Interim Decision 401896

Interim Decision 401896

MATT= or SLOAN

In Deportation Proceedings

A-10398612

Decided by Board August 18,1966 and December 21 3 1966

Decided by Attorney Genera August SO, 1968

Conviction under 18 U.S.C. 1071 of knowingly harboring and concealing a

person for whose arrest a warrant has been issued is conviction of a crime

involving moral turpitude.

CHARGE:

Order: Act of 1959—Section 241(a) (4) Es U.S.C. 1251(a) (4)]—Convicted

of a crime committed within five years after entry

and sentenced to a year or more (18 U.S.C. 4, 371,

1071).

ON Blows OF RESPONDENT:

Ben C. Shapero, Esquire

2902 Cadillac Tower

Detroit, Michigan 48228

ON BENALV or SERVICE:

L. Paul Winings

General Counsel

BEFORE THE BOARD

• (August 18, 1966 ) "

This is an appeal from the order of the special inquiry officer ordering respondent deported on the charge stated in the caption.

Respondent, a 46-year-old twice divorced female, a native and citizen

of Canada, was admitted to the United States for permanent residence on December 5, 1955. After an interval of commuter status she

took up residence in the United States (January 31, 1959) . The Service

charges she is deportable because she was convicted on April 23, 1965

in the United States District Court at Detroit, Michigan for offenses

arising out of incidents which began about September 1, 1960 and

continued to March 1961. Respondent received a suspended sentence

to imprisonment for two years. Counsel contends the crimes do not

involve moral turpitude.

The facts revealed by the indictment are that Thomas Viola, convicted for murder in the State of Ohio, started serving a sentence of

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Interim Decision #1896

life imprisonment in 1946. As part of a conspiracy,. he escaped from

custody in 1960. Other members of the conspiracy rented an apartment

for him. Subsequently, the respondent rented an apartment for him

and lived with him. All the conspirators harbored and concealed

Viola.

Respondent was convicted on four counts. Count one charged her

with violating 18 U.S.C. 871 which makes it a crime for persons to conspire "either to commit any offense against the United States, or to

defraud the United States." The count charged there was a conspiracy

"to commit offenses against the United States, that is, violations of

Title 18, United States Code; sections 1073, 4 and 1071." (Respondent

was not convicted under section 1073 ; she was convicted under sections

371,4 and 1071 (two counts).)

A conviction for conspiracy to commit an offense does not involve

moral turpitude unless the substantive crime involves moral turpitude

(Matter of E—, L & N. Dec. 421, 422; Matter of P—, 5.1. & N. Dec.

582; and Maitor of S

—

, 2 I. & N. Dee: 225). We do not believe that

moral turpitude is involved in the substantive violations here (18

U.S.C. 4 and 18 U.S.C. 1071 ) .

Count thitee and count four charged harboring of Viola for a different period of tithe. Section 1071 of Title 18, United States 'Code,

inakeS it a crime knowingly to hdrbor or conceal a person• for whose

arrest a warrant has been issued. It carries with it a fine of 'not more

than $1,600 or imprisonment of not more than one year. We do not

believe this crime involves moral turpitude: it does not require' force",

it does notreqUir'e an evil intent, and -it does not require the commission of an 'act that is of the vileness or depravity neededd -fOr a finding

that moral turpitude is involved. It is not even necessary that a -Conviction exist or that there be an escape from prison; it is only necessary that there be a Warritift iintAtanding. (The fact that a conviction

exists merely enhances punishment.) The 'act for which the person is

iotight or for which he was convicted is immaterial. A mother can he

convicted for harboring her son or a wife her husband under this

statute.

It is the inherent' nature of the offense under any and all circumstances and not exaggerated forms of the crime which' determine

whether a crime involves Moral turpitude (U.S. ex rel. Manzella v.

Zimmerman, 71 F. Supp. 534, E.D. Penna.). In other words, it is not

what the convicted person did but what'the law defines that determines

if moral turpitude is present. We haVe here a case of harboring. Precedents hold that more serious crimes somewhat related do not involve

moral turpitude. A court has ruled that one convicted for breaking

prison has not committed a crime involving moral turpitude (U.S. ex

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rel. ManseZia v. Zimmerman, supra). In Matter of J—, 4 I. & N. Dec.

