56197/948.
Decided by Board May 28, 1946.
Crime involving moral turpitude — Unlawful sale of opium — Dominion Opium and Narcotic Drug Act, as amended (Canada).
The crime of illegal sale of narcotics in violation of section 4 (1) (f) of the Dominion Opium and Narcotic Drug Act, 1923, as amended by section 3 of chapter 20 of the Statutes of Canada, 1925, involves moral turpitude.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1917 — Convicted of crime involving moral turpitude — Unlawful sale (and possession) of opium in violation of section 4 (1) (f) of the Dominion Opium and Narcotic Drug Act, 1923, as amended.
BEFORE THE BOARD
Discussion: The appellant was excluded from admission to the United States on the above ground by a Board of Special Inquiry at Vancouver, B.C., on February 12, 1946. The Central Office of the Immigration and Naturalization Service in reviewing his appeal has affirmed the excluding decision on the ground of inadmissibility specified by the Board of Special Inquiry and on the further ground that the appellant is an immigrant not in possession of an immigration visa.
The appellant is a native of China, a naturalized citizen of Canada, 58 years old. He resides in Vancouver with his wife. He is the owner of several businesses there — a grocery store and market, a wholesale tobacco concern, a timber mill and lumber company. He values his business interests at over $100,000. He wishes to come to the United States in connection with certain accounts due his concerns and in connection with the purchase of lumber mill machinery. He presented certain correspondence from Hong Kong and Seattle regarding the unpaid accounts. The appellant has lived in Canada over 40 years and has not been to the United States during the past 10 years. When he came here previously he came as a visitor and did not encounter any difficulty with the Immigration authorities. We agree with the Board of Special Inquiry and disagree with the Central Office of the Service on the question of appellant's nonimmigrant status. We find nothing in the record to indicate that the appellant has any intention of remaining in the United States. He has lived in Canada for many years, has his home and considerable business interests there, and furnishes plausible reasons for his intended visit at this time. We cannot assume on the basis of no evidence that he is coming here as an immigrant.
We do agree, however, that the appellant is inadmissible under the Immigration Act of 1917 because of his criminal conviction. On November 4, 1927, he was convicted by the Supreme Court of British Columbia for violation of the Canadian Opium and Narcotic Drug Act on two counts: (1) Unlawful sale of drugs and (2) Unlawful possession of drugs. He was sentenced to 4 years of imprisonment and a $500 fine. On appeal the sentence was increased to 7 years of imprisonment and a $1000 fine ( Rex v. Lim Gim, 39 B.C.R. 457; 49 C.C.C. 255 (1928)). He served all of the 7-year sentence.
Section 4 of the Opium and Narcotic Drug Act provides for the imprisonment of every person who —
(d) has in his possession any drug save and except under the authority of a license from the Minister first had and obtained, or other lawful authority;
(f) manufactures, sells, gives away, or distributes any drug or substance represented or held out to be a drug to any person without first obtaining a license from the Minister.
The central office of the Service has discussed only the offense described in section 4 (f), namely, the illegal sale of drugs. This has been described by Canadian authorities as a "much more serious crime" than the mere possession ( Rex v. Nip Gar, 53 C.C.C. 321 (1930)). Since we are here confronted with a course of conduct which involved both possession and sale, we agree that it is unnecessary to decide whether mere possession without sale would be a crime involving moral turpitude.
As the Central Office has pointed out in determining whether a crime involves moral turpitude, the standard to be used is that prevailing in the United States ( Mercer v. Lence, 96 F. (2d) 122 (C.C.A. 10th, 1938)). We know of no American case passing upon the Canadian statute here involved. Consequently, we must turn to American authorities involving similar offenses in the United States, United States ex rel. Andreacchi v. Curran, ( 38 F. (2d) 498 (S.D.N.Y., 1926)), involved a conviction for violation of the Harrison Narcotic Act of 1914 ( 38 Stat. 785-790, 26 U.S.C.A. 2550-2567); the specific sections violated are not quoted in the opinion. It was held that the offense was not a crime involving moral turpitude. The court pointed out that the constitutionality of the statute was upheld on the ground that it was a revenue act. The court added:
* * * The crime consists not in engaging in narcotic traffic, but in merely failing to register, pay a tax and comply with certain regulations of the Internal Revenue Commissioner. It is to be regarded solely as a revenue act whatever incidental results might accompany its enforcement. No case has been brought to my attention, nor do I find any which holds that the violation of a revenue or licensing statute involves moral turpitude.
