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IN THE MATTER OF P

In EXCLUSION Proceedings

A-7802953

Decided by Board January 31, 1951

Decided by Acting Attorney General March 2, 1951

Admission of the commission of a crime involving moral turpitude prior to entry (larceny)-Adequacy thereof*-Juvenile offender (Michigan).

(1) In exclusion proceedings (there being no conviction record nor a plea of guilty before a convicting court to consider), to conclude that the admission of the commission of the offense (involving moral turpitude) is adequate, the "definition" of the crime (here it was larceny) need only be substantially similar to the particular statutory definition (in this case section 28.588section 356 of the Michigan Penal Code) of the offense and contain all the necessary elements of the crime, but need not be "identical" to the law of the jurisdiction in which the crime was committed.

(2) Since this alien attained the age of seventeen, one month before the offense in question, she was not eligible for special treatment as a juvenile or for transfer of her case to the county probate court (juvenile division) under the laws of the State of Michigan.

EXCLUDED BY BOARD OF SPECIAL INQUIRY:

Act of 1917-Admits commission of crime involving moral turpitude larceny.

BEFORE THE BOARD

(January 31, 1951)

Discussion: Appellant, an 18-year-old native and citizen of Canada sought admission to the United States at Detroit on June 12, 1950, and was excluded on the above charge. The Assistant Commissioner affirmed this conclusion on October 25, 1950, and appellant appealed.

Appellant testified that she had previously entered this country on the afternoon of February 6, 1950, to go shopping in Detroit after work. As she was leaving a Detroit department store, she was detained by a house detective, then turned over to local police for stealing a woman's suit of clothing, valued at about $15. She was released the following day, because the store declined to prosecute, and was then

*Editor's note.-See 2, I. & N. Dec. 285.

permitted to depart voluntarily by the Immigration Service. The record reveals that appellant entered the store wearing only a blouse and topcoat over her slip; she then donned a suit skirt in a fitting room and attempted to leave the store, wearing the skirt and carrying the coat, without paying for the suit.

The crime of larceny is defined in the Michigan Penal Code in the following way:

Section 28.588. Larceny: property subject to; value, degree of crime. Section 356. Any person who shall commit the offense of larceny, by stealing, of the property of another, any money, goods or chattels, or any bank note, bank bill, bond, promissory note, due bill, bill of exchange or other bill, draft, order or certificate, or any book of accounts for or concerning money or goods due or to become due, or to be delivered, or any deed or writing containing a conveyance of land, or any other valuable contract in force, or any receipt, release or defeasance, or any writ, process or public record, if the property stolen exceed the value of fifty (50) dollars, shall be guilty of a felony, punishable by imprisonment in the state prison not more than five (5) years or by fine of not more than two thousand five hundred (2,500) dollars. If the property stolen shall be of the value of

fifty (50) dollars or less, such person shall be guilty of a misdemeanor.

Section 28.592. Larceny: from dwelling house, store, factory, ship, or other building. Sec. 360. Any person who shall commit the crime of larceny by stealing in any dwelling house, office, store, shop, warehouse, mill, factory, hotel, school, barn, granary, ship, boat or vessel shall be guilty of a felony. (Vol. 25, Michigan Statutes Annotated, 1938.)

Appellant's offense on that occasion was in fact larceny, for she stated that she intended to keep the suit and wear it without paying the purchase price. Appellant's act of putting on the skirt and removing the suit from one part of the store to another in her route out of the building constituted sufficient asportation to satisfy that essential element of larceny, for the slightest removal, even a "hair's breadth," satisfies the asportation requirement (People v. Bradovich, 305 Mich. 329.) 1

Since appellant had just passed her 17th birthday at the time she committed the act in question, it is necessary to determine whether appellant would have been treated as a juvenile offender at that age. In Michigan, juvenile jurisdiction has been exercised over children under seventeen by the juvenile division of the probate courts since 1907 (Public Acts 1907, page 42, section 2; now sections 27.3178 (598.1, 598.2, 598.3)). Section 27.3178 (598.2) states that:

Except as provided herein, the juvenile division of the probate court shall have: (a) Exclusive original jurisdiction in proceedings concerning any child under 17 years of age.

