Matter of McNaughton
| Citation | 16 I&N Dec. 569 |
| Decision Date | 26 July 1978 |
| Docket Number | Interim Decision #2663,A-19811498 |
| Parties | MATTER OF McNAUGHTON In Deportation Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
This is an appeal from the immigration judge's decision of October 13, 1977, in which he found the respondent deportable as charged. The appeal will be dismissed.
The record relates to a widowed male alien, a native and citizen of the United Kingdom, who was last admitted to the United States on June 5, 1977, as a nonimmigrant visitor. He is charged with deportability under section 241(a)(1) of the Immigration and Nationality Act, 8 U.S.C. 1251(a)(1), on the basis that he was excludable at the time of entry under section 212(a)(9) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(9), because of the conviction of a crime involving moral turpitude.
A copy of the respondent's record of conviction is in our record. It indicates that the Quebec Court of Sessions for the District of Montreal found him guilty of conspiracy to commit a violation of section 338(2) of the Canadian Criminal Code, which provides as follows:
Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretense within the meaning of this Act, with intent to defraud, affects the public market price of stocks, shares, merchandise or anything that is offered for sale to the public, is guilty of an indictable offense and is liable to imprisonment for ten years.
The finding of guilt was affirmed by the Court of Appeals for the Province of Quebec, but that court substantially reduced the respondent's sentence.
Opinions were written in the respondent's case by each of the three members of the Quebec Court of Appeals, as well as by the trial judge. Copies of these opinions are before us. We learn from them that the respondent's conviction arose out of his participation in a mining stock deal. He agreed with certain other investors to operate what is known in Quebec as a "box." An explanation of the use of the "box" may be found in the following excerpt from the opinion of Judge Turgeon of the Court of Appeals:
At the period which concerns us, let's say 1971, it was common practice in Montreal at the Canadian Stock Exchange, for the promotion of new mining or industrial stock, to have a means for assuring a well-regulated market in terms of its quoted worth at the Exchange, for the purpose of preventing disorderly and excessive fluctuations to the low or the high side. For this purpose, the promoters used, what was convenient to call in the brokerage, a "box" which I will translate as "boite" (box), for lack of a better word. For this purpose, the operator of the box, who could be a broker or a mere individual, had to have at his disposal a certain number of the company's shares and a certain amount of money. When the price of the stock, or rather of the transferable security, rose in an excessive manner due to a large demand, the operator of the box would sell part of the shares he had in his possession on the market by means of the Exchange. Conversely, when the quoted price of the shares fell in an unwarranted manner because of too large a number of shares offered for sale, the operator of the box would buy some of these shares at the Exchange in order to stabilize the market. One should note here that, in terms of the common usage of the Exchange, the box should not serve to enrich the person or people who operate it: its role was essentially to assure "an orderly market". This manner of operation was at least tolerated by the Canadian Stock Exchange which asked of its promoters of securities that they run an orderly market for their shares.
It was found that the "box" involved in the respondent's case was used to enrich its operators, rather than to assure an orderly market. The respondent's co-conspirators, it was found, manipulated the "box" for their own profit, with his knowledge, although the respondent did not profit personally from the operation of the "box."
During the criminal proceedings the respondent maintained his innocence on the basis that he had had no knowledge that the "box" was being operated other than to stabilize the market. However, the trial judge and the Court of Appeals found that he must have known the "box" was actually being operated to enrich some of its operators.
Alternatively, he argued that operation of the "box" for the profit of its operators was not a violation of the Canadian statute, but was a permissible practice. This defense likewise was rejected. Despite the absence of precedent on the point, the Canadian courts found that the practice was a violation of the law, and that the respondent should have known it to be.
The respondent makes three arguments as to why the conviction should not form the basis for his deportation. First, he argues that he was not guilty of the offense of which he was convicted. Second, he argues that the conduct which formed the basis of his conviction in Canada would not constitute a criminal offense in the United States. Third, he argues that the crime of which he was convicted in Canada is not a crime of moral turpitude, a necessary element of the ground of deportability with which he is charged.
As to the respondent's guilt or innocence of the offense of which he was convicted, his guilt has been adjudicated by the courts in Canada with criminal jurisdiction. It is not our place to retry that issue. Brice v. Pickett, 515 F.2d 153 (9 Cir.1975); Mylius v. Uhl, 210 F. 860 (2 Cir.1914); Matter of Fortis, 14 I. & N. Dec. 576 (BIA 1974); Matter of Sirhan, 13 I. & N. Dec. 592, 594 (BIA 1970). The respondent must address any attack on the merits of the conviction to the courts with criminal jurisdiction. The respondent advises that he has uncovered evidence that testimony against him at his trial was perjured, and that he has requested an investigation by the Quebec authorities. To date, however, so far as we are aware, the respondent's conviction remains in force.
The respondent next argues that his conviction was for conduct which would not constitute a crime in the United States. A description of the conduct found criminal is provided in the decisions of the trial and appellate judges. It was found that the "box," through the use of dummy corporations controlled by its operators, made sales to itself which appeared on the Montreal Exchange as arm's-length transactions. These sales were made when the price of the stock was increasing. Often the sales by the "box" to itself were the last purchases of the day, at a price higher than the next to last sale for the day. These sales had the effect of creating an appearance that the price was rising. The trial court concluded that: "the box's sole aim was profit to the operators of the box and to create an artificial volume of shares bought and sold on the market." This manipulation of the "box" was contrary to the tolerated use of the "box" for the promotion of an orderly market.
It was noted in the decisions that the respondent's participation in the "box" was limited. The actual manipulations were done by the respondent's co-conspirators, and as stated above, the respondent did not profit personally. However, it was found that the respondent had knowledge of the way in which the "box" was being operated inasmuch as he had financial control of one of the companies through which the "box" operated, because he was kept informed of all the transactions involved, and because he must have noticed that the value of the shares rose unceasingly for a certain period. The respondent was convicted on the basis of the finding that he possessed knowledge of the operations of the "box." His motives were described as arising from a desire to please one of the investors, a Mr. Eckersley, who was president of a charitable foundation which distributed funds for the purpose of medical research. The respondent, who was himself president of a cancer research foundation, hoped to receive generous gifts from the latter's foundation for the two foundations with which the respondent was associated. (Opinion of Judge Turgeon, Court of Appeals of Quebec, pp. 14, 18.)
The respondent is correct in his argument that when a foreign conviction is the basis for a finding of inadmissibility, the conviction must be for conduct which is deemed criminal by...
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