512, a conviction for attempting to escape from a Massachusetts reformatory was held not to involve moral turpitude although there was

an assault and overpowering of a guard. The statute violated did not

define escape in the terms of intent nor did it speak of force or violence. In Matter of B—, 5 L & N. Dec. 538, we held that unlawfully

aiding one to escape from jail was not a crime involving moral turpitude. Under these circumstances, we do not believe a conviction under

18 U.S.C. 1071 would be considered by society as an act of baseness

or vileness or depravity in private or social duties which man owes his

fellow man or society in general (Us. ex rel. Manzella v. Zimmerman,

supra, p. 537).

In reaching the conclusion that moral turpitude was involved, the

special inquiry officer relied upon the fact that Viola had been convicted for the crime of murder. As we have pointed out, conviction

under 18 "U.S.C. 1071 may be had whether the person harbored has

been convicted or not. It is only necessary that there be a warrant outstanding. Although punishment is enhanced if the person harbored

has been convicted, it is not necessary that the conviction be of a crime

which itself involves moral turpitude. The fact that Viola was convicted and the nature of the crime for which he was convicted is therefore immaterial in determining whether respondent's conviction for

harboring involved moral turpitude.

The conviction under 18 U.S.C. 4 (misprision of a felony) does not

involve moral turpitude. The section makes it a crime for a person who

knows of the commission of a felony to conceal the fact from a proper

authority. Violation is punishable by fine up to $500 or imprisonment

up to three years or both. Here again, neither the means by or intent

with which misprision is committed, nor the nature of the crime concealed is a factor_ If aiding a prisoner to escape who has been convicted

does not involve moral turpitude, it is difficult to see how the mere

failure to furnish information as to the escape should involve moral

turpitude.

The record fails to establish that the crimes of which the respondent was convicted involved moral turpitude. The proceedings will be

terminated.

The special inquiry officer has properly disposed of contentions of

counsel concerning the ..relation of the time of conviction and entry,

and the nature of a suspended sentence under the immigration laws.

We find it unnecessary to rule on whether respondent's adandonment

of her commuter status to .take up actual residence in the United

States in 1959 constituted an "entry" for the purposes of the im-

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Interim Decision #1896

migration law. For the purpose of this discussion, we have assumed

that an "entry" occurred.

ORDER: It is ordered that the proceedings be and the same are

hereby terminated.

BEFORE THE BOARD

(December 21, 1900)

The facts have been fully stated in previous orders. The question

is whether the Board erred in holding .that respondent's convictions

do not involve moral turpitude.

Thomas Viola was confined for life in a state prison after conviction for murder. Respondent and others helped him escape; then

respondent lived with him as his wife. She was convicted for harboring a person for whom a warrant of arrest had issued (18 U.S.C.

1071), and for failing to inform authorities that a convicted person

had traveled interstate to avoid confinement (18 U.S.C. 4; an active

concealment appears necessary for conviction) . The counts on which

respondent was convicted alleged that she had known Viola was

sought for fleeing to avoid imprisonment after conviction far murder.

We held that such knowledge was not material sines the laws violated did not require proof of such knowledge before a conviction

could be obtained.2 We held that moral turpitude was not involved

because the laws violated inherently required neither an evil intent

nor a depraved act for a conviction . 3 The Service, however, contends

that since respondent's knowledge that Viola was a murderer is

revealed by the record (her indictment), we must consider this fact

as material and with it as a part of our deliberations find that she

committed acts which were turpitudinous in nature. In other words,

the contention appears to be that the test as to moral turpitude is

not whether the law requires turpitudinous acts for a conviction, but

1 A. conviction for conspiracy to commit the previously mentioned offenses

(18 U.S.C. 371) need not be discussed since such a conspiracy conviction does

not involve moral turpitude unless the substantive crime does.

The fact that the person harbored had committed a felony or that he had

been convicted did affect punishment However, allegations pertinent to the

enhancement of punishment are not material in determining whether moral

turpitude is involved (U.S. ere rel. Zaffarano v. Corsi, 63 F.2d 757, 758 (2d

Cir., 1933).

3 See United States v. Oley,

21 F. Supp. 281, 282 (D.C.N.Y., 1938) ". . while

it might be regarded as inhuman and unnatural on the part of a wife to

surrender her husband to the authorities and contrary to the instincts of

human beings to do so, nevertheless wives can be convicted of illegally harboring their husbands."

