MATTER OF GARCIA
A-5128684
In Deportation Proceedings
Decided by Board March 16, 1966
Interim Decision #1562
11 I. & N. Dec. 521
(2) Conviction under section 336, Michigan Penal Code, 1931, for taking indecent liberties with the person of a 9-year-old female child “without committing or intending to commit the crime of rape” is a conviction of a crime involving moral turpitude.
CHARGE:
Order: Act of 1952—Section 241 (a) (4) [
This case has been sent to Congress twice for approval of a grant of suspension of deportation under the Immigration and Nationality Act, and both times Congress has denied suspension. On March 21, 1957, the special inquiry officer granted suspension of deportation under section 244(a)(5) of the Immigration and Nationality Act, and this grant was approved by the Acting Regional Commissioner, Northwest Region. On December 31, 1963, respondent was granted suspension of deportation under section 244(a)(2) of the Immigration and Nationality Act, as amended, in the light of the additional factor that he had married a dependent United States citizen. This marriage took place after the previous grant of suspension. Congress again failed to approve the grant of suspension. Respondent again applies for suspension of deportation. On December 14, 1965, the special inquiry officer granted respondent voluntary departure from the United States with an automatic order of deportation to Mexico in the event he fails to depart. Respondent appeals to this Board.
Respondent is 68 years old, and has lived in the United States since 1918. The two offenses on which the deportation order is based are (1) petit larceny, committed in 1933, and (2) indecent liberties with the person of a minor female child, committed in 1941. Aside from these convictions, the respondent‘s only criminal record consists of several arrests for being drunk.
Respondent‘s first wife died in 1935. From 1947 he lived with a “common-law wife” who died in 1955. In 1957 he married his present wife, and they are still living together. He had one child by his first marriage, but he does not know where she is. He testified that he was not able to take care of her and that she was raised from infancy by someone else.
Respondent testified that he receives Social Security benefits of $95 a month, and his wife is employed as a dishwasher at $25 a week. She has had this employment for only a short time. Respondent earns $1200 a year in addition to his Social Security payments. He has been employed as a grinder of aluminum castings by the same company since 1953.
The record contains two letters particularly favorable to respondent. The Director of the Welfare Department of Muskegon County, Michigan, Mr. William Lindsay, states (Exhibit 10 (B and C)) that he was respondent‘s parole officer for several years after respondent was released from prison in 1945. Mr. Lindsay commends respondent highly for his adjustment to parole and since that time. The County Clerk of Muskegon County states (Exhibit 2-R, letter of November 29, 1965) that he “feels badly that the Congress rejected” respondent‘s application for suspension of deportation.
The Board will not grant suspension of deportation when Congress has twice rejected this case for such a grant. Nothing new has been added to this record since it was last referred to Congress. Therefore, counsel‘s plea on the merits must be denied.
Counsel pleads that the Immigration and Nationality Act is unconstitutional as it applies to respondent in that it operates retroactively, constitutes an ex post facto law, is a denial of due process and is, therefore, contrary to the United States Constitution. The Board has long held that it is not within our province to pass on the constitutionality of the statutes administered by us, that we accept the legislative mandates given us, and it is within the power and capacity of the United States courts to declare them unconstitutional.
Counsel appeals from the holding that respondent is deportable for the two offenses set forth in the order to show cause. Particularly, he complains that petit larceny is, at most, a misdemeanor. Petit larceny has long been held to be a crime involving moral turpitude. The record does not show anything except that respondent plead guilty in the Municipal Court of Cleveland, Ohio, on May 19, 1933, to a charge of petit larceny, and was sentenced to 30 days’ imprisonment in the workhouse. Since U.S. ex rel. Meyer v. Day, 54 F.2d 336 (2d Cir., 1931), no one has successfully challenged the ruling that petty theft constitutes a crime involving moral turpitude. See Matter of R-, 1 I. & N. Dec. 540. This Board has no authority to retry the criminal case; we are bound by the record of conviction, although we recognize the severity of the penalty under the circumstances of the present record.1
The second offense of which respondent was convicted was for taking indecent liberties with the person of a nine-year-old female child “without committing or intending to commit the crime of rape” under
Our survey of the Michigan decisions under the pertinent sections indicates that the purpose of the section is to punish males who take improper and indecent liberties with female children, and the “liberties” are defined as being “such as the common sense of society would regard as indecent and improper“. People v. Bonneau, 323 Mich. 237, 35 N.W. 2d 161 (1948); People v. Szymanski, 321 Mich. 248, 32 N.W. 2d 451 (1948); People v. Lakin, 286 Mich. 282, 282 N.W. 149 (1938). Armstrong v. Bannan, 272 F.2d 577 (6th Cir. 1959), held that it is not necessary that the statute define the offense with particularity, citing People v. Hicks, 98 Mich. 86, 90, 56 N.W. 1102, 1104 (1893). The Michigan cases also indicate that lesser offenses,
We are unable to find a decision of this Board concerning a conviction under this statute or for this exact offense. Our decisions concerning sexual offenses involving young children require a finding that respondent was convicted of a crime involving moral turpitude. Most of the cases involve statutory rape or attempted rape, which is specifically excluded as an element of an offense under
We found many unreported cases holding that convictions under these broad statutes may or may not involve moral turpitude, and that an examination of the indictment is necessary to determine moral turpitude in each case. We held that convictions for violations of the following statutes involved moral turpitude: (1) Article 203 of the Criminal Code of Poland defining commission of immoral acts with persons less than 15 years of age; (2) impairing the morals of a minor under section 483 of the New York Penal
Considering the precedent decisions, the nature of the statute, and the acts charged in the information, it must be found that the offense for which respondent was convicted in 1941, indecent liberties with a female child of nine years, was a crime involving moral turpitude.
The Board finds that respondent is deportable on the charge stated above, and that voluntary departure is the only relief from deportation available at this time. The order of the special inquiry officer will be affirmed. The appeal will be dismissed.
ORDER: It is ordered that the appeal be dismissed.
It is further ordered that the order of the special inquiry officer be and is hereby affirmed.