A-5963331 (55857/963)
Decided by Board November 17, 1944.
Crime involving moral turpitude — Burglary, 2d degree — Section 459, California Penal Code — Contributing to delinquency of a minor — Section 21, California Juvenile Court Law — Entry without Inspection.
1. Burglary, 2d degree-entering a store with intent to steal-in violation of section 459 of the California Penal Code, is a crime involving moral turpitude.
2. Section 21 of the Juvenile Court Law of California embraces offenses which do not necessarily involve moral turpitude and the record of conviction as to contributing to the delinquency of a minor is too meager to determine whether this offense involves moral turpitude.
3. Where an alien enters within the limits of a city that is a designated port of entry, but at a point other than where an immigration office is located, the applicable deportation charge is "entered without inspection" and not "entered at other than a designated port."
CHARGES:
Warrant: Act of 1917 — Entered at other than a designated port of entry;
Act of 1918, as amended — No passport;
Act of 1929, as amended — Reentered without permission after arrest and deportation;
Act of 1917 — Admits commission of crimes prior to entry burglary, 2d degree, and grand theft;
Act of 1924 — No immigration visa.
Lodged: Act of 1917 — Convicted of crime prior to entry; burglary, 2d degree, and grand theft from the person;
Act of 1917 — Sentenced to 1 year or more for crime committed within five years of entry; contributing to the delinquency of a minor.
BEFORE THE BOARD
Discussion: The Presiding Inspector found the respondent deportable on all of the charges stated above. The Central Office of the Immigration and Naturalization Service concurred in this opinion except in regard to the charge that the alien entered at other than a designated port of entry.
The respondent is a native and citizen of Mexico, 32 years old. He testified that he last entered the United States on July 7, 1942, at Calexico, Calif., about three or four blocks from the port of entry. He stated that he came to the United States to work and that he has never had an immigration visa. He did not present a passport or other document in the nature of a passport at the time of his entry. The respondent's testimony and his immigration records establish that he was deported from the United States on February 19, 1941. He testified that following deportation and prior to his last entry he did not receive permission to reapply for admission.
The evidence indicates that the documentary charges relating to the respondent's last entry and the charge based on his having reentered after deportation without permission are sustained. The charge based upon the allegation that he entered at other than a designated port of entry is not sustained. Calexico, Calif., where the respondent testified he entered, is a port of entry. We have held that where the alien enters within the limits of a city that is a designated port of entry but at a point other than where the immigration office is located, the applicable charge is entry without inspection, not entry at other than a designated port ( In re O----, 56065/74 (Nov. 30, 1943)).
The remaining charges to be considered are those based upon the respondent's criminal record. On May 15, 1931, the respondent was convicted in California of the crime of burglary, 2d degree, having pleaded guilty to an information charging that he entered a store with intent to steal. The respondent admits the commission of this crime. Section 459 of the California Penal Code defines a burglary as follows:
Every person who enters any house, room, apartment, tenement, ship, etc., with intent to commit grand or petit larceny or any felony is guilty of burglary.
Since the respondent was convicted upon an information charging him with entering with intent to commit larceny, we conclude that the crime of which he was convicted is one involving moral turpitude.
On August 11, 1937, the respondent was convicted in California on a plea of guilty of the crime of grand theft from the person. He admits the commission of this crime. This offense is manifestly one involving moral turpitude.
Finally, the respondent was convicted in the Superior Court of California, Los Angeles County, on November 3, 1943, of contributing to the delinquency of a minor, for which he received a 1-year prison sentence. This crime was committed on August 7, 1943. The information in the case originally charged the respondent with a violation of section 288 of the California Penal Code which is entitled "Crimes Against Children; Lewd or Lascivious Acts.
Section 288 reads: "Any person who shall willfully and lewdly commit any lewd or lascivious act including any of the acts constituting other crimes provided for in part one of this code upon or with the body, or any part or member thereof, of a child under the age of fourteen years, with the intent of arousing, appealing to, or gratifying the lust or passions of sexual desires of such person or of such child, shall be guilty of a felony * * *."
It was alleged that he committed certain specified lewd and lascivious acts upon two 5-year-old girls. The record of convictions show, however, that the respondent withdrew his plea of guilty of that crime, and pleaded guilty to the offense of contributing to the delinquency of a minor. It was of the latter crime that he was convicted. We are therefore not here concerned whether a violation of section 288 of the California Penal Code involves moral turpitude. The issue is whether the offense of contributing to the delinquency of a minor involves moral turpitude. That offense is defined in section 21 of the Juvenile Court Law of California (Stats. 1915, p. 1225); (sec. 702, California Welfare and Institutions Code), which provides:
Any person who shall commit any act or omit the performance of any duty, which act or omission causes or tends to cause or encourage any person under the age of twenty-one years to come within the provisions of any of subdivisions one to thirteen, inclusive, of section one of this act, or which act or omission contributes thereto, or any person who shall, by any act or omission, or by threats, or commands, or persuasion, induce or endeavor to induce any such person, under the age of twenty-one years, 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 coming within the provisions of any of subdivisions one to thirteen, inclusive, of section one of this act, shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine not exceeding one thousand dollars, or by imprisonment in the county jail for not more than two years, or by both such fine and imprisonment, or may be released on probation for a period not exceeding five years; * * *.