In the instant case, respondent attained the age of seventeen 1 month before the offense in question and hence was not eligible for special

1

1 People v. Baker, 365 Ill. 328; State v. Gazell, 30 Mo. 92; State v. Mitchener, 98 N. C. 689; Gettinger v. State, 13 Neb. 308. Cf State v. Taylor, 136 Mo. 66; Eckels v. State, 20 Ohio St. 508.

treatment as a juvenile or for transfer of her case to the county probate court, juvenile division. For this reason, respondent was guilty of the offense of larceny, a crime involving moral turpitude3 and thus does not come within the meaning of the term "juvenile offender," as set out in Matter of ON, 2, I. & N. Dec. 319, 55813/162 (A. G. 1945), Matter of N- A-6953557 (B. I. A., August 26, 1949): Matter of M- M

37 Op. Atty. Gen. 259

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A-4096976 (B. I. A., November 16, 1950); (1933).

With regard to the question of the validity of the admission of the crime elicited from respondent, it will be noted that the offense was defined as follows:

Larceny is the felonious taking the property of another without his consent and against his will with intent to convert it to the use of the taker. Do you understand the meaning of the term "larceny"?

Since Matter of J—, 2, I. & N. Dec. 285 (56038/559, A. G. 1945) requires that "the alien must be advised in a clear manner of the essential elements of the alleged crime," we have held that the definition need only be substantially similar to the particular statutory definition of the offense and contain all the necessary elements of the crime, but need not be identical to the law of the jurisdiction in which the crime was committed (Matter of G, A-5990340, (B. I. A., October 12, 1949)). The above definition of larceny and that found in the Michigan statutes contain the same essential elements and, being a voluntary, explicit, and unequivocal acknowledgement of guilt, constitutes an effective admission of the crime.*

Therefore, the ground of exclusion is sustained.

In view of the recentness of the crime and the lack of any real necessity for appellant's presence in the United States at this time, we will not authorize appellant's admission under the 9th proviso to section 3, act of 1917.

The Michigan courts have held that this juvenile jurisdiction of the probate court over delinquent children does not repeal by implication the statutory accountability of children over fourteen for their crimes (People v. Ross, 235 Mich. 433). This juvenile legislation rather establishes the concurrent jurisdiction of the general criminal court and the probate court, juvenile division, with the proceedings in the latter court not being "deemed to be criminal proceedings" (Secs. 27.3178 (598.1, 598.3, 598.4); People v. Tillard, 318 Mich 619.) It will be noted in this connection that the age of the child when arrested or charged in criminal proceedings, not the age at the time of commission of the offense, controls (People v. Crandell, 270 Mich. 124; People v. Tillard (supra); see also Cosulich, Juvenile Court Laws of the U. S. (Natl. Probation Assn. 1939, pp. 9, 16, 22, 27, 37, 40, and 135); Breckinridge and Jeter, Summary of Juvenile Court Legislation, Dept. of Labor 1920, pp. 47 and 74).

Matter of M- 2, I. & N. Dec. 530, 56205/971 (B. I. A., 1946).

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U. S. ex rel. Castro v. Williams, 203 Fed. 155 (D. C., S. D. N. Y., 1913); Howes v. Tozer, 3 F (2d) 849 (C. C. A. 1, 1925); U. S. ex rel. Boraca v. Schlotfeldt, 109 F. (2d) 106 (C. C. A. 7, 1940).

Order: It is hereby ordered that the appeal be dismissed.
Dissenting: ROBERT M. CHARLES, Member.

Discussion: This matter arises by reason of an appeal from the decision of the Assistant Commissioner of Immigration and Naturalization, Adjudications Division, dated October 25, 1950, wherein an excluding decision of the board of special inquiry was affirmed.

