A-6312286.
Decided by Central Office August 8, 1946. Decided by Board August 16, 1946.
Crimes involving moral turpitude — Keeping a bawdy house — Violation of section 229 of the Canadian Criminal Code — Vagrancy — Violation of section 238 (i) of the Canadian Criminal Code.
(1) The offense of keeping a disorderly house, to wit: A common bawdy house, in violation of section 229 of the Canadian Criminal Code, involves moral turpitude.
(2) The offense of vagrancy in violation of section 238 (i) of the Canadian Criminal Code, does not involve moral turpitude, and a conviction under such provision of law is not a conviction for an act of prostitution.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — No immigration visa.
Executive Order No. 8766 — No passport.
Act of 1917 — Admits commission and convicted of crimes; Common bawdy house; prostitution.
BEFORE THE CENTRAL OFFICE
This record relates to a 42-year-old unmarried female, native of the United States, who applied for readmission for permanent residence on April 10, 1946. She was held for a Board of Special Inquiry at Vancouver, and on May 15, 1946, she was excluded from admission on the grounds stated above. Pending decision on appeal appellant is remaining at her hotel in Vancouver.
Appellant presented evidence of her birth in the United States on November 9, 1903. It was ascertained that her father was naturalized in Alberta, Canada, on July 18, 1910. Appellant admits that she went to Canada with her parents for permanent residence in 1906, and that since then she has continuously resided in Canada. Appellant also admits that although her parents subsequent to Canadian naturalization in 1910, resumed residence in the United States, approximately in 1924, and remained in the United States for about 4 years, that she did not return to the United States with them at that time. Appellant also admits that she attempted to reenter the United States as a citizen in 1928 in transit to Calgary, Alberta, at which time she was excluded at Blaine, Wash. Appellant also admits that she again attempted to reenter the United States as a citizen in 1930 in transit to Calgary, and was excluded at Sumas, Wash. Appellant further admits that she attempted to reenter the United States as a citizen in April 1943, as a visitor for pleasure for 2 or 3 days and was excluded at Blaine, Wash.
Appellant's first attempt to return to the United States for permanent residence was at Vancouver on March 23, 1945, at which time she was again excluded. Appellant declined to appeal from the excluding decisions of November 20, 1928, April 10, 1943, and March 23, 1945. Her rejections on June 25, 1930, and April 10, 1943, were subject to reopening on presentation of proof of United States citizenship.
Appellant admits that during her prolonged residence in Canada she has never taken any steps to register before an American consular officer as a citizen of the United States. Appellant denies that the record of a person named M---- McD---- residing at 1416 Overlook Street, Prince Rupert, B.C., Canada, who registered and voted in 1945 in the general provincial election in Canada relates to her, although appellant admits that she used the alias M---- McD---- for several years. The local office concludes that appellant lost United States citizenship under section 401 (a) of the Nationality Act of 1940, and since appellant is not now in possession of an unexpired immigration visa and passport and she admits the commission of and that she was convicted of keeping a disorderly house, to wit: A common bawdy house and prostitution, that appellant has properly been excluded from admission on the grounds stated above.
The record in 1928 indicates that appellant's claim to United States citizenship was disposed of without comment without affording her an opportunity to prove she was in fact a citizen of the United States. The record covering her exclusion on March 23, 1945, was not forwarded for review pursuant to O.I. 136.1 promulgated May 16, 1944 (56192/579). Inasmuch, however, as appellant prior to January 13, 1941, the effective date of the Nationality Act of 1940, did not make an election to retain her United States citizenship and she did not attempt to return to the United States for permanent residence before March 23, 1945, which later date was more than 2 years after the effective date of the Nationality Act of 1940, and appellant was then more than 23 years old, it is concluded that appellant has lost United States citizenship under the provisions of section 401 (a) of the Nationality Act of 1940. Inasmuch as appellant is not now in possession of an unexpired immigration visa and passport, she was properly excluded from admission on the documentary grounds stated above.