Subdivisions 1-13 of section 1 of the act referred to in section 21 describes as within the Juvenile Court Law the following:
(1) Persons affected. Who is found begging, receiving or gathering alms, or who is found in any street, road, or public place for the purpose of so doing, whether actually begging or doing so under the pretext of selling or offering for sale any article or articles, or of singing or playing on any musical instrument, or of giving any public entertainment or accompanying or being used in aid of any person so doing; or
(2) Who has no parent or guardian; or who has no parent or guardian willing to exercise or capable of exercising proper parental control; or who has no parent or guardian actually exercising such proper parental control and who is in need of such control; or
(3) Who, being a minor, is destitute, or whose father, said person being a minor, does not or cannot provide for said person the necessities of life, and who has no other means, through his mother or otherwise, of obtaining said necessities.
(4) Whose home, said person being a minor, by reason of neglect, cruelty, or depravity on the part of his parents or either of them, or on the part of his guardian, or on the part of the person in whose custody or care he may be, is an unfit place for said person; or
(5) Who is found wandering and either has no home or no settled place of abode or no visible means of subsistence or no proper guardianship; or
(6) Who is a vagrant or who frequents the company of criminals, vagrants, or prostitutes, or persons so reputed; or who is in any house of prostitution or assignation; or
(7) Who habitually visits without parent or guardian any public billiard room or public poolroom or any saloon or any place where any spirituous, vinous or malt liquors are sold, bartered, exchanged or given away; or
(8) Who habitually uses intoxicating liquors or habitually smokes cigarettes, or habitually uses opium, cocaine, morphine or other similar drug without the direction of a competent physician; or
(9) Who, being a minor, persistently or habitually refuses to obey the reasonable and proper orders or directions of, or who is beyond the control of, his parent, parents, guardian or custodian; or
(10) Who is an habitual truant from school within the meaning of any law of this state; or
(11) Who is leading, or from any cause is in danger of leading, an idle, dissolute, lewd, or immoral life; or
(12) Who is insane, or feeble-minded, or so far mentally deficient that the parents or guardian are unable to exercise proper parental control over said person, or whose mind is so far deranged or impaired as to endanger the health, person, or property of himself or others.
(13) Who violates any law of this State or any ordinance of any town, city, county, or city and county of this State defining crime.
A mere reading of the statute shows that it is extremely broad in scope and would include many minor offenses which would not involve moral turpitude. In this respect it is similar to the crime of contributing to the delinquency of a minor in the State of Washington (sec. 1987-17, Remington's Revised Statutes of Washington) which we recently had occasion to consider in Matter of P----, 56124/801 (now A-3748813) (June 23, 1944). We there held that because of the breadth of the statute it included offenses which may or may not involve moral turpitude, and after due consideration we concluded that the particular offense of which the alien was convicted did not involve moral turpitude.
We made a like determination as to the crime of contributing to the delinquency of a minor in Michigan. Matter of Y----, 56131/11 (Dec. 9, 1943).
In the present case, we have no information charging the respondent with the crime of contributing to the delinquency of a minor, i.e., with a specific violation of section 21 of the Juvenile Court Law. Since he was not convicted upon the information charging him with the violation of section 288 of the California Penal Code, the allegations contained therein may not be regarded as established and hence do not describe the crime of which the respondent was convicted. It was error on the part of the Presiding Inspector, therefore, to state, "The acts charged in count I of the information are of a depraved nature and it is found the commission thereof unquestionably involves moral turpitude." It was never judicially determined that the respondent committed the acts described in count I of the information, which charged him with the violation of section 288. The Presiding Inspector's opinion indicates that he was misled by the Court's statement in the record of conviction that contributing to the delinquency of a minor was "a lesser offense than that charged in count I of the Information but necessarily included therein." This simply means that if the defendant had committed the lewd and lascivious acts described in the information it would necessarily have been at the same time contributing to the delinquency of a minor. But the reverse does not necessarily follow, i.e., that the respondent was convicted of contributing to the delinquency of a minor does not establish that he committed all the acts described in the information.
Having no appropriate information or indictment to throw light on the particular offense of contributing to the delinquency of a minor of which the respondent was convicted, we cannot hold that the crime for which he was sentenced involves moral turpitude, unless all the offenses contained in the statutory definition involve moral turpitude ( Zaffarano v. Corsi, 63 F. (2d) 757 (C.C.A. 2d, 1933)). As stated above, a mere reading of section 21 of the Juvenile Court Law reveals that it includes many minor offenses which would not involve moral turpitude. This is amply established by references to but a few of the California cases involving contributing to the delinquency of a minor. People v. Smith, 189 Cal. 31, 207 P. 518 (1922) (encouraging a boy 16 years old to play cards for money); People v. De Leon, 35 Cal. App. 467, 170 P. 173 (1917) (Managing a cafe at which a girl 17 years of age accompanied by a male companion was served two drinks of intoxicating liquor); People v. Perfetti, 99 Cal. App. 609, 264 P. 318 (1928) (selling intoxicating liquor to a young man 18 years of age); People v. Stepnol, 30 C.A. 2d 64, 85 P. 2d 474 (1938) (making amorous advances to a young woman 17 years of age who was married to someone else.)
