STATEMENT OF THE CASE: A warrant of arrest was issued January 17, 1941, and served January 27, 1941. Hearings were accorded thereunder January 29, February 13, and April 16, 1941, at which times respondent waived representation by counsel. The presiding inspector and district director recommend deportation, but execution of the warrant was deferred pending release from imprisonment.
The matter is now before this Board for final review and decision.
Respondent has completed his sentence imposed for a violation of section 2 of the Act of March 4, 1929, and is now being detained at Government expense.
DISCUSSION: The respondent, F---- Y----, testified that he is a native and citizen of Mexico, aged 26 years, married but has been separated from his wife since 1937. He stated that he first entered the United States in October 1919 at the port of Nogales, Ariz., in company with his parents, who were admitted as exempted agricultural laborers, and that he resided continuously in the United States until December 23, 1940, on which date he departed to Mexico via Calexico, Calif., while in a drunken condition and asleep in an automobile driven by an unidentified companion. He testified further that while in Mexicali, B.C., Mexico, he was arrested by the police of that city on December 24, 1940, on a charge of drunken driving and suspicion of auto theft and held until about 6 p.m. on December 25, 1940; that following his release from custody he reentered the United States on that date, December 25, 1940, at a point about three-quarters of a mile east of the port of Calexico, Calif., and that such entry is his last entry. He also testified that his purpose in entering the United States was to return to his home in Brawley, Calif. This evidence sustained respondent's deportability on the ground that he entered by land at a place other than a designated port of entry.
He stated that at the time of his entry he did not present a passport or other official document in the nature thereof showing his origin and identity as required by Executive Order No. 8430 of June 5, 1940, nor did he present a visa, reentry permit, or border-crossing identification card as required by section 30 of the Alien Registration Act of 1940. Respondent is therefore also deportable on the grounds that he entered in violation of the Executive Order No. 8430 and section 30 of the Alien Registration Act.
It has been recommended that respondent be deported on the additional ground that he admits the commission of a crime involving moral turpitude, namely, failure to provide for a minor child. Appellant has admitted the commission, prior to entry, of this crime. It appears that he was found guilty of a violation of section 270 of the Penal Code of California on January 6, 1939, and was placed on probation for a period of 2 years. In an order dated February 27, 1941, this Board pointed out that under section 270 of the California Penal Code, criminal liability was not avoided by reason of the fact that the child was being supported by any other person, and that it was therefore possible that under certain circumstances, a violation of this section would not involve moral turpitude. The case was therefore reopened, and there have been introduced certified copies of the information, the plea, the report of the probation officer, and the minute and long-form orders for probation in respondent's case.
The report of the probation officer is stated, over the signature of the judge, to have been considered by the court. From this report it appears that at the time of his conviction in January 1939, respondent admitted that he had contributed nothing to the support of his child since May 1938, and that the charge was brought at the instigation of a county welfare department that had been contributing aid to the wife and child. However, this Board is of the opinion that we may not consider this report in determining whether the offense involves moral turpitude. The parole officer's report was submitted merely to aid the court in exercising its discretionary powers to suspend sentence. It is not part of the record of conviction, and it has long been settled that under the immigration laws we are precluded from examining any evidence other than the record of conviction in determining the nature of the crime committed by an alien. For immigration purposes, the question is not whether the respondent is guilty of moral turpitude, but rather whether the crime for which he has been convicted involves moral turpitude. The nature of a crime can be ascertained only from the statute creating it and the record of a conviction under that statute.
In our former order reopening this case we set forth the applicable portion of section 270 of the California Penal Code under which respondent was convicted. We pointed out that under section 270 criminal liability was not avoided by reason of the fact that the mother or any other person was supporting the child in question. Since the record of conviction is of no help in clarifying the nature of the crime committed, we are faced with the question whether a penal provision imposing such absolute liability can be said to create a crime involving moral turpitude.
In the case of T---- N---- (55693/375) July 23, 1930, the Board of Review ordered the deportation of an alien on the ground that he had been sentenced to imprisonment for crimes involving moral turpitude. One of the crimes was failure to support his wife and child as defined by Section 4026 of the Revised Statutes of Missouri, 1929. The pertinent portion of the statute is as follows:
SEC. 4026.
Abandonment of wife or children — penalty
— evidence required. — If any man shall, without good cause, abandon or desert his wife or shall fail, neglect, or refuse to maintain and provide for such wife; or if any man or woman shall, without good cause, abandon or desert or shall, without good cause, fail, neglect, or refuse to provide the necessary food, clothing, or lodging for his or her child or children born in or out of wedlock, under the age of 16 years, * * * then such person shall * * * be punished by imprisonment in the county jail not more than 1 year, or by fine not exceeding $1,000, or by both such fine and imprisonment * * * (R.S. 1919, No. 3274. Amended, Laws 1921, p. 281.)