22 654-69-55

Interim Decision #1896

whether the record shows that the alien committed turpitudinous

acts. We believe the Service position is erroneous and arises out of

(1) a misreading of the precedents, and (2) reliance on a variant

rule which is confined mainly to broadly worded statutes of a type

not involved here.

We shall first state the general rule for determining whether a

conviction involves moral turpitude under immigration laws.

[Moral turpitude] must be determined in the first instance from a consideration

of the crime as defined by the statute. If, as defined, it does not inherently or in its

essence involve moral turpitude, then no matter how immoral the alien may be,

or bow iniquitious his conduct may have been in the particular instance, he

cannot be deemed to have been guilty of base, vile, or depraved conduct, D.S. ex

rel. Zaffarano v. Corsi, 63 F. (2d) 757 (C.C.A. 2nd, 1933) ; U.S. en rel. Meyer v.

Day, 54 F. (2d) 330 (C.C.A. 2nd, 1931) ; U.S. ex rel. Mylius v. UAL supra (203

Fed. 152 (S.D.N.37., 1913), aff'd 210 Fed. 860 (C.C.A. 2nd, 1914)] ; 39 Op. Atty.

Gen. 215, 220 (1938) ; 37 Op. Atty. Gen. 293 (1933). It is only where the statute

includes within its scope offenses which do and some which do not involve moral

turpitude, and is so drawn that the offenses which do embody moral obloquy

are defined in divisible portions of the statute and those which do not in other

such portion, that the record of conviction, Le., the indictment (complaint or

information), plea, verdict and sentence is examined to ascertain therefrom

under which diVisible portion of the statute the conviction was bad and determine therefrom whether moral turpitude is involved. See U.S. ex ret. Guarino v.

Uhl, 107 P. (2d) 399 (C.C.A. 2nd, 1939; U.S. en rel. Zaffarano v. Corsi, supra;

U.S. ex rel. Valenti v. Karnuth, 1 Fed. Supp. 370 (N.D.N.Y., 1932).

(Matter of 5—, 2 I. & N. Dee. 353, 357 (approved by Atty. Gen. [Clark] 1945).)

• The rule set forth exists because a standard must be supplied to administrative

agencies; it eliminates the burden of going into the evidence in a case ; it eliminates the situation where a nonjudielal agency retries a Judicial matter; and It

prevents the situation occurring where two people convicted under the same

specific law are given different treatment because one indictment may contain

a fuller or different description of the same act than the other indictment ; and

makes for uniform administration of law (Matter of

6 1. & N. Dec. 444, 443).

in our opinion, the Service questioning of the general rule is due

in part to a strained interpretation of the precedents. /Ifylius,.supra,

a leading precedent for the rule that it is not what the person did

but what the law requires for conviction that determines whether

moral turpitude is present, instructs the administrative authorities

to confine themselves to the judgment of conviction and to disregard

the testimony on which the alien had been convicted. From this, the

Service concludes that while conduct revealed by twin-way cannot

be considered for the purpose of deciding whether the alien had engaged in turpitudinous acts, conduct revealed in the record of the

conviction can be. The Service conclusion is unwarranted. The question before the court was essentially whether conektet or law violated

was to be used as the -test for the turpitudinous nature of the con844

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viction. It is in light of its conclusion that law not conduct was to

govern that its remarks must be viewed.

In Mylius the court said the law must inherently involve moral

turpitude. The Service interpretation would nullify the court's holding; for, it stands to reason that, if knowing what law has been violated, the Service cannot find moral turpitude without considering

the conduct of the alien, it is not the Zan) violated that involves moral

turpitude, but the alien's conduct.

The court in Mylius was moved to make law, not conduct controlling so that there would be equal treatment of aliens convicted under the same law. Contrary to this concept, the Service would make

deportable the alien whose indictment specifies base conduct, while

another alien whose indictment lacks detail, but who was guilty of

similar conduct and who was convicted under the same law, would

not be deportable.

Many courts have read Mylius as requiring the law to inherently

involve moral turpitude. In U.S. ear red. Toper v. Milder, 87 F. Supp.

