A-5630998
Decided by the Board December 23, 1953
Crime involving moral turpitude — Admission of — Gross indecency, Michigan.
(1) Two decisions of the recorder's court, Detroit, Mich., are held to be sufficient basis on which to predicate a finding that the acts of mutual masturbation admitted by the respondent constitute a violation of the gross indecency statute, section 338 of the Public Acts of Michigan (1931).
(2) The acts which the respondent has stated he committed are vile, base, depraved, and contrary to the tenets of society in and of themselves.
(3) When conduct admitted by the alien is shown under court decisions to constitute statutory violations and the statute is read to the alien and it is clear he understands the nature of his conduct in relation to the statute and unequivocally admits it, and there is no question about the element of moral turpitude being present, a binding and competent admission has been made and the alien is deportable on the basis thereof, notwithstanding the absence of a precise definition of the term "gross indecency" due to the indelicacy of the subject matter.
DEPORTABLE:
Act of 1917 — Admits crime prior to entry, to wit: Gross indecency
BEFORE THE BOARD
Discussion: The hearing officer at Detroit, Mich., in an opinion dated February 8, 1952, found the respondent deportable on the above charge and recommended deportation. The Acting Assistant Commissioner, in an order dated May 13, 1952, adopted the findings of fact and conclusions of law of the hearing officer, and directed the respondent's deportation from the United States pursuant to law on the charge stated in the warrant of arrest, and certified the case to this Board in accordance with the provisions of 8 C.F.R. 90.3 (b). This Board (one member dissenting), in a decision dated January 7, 1953, concluded that the record did not establish deportability and ordered the proceedings terminated. The case is again before us on motion of the Assistant Commissioner for reconsideration and withdrawal of our order of January 7, 1953, and the entry of an order dismissing the appeal from the Service decision which directs that the respondent be deported on the charge stated in the warrant of arrest or, alternatively, that the hearing be reopened to permit the Government an opportunity to present evidence showing whether the respondent was a person of psychopathic personality at the time of entry and for the lodging of such additional charge in that respect as may be deemed appropriate.
The facts of the case have been fully set forth in our prior opinion of January 7, 1953, and in the motion filed by the Service. There is no need to repeat them all here. The controversy with which we are here confronted centers around the question of whether or not the respondent has made such an admission of the commission of a crime involving moral turpitude as to render him deportable under sections 3 and 19 of the Immigration Act of 1917, as amended.
The record discloses that on May 18, 1950, the respondent stated under oath to a Service officer that he had been a person of homosexual habits, that he had found outlet for such emotions by practicing masturbation with other male persons, that he had been addicted to such behavior since he was about 16 years of age, and that he had last committed such an act about 4 months prior to the date of his statement. Section 338 of the Public Acts of Michigan (1931), which is as follows, was read to him:
Any male person who, in public or private, commits or is a party to the commission of or procures or attempts to procure the commission by any male person of any act of gross indecency with another male person shall be guilty of a felony punishable by imprisonment in the state prison for not more than 5 years or a fine of not more than $2,500.
The respondent unequivocally admitted commission of the crime of gross indecency in violation of that section of the Michigan statute.
In our prior opinion, we pointed out that the indelicacy of the subject matter precludes a precise definition of the term "gross indecency" under the Michigan statute. We also pointed out that the Attorney General for the State of Michigan was requested to render an opinion as to whether mutual masturbation was a violation of section 338 and that his reply was that he could not give an answer thereto because the question was a matter for determination of the court, jury or other tribunal before whom such question might arise. We further pointed out that the hearing officer found two cases in the recorder's court, city of Detroit, Mich., in which acts of masturbation were held to be a violation of the gross indecency statute and convictions were entered thereunder. On the basis of the foregoing, we were then of the opinion (one member dissenting) that the essential elements of the crime of gross indecency in violation of section 338 of the Michigan statute were not clear and, therefore, that it was impossible to advise the respondent of the essential elements of such crime. Consequently, we concluded (one member dissenting) that the respondent could not make a valid admission of the commission of such crime.
