Matter of Sloan
| Decision Date | 30 August 1968 |
| Docket Number | A-10393612.,Interim Decision Number 1896 |
| Citation | 12 I&N Dec. 840 |
| Parties | MATTER OF SLOAN. In Deportation Proceedings. |
| Court | U.S. DOJ Board of Immigration Appeals |
This is an appeal from the order of the special inquiry officer ordering respondent deported on the charge stated in the caption.
Respondent, a 46-year-old twice divorced female, a native and citizen of Canada, was admitted to the United States for permanent residence on December 5, 1955. After an interval of commuter status she took up residence in the United States (January 31, 1959). The Service charges she is deportable because she was convicted on April 23, 1965 in the United States District Court at Detroit, Michigan for offenses arising out of incidents which began about September 1, 1960 and continued to March 1961. Respondent received a suspended sentence to imprisonment for two years. Counsel contends the crimes do not involve moral turpitude.
The facts revealed by the indictment are that Thomas Viola, convicted for murder in the State of Ohio, started serving a sentence of life imprisonment in 1946. As part of a conspiracy, he escaped from custody in 1960. Other members of the conspiracy rented an apartment for him. Subsequently, the respondent rented an apartment for him and lived with him. All the conspirators harbored and concealed Viola.
Respondent was convicted on four counts. Count one charged her with violating 18 U.S.C. 371 which makes it a crime for persons to conspire "either to commit any offense against the United States, or to defraud the United States." The count charged there was a conspiracy "to commit offenses against the United States, that is, violations of Title 18, United States Code, sections 1073, 4 and 1071." (Respondent was not convicted under section 1073; she was convicted under sections 371,4 and 1071 (two counts).)
A conviction for conspiracy to commit an offense does not involve moral turpitude unless the substantive crime involves moral turpitude (Matter of E----, 9 I. & N. Dec. 421, 422; Matter of P----, 5 I. & N. Dec. 582; and Matter of S----, 2 I. & N. Dec. 225). We do not believe that moral turpitude is involved in the substantive violations here (18 U.S.C.4 and 18 U.S.C.1071).
Count three and count four charged harboring of Viola for a different period of time. Section 1071 of Title 18, United States Code, makes it a crime knowingly to harbor or conceal a person for whose arrest a warrant has been issued. It carries with it a fine of not more than $1,000 or imprisonment of not more than one year. We do not believe this crime involves moral turpitude: it does not require force, it does not require an evil intent, and it does not require the commission of an act that is of the vileness or depravity needed for a finding that moral turpitude is involved. It is not even necessary that a conviction exist or that there be an escape from prison; it is only necessary that there be a warrant outstanding. (The fact that a conviction exists merely enhances punishment.) The act for which the person is sought or for which he was convicted is immaterial. A mother can be convicted for harboring her son or a wife her husband under this statute.
It is the inherent nature of the offense under any and all circumstances and not exaggerated forms of the crime which determine whether a crime involves moral turpitude (U.S. ex rel. Manzella v. Zimmerman, 71 F.Supp. 534, E.D.Penna.). In other words, it is not what the convicted person did but what the law defines that determines if moral turpitude is present. We have here a case of harboring. Precedents hold that more serious crimes somewhat related do not involve moral turpitude. A court has ruled that one convicted for breaking prison has not committed a crime involving moral turpitude (U.S. ex rel. Manzella v. Zimmerman, supra). In Matter of J----, 4 I. & N. Dec. 512, a conviction for attempting to escape from a Massachusetts reformatory was held not to involve moral turpitude although there was an assault and overpowering of a guard. The statute violated did not define escape in the terms of intent nor did it speak of force or violence. In Matter of B----, 5 I. & N. Dec. 538, we held that unlawfully aiding one to escape from jail was not a crime involving moral turpitude. Under these circumstances, we do not believe a conviction under 18 U.S.C. 1071 would be considered by society as an act of baseness or vileness or depravity in private or social duties which man owes his fellow man or society in general (U.S. ex rel. Manzella v. Zimmerman, supra, p. 537).