285 (S.D.N.Y., 1949), the court listing many citations held that

when the provisions of law violated are known, and the fact of conviction has been established, it is not even necessary to have the indictment in the record since the test is whether the law inherently

involves moral turpitude.

Courts have refused to consider conduct shown by the record

when the law did not require proof of such conduct for a conviction.

In Hirsch v. Immigration and Naturalization Service, 308 F. 2d

562, 567, (9th Cir., 1962), the court disregarded allegations in an

indictment concerning the making of "false and fraudulent statements" since conviction was possible without proof of a fraudulent

act. In U.S. ex. rel. Guarino v. Uhl, 107 F.2d 399 (2d Cir., 1939), allegations in an indictment that the alien was in possession of an instrument commonly used to commit burglary and larceny were disregarded since conviction was possible without proof that it was these

crimes which the alien intended to commit. In U.S. ex rel. Valenti

v. Karnath, X. F. Supp. 370 (N.D.N.Y., 1932), allegations in an indictment as to robbery were disregarded because not required for

conviction. Administratively, the rule has been similar In Matter of

B—, 6 I. & N. Dec. 98, 106-108, allegations of the indictment as to

commission of acts of intimidation were disregarded as unnecessary

to conviction. In Matter of R—, 6 I. & N. Dec. 444, 447-454, allegations as to compelling commission of immoral acts were disregarded

because conviction did not have to be based on such acts.

Service reliance on U.S.ex rel. Zaffarano v. Corsi, 63 F.2d 757 (2d.

Cir., 1932), is misplaced. The Court remanded the ease so that the in845

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dictraent would be considered in determining what section of the law

was involved. The finding as to moral turpitude was to be based not

on what the alien did but on what the law punished.' Many cases

cited by the Service as permitting resort to the record are in accord

with the rule that conduct shown by the record may be examined to

determine what particular section of law was violated.

U.S. ex reL Manzella v. Zimmerman, 71 F. Supp. 534 (E.D. Pa.,

1947), involved an indictment charging the defendant with breaking

prison and escape with force and arms. The Service belief that the

court would have come to a different conclusion had the alien's conduct been spelled out in the record with greater particularity is not

justified. The indictment did show violence was used. There is no

express language to support the Service belief and such an inference

is without basis in a case in which the court pointed out that, "it is

the inherent nature of the offense under any and all circumstances

which we are considering. Aggravated forms of the crime are not

controlling. The proper test [as to the existence of moral turpitude)

is to consider whether a prison breach accomplished by the least

imaginable force involves moral turpitude" (at 537). The court merely

looked to the indictment to determine whether the alien's conviction

had been for a prison breach as well as for escape. The court then

attempted to determine whether the law inherently involved moral

turpitude and found it did not because it could be violated by acts

which did not involve moral turpitude. The court was not concerned

with the alien's conduct other than to determine what specific provision of the law the conviction was based on.

Tseung Chu v. Cornell, 247 F. 2d 929 (9th Cir., 1957), cert. den. 855

U.S. 892 5 while containing some puzzling language, hardly supports

the Service view that conduct shown by the record may be considered

even though not an essential part of the crime. Wa note the court

agreed there should be no consideration of "unnecessary adjectives

added to the indictment by a 'zealous and over careful prosecutor'."

(at 936) The fact is that moral turpitude was found because the

conduct in question (fraud) had to be established in order to obtain

a conviction (Tomlinson v. Lefleowitz, 334 F. 24 262, 266 (5th Cir.,

1964) , cert. den. 879 U.S. 962) .

4 On page 7 of the Service motion, mention of U.S ea. rel. Robinson v Day,

51 F.2d 1022 (C.A. 2, 1931) appears unintentional. It is the Zaffarano case

which Is actually the subject of the discussion.

The concurring opinion indicates that conduct outside the record may be

considered in determining whether a crime involving moral turpitude had

been committed.

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Bisvi//olz v. Hogan, 257 F. 2d 435 (9th Cir., 1958), cert. den. Biwaion v. Sureck, 358 U.S. 872, an immigration case involving convic-

tions for knowingly making false statements to induce the issuance of

passports, indicates that a law need not inherently involve moral turpitude. However, it is noted that the finding of deportability turned

upon the fact that the statute defined a crime likened to perjury which

it was conceded involved moral turpitude. Moreover, a later decision

in the same circuit, Wadman v. Immigration and Naturalization

Service, 329 F.2d 812 (9th Cir., 1964), reveals that the court when

confronted with conduct shown by the record to clearly involve moral

turpitude (receiving goods, knowing them to have been stolen) held

that the conviction involved moral turpitude because conviction could

not be had without proof of guilty knowledge. (Under the Service

theory, the court should have been able to find moral turpitude whether

the law required guilty knowledge or. not, since the record showed

that the conduct involved moral turpitude.)

