A-4444509.
Decided by Board October 19, 1953. Commissioner's motion October 27, 1953. Decided by Board May 3, 1954. Reversed by Attorney General July 29, 1955.
Excludable classes — Admission of acts constituting essential elements of crime — Section 212 (a) (9) of Immigration and Nationality Act.
The provision in section 212 (a) (9) of the Immigration and Nationality Act which excludes "aliens who admit committing acts which constitute the essential elements of such a crime" (that is, a crime involving moral turpitude), is applicable to offenses committed prior to as well as those committed after the effective date of the Immigration and Nationality Act.
EXCLUDED:
Section 212 (a) (9) — Act of 1952 — Admits committing acts which constitute essential elements of crime involving moral turpitude — Theft, in Mexico.
BEFORE THE BOARD
(October 19, 1953)
Discussion: The case comes forward on appeal from the order dated July 16, 1953, of the special inquiry officer finding the appellant inadmissible on the ground stated above.
The appellant, a native and citizen of Mexico, applied at the port of San Ysidro, Calif., on July 9, 1953, for admission for permanent residence. He presented a valid passport and an unexpired nonquota immigrant visa issued by the American Vice Consul at Torreon, Coahuila, Mexico, on June 10, 1953.
The acts upon which the finding of inadmissibility is predicated occurred about January 1947 in Tijuana, Mexico. According to the testimony of the appellant, he admitted removing an unexpired border-crossing identification card and a birth certificate from the coat pocket of another person without the consent of the owner of the card and admits that it was his intention at that time to use such card to gain admission into the United States; and about 2 months afterward the appellant admitted that he did use the border-crossing identification card to enter the United States. The appropriate Mexican statute defining the offense of theft was read and explained to the alien. On December 16, 1952, we had occasion to consider this matter in connection with a deportation proceeding against this same alien and therein we stated that a careful examination of the entire record failed to show that the alien had made a clear, voluntary and unequivocal admission of the commission of theft; and concluded, that in the absence of a clear, voluntary and unequivocal admission of the commission of the offense charged, it was found that the criminal charge was not sustained.
The one who takes something belonging to another without right and without the consent of the person who may dispose of it in accordance with the law.
We do not subscribe to counsel's argument that a border-crossing identification card and a birth certificate cannot be the subject of theft. The present exclusion proceeding has elicited no further admissions from the appellant regarding the alleged theft other than a purported memo prepared by the primary examining immigration officer on July 9, 1953, to the effect that the appellant admitted to the officer that he had stolen a border-crossing card or passport in the name of T---- G----, from a coat pocket in Tijuana, Mexico, such card being valid for entry at San Diego, California, and with which the appellant entered at the port of San Ysidro, Calif. The appellant denied that he had admitted "stealing" such a card but did admit only that he had removed this card from the pocket of another person and had used it. The immigration officer who made the memo testified that the appellant admitted stealing the card. However, the memo has not been made a part of the record and it does not appear that this memo was the basis of the finding of inadmissibility. Rather, it appears that the previous statements of the appellant regarding the alleged theft which had heretofore been held to fail to constitute a ground of inadmissibility because of the lack of admission of this specific crime are now being used to support a charge based upon the new ground of exclusion present in section 212 (a) (9) of the Immigration and Nationality Act of 1952 which reads as follows:
Aliens who have been convicted of a crime involving moral turpitude (other than a purely political offense), or aliens who admit having committed such a crime, or aliens who admit committing acts which constitute the essential elements of such a crime * * *. [Emphasis supplied.]
The underscored portion of section 212 (a) (9) is new and was not present in section 3 of the Immigration Act of 1917. The legislative history shows that the principal purpose of the change was to overcome the situation which existed under the law then in effect, where an alien admits facts in an examination which clearly indicate the commission of a crime, but does not actually "admit having committed" such a crime as required by the law. While this additional language removes the requirement that the alien must admit the legal conclusion that he has in fact committed the specific crime, the other requirements set forth in Matter of J----, 56038/559, 2, I. N. Dec. 285 (1945) still prevail.
