Matter of Vosganian
| Decision Date | 21 December 1966 |
| Docket Number | Interim Decision Number 1676,A-10160233. |
| Citation | 12 I&N Dec. 1 |
| Parties | MATTER OF VOSGANIAN. In Deportation Proceedings. |
| Court | U.S. DOJ Board of Immigration Appeals |
This is an appeal from the decision of the special inquiry officer, finding respondent deportable as charged, holding him to be statutorily ineligible for voluntary departure, and ordering his deportation to England, the country of designation, with an alternative order of deportation to Lebanon.
The Government introduced, in support of the allegations in the order to show cause, a record of conviction of the respondent, in the Superior Court for Middlesex County, Massachusetts, dated February 11, 1964, showing that respondent had pleaded guilty to an indictment charging seven counts of larceny from two different victims, the said acts taking place in Medford, Massachusetts, on November 12, 13, 20, 21 and 23, 1963. Respondent was sentenced to the House of Correction for one year, but sentence was suspended for a period of three years upon condition that respondent make restitution in the amount of $1,155 (Ex. 2).
The Government also introduced, as Exhibit 3, a second record of conviction showing that on March 28, 1964, on his plea of guilty, respondent was convicted in the District Court of Peabody, County of Essex, Massachusetts, of five counts of larceny by check, each check being in the amount of $50.00, the checks being made on December 11, 13, 14 and 15, 1963, all being cashed in the same department store in Peabody, Massachusetts (which was not one of the two victims involved in the first set of convictions). Respondent was sentenced to one year in the House of Correction, but sentence was suspended until January 3, 1965 on condition that restitution be made.
Respondent concedes that all of the factual allegations in the order to show cause are true, and concedes that the above records of conviction relate to him and that he was guilty of the crimes charged therein. He contests deportability, however, alleging that the crimes referred to all arose out of a single scheme of criminal misconduct.
Counsel seeks on appeal to raise the additional issue of whether the crimes involved moral turpitude, mentioning the statutes of several states covering the passing of worthless checks, and referring to a decision of the Board (Matter of Stasinski, Int. Dec. No. 1476, decided May 26, 1965) in which a conviction for issuing or passing a worthless check, under a specific section of Wisconsin law, was held not to be a crime involving moral turpitude. The respondent here was charged with, and convicted of, larceny and larceny by check. The courts have long since settled the question that larceny is a crime involving moral turpitude, cf. Tillinghast v. Edmead, 31 F.2d 82 (1st Cir., 1929); Wilson v. Carr, 41 F.2d 704 (9th Cir., 1930). The record of conviction is controlling, Wing v. United States, 46 F.2d 755 (7th Cir., 1931), and speculation as to what other charges might have been brought under the circumstances can in no way affect the question of deportability.
The Government has the burden of proving deportability by clear, unequivocal, and convincing evidence (cf. Woodby and Sherman cases, 35 L.W. 4053, decided by U.S. Supreme Court, December 12, 1966), and under the section of law involved here, it must show not only the conviction of two crimes involving moral turpitude but also that they did not arise out of a single scheme of criminal misconduct, Wood v. Hoy, 266 F.2d 825 (9th Cir., 1959). We consider that the Government by its introduction of the two records mentioned above, showing conviction of two differently defined crimes (seven counts of larceny, and five counts of larceny by check), in two different courts, involving three different victims, taking place in two different locations, in two separate months, with no connection between them other than that respondent was the defendant, established its prima facie case. It, therefore, was not error for the special inquiry officer, at that point, to suggest to respondent through counsel that if it was his contention that the crimes arose out of a single scheme of criminal misconduct, he should come forward with whatever evidence he wished to present on that issue.
Counsel then asked the Government to introduce, on respondent's behalf, thirteen other sets of court records (Exs. 5-17), which establish that respondent also pleaded guilty to 31 more counts of larceny, 4 more counts of larceny by check and 1 count of attempt to steal. As the special inquiry officer points out, most of these could have served as well for the purposes of section 241(a)(4) as the two sets of convictions specified in the order to show cause (except for the 14 counts making up Exhibit 5, where the cases were placed "on file" by the court, a disposition held not to have the force of a conviction for deportation purposes, Pino v. Landon, 349 U.S. 901 (1955)).
Respondent testified on his own behalf, explaining his situation thus:
In 1963, when he was residing and working in Massachusetts, he began to gamble at races on nearby tracks, placing his bets either in person at the tracks or with bookmakers off-track. He was apparently completely unsuccessful and lost more money than he could afford to lose, especially since he was already in debt. He felt that the way to recoup his losses was to continue his betting in the hope that his luck would change. He borrowed money from banks, loan companies and "loan sharks", and lost it all. In the first week of November, 1963, he lost his job. He then had outstanding, and overdue, debts of close to $3,000. He testified that he was being harassed by the banks and loan companies and threatened with physical harm by the "loan sharks" for not making payment. He decided that the only solution to his difficulties was to issue and cash checks on accounts in which he had insufficient funds, so that he could obtain the money he needed.
Respondent opened a checking account in one bank and proceeded to write and cash checks far in excess of the token amount he had deposited to open the account. By the end of the week, the checks started "bouncing", and he had already been threatened with criminal prosecution unless he made prompt restitution, by the manager of one of the stores he had victimized. His need for money became, if anything, even more pressing, and he knew that the bank, aware of his activities, would not issue additional checks to him, so he proceeded to open two new checking accounts in two separate banks. He continued writing and cashing checks, passing a total of 50 or more before he was apprehended (there were a few on which charges were not brought against him). It appears, from respondent's testimony, that he had no organized or overall idea of what he intended to do when he...
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