The _Service position is in part due also to its misuse of a variant

rule. The variant rule, confined to broadly worded laws, permits con-

sideration of conduct not only to determine the particular portion

of law violated, but also to determine whether moral turpitude was

involved.

A brief review of the variant rule will be made. Some laws (as the

one in Mylius) condemn acts in terms which have gained particularity

(murder, theft, libel, etc.); other laws, because of the number and

varied nature of the acts which they desire to condemn, find it difficult

to state the acts with particularity and, therefore, condemn acts in

a general sense (immoral conduct, committing a crime, ceo.) or condemn acts which produce a certain result (making a person a juvenile

delinquent). Where a conviction is based on a generally worded law

which could be violated by the doing of acts some of which do and

some of which do not involve moral turpitude, it would appear from

Ifylius, which requires consideration of the law in its minimum aspect,

that moral turpitude is not involved even if the information reveals

that the specific act of the convicted person did involve moral turpitude. This approach was attempted but after some searching, a contrary conclusion was reached in cases involving these generally worded

laws.

Matter of C—, 5 I. & N. Dec. 65, involved a conviction for contributing to the delinquency of a minor. The information showed that the

alien's conduct was abhorrent. Application of Hybl= resulted in a

finding that moral turpitude was not involved because the law could

have been violated by acts not turpitudinous. However, upon reconsideration, the Board settled on the rule that in "broad divisible

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statutes which involve acts which do and acts which do not involve

moral turpitude" the act of the individual as shown by the record

may be used to determine whether moral turpitude is involved.' Service attempt to use the variant rule was rejected by the Board in a case

which did not involve a broad statute even though the conduct was

described in the record (Matter of E—, 6 L & N. Dec. 98). The Board

did not obliterate this distinction in subsequent eases (see Matter of

Lethbridge, Int. Dec. No. 1639; Matter of 0—, 7 I. & N. Dec. 114).

Since we do not have before us a broadly worded law, we need not

further discuss this variant rule or the Service cited cases dealing

with it

In the instant case, the lifyliv-s rule must be applied. The law defines

the conduct necessary for conviction with particularity and (as shown

in our order of August 18, 1966) does not make the conduct relied

upon by the Service (knowledge that the person involved was convicted

of murder) an element of the crime. Since our conclusion must be based

only on that which had to be shown to establish guilt, we believe that

we correctly found moral turpitude was not involved in respondent's

convictions.

ORDER: It is ordered that the motion be and the same is hereby

denied.

Thomas J. Griffin, Member, Dissenting:

There is a basic precept in logic that one cannot assume to be true

that which he is seeking to establish. This is called petitio yrrineipii, or

"begging the question." There is a second principle of logic which

states that one argument cannot be answered by resorting to a

second argument having no relevance to the first. This is called

ignoratio &mad. The majority opinion is in violation of these precepts

and, therefore, is illogical and in error. I am, accordingly, filing my

dissent.

Section 1071, 18 U.S.C., is part of Chapter 49, which is captioned

"Fugitives From Justice." Section 1071 is captioned "Concealing

Person From Arrest." Section 1071 reads as follows:

Whoever harbors or conceals any person for whose arrest a warrant or process

has been issued under the provisions of any law of the United States, so as

to prevent his discovery and arrest, after notice of knowledge of the fact that

Using Mviius terminology, an explanation given, is that the general statute

is a divisible one, and one of its Moistens punishes only acts of a hwpitudinous

nature which are similar.

!Qur discussion of the variant rule, since we do not have such a situation before us,.is general and for the purpose of contrast.

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a warrant or process has been issued for the apprehension of such person, shall

be fined not more than $1,000, or imprisoned not more than one year, or both :

except that if the warrant or process issued on a charge of felony, or after

conviction of such person of any offense, the punishment shall be a fine of not

more than $5,000, or imprisonment for not more than five years, or both.