Senate Report No. 1515 (81st Cong., 2d sess.), Report of the Committee on the Judiciary pursuant to Senate Resolution 137, pp. 353-354.
Matter of E---- V----, 1610-9315, 5 IN Dec. 194 (April 6, 1953).
Adverting once more to section 212 (a) (9), set out above, we note a difference in the tense of the words used. The first part refers to aliens who have been convicted of a crime involving moral turpitude; the next phrase refers to aliens who admit having committed such a crime; while the third phrase under which the present ground of inadmissibility is sought, refers to aliens who admit committing acts which constitute the essential elements of such a crime. The last phrase contains words in the present tense in contrast to the other two preceding phrases. The use of the present tense is significant and a necessary conclusion is that such admission relating to the new ground of inadmissibility as to admitting committing acts which constitute the essential elements of a crime involving moral turpitude must occur in a proceeding under the Immigration and Nationality Act of 1952. The prospective application of this phrase or clause would appear to find added support by comparison with section 241 (d) of the Immigration and Nationality Act which makes the grounds of deportability enumerated in section 241 (a) applicable (except as otherwise provided) to all aliens belonging to any of the enumerated classes notwithstanding that any such alien entered the United States prior to the date of enactment of the act or that the facts by reason of which any such alien belongs to any of the classes so enumerated occurred prior to the date of the enactment of the act. In other words, the retrospective effect is specifically set forth in section 241 (a).
In addition, we note a difference in the language of the second and third clauses of section 212 (a) (9) of the Immigration and Nationality Act. Thus, the second clause refers to aliens who admit having committed, whereas the third clause refers to aliens who admit committing acts which constitute the essential elements of a crime involving moral turpitude. The use of the present tense in the third clause both as to admission and commission leads to the conclusion that not only the admission but the commission of the acts which constitute the essential elements of a crime involving moral turpitude must occur after the enactment of the Immigration and Nationality Act. These requirements are not present in the instant case and accordingly the appeal will be sustained.
Order: It is ordered that the appeal be and the same is hereby sustained.
(October 27, 1953)
Discussion: On the 19th day of October 1953, the Board of Immigration Appeals entered an order sustaining the appeal from the decision of the special inquiry officer who had concluded that the appellant was excludable from the United States on the ground shown above.
Appellant first entered the United States on or about January 2, 1921, at El Paso, Tex. Subsequently, on December 11, 1933, his status was adjusted through registry proceedings whereby record of his lawful entry for permanent residence as of January 2, 1921, was created. He lived in the United States continuously from 1921 to sometime in 1943 when he departed to Mexico. He thereafter applied to reenter the United States on December 27, 1945, and after hearing was excluded on February 14, 1946. He then entered the United States on March 12, 1947, was made the subject of deportation proceedings and the hearings in connection therewith were held in March 1951. On March 21, 1951, he was found to be deportable from the United States by the hearing officer and, upon appeal, on December 16, 1952, the Board of Immigration Appeals found him to be deportable under the Immigration Act of May 26, 1924, in that at the time of entry he was an immigrant not in possession of a valid immigration visa. The privilege of voluntary departure in lieu of deportation was afforded him and he departed from the United States and after obtaining an immigrant visa, applied for admission at San Ysidro on July 9, 1953, at which time the present proceedings were instituted.
At the hearings in March 1951, appellant confirmed prior testimony to the effect that sometime around January 1, 1947, in Tijuana, Mexico, he had removed an unexpired nonresident alien's border-crossing identification card and a birth certificate from the coat pocket of another person without the consent of the owner, that he took such documents for the purpose of using them to enter the United States and that he thereafter illegally entered the United States on March 12, 1947, by using such documents. At the hearings in March 1951 the appropriate Mexican statute defining the offense of theft was read and explained to appellant but he did not make a clear, voluntary, unequivocal admission of the commission of theft since he declined to make any reply on advice of counsel, to a specific question asked in that respect. The Board concluded that because of the absence of such a clear admission, the charge of admission of the commission of a crime involving moral turpitude, namely, theft, in Mexico, had not been established.
