A-5877615
Decided by the Board December 2, 1953
Crime involving moral turpitude — Theft — France.
A conviction for theft under articles 379 and 401 of the Penal Code of France is a conviction for a crime involving moral turpitude committed prior to entry, it being assumed that the respondent intended to permanently deprive the owner of his property since the record of conviction gives no indication that there was a temporary taking.
CHARGES:
Deportable: Act of 1924 — No immigration visa.
Act of 1917 — Convicted of crime prior to entry, theft.
BEFORE THE BOARD
Discussion: This case is before us on certification of the Acting Assistant Commissioner dated April 24, 1953, directing deportation on the above-stated grounds. Respondent, a 45-year-old native and citizen of Poland, last entered the United States on October 20, 1941, at San Francisco, Calif., as a stowaway.
According to the record, respondent entered France illegally on August 4, 1936, but was granted permission to remain there on August 19, 1937. He was ordered deported from France on July 5, 1937, following his criminal conviction and sentenced to 3 months' imprisonment by the Seventieth Chamber of Correctional Court (Tribunal Correctional) of the Seine for robbery. According to the court record the preliminary investigation in the trial shows that on April 5, 1937, at Paris, S---- obtained a package of textile fabric from one named B----. On March 8, 1938, he was sentenced to 4 months' imprisonment by the Paris Court of Appeals for noncompliance with the deportation decree. On September 13, 1938, he was again sentenced for the same reason by the Tenth Chamber of the Correctional Court of the Seine for 8 months. Thereafter, respondent resided in Lithuania from September 1939 to January 1941, in Japan from March to July 1941, in Shanghai, China, from July to September 1941. In October 1941, he entered the United States illegally at San Francisco, Calif.
Upon respondent's arival on October 20, 1941, as a stowaway, he was excluded by a board of special inquiry with this determination being affirmed on November 17, 1941, when he was given 30 days within which to tranship voluntarily. On January 9, 1942, the record was ordered reopened for evidence of respondent's intention to enlist in the Polish Legion in Canada, although it later developed that he was unwilling to so enlist. On March 24, 1942, he was paroled, because of his failure to receive a Canadian visa, this parole being continued on October 17, 1942. On May 13, 1943, the record was again reopened to learn what efforts were being made by respondent to effect his entry into another country. Upon reopening, it was learned that respondent was gainfully employed and was apparently making no bona fide efforts to effect his entry into another country. On July 17, 1943, the Board determined that respondent had no intention of departing voluntarily and affirmed the excluding decision of the board of special inquiry. However, respondent was placed on parole until deportation was possible.
On January 22, 1944, respondent married a United States citizen and applied for suspension of deportation shortly after. Respondent's wife was born in Poland; entered the United States on November 2, 1931; and derived United States citizenship through her father's naturalization on September 23, 1929. On November 11, 1944, the Board ordered that the alien's parole be terminated in order that the suspension application might be considered.
The record reveals that respondent was charged in the United States District Court for the Northern District of California with violating 18 U.S.C. 746 (count one) and 18 U.S.C. 220 (c) (count two). The charge of falsely claiming United States citizenship in court one arose out of statements made by respondent in an employment application. Count two, to which respondent pleaded guilty on April 29, 1946, arose as a result of false statements in an affidavit which he gave the Immigration Service, stating that he had never been arrested. On May 13, 1946, respondent received a suspended sentence and was placed on 18 months' probation. We are informed that respondent has a record for various robbery offenses dating back to January 26, 1928, in Poland, when he stole a package of food from a store.
On December 10, 1951, the hearing officer determined that although respondent had been paroled into the United States after being excluded, he had not made a valid entry into the United States within the meaning of the immigration laws. In addition, since respondent was not admitted in 1941 as a nonimmigrant and because he intended to stay in this country an indefinite period at that time, he was in fact an immigrant when he sought admission on October 20, 1941, and hence was required to present a visa (secs. 13, 14, act of 1924). We agree with this conclusion and feel that respondent is clearly deportable on this charge.
The hearing officer also concluded that respondent was deportable as an alien who had been convicted prior to entry of a crime involving moral turpitude (theft in France), contrary to section 19 (a) of the act of 1917. On April 7, 1937, respondent was convicted in a court of first instance (Seventieth Chamber of Correctional Court of the Seine, France). The court of record stated that on April 5, 1937, respondent fraudulently took possession of a package containing textile fabric, contrary to articles 379 and 401 of the Penal Code of France, with the penalty being mitigated because of extenuating circumstances under article 463. Respondent was sentenced to 3 months' imprisonment and costs of 21.10 francs. This conviction and sentence was registered in the official court records on April 27, 1937.
The pertinent statutes provide as follows:
Article 379. Whoever, in bad faith (frauduleusement) takes away a thing not belonging to him shall be guilty of theft.
Article 401. Thefts not specified in the present Title, petit thefts and thefts by ruse, as well as attempts at these crimes, shall be punished by imprisonment not less than one year and not more than five years, and they may also be punished by a fine of not less than two thousand francs and not more than sixty thousand francs.