Matter of W----, 56033/701 (Apr. 10, 1943), involved the crime of contributing to the delinquency of a minor in California, but we did not consider whether the crime involved moral turpitude since under California procedure, which operated in that case, it could not be found that the alien had been convicted.
In view of the wide scope of the statute and the absence of anything in the information or record of conviction establishing the particular offense of which the respondent was convicted, we cannot conclude that he has been sentenced for the commission of a crime involving moral turpitude. The charge based on his having been sentenced for such a crime within five years after entry is therefore not sustained.
Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That the respondent is an alien, a native and citizen of Mexico;
(2) That the respondent last entered the United States on July 7, 1942, at Calexico, Calif., approximately three or four blocks from the immigration station;
(3) That the respondent entered for permanent residence;
(4) That the respondent was not in possession of an immigration visa.
(5) That the respondent did not present a passport or other document in the nature of a passport;
(6) That the respondent was arrested and deported from the United States on February 19, 1941;
(7) That the respondent has not since received permission to reapply for admission;
(8) That the respondent was convicted of burglary, 2d degree, in California on May 15, 1931;
(9) That the respondent admits the commission of this offense. (10) That the respondent was convicted of grand theft from the person in California on August 11, 1937;
(11) That the respondent admits the commission of this offense;
(12) That on November 3, 1943, the respondent was sentenced to one year's imprisonment on conviction for contributing to the delinquency of a minor, an offense committed on August 7, 1943.Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under sections 13 and 14 of the Immigration Act of May 26, 1924, the respondent is subject to deportation on the ground that at the time of entry he was an immigrant not in possession of a valid immigration visa and not exempted from the presentation thereof by said act or regulations made thereunder;
(2) That under section 19 of the act of February 5, 1917, the respondent is subject to deportation on the ground that at the time of entry he was a member of a class excluded by law, to wit: The Passport Act approved May 22, 1918, as amended, and the act of February 5, 1917 in that at the time of entry he did not present an unexpired passport or official document in the nature of a passport issued by the government of the country to which he owes allegiance or other travel document showing his origin and identity as required by Executive order in effect at time of entry;
(3) That under section 19 of the act of February 5, 1917, the respondent is subject to deportation on the ground that at the time of entry he was a member of a class excluded by law, to wit: Section 1 (a) of the act of March 4, 1929, as amended, being an alien who had been arrested and deported in pursuance of law and to whom the proper authority had not granted permission to reapply for admission;
(4) That under section 19 of the act of February 5, 1917, the respondent is subject to deportation on the ground that he admits having committed a felony or other crime or misdemeanor involving moral turpitude prior to entry into the United States, to wit: Burglary and grand theft:
(5) That under section 19 of the act of February 5, 1917, the respondent is subject to deportation on the ground that he has been convicted of a felony or other crime or misdemeanor involving moral turpitude prior to entry into the United States to wit: Burglary, 2d degree, and grand theft from the person;
(6) That under section 19 of the Immigration Act of February 5, 1917, the respondent is not subject to deportation on the ground that he entered by land at a place other than a designated port of entry for aliens;
(7) That the crime of contributing to the delinquency of a minor in California as defined by section 21 of the Juvenile Court Law does not necessarily involve moral turpitude;
(8) That under section 19 of the act of February 5, 1917, the respondent is not subject to deportation on the ground that on or after May 1, 1917, he has been sentenced to imprisonment for a term of 1 year or more because of conviction in this country of a crime involving moral turpitude committed within 5 years after entry, to wit: Contributing to the delinquency of a minor;
(9) That under section 20 of the act of February 5, 1917, the alien is deportable to Mexico at Government expense.Other factors: In addition to the deportation discussed above, the respondent was deported from the United States in 1931, in 1934, and in 1937. Respondent is single and has no children. His mother and three brothers are in the United States. He has an aunt and cousins in Mexico.
Order: It is ordered that the alien be deported to Mexico at Government expense on the charges:
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 and not exempted from the presentation thereof by said act or regulations made thereunder;
The Passport Act, approved May 22, 1918, as amended, and the act of February 5, 1917, in that, at the time of entry, he did not present an unexpired passport or official document in the nature of a passport issued by the government of the country to which he owes allegiance or other travel document showing his origin and identity, as required by Executive order in effect at time of entry;
The act approved March 4, 1929, as amended, and the act of February 5, 1917, in that he entered in violation of section 1 (a) of said act of March 4, 1929, being an alien who had been arrested and deported in pursuance of law and to whom the proper authority had not granted permission to reapply for admission;
The act of February 5, 1917, in that, he has been convicted of and admits the commission of crimes involving moral turpitude prior to entry into the United States, to wit: Burglary and grand theft from the person.