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Subsequent to entry 3 daughters were born in the United States on September 16, 1946, March 10, 1950, and May 19, 1952. The 5 children are residing with their parents.

The adult subjects hereof assert that they first entered the United States during the month of May 1944. Subsequent to entry the husband/father was permitted to depart from this country voluntarily on August 15, 1944, June 17, 1945, and December 28, 1951. His wife was permitted voluntary departure on June 17, 1945, January 6, 1946, and December 28, 1951. They now seek suspension of deportation under and pursuant to the provisions of 8 C. F. R. section 155; section 19 of the act of February 5, 1917. This application for suspension of deportation is predicated upon the serious economic detriment to the citizen children and further upon the fact that these persons have resided in the United States for 7 years or more. The 3 United States born children are 5 years, 2 years, and 2 months of age, respectively. They are particularly young and obviously their legal residence is wherever their parents might go. The two Mexicanborn children are 11 and 8 years of age, respectively.

This Board has given very careful consideration to all of the evidence of record. Both parents and two of their Mexican-born children are subject to deportation for the reasons hereinabove set forth. The remaining 3 United States born children are of particularly young age. All those involved in the present proceeding are nonquota immigrants being natives and citizens of Mexico and it is the conclusion of this Board that the maximum relief from deportation has already been accorded them. In these circumstances we find it necessary to dismiss the appeal.

Order: It is ordered that the appeal from the decision of the hearing officer of July 2, 1952, be and the same is hereby dismissed.


In DEPORTATION Proceedings


Decided by the Board August 1, 1952

Crimes involving moral turpitude: Frustrated theft, Cuba-Crimes involving moral turpitude, Foreign: Cuba: Frustrated theft-Crimes: Effect of foreign amnesty-Pardon: Effect of foreign amnesty or pardon on deportability.

(1) The crime in Cuba of frustrated theft is an offense involving moral turpitude. (2) An amnesty or pardon for crime committed abroad does not affect deportability on a criminal charge.


Warrant: Act of 1924-No immigration visa.

Act of 1917-Convicted of crime prior to entry: Frustrated theft.


Discussion: This case is before us on appeal from a decision of the Acting Assistant Commissioner dated February 1, 1952, directing the alien's deportation.

The respondent is a 43-year-old male, a native and citizen of Cuba, who last entered the United States on January 2, 1950, when he was admitted upon the presentation of a reentry permit. He was first admitted to the United States for permanent residence on December 11, 1944, at which time he was in possession of a nonquota immigration visa. The respondent, while serving in the armed forces of Cuba, was convicted by a general court-martial on November 17, 1938, of the offense of frustrated theft and a sentence of imprisonment of 6 months was imposed, which the respondent served.

Counsel, in his oral argument, contended that the respondent had been framed in connection with the offense of which he was convicted by court-martial; that this Board, under the circumstances, may look behind the record of conviction; and that the crime, if any, was wiped out by a Cuban amnesty law of December 21,1938.

From the record of conviction, it appears that the respondent entered a bar during the absence of the owner, unlocked a cashbox and appropriated three 1-dollar bills. He was apprehended in the bar immediately after the commission of the offense. It is well

settled that the crime of theft (or larceny) involves moral turpitude. It is also clear that where a particular crime involves moral turpitude, an attempt to commit such crime involves moral turpitude (U. S. ex rel. Meyer v. Day, 54 F. (2d) 336 (C. C. A. 2, 1941)). In the respondent's case, there was an actual theft and not merely an attempted theft, and the use of the word "frustrated" adds only the additional factor that the respondent did not succeed in escaping but that the theft was thwarted by reason of his apprehension.1 We are satisfied, therefore, that the crime involves moral turpitude. We have previously held that the word "convicted" in section 19 (a) of the Immigration Act of 1917, as amended, includes a conviction by courtmartial (Matter of W————, 1, I. & N. Dec. 485, June 22, 1943).

The statements appearing in the record of conviction, which show that the respondent was apprehended immediately after he had appropriated the money, do not lend support to counsel's assertion that the respondent was framed. Even if we found some basis for believing that the respondent had been erroneously convicted, we would not be in a position to go behind the record of conviction for the purpose of determining his guilt or innocence.