The majority opinion is to the effect that the crime is described with

particularity and that it cannot he said of itself to describe an act

involving moral turpitude. With this I differ.

The majority cites with approval 37 Op. Atty. Gen. 293. At page

294 of the above cited volume the Attorney General describes moral

turpitude as :

. . . everything done contrary to justice. honesty, or good morals is done with

turpitude. It is a vague term, its meaning depending to some extent upon the

state of public morals. It is defined as anything done contrary to justice, honesty,

principle, or good morals; an act of baseness, vileness or depravity in the private

and social duties which a man owes to his fellow man, or to society in general

contrary to the accepted and customary rule of right and duty between man and

man .•. [Emphasis supplied.]

Now to hold that one who has been convicted of concealing or harboring with laiowledge or notice that a warrant or process had been issued

for the arrest of that person is not guilty of a crime involving moral

turpitude amounts to ignoring completely the factors of anything

"done contrary to justice, . . and social duties which man owes to

his fellow man or to society in general." Legally constituted authorities

were empowered to arrest the felon Viola. For personal reasons the

respondent prevented that arrest with knowledge that a process had

been issued for Viola's arrest_ Thus, the respondent effectively obstructed the arrest and she, therefore, ignored certain social duties

which she owed to her fellow man and to society in general. A conviction under 1071 necessarily involves obstruction of justice and

frustration of lawful authority. The act for which the respondent

stands convicted was certainly done contrary to justice. In the Matter

of E-- 91. & N. Dec. 421, this Board held that a conviction for impeding, obstructing and attempting to defeat the lawful functions of an

agency of the United States is a crime involving moral turpitude.

The collocation of the words "harbor and conceal" in the statute

conclusively shows that it is directed to those who abet others in

avoiding process and arrest after notice or lmowledge of the fact that

a warrant or process has been issued for the apprehension of the

fugitive. The word "harbor" in a criminal statute connotes surreptitious concealment. United States v. Mack, 112 F.2d 290, 291, and

is basically related to the offense of accessory after the fact, cf. Chapman v. United States, 3 Fed. Supp. 903 (1933) and United States v.

V enturini,1 Fed. Supp. 213.

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As a verb, defined by Webster (The New International Dictionary,

2d ed., unabridged), it is defined as "to afford lodging to; to entertain

as a guest; to shelter; to receive; to give a refuge to; to contain; to

indulge or cherish (a thought or feeling) ;—now usually with reference

to evil, esp. unlawful, act or intent." [Emphasis supplied] This defiinition was cited with approval by the court in Herrera v. United States,

208 F.2d 215, 218.

In the case of Dennis v. State. 102 Northeast 2d, 650, 653, the Supreme Court of Indiana defined the verb "harbor" as meaning to shelter, to give refuge, to give lodging to, caring for and protecting any

person gulity of a felony. In that same decision the Court defined

"conceal" as meaning to hide; to secrete, keep out of sight or prevent

the discovery of one guilty of a felony.

From the above description of the crime and with careful consideration of the meaning of moral turpitude, it is obvious that the respondent was convicted of a crime involving moral turpitude. It is my

firm belief that public justice is hampered by assisting the felon in

evading the law.

Another facet of the majority opinion which is open to some question is found in a reading of footnote No. 3, at page 2 of the opinion.

The footnote is preceded by the statement in the text to the effect that

"We held that moral turpitude was not involved because the laws violated inherently required neither an evil intent nor a depraved act for

a conviction." The footnote then cites the case of United States v.

Oley, 21 Fed. Supp. 281, 282 (D.C.N.Y., 1938) and quotes from that

case as follows:

• • • while it might be regarded as inhuman and unnatural on the part of a

wife to surrender her husband to the authorities and contrary to the instincts of

human beings to do so, nevertheless wives can be convicted of illegally harboring their husbands.

This quotation is not entirely accurate inasmuch as it is taken out of

context with a complete sentence which reads as follows :

it would, undoubtedly, be diffluelt to obtain confessions charging wives with

harboring their husbands, and while it might be regarded as inhuman and

unnatural on the part of a wife to surrender her husband to the authorities

and contrary to the instincts of human beings to do so, nevertheless wives can

be convicted of illegally harboring their husbands.

