A-6283058.
Decided by Board October 21, 1955.
Crime involving moral turpitude — Possession of burglary tools — Canada.
Possession of burglary tools in violation of section 464 (b) of the Canadian Criminal Code is not a crime involving moral turpitude unless accompanied by an intent to use the tools to commit a crime defined as one involving moral turpitude.
CHARGES:
Warrant: Act of 1952 — No valid entry document. Act of 1952 — Convicted of crime involving moral turpitude, to wit: Possession of burglary tools.
BEFORE THE BOARD
Discussion: Respondent appeals from an order entered by the special inquiry officer, July 7, 1955, directing his deportation on the charges stated above. Respondent challenges said order on the ground that his conviction for possession of burglary tools (Canadian Criminal Code, section 464 (b)) does not involve moral turpitude. No exceptions have been taken to the finding of deportability on the documentary charge and his statutory ineligibility for voluntary departure under section 244 (e) of the Immigration and Nationality Act.
The record relates to a native and citizen of Canada, male, 42 years of age, married, but separated from his wife. The respondent last entered the United States at Port Huron, Michigan, during the fall of 1954, intending to remain indefinitely. He did not possess a valid unexpired immigrant visa, reentry permit, border-crossing identification card, or other valid entry document. The respondent was convicted upon a plea of guilty at Fort William, Ontario, on October 30, 1950, of the crime of unlawful possession of instruments of house-breaking, vault-breaking or safe-breaking contrary to section 464 (b) of the Criminal Code of Canada. The documentary charge stated above is sustained by the evidence of record.
The only issue presented is respondent's deportability under section 241 (a) (1) of the Immigration and Nationality Act as an alien excludable at the time of entry under section 212 (a) (9) of the same act in that he had been convicted of a crime involving moral turpitude, to wit: possession of burglary tools as defined in section 464 (b) of the Canadian Criminal Code. Section 464 (b) — Canadian Criminal Code — provides as follows: —
Everyone is guilty of an indictable offense and liable to five years' imprisonment who is found (b) having in his possession by day any such instrument with intent to commit any indictable offense.
It has been held that violation of a similar statute, section 408 of the New York Penal Law does not involve moral turpitude unless the record of conviction affirmatively shows that the particular crime the alien intended to commit with the burglary tools found in his possession involves moral turpitude (Cf. Guarino v. Uhl, 107 F. (2d) 399 (C.C.A. 2, 1939); United States ex rel. Zaffarano v. Corsi, 63 F. (2d) 757 (C.C.A. 2, 1933)).
Section 408 of the Penal Law, New York State, reads as follows: A person who makes or mends or causes to be made or mended, or has in his possession in the day or nighttime, any engine, machine, tool, false key, pick lock, bit, nippers, or implements adapted, designed or commonly used for the commission of burglary, larceny or other crime, under circumstances evincing an intent to use or employ, or allow the same to be used or employed, in the commission of a crime, or knowing that the same are intended to be used, shall be guilty of a misdemeanor, and if he has been previously convicted of any crime, he is guilty of a felony.
The record of the Canadian conviction entered in evidence as exhibit 2 reads as follows: —
* * * The said (respondent) * * * on October 6, 1950 did unlawfully have in his possession by day instruments of house-breaking, vault-breaking or safe-breaking contrary to section 464 (b) of the Criminal Code of Canada.
The record of conviction omits any reference to the indictable offense intended by respondent. We find ourselves in the same position as the Circuit Court of Appeals for the Second Circuit in the case of Guarino v. Uhl, ( supra). The New York statute (see footnote 1) there under consideration provided that possession of burglary tools be "under circumstances evincing an intent to use or employ the same * * * in the commission of some crime." Section 464 (b) of the Canadian Criminal Code follows the same pattern. Nothing appears in the record of conviction or in any other part of the record to indicate what crime the respondent intended to commit with the burglary tools found in his possession. We may not go behind the record of conviction and inquire into the circumstances, whether they be favorable or unfavorable, under which the crime in fact was committed ( United States ex rel. Robinson v. Day, 51 F. (2d) 1022 (C.C.A. 2, 1931)). Accordingly, we find that the respondent's conviction at Fort William, Ontario, Canada, on October 30, 1950, for the crime of possession of burglary tools will not support the charge laid under section 241 (a) (1) of the Immigration and Nationality Act of 1952.
An information has been filed in the United States District Court, Eastern District of Michigan, Southern Division, charging respondent with violation of section 111, Title 18, United States Code, assault of a Federal officer. The case has not yet been tried. The record establishes that respondent has been confined in a penal institution for an aggregate period of 180 days or more since October of 1950. Under the circumstances, he is statutorily ineligible for the privilege of voluntary departure under section 244 (e) of the Immigration and Nationality Act (101 (f) (7)). An appropriate order will be entered.
Order: It is ordered that the appeal be and the same is hereby dismissed solely with respect to the documentary charge stated in the warrant of arrest.