In connection with the present exclusion hearing, the record discloses that appellant applied for admission on July 19, 1953, and that a memorandum was prepared by the primary examining officer of the Service which stated that the appellant had admitted to such officer that he had stolen the border-crossing card or passport which he had used for his entry into the United States on March 12, 1947. The memorandum was not presented in evidence. However, the officer testified at the hearing and stated that the appellant had admitted to him that he stole the document involved, and that such officer had prepared the memorandum referred to. Appellant at the hearing denied that he had referred to the card as being stolen but rather averred that he had stated to the officer only that the card had been used to come to the United States.
At the conclusion of the hearing the special inquiry officer concluded that appellant was excludable from the United States pursuant to the provisions of section 212 (a) (9) of the Immigration and Nationality Act in that he was an alien who admits committing acts which constitute the essential elements of a crime involving moral turpitude, to wit: theft. The Board in its order of October 19, 1953, sustaining the appeal, concluded that in order for an alien to be excludable on the charge shown above, that not only the admission but also the commission of the acts which constitute the essential elements of the crime involving moral turpitude must have occurred afer the date of the enactment of the Immigration and Nationality Act. It is the view of the Service that the position taken by the Board is not tenable.
To resolve the issue involved, it is necessary that the history relating to the enactment of the particular clause involved be considered. The Immigration Act of 1907 provided for the exclusion of aliens who "have been convicted of or admit having committed a felony or other crime or misdemeanor involving moral turpitude." In United States v. Williams, 200 Fed. 538 (C.C.A. 2, 1912), cert. den. 232 U.S. 722, it was contended that the clause, "admit having committed," speaks as of the time of the entry of the alien into this country and, consequently, the admission must have occurred prior to the time of entry and not at the hearing resulting in exclusion. The court stated:
While there is force in the argument made in behalf of the relator, we cannot regard it as well founded. The purpose of the act is to exclude aliens who have committed serious crimes in their own countries. Congress has not deemed it expedient to give immigration officers general power to determine questions of guilt or innocence and has limited them to excluding such criminals as have been convicted or admit their guilt. The admission is treated as evidence of guilt tantamount to conviction. But we see no reason why such evidence should be furnished by admissions made prior to rather than after the entry of the alien into this country and are not convinced that the language of the act requires us to limit it. [Emphasis supplied.]
Thus, in this case the court held that the admission of the crime could take place at the hearing, as well as prior to entry.
The act of 1917 provided for the exclusion of aliens who "admit having committed" (sec. 3) and for the deportation of aliens who "admit the commission, prior to entry" (sec. 19) of a felony or other crime or misdemeanor involving moral turpitude. In United States ex rel. Karpay v. Uhl, 70 F. (2d) 793 (C.A. 2, 1934), it was contended in a deportation case that the statute required an admission prior to entry of the commission of a crime. Again the court held that the admission could be made at the deportation hearing and stated that the object of the statute was to —
rid the United States of undesirable aliens and it puts in that class, those who have committed crimes of moral turpitude prior to entry. This is to be proved to the officials administering the statute by conviction (if the alien "was convicted") or by his admission (if he "admits the commission') * * * It is not the admission but the crime previously committed which makes the alien an undesirable. [Emphasis supplied.]
Thus, the court again pointed out that it was the commission of the crime that made the alien undesirable and that the admission was only one manner whereby the commission of the crime could be established. The case of United States ex rel. Santarelli v. Hughes, 116 F. (2d) 613, 616 (C.A. 3, 1940) is of like import.
That an admission of the commission of a crime may be made by an alien prior to the hearing is also well established ( Howes v. Tozer, 3 F. (2d) 849, 852 (C.C.A. 1, 1925); Blumen v. Haff, 78 F. (2d) 833, 836 (C.C.A. 9, 1935)).
