ings in U. S. ex rel. Steffner v. Carmichael, 183 F. (2d) 19 (C. A. 5, 1950),1 and U. S. ex rel. Koehler v. Corsi, 60 F. (2d) 123 (C. C. A. 2, 1932), from the instant case on the ground that only substantive law was involved in those cases. Counsel maintains that a valid deportation cannot occur unless the dictates of the Administrative Procedure Act 2 are observed throughout the deportation proceeding.

We feel that it is immaterial whether the subsequent judicial interpretation is concerned with the substantive or the adjective phase of the law relating to deportation proceedings. We consider the Steffner case (supra), as controlling in the instant situation. Therefore, since our decision of November 2, 1949, affirming the outstanding order of deportation, was in accordance with the law as it then existed,3 the case is closed and there can be no readjudication at this time.*

Practically speaking, it would be unfortunate and administratively unsound to permit every deportation proceeding determined prior to

1Affirming our order in Matter of Steffner, A-9635850 (August 26, 1949) (Int. Dec. #79), and the subsequent court decision in the United States District Court, 183 F. (2d) 19 (C. A. 5, 1950). Cert. den. October 9, 1950.

2

Act of June 11, 1946; 60 Stat. 237, ch. 324; 8 U. S. C. 1001 et seq. Cf. Sung v. McGrath, 339 U. S. 33, 70 S. Ct. 445, 94 L. Ed. 383 (1950) for the application of this act to deportation proceedings.

'The law of the case became fixed at the time of appellant's deportation on January 11, 1950, U. S. ex rel. Koehler v. Corsi, 60 F. (2d) 123 (C. C. A. 2, 1932), Matter of R, A-3844720 (April 29, 1949), (Int. Dec. #40), and Matter of R—————, A-5986220 (April 12, 1949). A mistake of law or a change in interpretation of the law cannot serve as a basis for varying this established law of the case. Matter of M-, A-3083881 (October 14, 1949) (See Int. Dec. #192, Ed. note, p. 3); Union Oil Co. v. Reconstruction Oil Co., 58 Calif. App. 2d 30, 135 P. (2d) 621 (1943); McGregor v. Provident Trust Co., 119 Fla. 718, 162 So. 323 (1935); McCracken's Case, 251 Mass. 347, 146 N. E. 904 (1925).

'Should appellant's suggestion be followed and a hearing de novo afforded in the present case, the result would be only a relitigation of the original facts and issue, previously determined on the basis of the law as it existed during the prior proceeding. Relitigation of issues, after a change in judicial interpretation, has been denied consistently by courts. Concordia Ins. Co. v. School District, 282 U. S. 545 (1931); Commonwealth v. Fidelity & Columbia Trust Co., 215 S. W. 42 (Ky. 1919); Continental Supply Co. v. Abell, 24 P. (2d) 133 (Mont. 1933); Thompson v. Louisville Banking Co., 55 S. W. 1080 (Ky. 1900); Bolton v. Hey, 31 A. 1097 (Pa. 1895). See also Messinger v. Anderson, 225 U. S. 436 (1911); Page v. Arkansas Natural Gas Corp., 53 F. (2d) 27 (C. C. A. 8, 1931). There appears to be no reason to vary this rule in the instant situation, for administrative orders must also have final validity which can be relied on in the interest of concluding litigation. In re Ft. Dodge, D. M. & S. R. Co., 47 F. Supp. 95 (S. D. Iowa, 1942); U. S. ex rel. Steffner v. Carmichael (supra); Daskaloff v. Zurbrick, 103 F. (2d) 579 (C. C. A. 6, 1939). Cf. Gen. Motors Acceptance Corp. v. Midwest Chevrolet Co., 74 F. (2d) 386 (C. C. A. 10, 1934); State of Kansas ex rel. Beck v. Occidental Life Ins. Co., 95 F. (2d) 935 (C. C. A. 10, 1938); Western Fire Ins. Co. v. University City, 124 F. (2d) 698 (C. C. A. 8, 1942); Hager v. Honover Fire Ins. Co., 64 F. Supp. 949 (W. D. Mo., 1945).

