Squires v. Immigration and Naturalization Service

• Decision Date: 21 December 1982
• Docket Number: No. 80-3733,80-3733
• Citation: 689 F.2d 1276
• Parties: Herbert Clyde SQUIRES, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1276

689 F.2d 1276

Herbert Clyde SQUIRES, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 80-3733.

United States Court of Appeals,

Sixth Circuit.

Argued Jan. 21, 1982.

Decided Oct. 7, 1982.

Opinion on Denial of Rehearing and Rehearing En Banc Dec. 21, 1982.

Harry Kobel, Rosin & Kobel, P. C., Detroit, Mich., for petitioner.

Lloyd A. Warfield, Immigration & Naturalization Service, James C. Cissell, Cincinnati, Ohio, James P. Morris, Robert Kendall, Jr., Dept. of Justice, Washington, D. C., for respondent.

Before KENNEDY, Circuit Judge, BROWN, Senior Circuit Judge, and DUNCAN, ^* District Judge.

DUNCAN, District Judge.

Herbert Clyde Squires, a citizen of Canada currently residing in the United States, petitions this Court for relief from an order of the Board of Immigration Appeals directing him to leave the country. Both the Board and the immigration judge below found Squires to be deportable under 8 U.S.C. §§ 1251(a) and 1182(a)(9) as alien who had previously been convicted of a crime involving moral turpitude. Although we differ with those two tribunals in our reasoning, we affirm.

I

Squires entered the United States on or about June 14, 1979, as a nonimmigrant visitor for pleasure. He was authorized to remain in the country for a few days only. On July 30, 1979, the Immigration and Naturalization Service (INS) began deportation proceedings, charging that Squires was excludable on account of a previous criminal conviction in Canada. At the hearing which followed, it was shown that he had been convicted in a Canadian provincial court on August 11, 1970, of the crime of "false pretences." According to Squires the charges stemmed from his passing of a bad check in 1969 with knowledge that there were insufficient funds on account to cover it. ¹ The records produced by INS show further that Squires was sentenced to six months' imprisonment for the crime, and that all six months were suspended. No other convictions appear on Squires' record.

The immigration judge found that Squires was subject to immediate deportation. He ruled that the offense for which Squires was convicted constituted a "crime involving moral turpitude" within the meaning of 8 U.S.C. § 1182(a)(9), and that Squires was thus an "excludable alien" for purposes of the deportation statute, 8 U.S.C. § 1251(a). The judge recognized the statutory exemption for crimes which are "petty," but he analogized Squires' offense to the domestic crime of false pretenses which, as codified presently, is a felony. On this basis he reasoned that Squires could not take advantage of the petty offense exception. INS was thus ordered to deport Squires at once.

In a short memorandum and order, the Board of Immigration Appeals allowed Squires the privilege of "voluntary departure" from the country, but it upheld in toto the immigration judge's findings with respect to deportability. This timely appeal followed.

Squires alleges, inter alia, that both the immigration judge and the Board of Immigration Appeals erred in comparing his crime to one which would be a felony in the United States. He contends that on the particular facts of this case, his offense should be considered a misdemeanor. The sole question before us, then, is whether the Canadian crime of "false pretences" is properly deemed to be a felony for purposes of 8 U.S.C. § 1182(a)(9).

II

Under Section 241(a)(1) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1251(a)(1), aliens who are in certain legally excludable classes at the time of their entry into the United States remain subject to deportation throughout their stay. ² Among these classes, as defined by Section 212(a) of the Act, 8 U.S.C. § 1182(a), are those who have previously been convicted of a "crime involving moral turpitude." ³ An alien so convicted is ordinarily deportable, except that:

... Any alien who would be excludable because of the conviction of a misdemeanor classifiable as a petty offense under the provisions of Section 1(3) of Title 18 (U.S.C.), by reason of the punishment actually imposed, ... may be granted a visa and admitted to the United States.

(Emphasis added.) 8 U.S.C. § 1182(a)(9).

As is evident from its face, the statutory exemption has two distinct requirements. First, the crime must be a misdemeanor. Title 18, Section 1(2) defines a misdemeanor as any offense which is punishable by one year or less in prison. ⁴ Second, the crime must have been "petty" in terms of the punishment actually imposed. Title 18, Section 1(3) defines a petty offense as any misdemeanor, "the penalty for which does not exceed imprisonment for a period of six months or a fine of not more than $500." The exception is thus quite narrow. An alien is not eligible under the exception if the prior conviction was punishable by more than a year in prison, or if the punishment actually imposed exceeded imprisonment for six months or a fine of $500.