In connection with the present act, the Senate Committee on the Judiciary had before it, the question of the interpretation of the clause "or admit having committed" and discussed such clause in its report dated April 20, 1950, Report No. 1515, 81st Cong., 2d sess., pp. 352-354. As stated by the Board of Immigration Appeals in its order, to overcome the situation which existed under the laws then in effect, where an alien admitted facts in an examination which clearly indicated the commission of a crime but did not actually "admit having committed" such a crime, there was added the new ground of exclusion, namely, "aliens who admit committing acts which constitute the essential elements of such a crime." In connection therewith it was stated in the report as follows:
It is the recommendation of the subcommittee that the exclusion clause pertaining to crimes involving moral turpitude should be modified to exclude aliens who have been convicted of a crime involving moral turpitude, or aliens who admit committing acts which constitute the essential elements of such a crime, or aliens whose admissions are tantamount to a confession of such a crime. The principal purpose of the change is to overcome the situation which exists under the present law where an alien admits facts in an examination which clearly indicate commission of such a crime, but does not actually "admit having committed" such a crime as required by the law.
It is apparent, therefore, that a review of the legislative history shows the intention of Congress to enact a new ground for exclusion similar to the previous grounds of exclusion contained in the Immigration Acts of 1907 and 1917 to the effect that an alien was excludable who "admit having committed" a crime involving moral turpitude. The only distinction made by Congress in respect to the former grounds of inadmissibility and the new ground of inadmissibility was that the alien did not have to admit the legal conclusion that he had committed the crime ( Matter of E---- V----, 1610-9315, 5 IN Dec. 194 (April 6, 1953)).
As pointed out in the court decisions referred to above, the real purpose of the clause was to rid the United States of undesirable aliens. It was the commission of the crime that made the alien an undesirable and not the admission. The admission was treated as evidence of guilt tantamount to conviction. Similarly, it must be concluded that in respect to the new ground of inadmissibility involved in this case the aim of Congress was to broaden the base of excludability as to aliens who have committed serious crimes. The criminal acts must have occurred prior to the alien's application for admission to the United States; and his admission of the commission of such acts may be made at any time prior to his attempt to enter the United States or at the hearing in connection with his application for admission into this counry.
There is no perceivable basis for the conclusion by the Board that the date of the enactment of the Immigration and Nationality Act determines the effectiveness of this ground of inadmissibility. The Service is not convinced by the reasoning of the Board in respect to the use of the past and present tenses. The charge involved in this case refers to aliens who "admit committing acts." The word "committing" as well as the word "admit" is in the present tense. Consequently, if the reasoning of the Board is followed to a logical conclusion, in order to be excludable on this ground, the alien must presently admit that he is presently committing acts which constitute the essential elements of the crime. In other words, the admission must occur while the act is being committed. This result could not have been intended. Likewise, we do not believe Congress intended the distinction urged by the Board.
The Board furthermore reasons that, while section 241 (d) of the Immigration and Nationality Act specifically makes the grounds of deportability retrospective, the exclusion provisions of the act contain no similar language as that appearing in section 241 (d). In respect to this contention, it is apparent that as to deportability such clause was necessary; as to excludability, such clause was not necessary. In order for an alien to be excludable from the United States, the ground or grounds must have arisen prior to his application for admission into the United States and, consequently, it was unnecessary to use a retroactive clause as was done in section 241 (d) with respect to grounds for deportation.
It is evident that Congress, in enacting section 212 (a) (9) of the Immigration and Nationality Act and repealing the act of 1917 not only wished to preserve the grounds of excludability previously set forth in section 3 of the act of 1917, as to persons who have been convicted of or admit having committed a felony or other crime or misdemeanor involving moral turpitude but also to widen this area by including an additional ground of excludability as to aliens who admit committing acts which constitute the essential elements of such a crime. There is nothing in the present act or the legislative history relating thereto to show that Congress intended any hiatus in excluding these undesirable aliens; but such would be the result, were the Board's conclusions correct.
It is, therefore, the view of this Service that as the appellant has admitted committing the essential elements of the crime of theft, he is excludable under section 212 (a) (9). His appeal from the excluding decision should, therefore, have been denied.
Motion is hereby made that the Board of Immigration Appeals reconsider and withdraw its order of October 19, 1953, and enter an order dismissing the appeal of the alien from the excluding decision of the special inquiry officer.