The Assistant Commissioner in his present motion disputes that conclusion and contends that this respondent has made a binding and competent admission of the commission of a crime involving moral turpitude. It is his argument that when the conduct admitted by the individual, in this case mutual masturbation, is shown under court decisions to constitute a violation of the statute, that when the statute is read to the individual; that when the individual clearly understands the nature of his conduct, that when there is no question about the element of moral turpitude being present, that the alien has admitted the commission of a turpitudinous offense.
Counsel has submitted a brief in opposition to the Assistant Commissioner's motion for reconsideration. In substance, the arguments of counsel embrace those factors which led us previously to conclude that the proceedings should be terminated. There is no need to repeat them here.
In view of the representations made by the Assistant Commissioner, we deem it appropriate to reconsider our position in this case.
Examining once more the record of these proceedings, we find certain elements present to which we perhaps did not attach sufficient significance when we previously considered the case. We feel that they are of such a nature as to require reversal of our prior decision.
First, we are now, as we always have been, of the opinion that the acts which the respondent has stated he committed are vile, base, depraved and contrary to the tenets of society in and of themselves. That is, it is and always has been clear to us that he has admitted conduct which is morally turpitudinous.
Second, and despite exhaustive research on the subject, when the case was previously before us and again in connection with the present proceedings, we have been unable to locate any reported decisions in the State of Michigan, or elsewhere, relating to the present controversy. However, the hearing officer has found two cases in the Recorder's Court, Detroit, Mich. ( Matter of A---- B----, court file A-65690 and probation file No. 52609, November 29, 1951 — masturbating two other males; and Matter of R---- R----, December 26, 1951, Court File A-66160 and Probation File No. 52737-self-masturbation) wherein acts of masturbation were held to be violations of the gross indecency statute and convictions were entered thereunder. We are now of the opinion that those cases form a sufficient basis on which to predicate a finding that the acts of mutual masturbation admitted by the respondent constitute a violation of the gross indecency statute.
Third, the particular provisions of the statute were read to the respondent and he unequivocally admitted the commission of gross indecency. It is clear from the record that he understood the nature of his conduct and its relation to the statute.
Fourth, we have pointed out the absence of a precise definition of the term gross indecency due to the indelicacy of the subject matter. Certainly, where a crime is susceptible of precise definition, such definition should be given the alien. However, we feel that to rule out the possibility of an admission under the circumstances here present would be contrary to logic and would defeat the very purpose for which the provision relating to the admission of the commission of a crime involving moral turpitude was included in the act of 1917, as amended. Finally, in this connection, we are aware of the fact that situations may arise in which it may not be clear whether the particular acts performed are violative of the Michigan statute. That is not as important as the fact that in this case the alien has admitted specific conduct which clearly brings him within the scope of the statute. We can decide different factual situations when and if the cases involving them arise. In this connection, we have recently held that where a statute defines crimes some of which involve moral turpitude and some which do not, and a conviction (or admission) covers offenses which clearly involve such element, a finding of moral turpitude is justified ( Matter of C----, A-5595280, October 12, 1953, Int. Dec. No. 482).
On the basis of the foregoing, we now take the position that when conduct admitted by the alien is shown under court decisions to constitute statutory violations, that when the statute is read to the alien, that when it is clear that he understands the nature of his conduct, in relation to the statute and unequivocally admits it, that when there is no question about the element of moral turpitude being present, that a binding and competent admission has been made and that the alien is deportable on the basis thereof. Therefore, we will withdraw our order of January 7, 1953, directing termination of the proceedings and will affirm the Service order directing the respondent's deportation on the charge stated in the warrant of arrest. Consequently, we need not consider the alternative request in the Service motion for reopening.
Order: It is ordered that the motion be granted and the alien be deported pursuant to law on the charge stated in the warrant of arrest.