Ex. G shows that one M---- McD----, without lawful excuse, was found on November 3, 1932, in a disorderly house, to wit: A common bawdy house situated at 150 Hastings Street, Vancouver, and on November 16, 1932, she was fined $25 and ordered imprisoned in the common gaol for 1 month. Appellant denies that she is the person named in that record of conviction. Appellant states that she might have been arrested in Vancouver in 1931, but that she could not have been arrested in Vancouver in 1932, as she left there in the spring of 1932. Ex. H shows that one M---- McD---- was convicted in Vancouver in February 1925, for keeping a disorderly house, to wit: A common bawdy house at 637 Hastings Street. Appellant also denies that Ex. H relates to her, as she claims that she did not come to Vancouver before 1929.
Appellant, however, admits that she once paid a fine of $100 for keeping a disorderly house at Central Patricia, Ontario, Canada. Record of that conviction, however, was not introduced in evidence.
Appellant identified Ex. I as relating to her conviction under the name of T---- McD---- at Vancouver on July 12, 1943, for keeping a disorderly house, to wit: A common bawdy house at 1176 Granville Street, Vancouver. Ex. I indicates that prosecution in 1943 was laid under part XVI of the Canadian Criminal Code. Part XVI of the Canadian Criminal Code relates to summary trials of certain indictable offenses. Ex. K also shows that appellant under the name of H---- S---- was convicted at Vancouver on March 4, 1931, and under the name of T---- McD---- on August 30, 1943, for conducting a disorderly house in violation of section 229 of the Canadian Criminal Code. Appellant admits that the record covered by Ex. K relates to her. She denies, however, that she permitted the use of her premises for prostitution by others, claiming that she paid the girls wages for working in her lunch room on the premises. She admits, however, that conviction in 1943 was on a plea of guilty.
It has been held that keeping a disorderly house, to wit: A common bawdy house, in violation of section 229 of the Canadian Criminal Code is a conviction for a crime involving moral turpitude ( Matter of M---- 56156/562; January 1, 1944). It has also been held that a plea of guilty at a trial is tantamount to an admission within the meaning of section 19 of the act of February 5, 1917, requiring deportation ( Blumen v. Haff, 78 F. (2d) 833.)
Appellant also identified Ex. J as relating to her conviction under the name of M---- M---- at Vancouver on April 7, 1931, for being a loose, idle, disorderly person or vagrant, who, being a common prostitute or night walker, wandered in the public streets and did not give a satisfactory account of herself and for this offense she was fined $35 and imprisoned in the common gaol for 1 month. Appellant admits that she pleaded guilty to the offense specified in Ex. J as well as to the offense specified in Ex. I referred to above. Ex. K shows that the proceedings against appellant in 1931 under the name of M---- M---- were for violation of section 238 of the Canadian Criminal Code.
Section 238 of the Canadian Criminal Code relates generally to vagrancy and disorderly conduct but subdivision (i) thereof relates specifically to common prostitutes or night walkers. It has been held that section 238 of the Canadian Criminal Code is not confined to vagrants in the ordinary and primary sense of the term ( Rex v. Leconte, 13 Can. abr. 298 (C.A.)). The offense dealt with in section 238 (i) of the Canadian Criminal Code consists not in doing but in being. Section 238, supra, contemplates at least a condition or manner of behavior of some duration or, at all events, something more than a single act or even several occasional acts spread over a somewhat considerable space of time ( Rex v. Oiseberg, 13 Can. abr. 298 (C.A.)). The mere fact that a woman is a prostitute does not make her a vagrant nor does the further fact of her wandering around. A woman of these classes may wander around as long as she likes in such public places as she chooses without, simply by reason thereof, bringing herself within this enactment. It is only when, in the course of her wanderings, she fails to give a satisfactory account of herself that she converts herself into a vagrant ( In re Brady, 13 Can. abr. 311; also 21 C.C.C. 123). The "satisfactory account" is one of the woman's presence when spoken to, not of her character or calling. It is not with respect to her means of livelihood that she has to account ( Rex v. Levine, 13 Can. abr. 315). A prostitute is not required to volunteer information explaining her wanderings to everyone whom she meets but she must account satisfactorily for them when, and only when, she is asked to do so and the person asking for such information should disclose the fact that he is a police officer ( In re Brady, supra; Rex v. Regan, 13 Can. abr. 312).
