United States v. Miller

• Decision Date: 01 December 1949
• Docket Number: Civ. 53-187.
• Citation: 87 F. Supp. 285
• Parties: UNITED STATES ex rel. TEPER v. MILLER.
• Court: U.S. District Court — Southern District of New York

87 F. Supp. 285

UNITED STATES ex rel. TEPER v. MILLER.

Civ. 53-187.

United States District Court S. D. New York.

December 1, 1949.

Rosenblatt & Spielberg, New York City, for petitioner.

Irving H. Saypol, United States Attorney, New York City (William J. Sexton, Assistant United States Attorney, Lester Friedman, Attorney, Immigration and Naturalization Service, Department of Justice, New York City, of counsel), for respondent Miller.

IRVING R. KAUFMAN, District Judge.

The relator herein seeks an order sustaining a writ of habeas corpus.

The relator, Hirsch Teper, a native and citizen of Great Britain, arrived at the Port of New York on February 16, 1949 and applied for admission to the United States for permanent residence. A Board of Special Inquiry of the Immigration and Naturalization Service, after hearings, excluded Teper from admission to the United States. This decision was affirmed by the Assistant Commissioner of the Service on May 10, 1949, on the ground that Teper is inadmissible to this country in that the immigration visa which he presented was not valid because procured by misrepresentation, and also on the ground that he had been convicted of a crime involving moral turpitude, namely, stealing a fur.

In applying to the American Consul for his visa, Teper did not disclose that he had been arrested and subsequently convicted on February 2, 1929, in Old Street Police Court, London, England, of the crime of "stealing a fur", for which he was fined £5 and ordered to pay £5-10-0 cost, or one month imprisonment, nor did Teper disclose that he had been arrested on another charge about the year 1932 in London in connection with the theft of furs, on which he was acquitted and released.

Teper contests the legality of the exclusion order on the grounds that:

(a) The Board of Special Inquiry did not have before it the charge or indictment upon which Teper was convicted.

(b) That the evidence was insufficient to predicate a finding of fraud in the procurement of the visa.

(c) That the facts relating to the charge indicate an absence of moral turpitude.

As to the misrepresentations made to the Consul, the law is that the facts misstated must be material to justify a refusal to issue a visa; and that a fact suppressed or misstated is not material to the alien's entry, unless it is one which, if known, would have justified a refusal to issue a visa. U. S. ex rel. Fink v. Reimer, 2 Cir., 1938, 96 F.2d 217; U. S. ex rel. Leibowitz v. Schlotfeldt, 7 Cir., 1938, 94 F.2d 263; cf. Daskaloff v. Zurbrick, 6 Cir., 1939, 103 F.2d 579; U. S. ex rel. Lamp v. Corsi, 2 Cir., 1932, 61 F.2d 964. The Consul in the instant case would have been justified in refusing to issue the visa only if the suppressed facts were sufficient to cause Teper to be excluded under Section 136(e) of Title 8 U.S.C.A. as a person who had been convicted of a crime involving moral turpitude. Hence the first ground for affirmance of exclusion by the Assistant Commissioner of the Immigration and Naturalization Service must stand or fall with the second ground, and therefore the only material question before the Court is whether Teper was properly excluded on the ground of having been convicted of a crime involving moral turpitude.

Teper was convicted of "stealing a fur". The crime for which he was convicted, i.e., the offense of "stealing" is defined by the Larceny Act of 1916, 6 & 7 Geo. V., c. 50, as involving a criminal intent to permanently deprive another of property or something of value. The theft constituted the crime of larceny, and this has been continuously held to be a crime involving moral turpitude. U. S. ex rel. Meyer v. Day, 2 Cir., 1931, 54 F.2d 336; U. S. ex rel. Rizzio v. Kenney, D. C. Conn. 1931, 50 F.2d 418; U. S. ex rel. Parenti v. Martineau, D. C. Conn. 1930, 50 F.2d 902; U. S. ex rel. Ulrich v. Kellogg, 1929, 58 App.D.C. 360, 30 F.2d 984, 71 A.L.R. 1210. The amount of the theft is immaterial, for it has been often held that petit, as well as grand larceny involves moral turpitude. U. S. ex rel. Chartrand v. Karnuth, D.C. W.D. N.Y. 1940, 31 F.Supp. 799; U. S. ex rel. Fracassi v. Karnuth, D.C.W.D. N.Y. 1937, 19 F.Supp. 581; Tillinghast v. Edmead, 1 Cir., 1929, 31 F.2d 81; Bartos v. United States, 8 Cir., 1927, 19 F.2d 722.

Once the fact of the conviction has been established, neither the immigration officials nor the court reviewing their decision may go outside the record of conviction to determine whether in the particular instance the alien's conduct was immoral, nor can they consider the circumstances under which the crime was in fact committed. U. S. ex rel. Guarino v. Uhl, D.C.S.D.N.Y. 1939, 27 F.Supp. 135, rev'd on other grounds, 2 Cir., 1939, 107 F.2d 399; U. S. ex rel. Chartrand v. Karnuth, supra; U. S. ex rel. Zaffarano v. Corsi, 2 Cir., 1933, 63 F.2d 757; U. S. ex rel. Meyer v. Day, supra; U. S. ex rel. Robinson v. Day, 2 Cir., 1931, 51 F.2d 1022. Though the rule may be harsh in a particular case, it must be followed as long as it is the...