In reaching the conclusion that moral turpitude was involved, the special inquiry officer relied upon the fact that Viola had been convicted for the crime of murder. As we have pointed out, conviction under 18 U.S.C. 1071 may be had whether the person harbored has been convicted or not. It is only necessary that there be a warrant outstanding. Although punishment is enhanced if the person harbored has been convicted, it is not necessary that the conviction be of a crime which itself involves moral turpitude. The fact that Viola was convicted and the nature of the crime for which he was convicted is therefore immaterial in determining whether respondent's conviction for harboring involved moral turpitude.
The conviction under 18 U.S.C. 4 () does not involve moral turpitude. The section makes it a crime for a person who knows of the commission of a felony to conceal the fact from a proper authority. Violation is punishable by fine up to $500 or imprisonment up to three years or both. Here again, neither the means by or intent with which misprision is committed, nor the nature of the crime concealed is a factor. If aiding a prisoner to escape who has been convicted does not involve moral turpitude, it is difficult to see how the mere failure to furnish information as to the escape should involve moral turpitude.
The record fails to establish that the crimes of which the respondent was convicted involved moral turpitude. The proceedings will be terminated.
The special inquiry officer has properly disposed of contentions of counsel concerning the relation of the time of conviction and entry, and the nature of a suspended sentence under the immigration laws. We find it unnecessary to rule on whether respondent's abandonment of her commuter status to take up actual residence in the United States in 1959 constituted an "entry" for the purposes of the immigration law. For the purpose of this discussion, we have assumed that an "entry" occurred.
ORDER: It is ordered that the proceedings be and the same are hereby terminated.
(December 21, 1966)
The facts have been fully stated in previous orders. The question is whether the Board erred in holding that respondent's convictions do not involve moral turpitude.
Thomas Viola was confined for life in a state prison after conviction for murder. Respondent and others helped him escape; then respondent lived with him as his wife. She was convicted for harboring a person for whom a warrant of arrest had issued (18 U.S.C. 1071), and for failing to inform authorities that a convicted person had traveled interstate to avoid confinement (18 U.S.C. 4; an active concealment appears necessary for conviction).1 The counts on which respondent was convicted alleged that she had known Viola was sought for fleeing to avoid imprisonment after conviction for murder. We held that such knowledge was not material since the laws violated did not require proof of such knowledge before a conviction could be obtained.2 We held that moral turpitude was not involved because the laws violated inherently required neither an evil intent nor a depraved act for a conviction.3 The Service, however, contends that since respondent's knowledge that Viola was a murderer is revealed by the record (her indictment), we must consider this fact as material and with it as a part of our deliberations find that she committed acts which were turpitudinous in nature. In other words, the contention appears to be that the test as to moral turpitude is not whether the law requires turpitudinous acts for a conviction, but whether the record shows that the alien committed turpitudinous acts. We believe the Service position is erroneous and arises out of (1) a misreading of the precedents, and (2) reliance on a variant rule which is confined mainly to broadly worded statutes of a type not involved here.
We shall first state the general rule for determining whether a conviction involves moral turpitude under immigration laws.
[Moral turpitude] must be determined in the first instance from a consideration of the crime as defined by the statute. If, as defined, it does not inherently or in its essence involve moral turpitude, then no matter how immoral the alien may be, or how iniquitious his conduct may have been in the particular instance, he cannot be deemed to have been guilty of base, vile, or depraved conduct, U.S. ex rel. Zaffarano v. Corsi, 63 F.(2d) 757 (C.C.A. 2nd, 1933); U.S. ex rel. Meyer v. Day, 54 F.(2d) 336 (C.C.A. 2nd, 1931); U.S. ex rel. Mylius v. Uhl, supra [203 Fed. 152 (S.D.N.Y., 1913), aff'd 210 Fed. 860 (C.C.A. 2nd, 1914)]; 39 Op.Atty.Gen. 215, 220 (1938); 37 Op.Atty.Gen. 293 (1933). It is only where the statute includes within its scope offenses which...
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