(May 3, 1954)
Discussion: This case is before us on motion dated October 27, 1953, of the Assistant Commissioner requesting that we withdraw our order of October 19, 1953, and enter an order dismissing the alien's appeal from the excluding decision of the special inquiry officer.
We have carefully considered the matter set forth in the motion of the Service, as well as the representations made by the alien's counsel in the brief in opposition to the Service motion. At the time of the exclusion, the special inquiry officer found that the alien was in possession of a valid passport and a valid unexpired immigrant visa but he excluded the alien under section 212 (a) (9) of the Immigration and Nationality Act on the ground that he was inadmissible as an alien who admits committing acts which constitute the essential elements of a crime involving moral turpitude, to wit: theft. The alleged theft was committed about January 1, 1947, and consisted in the removal of a nonresident alien's border-crossing identification card and a birth certificate from the coat pocket of another individual without the consent of the owner. In our order of December 16, 1952, we held that the alien had not made a valid admission of the commission of theft. The same admissions concerning the alleged commission of theft, which we had held on December 16, 1952, did not constitute a valid admission of the commission of the crime, were the basis upon which the special inquiry officer concluded that the alien had admitted committing acts which constituted the essential elements of a crime involving moral turpitude.
While the Service contends that our interpretation of the statutory provision, if followed to a logical conclusion, would require that the alien must presently admit that he is presently committing acts which constitute the essential elements of a crime involving moral turpitude in order to be inadmissible, in our previous decision in this case we held only that the admission of the essential elements and the commission of the crime must occur subsequent to the effective date of the Immigration and Nationality Act and we do not, of course, agree that the result suggested by the Service would logically follow from our interpretation of the statutory provision involved.
We agree with the Service that it was the intention of Congress to broaden the area of excludability by removing the necessity of securing the alien's admission of the legal conclusion that he had committed a particular crime. We also agree that it was the intention of Congress to preserve the grounds of excludability concerning criminal aliens which had previously been set forth in section 3 of the Immigration Act of 1917 and we do not conceive how our interpretation of the statutory provision would create any "hiatus" in excluding undesirable aliens who had made the necessary admission of the commission of a crime in accordance with the provisions of section 3 of the Immigration Act of 1917. In other words, the second clause of section 212 (a) (9) which reads "or aliens who admit having committed" would constitute the basis for exclusion of an alien who has previously or who hereafter admits the legal conclusion that he has committed a crime involving moral turpitude, whether the admission and/or the crime was committed before or after December 24, 1952. Hence, it is only where reliance is placed on the new clause added at the time the Immigration and Nationality Act was enacted that we hold it is necessary that the admission and the commission of the crime take place subsequent to the effective date of the Immigration and Nationality Act.
As requested by the Service, we have carefully reconsidered our previous decision and we are convinced that the conclusion reached at that time is correct. Section 212 (a) of the Immigration and Nationality Act is replete with illustrations of the use of the present and past tenses to distinguish between present matters or conditions which shall render an alien excludable and past matters. When we consider the obvious care which the framers of the legislation used in their selection of tenses in section 212 (a), we would not be at liberty to ignore what we consider to be the clear intent of paragraph (9), namely, to continue the previous legislation concerning the aliens of the criminal class who had been excludable under the 1917 act and to add one additional class in the future. Ordinarily, legislation is to be considered as prospective unless an intention of making it retrospective clearly appears. We do not find such an intention in the statutory provision and, on the contrary, we believe the precise language used can only be interpreted prospectively.
In order to further clarify our conclusion concerning this matter, we consider it appropriate to compare the provision in the 1917 act with that contained in the Immigration and Nationality Act of 1952. Section 3 of the 1917 act provides, in part, as follows:
That the following classes of aliens shall be excluded from admission into the United States: * * * persons who have been convicted of or admit having committed a felony or other crime or misdemeanor involving moral turpitude; * * *. [Emphasis supplied.]
Section 212 (a) (9) is, in part, as follows:
Except as otherwise provided in this Act, the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States: * * * (9) Aliens who have been convicted of a crime involving moral turpitude (other than a purely political offense), or aliens who admit having committed such a crime, or aliens who admit committing acts which constitute the essential elements of such a crime; * * *. [Emphasis supplied.]
