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By reference to the record, itself, the alien did not quite so testify. She was asked:

Q. Were you arrested in the United States?

A. Yes.

Q. Where?

A. At Sam's Department Store.

Q. Were you arrested inside the store or outside the store?
A. Right where you come out of the store.

During the course of the reopened hearing the following appears:

Q. I am going to read to you the definition of the term "larceny." Larceny is the felonious taking of 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 word "larceny?"

A. Yes.

Q. Do you admit at this time that you did commit the offense of larceny at Detroit, Mich., February 6, 1950, when you took those articles of clothing from a Detroit store without paying for it?

A. Yes.

The reading purporting to be a common law definition of larceny as read into the record of the board of special inquiry is inaccurate and defective as hereinafter shown that it renders the admission by the alien of the commission of any offense thus described ineffectual so far as sustaining the charge in the warrant of arrest is concerned.

Moreover, and of greater importance the description in the question following the reading of what purports to be a common law definition of larceny is so constructed as to render an admission of the commission of larceny ineffective and consequently will not support the charge as contained in the warrant of arrest. Thus the case at bar is distinguishable from the decision of this Board in the Matter of J —, 2, I. & N. Dec. 285, A. G., 1945, 56038/559, decided March 1, 1945.

Not only must a criminal intent be shown before a conviction can be obtained for the commission of crime but in the obtaining of the admission of the commission of such offense by one unfamiliar with the law, the same safeguards should obtain and at least a semblance of criminal intent shall be shown. In this regard the record is utterly lacking. Thus by reason of all of the foregoing; the hearing before the board of special inquiry is obviously and manifestly so unfair that the cause for exclusion should not be sustained on this basis alone.

Larceny is defined at common law in the National Cyclopedia of Law as the taking and carrying away of the personal property of another with a felonious intent to steal the same. Wharton in his

work on criminal law, volume II, page 1313, after reviewing the definitions by East, Blackstone, Coke, and Hawkins, defines larceny to be the fraudulent taking and carrying away of a thing without claim of right with the intention of converting it to a use other than that

of the owner without his consent. The definition of larceny at common law as found in 36 Corpus Juris is the taking and carrying away from any place, at any time, of the personal property of another, without his consent, by a person not entitled to the possession thereof, feloniously, with intent to deprive the owner of his property permanently, and to convert it to the use of the taker or of some other person other than the owner.

That a comparison of the common law definition here as distinguished from that read into the record by the board of special inquiry will immediately show the imperfectness of the definition as given the alien by the board of special inquiry.

The majority in its opinion sets forth the definition of larceny in the Michigan Penal Code as follows:

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. Section 360. Any person who shall commit the crime of larceny by stealing in any dwelilng house, office, store, shop, warehouse, mill, factory, hotel, school, barn, granary, ship, boat, or vessel shall be guilty of a felony. (Vov. 25, Michigan Statutes Annotated, 1938.)

Even if this definition were read to the alien the admission exacted from her cannot stand because of the construction of the question propounded to her upon which the affirmative answer was made and upon which the cause for deportation has been sustained. In this regard the hearing in this case is manifestly unfair and the charge must necessarily fall. The question is whether she was actually stealing.

The majority relies upon the case of the People v. Bradovich, 305 Mich. 329. In that case the defendant was charged with a lesser offense than larceny, to wit, attempted larceny and at best if the charge in the present proceeding sought to be sustained had been read into the record from the statutory definition in Michigan, there is considerable doubt that the admission could be sustained on the basis of the question asked of the alien by the board of special inquiry. It is therefore my opinion that the case of the People v. Bradovich is inapplicable.

There is an additional consideration and that is an admission in order to be effective must be an unequivocal admission. In the case at bar it is quite obvious that we do not have an unequivocal acknowledgement of guilt which acknowledgement would leave no fair ground for doubt or debate. Certainly it does not mean an admission of facts (see Howes v. Tozer, 3 F. (2d) 849), as here in the question propounded upon which the immediate admission is predicated.

Thus from the foregoing, it will be seen that we have an alien who had just barely passed her 17th birthday and when she answered in the affirmative she undoubtedly thought, in her unfamiliarity with the law, that she was merely admitting the facts as placed in that question. Larceny was imperfectly defined to her and since the admission was predicated on the facts set forth in the question propounded by the board of special inquiry, we do not have an unequivocal admission of the commission of larceny. Moreover the record is defective in that the files of the local police were not consulted, hence we are unaware of all of the facts pertaining to the subject alien's irregularity of conduct. We can well assume however that in all probability the police did not have sufficient evidence to prosecute. We likewise on a record so imperfect as here should not proceed to condemn and prosecute an infant. Any other application of the law to this case would be highly arbitrary and capricious and an utter miscarriage of justice. For all of the reasons herein set forth, it is my conclusion that the reason for inadmissibility is not sustained and that the temporary admission of the alien for a few hours should be permitted.

