Matter of Salvail, Interim Decision Number 2715

• Decision Date: 03 July 1979
• Docket Number: A-21137490,Interim Decision Number 2715
• Parties: MATTER OF SALVAIL In Deportation Proceedings
• Court: U.S. DOJ Board of Immigration Appeals

17 I&N Dec. 19

MATTER OF SALVAIL

In Deportation Proceedings

Interim Decision Number 2715

A-21137490

Immigration Board of Appeals.

Decided by Board July 3, 1979

(1) A conviction under Article 296 of the Criminal Code of Canada for possession of stolen goods is a conviction for a crime involving moral turpitude, as it specifically requires knowledge of the stolen nature of the goods.

(2) A conviction under Article 296 of the Criminal Code of Canada is a conviction for a felony, as the maximum prison term that can be imposed exceeds one year, and the mandatory misdemeanor/petty offense waiver of section 212(a)(9) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(9), is inapplicable, regardless of the punishment actually imposed.

(3) The respondent is excludable under section 212(a)(9) of the Act because he was convicted in 1965 for two violations of Article 296 of the Criminal Code of Canada, and the conviction record shows that an element of this charge was his knowledge of the stolen nature of the goods.

CHARGE:

Order: Act of 1952—Sec. 241(a)(1) [8 U.S.C. 1251(a)(1)]—Excludable at time of entry under sec. 212(a)(9) [8 U.S.C. 1182(a)(9)] —convicted of crime prior to entry

ON BEHALF OF RESPONDENT: Henry H. Held, Esquire, The Held Building, 1900 S.W. 3rd Avenue, Miami, Florida 33129

ON BEHALF OF SERVICE: Robert Lee Erwin, Trial Attorney

BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members

In a decision dated January 17, 1979, an immigration judge found the respondent deportable as charged and ordered him deported. The respondent appeals. The appeal will be dismissed.

The respondent is a 37-year-old native and citizen of Canada. He last entered the United States on October 27, 1978. On November 2, 1978, an Order to Show Cause was issued charging him with deportability under section 241(a)(1) of the Immigration and Nationality Act, 8 U.S.C. 1251(a)(1), as one excludable at time of entry for having been convicted of a crime involving moral turpitude under section 212(a)(9) of the Act, 8 U.S.C. 1182(a)(9). The specific offenses alleged involved conviction on two charges in Canada for possession of stolen goods, knowing that the goods were stolen. The immigration judge found that the offenses committed involved moral turpitude under United States standards. He also found that the respondent was ineligible for a petty offense waiver under section 212(a)(9) of the Act because he had been convicted of two crimes involving moral turpitude and the petty offense exemption was not available to him. He also denied his application for voluntary departure because he found him to be statutorily ineligible under section 101(f)(3) of the Act, 8 U.S.C. 1101(f)(3), which barred a finding of good moral character under section 244(e) of the Act, 8 U.S.C. 1254(e).

On appeal, the respondent claims that the convictions arose out of a single act and therefore did not constitute two convictions. He also claims that the first conviction was for possession of stolen goods without knowledge and that this conviction was therefore not an offense involving moral turpitude. The final claim is that the second conviction was for a petty offense. Although the respondent concedes that a conviction was had for knowing possession of stolen goods, he asserts that the Board should evaluate the circumstances of the convictions, but without going behind the convictions.

After reviewing the record, we have concluded that the respondent is deportable as charged. The "Affidavits of Culpability" which have been provided show that the respondent was convicted on two charges of violation of Article 296 of the Criminal Code of Canada. This article states:

Everyone commits an offense who has anything in his possession knowing that it was obtained

(a) by the commission in Canada of an offense punishable by indictment, or

(b) by an act or omission anywhere that, if it had occurred in Canada, would have constituted an offense punishable by indictment.

The "Affidavits of Culpability" both state that the respondent "illegally had in his possession" certain goods of a total value of...