Since Squires was sentenced in Canada to just six months in prison, none of which were actually served, his crime is clearly a petty offense "by reason of the punishment actually imposed," and he meets the second part of the Section 1182(a)(9) proviso. His deportability thus turns in part on the first portion of the test-whether the crime should be characterized as a felony or a misdemeanor. Because the statute under which Squires was convicted, Section 304(1)(a) of the Canadian Criminal Code, ⁵ carries with it a maximum punishment of ten years' imprisonment where the amount involved exceeds fifty dollars, ⁶ the crime would appear to be a felony under the statutory definitions set forth in 18 U.S.C. § 1(1) and (2), supra. The maximum penalty available under a foreign criminal code is not necessarily dispositive of the crimes characterization for purposes of United States immigration laws, however. To avoid the inconsistencies which would arise by virtue of varying penalties for similar crimes in different nations, the courts look not to the maximum penalty prescribed by foreign law, but rather to the maximum penalty for an analogous

statutory offense under the laws of the United States. Giammario v. Hurney, 311 F.2d 285 (3d Cir. 1962); Soetarto v. INS, 516 F.2d 778 (7th Cir. 1975); Patel v. INS, 542 F.2d 796 (9th Cir. 1976). If an equivalent crime cannot be found in Title 18 of the United States Code, the reviewing authority must turn to the provisions of Title 22 of the District of Columbia Code. Giammario, 311 F.2d at 287; Soetarto, 516 F.2d at 780-781. See also, Matter of Grazley, 14 I & N Dec. 330 (BIA 1973); Matter of Adams, 10 I & N Dec. 593, 595 (BIA 1964); Matter of T-, 6 I & N Dec. 508, 517 (Atty. Gen. 1955). Our initial task, therefore, is to determine an appropriate statutory analog for Section 304(1)(a) of the Canadian Criminal Code.

A

The immigration judge concluded correctly that there is no federal offense which corresponds directly to Squires' crime. The D.C.Code offers two possibilities, however. Title 22, Section 1301 describes the crime of "false pretenses" and provides in part that:

(a) Whoever, by any false pretenses, with intent to defraud, obtains from any person any service or anything of value, or procures the execution and delivery of any instrument of writing or conveyance of real or personal property, or the signature of any person, as maker, indorser, or guarantor, to or upon any bond, bill, receipt, promissory note, draft, or check, or any other evidence of indebtedness, and whoever fraudulently sells, barters, or disposes of any bond, bill, receipt, promissory note, draft, or check, or other evidence of indebtedness, for value, knowing the same to be worthless, or knowing the signature of the maker, indorser, or guarantor thereof to have been obtained by any false pretense, shall, if the value of the property or the sum or value of the money, property, or service so obtained, procured, sold, bartered, or disposed of is $100 or upward, be imprisoned not less than one year nor more than three years.

Since an offense under this section is punishable by more than a year in prison, it is plainly a felony. If it is the proper domestic analog to Squires' crime in Canada, then he is clearly excludable. ⁷

The D.C.Code also contains a "bad check" statute, 22 D.C.Code § 1410. That section, as it existed at the time of Squires' conviction, stated:

Any person within the District of Columbia who, with intent to defraud, shall make, draw, utter, or deliver any check, draft, or order for the payment of money upon any bank or other depository, knowing at the time of such making, drawing, uttering, or delivering that the maker or drawer has not sufficient funds in or credit with such bank or other depository for the payment of such check, draft, or order in full upon its presentation, shall be guilty of a misdemeanor and punishable by imprisonment for not more than one year, or be fined not more than $1,000, or both.

By its own terms this crime was a misdemeanor when Squires was convicted in Canada. It has since been changed to a felony punishable by one to three years' imprisonment where the amount involved exceeds $100. ⁸ If this is the appropriate statutory equivalent of Squires crime, and if Squires Both the immigration judge and the Board of Immigration Appeals chose Section 1301 as the proper equivalent offense. Their reasons for doing so were not set forth, but it appears that they relied simply upon the nominal likeness between Section 1301 and the provision under which Squires was actually convicted. Both sections codify the common law crime of false pretenses in their respective jurisdictions, and each requires proof of similar elements. Compare Cuillo v. United States, 325 F.2d 227 (D.C.Cir.1963); and United States v. Alston, 609 F.2d 531 (D.C.Cir.1979); with R. v. McDonald, 3 Crim.Rptr. (Canada) 259 (N.S.Ct.App.1946); R. v. Kinsey, 7 Crim.Rptr. 67 (Alta.S.Ct.1948); and R. v. Kaszas, 19 Crim.Rptr. 159 (Alta.Dist.Ct.1954).

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