The fact that the thing may be done, providing a tax is paid to the Government, indicates that the act itself does not involve moral turpitude. Undoubtedly, a person might be punishable under the Harrison Anti — Narcotic Act and not be guilty of moral turpitude, as, for instance, where there is a failure to comply with it, not because of any intention to furnish addicts with narcotics, but merely because of an oversight or lack of information regarding the statute. There may be a violation of the Harrison Anti-Narcotic Act, although actual willful or wrongful intent are absent and these elements are, in my judgment, necessary for a finding of moral turpitude.
The ruling of the Andreacchi case has been specifically rejected, however, in the later cases involving not deportation proceedings but other statutory proceedings requiring a determination of whether a crime is one involving moral turpitude. Menna v. Menna, 102 F. (2d) 617 (U.S.C.A., D.C., 1939), was a divorce proceeding involving a District of Columbia statute whereunder a spouse's conviction for a crime involving moral turpitude constitutes a ground for divorce. The defendant had been convicted for a violation of the Harrison Act. After referring to the Andreacchi case, the court stated:
Nor can there be the slightest doubt that the crime which it is the purpose of the statute to punish is one involving moral turpitude. An act which creates human misery, corruption, and moral ruin in the lives of individuals is necessarily so base and shameful as to leave the offender not wanting in the depravity which the words "moral turpitude" imply. The idea that because under the limitations of the Constitution it was necessary to exercise the taxing power to stamp out this Nation-wide evil, the wrong denounced in the act is stripped of its innate wickedness and the wrongdoer of his turpitude, is a view we are unwilling to accept. It is not the source of congressional power but the end Congress had in mind to accomplish that determines the question we have to decide; and there can be no doubt that the end was to stamp out by punishment wicked and shameful acts like those of which appellant was convicted.Du Vall v. Board of Medical Examiners ( 49 Ariz. 329; 66 P. (2d) 1027 (1937)), involved a proceeding to revoke a physician's license, one of the grounds being a conviction for a crime involving moral turpitude, namely a violation of the Harrison Narcotic Act (26 U.S.C.A., sec. 2554). In discussing whether the crime involved moral turpitude, the court stated:
Sec. 2554 (a), General Requirements. It shall be unlawful for any person to sell, barter, exchange, or give away any of the drugs mentioned in section 2550 (a) except in pursuance of a written order of the person to whom such article is sold, bartered, exchanged, or given, on a form to be issued in blank for that purpose by the Secretary.
Just what crimes involve moral turpitude is not always easy to say. Generally speaking, those crimes that are "malum in se" involve moral turpitude while those that are "malum prohibitum" do not. But this is not always so. For instance, assault and battery is "malum in se" but rarely involves moral turpitude, while the sale or dispensing or prescribing of narcotic drugs, except for medicinal use and under strict surveillance, does involve, as we think, moral turpitude, although "malum prohibitum" only. One of the great evils of the day is the consumption of narcotic drugs. Because so many persons become addicts, most of the States, if not all of them, have enacted laws restricting the right to dispense or prescribe such drugs to registered pharmacists and physicians for medicinal purposes only and inflicting very severe penalties fro their violation. While the United States under the principles of police power cannot take control of narcotic drugs and regulate their disposition and use, it has under the taxing power made the traffic in such drugs more difficult.
Thus a ruling that a violation of the Harrison Act is not a crime involving moral turpitude has not been received by other courts with any enthusiasm. We have found no decision in which the Andreacchi case has been expressly followed.
In Martinez v. Nagel, 53 F. (2d) 195 (C.C.A. 9th, 1931), the question was not considered since the Government did not contend that the conviction under the Harrison Act rendered the alien deportable under the 1917 act.
Even assuming that we considered ourselves bound by the Andreacchi decision, however, with the exception of a few cases which might involve narcotic convictions prior to 1931, its ruling as applied to deportation proceedings has been rendered academic by the passage of the act of February 18, 1931 ( 46 Stat. 1171; 54 Stat. 673; 8 U.S.C. 156 (a)), whereunder aliens convicted of narcotic offenses are subject to deportation without regard to the concept of moral turpitude. The question with which we are now presented, therefore, is whether we should extend this ruling which Congress has endeavored to nullify to cover the offense described in the Canadian statute.