A comparison of this section with section 270 of the California Code, quoted in our order of February 27, 1941, will show that the Missouri statute is the more narrow in its application. The Missouri statute requires that the abandonment shall be "without good cause," which gives far greater latitude as to possible defense than the comparable phrase in the California statute, "without lawful excuse."
Despite the relatively narrow application of the Missouri statute, when habeas corpus proceedings were brought the district judge for the Eastern District of Missouri held that failure to support a wife and child under this statute was not a crime involving moral turpitude, and the alien was discharged from custody. ( See 55693/375 containing memorandum of the oral opinion delivered March 24, 1931.) Moreover, it was the unanimous opinion of the United States attorney, the district director, and the solicitor of the Department of Labor that it would be useless to appeal the decision of the district court. The solicitor said, in part (4-2682, April 16, 1931):
This section of the Missouri Revised Statutes, section 4026, is extremely broad, so much so that it appears clearly to this office that convictions thereunder may be had without the offense in anywise involving moral turpitude. The statute creating, as it does, purely a statutory crime unknown at common law, this office believes that Judge Faris was unquestionably correct in holding that the crime for which the alien was convicted does not involve moral turpitude and, therefore, that portion of the Department's charge against the alien cannot be supported in law. This office joins with the United States attorney, the district judge, and the district director of immigration of the St. Louis District, in concluding that it would be a useless proceeding to take an appeal from the decision of the district court.
If the Missouri statute is phrased too broadly to permit a holding that the crime therein defined involves moral turpitude, it is a fortiori that the California crime also does not involve moral turpitude. It is entirely possible that under the California statute a conviction may be had for conduct that no substantial portion of the community would consider base, or vile, or depraved. In view of this the crime cannot be said to involve moral turpitude, regardless of whether the individual acts of respondent would be thought of as morally wrong. The lodged charge that the respondent admits the commission of a crime involving moral turpitude will not be sustained.
FINDINGS OF FACT: Upon the basis of all the evidence presented, it is found:
(1) That the respondent is an alien, native and citizen of Mexico;
(2) That the respondent last entered the United States on December 25, 1940, at a point about three-quarters of a mile east of the port of Calexico, Calif.;
(3) That the respondent was admitted to the United States for permanent residence at Nogales, Ariz., on October 31, 1919;
(4) That the respondent last entered the United States for the purpose of resuming residence therein;
(5) That the respondent did not present a passport or other official document in the nature thereof showing origin and identity at time of last entry;
(6) That the respondent did not present, at time of entry, a visa, reentry permit, or border-crossing identification card;
(7) That the respondent admits the commission of and was convicted, prior to his last entry, of the crime of failure to provide for a minor child, as defined by section 270 of the California Penal Code.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 19 of the act of 1917, the respondent is subject to deportation on the ground that he entered by land at a place other than a designated port of entry for aliens;
(2) That under section 19 of the act of 1917, the respondent is subject to deportation on the ground that at the time of entry he was a member of a class excluded by the Passport Act of May 22, 1918, as amended by the Act of March 2, 1921, and Executive Order No. 8430, of June 5, 1940, in that he did not present a passport or other official document in the nature of a passport showing origin and identity as required by said Executive order;
(3) That under section 30 of the Alien Registration Act of 1940, and section 19 of the Immigration Act of 1917, respondent is subject to deportation on the ground that at the time of his entry he did not present á visa, reentry permit, or border-crossing card;
(4) That the crime of failure to provide for a minor child, defined by section 270 of the California Penal Code, does not involve moral turpitude;
(5) That under section 19 of the act of 1917, the respondent is not subject to deportation on the ground that he admits the commission, prior to entry, of a crime involving moral turpitude, to wit: failure to provide for minor child;
(6) That under section 20 of the act of 1917, the respondent is deportable to Mexico at the expense of the Government.
OTHER FACTORS: The respondent has his parents, two sisters, his wife, and child in the United States, and an uncle in Mexico. He testified that his parents, one sister and two nieces are partially dependent on him for support as well as his wife and child. He admitted that he has contributed only about $50 to the support of his wife and child during the past 2 years although he was found guilty of failure to provide for his minor child in San Jose, Calif., on January 6, 1939, and placed on probation for a period of 2 years and ordered to contribute $20 a month to the support of the child. He has just served a term for a violation of section 2 of the Act of March 4, 1929, and, also, received a suspended sentence for a violation of the National Auto Theft Act. (Letter from the district director dated June 28, 1941.)
In view of these circumstances, it cannot be said that respondent is of such good moral character as to be eligible to the privilege of voluntary departure in lieu of deportation under section 19 (c) of the 1917 act, as amended.
ORDER: It is ordered that the alien be deported to Mexico, at Government expense, on the charges stated in the warrant of arrest, and the further charge: That under section 30 of the Alien Registration Act of 1940, and section 19 of the Immigration Act of 1917, he is subject to deportation on the ground that at the time of his last entry he did not present a visa, reentry permit, or border-crossing card.