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v. Day, 54 F. (2d) 336 (C. C. A. 2, 1931). Under the German statute all that must be shown to establish guilt is that the accused intentionally devised, planned, or plotted a tax advantage to his own benefit or the benefit of another or intentionally caused the tax revenue to be diminished, thereby violating a duty imposed by a tax regulation. It has been held that tax evasion in the absence of any intent to defraud the government of revenue is not a crime involving moral turpitude. United States v. Corrollo, 30 F. Supp. 3, D. C. Mo. (1939). Judge Otis in commenting on the turpitudinous nature of the offense of tax evasion said, "The number of men who have at some time sought to evade the payment of a tax or some part of a tax to some taxing authority is legion. Any man who does that should be punished civilly or by criminal sentence, but to say that he is base or vile or depraved is to misuse words." Accordingly, under the standards prevailing in the United States, the crime defined in section 396 of the German Tax Code does not involve moral turpitude.

We find no merit to counsel's argument that the conduct in question does not constitute a crime since it is well settled that where a record of conviction is introduced in the proceedings, the nature of the crime is conclusively established by that record. It is not permissible to go behind the record of conviction to determine the purpose, motive, or knowledge as indicative of moral character. This rule precludes inquiry outside the record of conviction as to facts favorable and unfavorable to the alien. U. S. ex rel. Robinson v. Day, 51 F. (2d) 1022 (C. C. A. 2, 1931); U. S. ex rel. Mylius v. Uhl, 203 Fed. 152, 154 (S. D. N. Y. 1913, aff'd. 210 Fed. 860).

Order: It is directed that the appeal be and the same is hereby sustained, the appellant to be admitted when in possession of the proper documents.

Editor's note.-In unreported Matter of P——, A-7849415, B. I. A. December 22, 1950, a conviction (August 1949) in the U. S. Military Court for Germany, for violation of sec. (pars.) 396, 401, and 403 of the German tax law, in that she "unlawfully for her own profit, intentionally cause the collection of taxes to be diminished, to wit: did buy and dispose of 17.5 kg. of chocolate * taxable items for which she failed to pay taxes, and/or for which she knew or could reasonably assume under the circumstances taxes have been evaded", was held not to involve moral turpitude, the Board of Immigration Appeals referring to the above interim decision and stating:

"Violation of sec. 403 was not considered in Matter of R— (supra). That section states that a person is guilty of dealing in smuggled goods, if he buys, takes as security, acquires, conceals, or sells for his advantage, products or commodities, in respect to which a consumption tax or customs duty has been evaded or a boundary has been infringed upon. As counsel for the alien points out, this section pertains to one who has been an accomplice, and to the penalty for the offense. On the basis of our holding that a violation of 396 does not involve moral turpitude, we hold that a violation of sec. 403 does not involve moral turpitude."

IN THE MATTER OF S

In EXCLUSION Proceedings

A-5678905

Decided by Central Office November 27, 1950

Decided by Board August 20, 1951

Decided by Acting Attorney General August 30, 1951

"Neutral alien," who claimed exemption from service in U. S. armed forcesIneligibility to U. S. Citizenship-Sec. 3 (a) of Selective Training and Service Act of 1940-Admissibility of lawfully admitted immigrant seeking readmission on return from temporary visit abroad-Sec. 13 (c) of the Immigration Act of 1924-Exercise of Seventh Proviso relief in such a case to waive a criminal bar to readmission-Sec. 3 of the Immigration Act of February 5, 1917.

A lawfully admitted alien returning from a temporary visit abroad in Jan., 1950 may, in a proper case, be granted relief under the seventh proviso to Section 3 of the Immigration Act of Feb. 5, 1917 to waive a criminal bar to readmission, notwithstanding his having rendered himself ineligible to citizenship under Sec. 3 (a) of the Selective Training and Service Act of 1940 by filing on March 8, 1945, D. S. S. Form 301 claiming exemption as a neutral alien, from service in the U. S. armed forces (See Sec. 13 (c) of the Immigration Act of 1924.)

EXCLUDED BY BOARD OF SPECIAL INQUIRY:

Act of 1917-Admits crime prior to entry-Grand larceny.
Act of 1917-Convicted of crime prior to entry-Grand larceny.

BEFORE THE CENTRAL OFFICE

(November 27, 1950)

Discussion: Upon consideration of the entire record, the findings of fact and conclusion of law made by the board of special inquiry and read to the alien on February 1, 1950, are hereby adopted except that finding of fact (6) and the conclusion of law are amended to show the alien was convicted of two charges of grand larceny and finding of fact (7) is amended to show the alien was legally admitted to the United States for permanent residence, to wit:

Finding of Fact:

(6) That on December 17, 1937, on pleas of guilty, you were convicted on two charges of grand larceny and sentence was de

ferred; that on November 4, 1939, you were sentenced to 3 months' probation and fined $50 and compelled to pay costs in the sum of $50 on one charge and on the other charge, you were placed on probation for a period of 3 months to run concurrently with the probationary period on the first charge. (7) That you were lawfully admitted to the United States for permanent residence at New York, N. Y., on April 3, 1928; and that you resided in the United States continuously until your departure for Ireland on August 17, 1949.

Conclusion of Law: That under section 3 of the Immigration Act of 1917, you are inadmissible to the United States as an alien who admits the commission and conviction of a crime involving moral turpitude prior to entry, to wit: grand larceny, grand larceny.

An appeal was taken but no formal exceptions were filed.

The applicant is a 40-year-old married male, a native and citizen of Ireland, who arrived at the port of New York on January 13, 1950, and sought admission to resume his permanent residence. He was excluded by a board of special inquiry on the grounds stated above by reason of his convictions on pleas of guilty on December 17, 1937, on two charges of grand larceny.