With respect to the effect of the Cuban amnesty law of December 21, 1938, upon the respondent's case, we find it unnecessary to determine whether the words "amnesty" and "pardon" have precisely the same legal meaning. An amnesty is a pardon granted to all persons, in general, who have committed or been convicted of certain offenses. A pardon is granted to a specific individual covering a specific offense which he has committed. It would seem that an amnesty, pardoning a group of persons for various offenses, would have no greater effectiveness in obliterating a conviction than a specific pardon for the particular offense. In any event, we hold that, for immigration purposes, an amnesty has no greater effect than would a pardon issued to an alien covering a particular conviction. It is well settled that a foreign pardon is not effective to prevent deportation (Mercer v. Lence, 96 F. (2d) 122 (C. C. A. 10, 1938) cert. den. 305 U. S. 611). We conclude, therefore, that the second charge stated in the warrant of arrest is sustained.

The first charge is that the respondent was not in possession of a valid immigration visa and that he was not exempted from presenting such document. The immigration visa which he presented at the time of his original admission on December 11, 1944, contained the statement that he had never been in prison whereas he had actually served a sentence of imprisonment of approximately 6 months in

1Art. 520 of the Cuban Penal Code of 1900 is translated as follows: "Persons are guilty of the offense of theft who, for purposes of profit, take possession of movable property of others by means of violence or intimidation of persons or using force on things."

1938. His failure to disclose this arrest to the American consular officer amounted to fraud and misrepresentation in the procurement of the immigration visa. His entry in 1944, was therefore, not a lawful entry and he was not entitled to the reentry permit which he presented upon the occasion of his last entry. At the time of his last entry, he was not in possession of an immigration visa and was not exempted from the presentation thereof. We conclude, therefore, that the first charge stated in the warrant of arrest is also sustained. At the oral argument, counsel stated that the respondent is now married to a citizen of the United States and that a child has been born of this marriage. He requested that voluntary departure be authorized and that the 7th proviso to section 3 of the Immigration Act of 1917 be exercised in favor of the respondent. No independent investigation was conducted in this case, and the record does not contain evidence relating to the respondent's marriage or concerning his moral character and residence. Accordingly, the hearing will be reopened for the purpose of permitting the respondent to make such application for relief as he may desire and in order that the necessary evidence may be included in the record.

Order: It is ordered that the order entered by the Acting Assistant Commissioner on February 1, 1952, be and the same is hereby withdrawn.

It is further ordered that the hearing be reopened for further proceedings in accordance with the foregoing.

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In DEPORTATION Proceedings


Decided by Board August 1, 1952

Evidence: Privilege of self-incrimination-Fair hearing.

(1) An alien in a deportation hearing may not refuse to answer questions covering his citizenship, place of birth, and the circumstances of his entry into the United States by making a plea of self-incrimination, when information covering such facts is available to hearing officer and indicates that the answers, if made, would not tend to be of aid in effecting a conviction for any Federal offense.

(2) The privilege against self-incrimination must be claimed by the individual involved on his own behalf.

(3) The Government is not required to advise an individual of his right to claim or waive the privilege of self-incrimination.

(4) Testimony having been given voluntarily and the facts having been disclosed, the claim of self-incrimination is no longer available.

(5) To justify a claim of self-incrimination, it must be concluded that the answer might reasonably have a tendency to furnish proof of a link in the chain of evidence necessary for conviction for a Federal crime.


Discussion: This is a motion for reconsideration of an order dated March 14, 1952, by the Board of Immigration Appeals finding the alien deportable on the charge that after admission as a seaman, he had remained longer than permitted under the law and granting him voluntary departure. A new hearing is requested.

Counsel contends that the subject alien should have been permitted to claim the privilege of self-incrimination and compelling the subject alien to testify concerning his citizenship, place of birth, and the circumstances of his entry into the United States was not justified since these matters would tend to incriminate him under 8 U. S. C. 180 (a) which makes it a Federal offense for an alien to enter at an improper time or place; elude examination or inspection; or obtain entry by willful misrepresentation or concealment of facts. After careful consideration of the case, we see no reason to alter our conclusion that the alien was properly found deportable.

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