February 20, 1950, to be reopened on the ground which counsel for appellant suggests. Operation and enforcement of the immigration laws. would be severely impeded, perhaps reduced to chaos. The resulting uncertainty in the law would be most undesirable. (See Valenti v. Clark, 83 F. Supp. 167, 168, D. C. 1949.)

Hence, it is determined that appellant has been validly deported and that the order of deportation became final upon execution. Concerning relief under the 9th proviso to section 3 (act of 1917), which counsel seeks in the alternative, we will affirm the action of the Assistant Commissioner in denying this request.

Order: It is hereby ordered that the appeal be dismissed.

Editor's note.-To like effect, in unreported Matter of C

A-7092104, B. I. A.

July 25, 1950, deportation being effected on January 31, 1950, and in Matter of CR A-5173361, B. I. A. September 19, 1950 (Int. Dec. #221), deportation being effected in 1949.

260397-54- -13

IN THE MATTER OF R

In EXCLUSION Proceedings

A-7439917

Decided by Board November 22, 1950

Crime involving moral turpitude-Tax evasion"-Violation of sections 396 and 401 of the German Tax Code.

An intent to defraud is not an element of the offense involved here (April 4, 1949), which deals with tax evasion" in Germany in violation of sections 396 and 401 of the German Tax Code, and therefore this crime (as defined in sec. 396, supra) does not involve moral turpitude. (Editor's note.-Same conclusion reached in unreported Matter of W————, A-7394110, B. I. A. December 12, 1950, and Matter of B—, A-7376152, B. I. A. December 1, 1950).

EXCLUDED BY BOARD OF SPECIAL INQUIRY:

Act of 1917-Convicted of and admits crime-Defrauding German
Government of revenue.

BEFORE THE BOARD

Discussion: This record is before us on appeal from an order entered by the Assistant Commissioner on May 24, 1950, affirming the appellant's exclusion on the above-stated criminal charge. Counsel excepts to the order on the ground that no crime has been committed by the appellant.

The appellant is a native and citizen of Poland, 28 years of age, married, who, together with his wife, seeks admission to the United States as a displaced person for permanent residence under the act of June 25, 1948. Both are in possession of quota immigration visas issued by the American consul at Munich, Germany, on February 23, 1950. The Assistant Commissioner made no final decision in the case of the appellant's wife for the reason that she did not appear before the board of special inquiry and their decision was rendered against her in absentia.

The appellant has been found inadmissible to the United States under the provisions of section 3 of the Immigration Act of 1917 as a person who has been convicted of a crime involving moral turpitude. A certified extract of the court record showing his conviction by a magistrate's court at Augsburg, Germany, April 5, 1949, for violation of sections 396 and 401 of the German Tax Code, "in that the accused on or about April 2, 1949, at Augsburg, purchased and was in possession of four cartons of untaxed chocolate, thereby depriving the state of its revenues," has been entered in the record as exhibit 1.

The pertinent sections of the German law under which the appellant was convicted, including both the German text and an English translation thereof, are also a part of the record. We note that the translation of sections 396 and 401, cited in the opinion under consideration, differs in many respects from that found alongside the German text in exhibit 2. Since the offense as described by the German statute must be judged by standards prevailing in the United States,1 a correct, uniform, legal translation is of primary importance. The following is a translation of the statutory provisions of the German Tax Code (Reichsabgabenordnung) cited in the extract of the court record. It was prepared by the staff of the Foreign Law Section of the Law Library of Congress. The text of each section is translated as in force when the offense was committed and punishment imposed.2

GERMAN TAX CODE

SECTION 396. (1) Whoever contrives unjustified tax advantages to his own benefit or the benefit of another, or intentionally causes tax revenue to be diminished, shall be punished by a fine for tax evasion. There shall be no limitation as to the highest amount of the fine. In addition to the fine, imprisonment for not more than two years may be imposed.