Such action was predicated upon what purports to be an admission of the commission of larceny, a crime involving moral turpitude. The appellant was excluded from admission to the United States pursuant to the provisions of section 3 of the act of February 5, 1917 (8 U. S. C. 136). That section provides in part as follows:

That the following classes of aliens shall be excluded from admission into the United States ***

persons who ** admit having committed a felony or other crime or misdemeanor involving moral turpitude

The appellant testified that she was born in Winnipeg, Manitoba, on January 7, 1933, and that she is a citizen of the Dominion of Canada; that she resides in the city of Windsor, Province of Ontario, Canada, where she is employed in the office of Lazare Furs.

The subject hereof applied for admission to the United States at Detroit, Mich., on June 12, 1950, as a nonimmigrant visitor under the provisions of section 3 (2) of the act approved May 26, 1924, in order that she might enter the United States for several hours for the purpose of acting as a sponsor in the baptism of an infant of a friend who resides in Detroit, Mich.

The appellant admitted that several months prior to her application for admission to the United States she was arrested in Sam's Department Store, Detroit, Mich., by the store detective for allegedly taking a lady's suit. This young lady stated that she did not go to the store for the purpose of stealing a suit and that she was not attempting to steal it. She explained that she did not know why she was leaving the store with the suit without paying for it. Thereafter she was detained for a period of from 8 to 10 hours during which time she was interrogated by an officer of the Immigration and Naturalization Service and on or about February 7, 1950, she was returned to Canada. The alien asserted that she was neither arrested previously nor since. On page 5 appear the following questions and answers:

Q. Were you wearing the suit?

A. No.

Q. Did you have it concealed on your person?

A. I had the skirt on and I was carrying the jacket.

Q. Did you have the money to pay for the suit?

A. I had about three or four dollars, I think, that was all.

Q. What was the suit worth?

A. About 14 or 15 dollars.

260397-54- -18

Q. Had you ever before taken anything from a business place without paying for it?

A. No.

In further explanation the appellant stated that when she entered the United States she was wearing a winter coat and her other garments consisted of a blouse and a slip. Thereafter she was asked:

Q. Why were you coming without a dress or a skirt on?

A. I was going to get a skirt.

Q. Why were you doing so?

A. I was going to buy one here and go back in it.

Q. Why didn't you buy the skirt?

A. I was looking around and didn't find one.

The record of the board of special inquiry contains a note to the effect that the applicant is the subject of Detroit File 0800-75659 which file reveals that the alien was permitted to depart from the United States voluntarily on February 7, 1950. There is a notation to the effect, "The store declined to prosecute." The note is to the additional effect that the file is not available presently for the use of the board of special inquiry.

At this point it is significant that the record before the board of special inquiry contains no evidence whatsoever as to what the files of the local police officials contain and it is my opinion that a fair hearing should at least show the full disposition of the charge against this young applicant who at the time of apprehension was only a little more than 17 years of age. Because of the unavailability of the file it would appear that reliance is placed upon memory and this is faulty at best. Certainly a careful reading of the hearing before the board of special inquiry on June 12, 1950 did not sustain a charge of criminality but rather the alien was refused admission as shown on page 8 of the transcript as a person likely to become a public charge (8 U. S. C. 136).

That this charge was not sustained is shown adequately not only on the basis of the record but also on the basis of the decision in this case of Skrmetta v. Coykendall, 22 F. (2d) 120. Accordingly, the hearing before the board of special inquiry was reopened on July 3, 1950, apparently upon motion of the board of special inquiry.

The reason for the reopening is not clearly indicated. On the reopened hearing the following questions and answers appear:

Q. You testified when you were before the Board June 12, 1950, that you entered United States February 6, 1950, and that while in Sam's Store, Detroit, you put on a portion of a suit of ladies' clothing, particularly the skirt and carried the coat and left the store without paying for those garments and upon going out of the door at the store you were apprehended by an officer of the store with those articles in your possession. Is that correct?

A. Yes.

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