person within the provisions of any of the subdivisions of section 700, is guilty of a misdemeanor and upon conviction thereof shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in the county jail for not more than 2 years, or by both such fine and imprisonment, or may be released on probation for a period not exceeding 5 years. [Amended by Stats. 1945, ch. 1234, sec. 1.]
Sec. 700 defines the jurisdiction of the juvenile court over persons under 21 years, who fall into the following categories: Those who are found begging, who have no parent or guardian, who are destitute, whose home is an unfit place, who is found wandering, who is a vagrant, who habitually visits a poolroom or saloon, who habitually uses liquor, tobacco, or drugs, who persistently or habitually refuses to obey, who is a habitual truant, who is leading a dissolute or immoral life, who is insane or mentally deficient, who violates any State law, etc.
This section is a very broad one and acts which do not involve moral turpitude as well as those involving moral turpitude, are included within its scope; ( Matter of V---- T----, 55857/963 (now A-5963331) (B.I.A., November 17, 1944)). Whether or not the statute is divisible is determined after consideration of section 700, upon which section 702 depends. We have held that section 702 is indeed divisible, particularly with reference to section 702 (k), ( Matter of T----, A-4500220 (B.I.A., March 15, 1946); Matter of O---- L----, A-6303623 (B.I.A., July 12, 1946)).
The jurisdiction of the juvenile court extends to any person under the age of 21 years who comes within any of the following descriptions: Who is leading, or from any cause is in danger of leading, an idle, dissolute, lewd, or immoral life.
It was determined in the O---- L---- case, in connection with immoral acts involving very young children, as in the instant case, that such a violation of section 702 and section 702 (k) involved moral turpitude. Because of the base and depraved type of offense involved, we now feel that this crime is one involving moral turpitude and affirm our prior determination; ( Ng Sui Wing v. United States, 46 F. (2d) 755 (C.C.A. 7, 1931)).
In reaching this conclusion, we feel that Pardini v. Shaughnessy, which reached the opposite result, is distinguishable. The Pardini case involved an alien who had relations with a 19-year-old girl, hence the court did not generally consider the question of moral turpitude in relation to the type of acts which confront us in the instant case. Presently, we are concerned with respondent's conviction for morally reprehensible acts with small children, which relates to the portion of section 702 (k) making punishable the influencing a minor to commit acts which may result in the very young child leading a "dissolute" or "lewd" life. This consequence is definitely worse than the situation in the Pardini case, which concerned the adult's influencing an older girl of nearly mature judgment in leading an immoral life.
S.D.N.Y., August 2, 1949, reversing Matter of P----, A-4915916 (B.I.A., February 15, 1949) ( 3 IN Dec. 290).
In Matter of T---- ( supra), it was held that the words in sec. 702 (k) were disjunctive in character and separable.
For the foregoing reasons, we conclude that respondent was convicted within 5 years of entry of a crime involving moral turpitude. The appeal is accordingly dismissed.
Order: It is hereby ordered that the appeal be dismissed.