Larceny in any of its forms involves moral turpitude, Tillinghast v. Edmead 31 F. (2d) 81 (C. C. A. 1, 1929). The alien's convictions on pleas of guilty on December 17, 1937, therefore involve moral turpitude and he is excludible under the Immigration Act of 1917 as one who admits and who has been convicted of crimes involving moral turpitude prior to entry.

Since the alien has established that he was returning after a temporary absence, to an unrelinquished United States domicile of 7 consecutive years, consideration will be given as to whether the discretion to admit him under the 7th proviso to section 3 of the Immigration Act of 1917, as amended, should be exercised.

The applicant was lawfully admitted to the United States for permanent residence on April 3, 1928. He resided in the United States continuously until August 17, 1949, when he departed for Ireland with the purpose of visiting his sick father. He alleges that he married one time; that his wife is a citizen of the United States; and that he has a 15-year-old daughter who is a citizen of the United States. The alien alleges that he resides with his wife and daughter. The record reveals that the alien was arrested only once and that the arrest occurred on December 16, 1935, and was in connection with the grand larceny charges.

Report of the Identification Division of the Federal Bureau of Investigation reveals no derogatory information other than the arrest previously mentioned. Reports of local police authorities having

jurisdiction over the localities where the alien has resided while in the United States, reveal no derogatory information other than the arrest in 1935. Independent character investigations conducted by this Service covering the past 7 years, reveals that all persons interviewed who knew the alien commented favorably concerning him. These witnesses include neighbors and employers. The alien's good moral character is established by the record.

The record reveals that the alien filed an application for relief from military service (DSS Form 301) with his local Selective Training and Service Board on March 8, 1945. The alien testified that his reason in seeking relief from military service was the thought he had at that time of returning to Ireland to reside there with his family. The alien now testifies that he has given up any thought of returning to Ireland for permanent residence and that he would fight for the United States. The independent character investigation previously referred to reveals that seven persons who have known the alien for at least the past 4 years felt that he appeared to be a person who is loyal to the United States.

The applicant owns his own home. The family assets total about $1,300 in cash and he has equity of about $14,000 in two pieces of property. He is employed as a photographer and earns over $50 a week. His present employer states that the applicant will be paid $60 a week upon his return to employment and that the applicant is an honest person who has been entrusted with responsibility of banking the revenues taken in by three photo studios. His employer considers his character of the best and the alien's personal life above reproach. The alien testified that his convictions for grand larceny occurred out of transactions where the alien supplied a customer with certain goods owned by the firm by which the alien was employed without invoicing the goods properly and that the purpose of not invoicing the goods was, in effect, to extend the customer additional time to pay the bills. The information filed in connection with the arrest reveals the alien supplied certain goods of his employer to another person over the period of a year. The alien testified that he has made restitution in the amount of $600 which was involved in connection with the larcenies.

It is for the executive to determine under the foregoing facts whether administrative discretion is properly to be invoked to enable this otherwise inadmissible alien to rejoin his American citizen-wife and 15-year-old, native-born daughter, resume his residence of 22 years' standing, where he owns a home and other property, and continue a mode and manner of living and gaining of livelihood which he has followed through all of his adult life.

It is to be observed that the subject has placed himself, by his voluntary action on March 8, 1945, in obtaining relief from military service

as a neutral alien through executing DSS Form 301 before his local board, in a class made ineligible to citizenship. Section 3 (a), Selective Training and Service Act of 1940, 50 U. S. C. 303 (a) provides, as to those making such application, "but any person who makes such application shall thereafter be debarred from becoming a citizen of the United States ***." The application which this subject executed under oath contained this sentence: "I understand that the making of this application to be relieved from such liability will debar me from becoming a citizen of the United States."

Having thus placed himself voluntarily and with full knowledge in such position with reference to his adopted country, he must be prepared to meet the consequences of his action.

One disability imposed upon aliens ineligible to citizenship is inadmissibility to the United States (sec. 13 (c), Immigration Act of 1924, 8 U. S. C. 213 (c)), unless, "admissible as a nonquota immigrant under the provisions of subdivisions (b), (d) or (e) of section 4, ***” At the present the applicant is within the first exception, being a "lawfully admitted" immigrant "who is returning from a temporary visit abroad" (sec. 4, act of 1924, 8 U. S. C. 204).

Section 28 of the 1924 act, supplying "General Definitions," was amended, as to subsection (c) (8 U. S. C. 224) by defining the term "ineligible to citizenship" in an act approved October 29, 1945 (P. L. 205, 79th Cong.), to take note of various changes in the statutes and particularly the Selective Training and Service Act of 1940 which followed the World War I Selective Draft Act of similar import theretofore referred to in section 28 (c), and repealed by section 504 of the Nationality Act of 1940 (8 U. S. C. 904).

When such amendatory bill (H. R. 390) of the 79th Congress, was before the United States Senate, its committee on immigration, reporting favorably, made the following comment, pertinent here (Senate Reports, 79th Cong., 1st sess., 1945, vol. 3, Calendar No. 636, Report No. 633, October 9, 1945):

The section involved was not appropriately amended when certain laws were enacted, such as *** the enactment of the Selective Training and Service Act giving neutral aliens authority to decline service under the act, but providing that such persons should never thereafter be eligible to naturalization. The committee is of the opinion that any person who declined to serve in the United States armed forces during the war on the ground of being a citizen of a neutral country should not only be denied the right of naturalization but if he leaves the United States he should, likewise, be denied the right of ever returning to this country. The inclusion of the reference to the Selective Training and Service Act in Section 28 (c) removes any doubt that these persons might be permitted to reenter the United States. [Italics supplied.]

Report No. 346 of House Reports, 79th Congress, first session, March 20, 1945, relating to H. R. 390, presents no similar comment, nor does

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