We consider that it is highly significant that in the first two clauses of section 212 (a) (9), language identical with that used in section 3 of the act of 1917 was employed indicating, in effect, that these two provisions were to be continued in the Immigration and Nationality Act as they had been interpreted in court decisions under the act of 1917. However, the fact that Congress departed from the phrase "admit having committed" in the second category and used the phrase "admit committing acts" instead of admit having committed acts" clearly indicates to us that Congress did not intend that acts committed prior to the effecive date of the Immigration and Nationality Act or admissions made prior to that date were to render an alien excludable under the third clause in paragraph (9). Accordingly, we adhere to our previous decision of October 19, 1953, and will direct that the Service motion be denied.
Order: It is ordered that the motion of the Assistant Commissioner dated October 27, 1953, be and the same is hereby denied.
(July 29, 1955)
The decision of the Board of Immigration Appeals in the above-captioned case, dated May 3, 1954, was referred to the Attorney General for review at the request of the Assistant Commissioner, pursuant to 8 C.F.R. 6.1 (h) (1) (iii).
On July 16, 1953, the alien was found excludable by the special inquiry officer under section 212 (a) (9) of the Immigration and Nationality Act on the ground that he had admitted the commission of acts which constituted the essential elements of a crime involving moral turpitude, namely, theft, in Mexico. It appears from the record that on or about January 1, 1947, the alien took from another alien's pocket the latter's border-crossing identification card and birth certificate.
On October 19, 1953, the Board of Immigration Appeals sustained the appeal of the alien and entered an order accordingly. On October 27, 1953, the Assistant Commissioner brought a motion before the Board requesting that the order be withdrawn. The motion was denied in the decision now before the Attorney General for review.
The Board has held that the admission of the commission of acts which constitute the essential elements of a crime is not a ground for exclusion under section 212 (a) (9) of the Immigration and Nationality Act unless both the admission and the commission took place subsequent to the effective date of the act.
The pertinent language of section 212 (a) (9) describes a category of excludable aliens as follows:
(9) Aliens who have been convicted of a crime involving moral turpitude (other than a purely political offense), or aliens who admit having committed such a crime, or aliens who admit committing acts which constitute the essential elements of such a crime; * * *.
The provision in this section that aliens are excludable "who admit committing acts which constitute the essential elements of such a crime" was a new ground of exclusion. The Board has concluded that the Congress, in using the present tense in the words "admit committing acts," meant to limit the provision's application to post-enactment admissions and commissions.
Confining myself solely to the question of whether the commission must take place subsequent to the effective date of the act, I cannot agree with the reasoning of the Board. The words "such a crime" relate back to the first of the two preceding phrases, which is a carryover from the prior law and which excludes aliens "who have been convicted of a crime involving moral turpitude." The Board's reasoning, which rests entirely on the change of tense in the third phrase, is inconsistent with the Committee report, which indicates that what was intended was an extension, or broadening, of the exclusion provisions of the prior law. In the Report of the Committee on the Judiciary (S.R. 1515, 81st Cong., 2d sess.), the following paragraph appears (pp. 353-4):
It is the recommendation of the subcommittee that the exclusion clause pertaining to crimes involving moral turpitude should be modified to exclude aliens who have been convicted of a crime involving moral turpitude, or aliens who admit committing acts which constitute the essential elements of such a crime, or aliens whose admissions are tantamount to a confession of such a crime. The principal purpose of the change is to overcome the situation which exists under the present law where an alien admits facts in an examination which clearly indicate commission of such a crime, but does not actually "admit having committed" such a crime as required by the law.
It is hard to escape the conclusion that it was the framers' intention to recommend a means of correcting the "situation which exists under the present law" by the addition of an exclusion clause which would embrace aliens who admit committing acts which constitute the essential elements of a crime involving moral turpitude.
For the foregoing reasons the decision of the Board is reversed. I do not pass upon the Board's conclusion that the admission, apart from the commission, must have taken place subsequent to the effective date of the act.