(2) Whoever is granted exemption from taxes or a tax advantage and uses things for which these were granted for any other purpose than the one for which the grant was made, and for his own benefit or the benefit of another intentionally fails to notify the tax collector's office in due time in advance, shall also be guilty of tax evasion.

(3) It shall suffice that because of the act a lesser tax has been assessed or an unjustified tax advantage has been granted or approved, it shall be irrelevant for the punishment if the amount to be assessed in any event should have been reduced for other reasons or the tax advantage could have been claimed for other

reasons.

(4) Failure to comply with the tax regulations shall be punished as tax evasion only in instances where reduction in tax revenue or the realization of unjustified tax advantages are obtained by the intentional violation of duties imposed upon the offender in the interest of a proper assessment of taxes.

(5) Tax evasion may also be committed with regard to merchandise, the import, export or transit of which is unlawful.

SECTION 401. (1) In case of conviction for tax evasion confiscation of the products subject to taxation or the merchandise subject to duty in regard to which tax evasion has been committed, as well as of the means of transportation which the offender has used in committing the act shall be imposed, in addition to the fine or the term of imprisonment imposed. Means of transportation engaged in general traffic and operating independently from instructions of passengers or users shall not be subject to such confiscation under the preceding sentence.

139 Op. Atty. Gen. 95 (1937).

2 Sec. 396 of the German Tax Code has been amended several times. The last amendment was April 20, 1949, 15 days subsequent to the appellant's trial on April 5, 1949.

(2) If confiscation of the products or merchandise is not feasible, a deposit of an amount representing their value shall be decreed and if that value cannot be determined, payment of a sum not more than RM100,000 shall be imposed.

The Assistant Commissioner concludes that the appellant has been convicted of a crime involving moral turpitude. This conclusion was reached using the following translation of the pertinent portions of paragraphs 1 and 4 of section 396 of the German Tax Code:

1. Anyone who for his own advantage or the advantage of another surreptitiously obtains unauthorized tax benefit or exemption or intentionally causes tax receipts to be diminished, will be punished by a fine for tax fraud. ***

4. A tax evasion may be punished as a tax fraud only if the reduced tax revenue, or the acquisition of unjustified tax advantages is effected in a manner that shows that the offender intentionally violates duties which he must fulfill in order to determine the tax assessment.

The Assistant Commissioner reasoned, and properly so, that the offense defined by the above-cited translation involves an evil intent to defraud the German Government of tax revenues and therefore is turpitudinous. Prior to the receipt of the translation prepared by the Law Library of Congress (supra), we tentatively arrived at the same conclusion. However, when the variations in translation became apparent to us, we realized that in order to judge the offense by standards prevailing in the United States it was necessary to have before us an English version of the German text prepared by one familiar with the jurisprudence of both countries. Past experience has shown us that the staff of the Foreign Law Section of the Law Library of Congress is best suited to perform this task.

The immigration laws require that the crime committed by the alien involve moral turpitude. The offense of tax evasion is defined in the first sentence of paragraph 1 of section 396 (supra). It reads, "Whoever contrives unjustified tax advantages to his own benefit or the benefit of another, or intentionally causes tax revenue to be diminished, shall be punished by a fine for tax evasion." Paragraph 4 of the same section limits the puunishment for tax evasion to those who intentionally violated a duty imposed by the tax regulations, thereby reducing the tax revenues or realizing an unjustified tax advantage. The verb "contrives," as defined by Webster's New International Dictionary, means "to devise; to plan; to plot." An intentional violation of a duty imposed by regulation is to be distinguished from an intent to defraud even though the offender may have realized an unjust tax advantage or caused a reduction in tax revenue.

We find upon reconsideration in light of the translation submitted to us that intent to defraud is not an element of the offense. It is in the criminal intent that moral turpitude inheres. U. S. ex rel. Meyer

3

Matter of R, A-7290361 (February 24, 1950); Matter of A G——, A-7366174 (June 27, 1950); Matter of M—— K—, A-7427459 (September 8, 1950).