In view of the foregoing it is obvious that a conviction under section 238 (i) of the Canadian Criminal Code relates to a failure to give a satisfactory account of oneself. It is not a conviction for an act of prostitution. It was held November 12, 1943, in the Matter of M---- D---- F----, 56156/310 (now renumbered A-2077593), that moral turpitude did not attach in a conviction under an analogous vagrancy statute (section 887 (4) (a) New York Code Criminal Procedure), as the courts in that jurisdiction characterized the offense as punishing the condition of vagrancy into which the person had fallen and not as an omission or commission punishable by law.
It is concluded, therefore, that appellant's conviction in Canada in 1931 for violation of section 238 (i) of Canadian Criminal Code was not a conviction for a crime involving moral turpitude. Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That the appellant was born in the United States on November 9, 1903;
(2) That the appellant has resided in Canada continuously since 1906;
(3) That the appellant's father was naturalized in Canada on July 18, 1910;
(4) That the appellant since reaching her 21st birthday has taken no steps to register with an American consul as a citizen of the United States;
(5) That appellant did not attempt to return to the United States for permanent residence before March 23, 1945;
(6) That the appellant now seeks admission to the United States for permanent residence;
(7) That the appellant is not in possession of an unexpired immigration visa;
(8) That the appellant is not in possession of a valid passport issued by the government of the country to which she owes allegiance or other travel document showing her origin and identity;
(9) That the appellant admits that the record of convictions in Vancouver in 1931 under the name of H---- S---- and twice in 1943 under the name of T---- McD---- for keeping a disorderly house, to wit: A common bawdy house in violation of section 229 of the Canadian Criminal Code relates, to her;
(10) That the appellant admits that the record of conviction at Vancouver in 1931 under the name of M---- M---- for vagrancy in violation of section 238 (i) of the Canadian Criminal Code relates to her;
(11) That the appellant admits that she pleaded guilty in 1943 to keeping a disorderly house, to wit: A common bawdy house in violation of section 229, Canadian Criminal Code.Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under the fourteenth amendment to the Constitution of the United States, the appellant was a citizen of the United States at birth;
(2) That under section 401 (a) of the Nationality Act of 1940, the appellant lost her United States citizenship by not returning to the United States before reaching her 23d birthday and within 2 years after January 13, 1941, the effective date of the Nationality Act of 1940, as amended;
(3) That the appellant is inadmissible under section 13 of the Act of May 26, 1924, as an immigrant not in possession of an unexpired immigration visa and not exempt from the presentation thereof under the said act or regulations made thereunder;
(4) That under Executive Order 8766 and the Passport Act approved May 22, 1918, as amended, the appellant is inadmissible as an immigrant not in possession of a valid passport issued by the government of the country to which she owes allegiance or other travel document showing her origin and identity;
(5) That under section 3 of the act of February 5, 1917, as amended, the appellant is inadmissible as one convicted of a crime involving moral turpitude, to wit: Violation of section 229, Canadian Criminal Code (keeping a disorderly house, a common bawdy house);
(6) That under section 3 of the act of February 5, 1917, as amended, the appellant is inadmissible as one who admits the commission of a crime involving moral turpitude, to wit: Violation of section 229, Canadian Criminal Code (keeping a disorderly house, a common bawdy house);
(7) That under section 3 of the act of February 5, 1917, as amended, the appellant is not inadmissible as one convicted of a crime involving moral turpitude, to wit: Section 238 (i) of the Canadian Criminal Code;
(8) That under section 3 of the act of February 5, 1917, as amended, the appellant is not inadmissible as one who admits the commission of a crime involving moral turpitude, to wit: Violation of section 238 (i) of the Canadian Criminal Code.Other Factors: There are no other factors.
Order: It is ordered that the excluding decision of the Board of Special Inquiry be affirmed.
In accordance with 8 C.F.R. 90.3 the case is referred to the Board of Immigration Appeals for consideration.
Upon consideration of the entire record, it is ordered that the decision of the Commissioner be and the same is hereby affirmed, except so far as the alien was found inadmissible on the ground that she had been convicted of the offense of "prostitution."