Those found guilty may, moreover, be deprived of the right specified in Article 42 of the present Code for a period of not less than five years and not more than ten years beginning with the day on which they undergo their punishment.
Moreover, they may be subjected, by decision of a lower or higher court, to police surveillance during the same period of time.
While the literal translation of "frauduleusement" in article 379 is "in bad faith," "willfully" or "deliberately" is the near-equivalent in American law of the word "frauduleusement." The possession concept is paramount and the main characteristic of the crime consists in a general intent to take the property of another. Hence, the owner is deprived of the enjoyment of his property through the appropriation of the goods by the thief. According to French legal authorities, the intention to possess dominates as a requisite of the offense although it is not clear whether a permanent, as distinguished from a temporary, taking or asportation of another's property is necessary to support a conviction under article 379.
Dalloz, Recueile Hebdomadaire de Jurisprudence, 1934, p. 183.
Dalloz, Nouveau Repertoire de Droit, Paris, 1950, vol. IV, p. 83, No. 12.
According to Dalloz Nouveau Repertoire de Droit, ( supra), it is not necessary that the offender have the intention to appropriate the object permanently. See also, Rene Garraud, Traite Theorique et Pratique du Droit Penal Francais, Paris, 1935, vol. VI, p. 141, No. 70.
Counsel urges us to adopt the reasoning in the Matter of L----, that, because both a permanent and a temporary taking was included in the Canadian definition of perjury, the offense is not considered as one involving moral turpitude. Although we are fully aware of this rationale we do not feel that the Matter of L---- rule is appropriate in the present situation.
Matter of L----, 56107/183 1 IN Dec. 324 (B.I.A., 1942).
Section 170, Canadian Criminal Code provides as follows: "Perjury is an assertion as to a matter of fact, opinion, belief, or knowledge, made by a witness in a judicial proceeding as part of his evidence, upon oath or affirmation whether such evidence is given in open court, or by affidavit or otherwise, and whether such evidence is material or not, that such assertion being known to such witness to be false, and being intended by him to mislead the court, jury or person holding the proceedings * * *." [Emphasis supplied.]
In Matter of L---- ( supra), the Board referred to Rex v. Howley, 20 Can. Crim. Cases 36 (1911), which stated in part: "Under the old criminal law of our country so many technical objections could be raised that it was almost impossible to obtain a conviction of those who were guilty of perjury * * * as far as perjury is concerned (the Imperial Commission) recommended that the word "material" should be struck out, as not being essential to obtain conviction * * * it follows that the intention of our parliament in adopting this article was to declare that any false assertion made under oath before a justice, constituted perjury and was to be considered as an attempt to mislead justice."
Counsel also cites Matter of B----, A-4048121 (C.O., 1948) ( 3 IN Dec. 278), which involved article 4 of the French law of August 12, 1926: "A person who in bad faith has issued a check without having the necessary funds * * * et cetera."
According to the legislative intent of this law, a distinction was made in 1917 between checks fraudulently issued and those issued in good faith, although with insufficient funds on deposit, and the penalties for each offense were graduated. In 1926, the fraudulent issuance of checks became a crime subject to fraud penalties. Therefore, the issuance of a check "in bad faith" through excusable error definitely could not involve fraud.
The offense defined in article 4 of the French law of August 12, 1926, is similar to the Nevada and California Cold Check Statutes which have been held as offenses not involving moral turpitude, since they contain no specific intent to defraud, and only the word "willfully" is used in the particular statute. Section 10359, Nevada Compiled Laws of 1929 ( Matter of L----, unreported, A-2670639, B.I.A., 1951); sec. 476 (a), Deering's California Penal Code ( United States ex rel. Portada v. Day, 16 F. (2d) 328 (S.D.N.Y., 1926)).
In Anglo-American law, theft is generally considered as a crime involving moral turpitude, Tillinghast v. Edmead, 31 F. (2d) 81 (C.C.A. 1, 1929); United States ex rel. Rizzio v. Kenney, 50 F. (2d) 418 (D. Conn., 1921). It is noted in passing that standards prevailing in the United States always serve as the test in determining whether the particular foreign crime involves moral turpitude. 39 Op. Atty. Gen. 95; Matter of A----, A-7229450 (B.I.A., March 13, 1953). An example of this view occurs in cases arising under section 347 of the Canadian Criminal Code, which includes a temporary as well as a permanent taking. It has been held that theft convictions under this section involve moral turpitude only if the taking is found to be of a permanent character. Matter of T----, 56156/249, 2 IN Dec. 22 (Atty. Gen. 1944).
If we assume that the temporary taking of property as well as the permanent taking of the property of another is included in the crime of theft in France, we conclude that respondent intended permanently to deprive the owner of his property in the above-mentioned instance since this record of conviction gives no indication that there was a temporary taking. For this reason, respondent's conviction for theft in France in 1937 was a conviction for a crime involving moral turpitude, committed prior to entry, and the charge under section 19 (a) of the act of 1917 is fully supported. The appeal is accordingly dismissed.
Order: It is hereby ordered that the appeal be dismissed.