The Canadian cases which the central office has cited show that the Canadian statute has been judicially interpreted as being principally criminal rather than licensing legislation. In Ex parte Wakabayashi, Ex Parte Lore Yip, 49 C.C.C. 392 (1928), the court stated (p. 400):
When I view the "mischief" sought to be remedied and the manner in which this was to be accomplished, the state of the law as it existed prior to the Act of 1923, and the nature of the remedy thus applied, I have no hesitation in holding, that the act in question is criminal and not licensing legislation. The primary object was to create a crime and afford punishment for its infraction. * * *
In Rex v. Leduc et al., 38 C.C.C. 177 (1921), the court stated (p. 178):
To reach a just and impartial decision in this case, one must bear clearly in mind that the statute concerning drugs was not enacted for the purpose of swelling the country's revenue by levying a tax, but to prevent the commission of a crime and to punish criminals. We must distinguish between a criminal or indictable offence on the one hand and a contravention or offence on the other. The statute in question was passed to prevent the commission of a crime and not to raise a revenue. Those who contravene the statute are parties to a crime, not parties to an offence according to the general division of English criminal law.
It is apparent therefore that one of the hurdles that the court in the Andreacchi case could not jump, namely holding the violation of a statute upheld as a revenue measure to be a crime involving moral turpitude — does not apply to the Canadian statute. The remaining question is whether we should hold the unlicensed sale of narcotics in Canada to constitute a crime involving moral turpitude if the unintentional, innocent violation imagined by the court in the Andreacchi case is possible under the statute here involved. It has been held that mens rea is not an element of section 4 (d) of the Canadian act (possession of drugs) ( Rex v. Wong Loon, 69 C.C.C. 284 (1937); Rex v. Ganda Singh, 72 C.C.C. 240 (1939)). We have found no such specific holding in regard to section 4 (f) (unlawful sale). We do find the court in Rex v. Leduc, supra, insisting on personal culpability in refusing to hold the employer for the unauthorized acts of his employees.
Aside from this, however, we are faced squarely with the question whether we are going to judge this offense realistically or fancifully. If we choose to judge the offense by an imagined case where an unlicensed individual impelled by humanitarian motives dramatically gives another narcotics to save his life, we would hold no moral turpitude. On the other hand, if we take the actual case with which we are confronted, as an example of those offenses which the statute is designed to cover, we find the following ( Rex v. Lim Gim, supra, pp. 255, 256):
It was proved that the prisoner, who was the manager of a large general mercantile house with a yearly turn-over of upwards of $900,000, and who is one of the largest owners therein, carried on an extensive trade in narcotic drugs.
* * * * * * *
That these were not his only offenses is shown by the evidence of his corrupting an employee of the C.N.R. in other like transactions, and in his conversations with the Lachenauer from which it may be gathered that he was an experienced hand at the business.
We must judge the offense by the seriousness of the evil it is designed to combat and it is clear that the particular subdivision here involved is aimed at dope peddlers like the appellant — persons who pursue the high profits of this illegal traffic with a callous disregard of the human misery they create.
As we have pointed out, Congress in the act of February 18, 1931, has specifically rendered deportable aliens convicted of narcotic offenses in this country. Under the Canadian statute aliens convicted of narcotic offenses such as that here involved are deportable from Canada (sec. 26, Canadian Opium and Narcotic Drug Act). We must decide whether we are going to deport aliens convicted of such offenses as here involved and at the same time open the border to aliens deportable from Canada because of convictions for the same kind of offenses. We believe this would be unsound. And aside from the unsound result of a contrary ruling, we believe that the appellant has been convicted of a crime involving moral turpitude.
Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That the appellant is an alien, native of China, citizen of Canada;
(2) That the appellant seeks admission as a temporary visitor for a period of 2 weeks;
(3) That the appellant does not intend to remain in the United States;
(4) That the appellant presents a certificate showing naturalization in Canada on September 8, 1909;
(5) That the appellant was convicted on October 21, 1927, in Vancouver, B.C., Canada, for unlawful sale and possession of opium in violation of section (1) (f) of the Dominion Opium and Narcotic Drug Act, 1923, as amended.Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 13 (a) of the Immigration Act of May 26, 1924, the appellant is not inadmissible to the United States in that he is 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 3 of the Immigration Act of 1917, the appellant is inadmissible on the ground that he has been convicted of a crime involving moral turpitude, to wit: Unlawful sale and possession of opium in violation of section 4 (1) (f) of the Dominion Opium and Narcotic Drug Act, 1923, as amended.Order: The excluding decision of the Board of Special Inquiry is affirmed.