Dissenting: ROBERT E. LUDWIG, Member.

I concur in the dissent of Board Member Charles.

In accordance with the provisions of section 90.12 of title 8, Code of Federal Regulations, this case is certified to the Attorney General for review of the Board's decision.

BEFORE THE ACTING ATTORNEY GENERAL

(March 2, 1951)

The decision and order of the majority of the Board of Immigration Appeals dated January 31, 1951, are hereby approved.

IN THE MATTER OF H

In PREEXAMINATION Proceedings

A-7596142

Decided by Board January 31, 1951

Decided by Acting Attorney General March 23, 1951

Decided by Board August 3, 1951

Seventh proviso-Section 3 of the Immigration Act of February 5, 1917-Discretion exercised as of date of grant-Effect of subsequent passage of section 6 (a) of the Act of October 16, 1918, as amended by the Internal Security Act of 1950.

The action of exercising the authority in the seventh proviso to section 3 of the Immigration Act of February 5, 1917, occurs on the date it is granted even though it is to be effective at some future time when there is to be a physical entry into the United States; so that a grant of 7th proviso relief in 1949, covering a case falling within the purview of section 1 of the act of October 16, 1918, as amended by the Internal Security Act of 1950 is not affected by the provisions of section 6 (a) of that act, as amended and may be utilized on a physical entry into the United States, after the amendment of that act in 1950. (See 3, I. & N. Dec. 784 for previous decisions in this case.)

BEFORE THE BOARD

(January 31, 1951)

Discussion: This case is now before the Board on a motion filed by the Acting Commissioner asking that the decision of this Board of November 8, 1949, approved by the Acting Attorney General November 16, 1949, which authorized the admission of the applicant under the provisions of the 7th proviso in regard to past membership in the German Communist Party, be withdrawn. Mr. Sternberg on behalf of the applicant, filed a memorandum in opposition to the Acting Commissioner's motion.

The applicant involved was born in Germany in 1900. In 1919, when he was but 19 years of age, he joined the Independent Social Democratic Party of Germany. That party merged into the Communist Party of Germany in 1921. He remained with the party until December 1928 when he was expelled. He has not been a member of the Communist Party or affiliated with any Communist organization, or any organization that has espoused communistic doctrines since 1928, and alleges at no time did he believe in the philosophy of force

espoused by the Communists. The applicant has lived here since April 16, 1941. He has been thoroughly investigated and no evidence whatever of subversive activities or subversive inclinations has been discovered.

The motion of the Service points out the provisions of section 6 (a) of the act of October 16, 1918, as amended by the Internal Security Act of 1950. This provision of law reads as follows:

The provisions of the 7th proviso to section 3 of the Immigration Act of February 5, 1917, as amended (39 Stat. 875; 8 U. S. C. 136), relating to the admission of aliens to the United States, shall have no application to cases falling within the purview of section 1 of this act.

It is clear, of course, the applicant's case is included within section 1 of the act of 1918, as amended. The only question before us is whether this amendment, which became law on September 23, 1950, has any application to a grant of the 7th proviso occurring prior to its enactment. In explanation of his position, the Acting Commissioner merely states that it would appear that if the alien departed from the United States, he would, upon return, be found excludable under the 1918 act, and at such time could not be admitted under the 7th proviso.

It is our view that the applicant's admission under the 7th proviso was authorized on November 16, 1949, when the Acting Attorney General approved the decision of this Board. If the applicant departs from the country, no action upon his return is needed to direct admission under the 7th proviso. That action was taken November 16, 1949. The language of the amendment, in terms, relates to future cases. It does not purport to affect past action. It is true that the grant of 7th proviso relief by the Acting Attorney General on November 16, 1949, becomes effective upon the applicant's return to the United States, but that is not synonymous with action authorizing admission taken upon the applicant's return to the United States.

A reference to procedure will make this point clear. If the Internal Security Act had not intervened, when the applicant left the country and secured an appropriate immigration visa and returned, he would have been admitted on primary inspection with the immigration visa, notwithstanding his membership in the German Communist Party in the twenties. Primary inspectors have no power to admit under the 7th proviso. On what authority then could the applicant have been admitted? Only on the basis that on November 16, 1949, the Attorney General had directed the applicant's admission under the 7th proviso. The action of exercising the authority in the 7th proviso took place on November 16, 1949, and that is the controlling date, even though it related to an entry thereafter to occur. Section 6 of the act of

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