This, of course, reads a bit differently from the way it is cited by the

majority opinion, and indeed a complete research of the law on this

particular point fails to show any case where a wife has been convicted

of illegally harboring her husband. Furthermore, to use this particular

aspect of the question as a basis for holding that moral turpitude is

not involved is certainly an example of ignoratto elonolii. It has no

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pertinence to the question of moral turpitude, nor does the statement

have any substantial bearing at all in the case involved. In an attempt

at enlightenment on this particular factor, the following cases are

cited as proof positive that wives simply are not prosecuted or convicted for illegally harboring their husbands: State v. Kelly, 74 Iowa

589, 38 N.W. 503; People v. Dann, 53 Hun. 381, 6 N.Y.S. 805, 7 N.Y.

Crim. 176: 5 Blackstone Comm. p. 30; 1 Hale P.C., p. 691 ; 2 Hawkins

P.C., c. 29, sec. 34. State v. Fitzgerald, 49 Iowa 260; 1 Whart Crim.

Law, sec. 71, et seq.;1 Bish Crim. Law, sec. 358, et seq.

I now refer to an aspect of this case which the majority opinion

has newly christened a "variant rule" (an anomalous nomenclature

which is probably contradictory in terms). The majority opinion relies

upon its interpretation of the alleged Mylius rule, which. was stated in

the case of United States ex rel. Mylius v. UM, 203 F.2d 152 (S.D.

N.Y. 1913), affirmed at 210 Fed. 860 (Circuit Court of Appeals 2d,

1914), and states arbitrarily that the statute here involved is not sufficiently. broad to permit resort to the conviction of record. A reading

of the court's decision in the Mylius case simply does not jibe with the

majority interpretation. That case involved an alien who had been

convicted of criminal libel prior to his application for entry into the

United States and the Immigration authorities were seeking to exclude

him from admission on the ground that he had been convicted of a

crime involving moral turpitude. In speaking of the right of the

Immigration authorities to ascertain the turpitude of the act committed, the court stated that the authorities'

function is not, as it seems to me, to go behind Judgments of convictions and

determine with respect to the acts disclosed by the testimony the questions of

purpose, motive, and knowledge which are often determinative of the moral

character of acts. Besides, the testimony is seldom available and to consider it

in one case and not in another is to depart from uniformity of treatment [Emphasis supplied.]

The court in United States ex rel. Zaffarano v. Corsi, 63 F.2d 757, 758

states :

We have heretofore held that, in determining whether the crime of which an

alien stands convicted is one "involving moral turpitude," neither the immigration officials nor the courts sitting in review of their action may go beyond the

record of conviction. [Citing cases] They must look only to the inherent nature

of the crime or to the facts charged in the indictment upon which the alien was

convicted, to find the moral turpitude requisite for deportation for this cause.

[Emphasis supplied.]

The court thereafter stated on a petition for rehearing in a per curiam

opinion in which it construed prior language in the case of United

States ex rel. Robinson. v. Day,K F.2d.1922,,that the .meaning of the

wording in the Robinson. case was to the effect that

s&i

Interim Decision 4t1896

* * * neither the immigration officials nor the court reviewing their decision may

go outside the record of conviction to determine whether in the particular instance

the alien's conduct was immoraL And by the record of conviction we mean the

charge (indictment), plea, verdict, and sentence. (Emphasis supplied.]

In a recent case arising in the Seventh Circuit and decided on

December 13, 1966, 1 the court there considered a petition to review

and set aside an order of deportation of the petitioner, Rassano. The

petitioner had been convicted of two separate felonies : one in 1934;

one in 1952. It was Rassano's argument that he had been denied due

process in violation of the Fifth Amendment, because at the deportation hearing he was denied the right to show that his 1934 conviction

was illegally obtained. The court stated :

The orderly administration of justice requires that the INS and the reviewing

court go no further than the record of conviction (the indictment, plea, verdict

and sentence) to determine whether an alien is deportable under 8 U.S.C. § 1251 (4)

(1964). The claim has no legal basis. United States em rel. Zaffarano v. Corsi, 63

F.2d 757, 759 (25 Cir. 1935) ; cf. Tseuno Chu v. Cornell, 247 F2d 929 (9th Cir.),

cert. denied, 355 U.S. 892 (1957).

Thus, it would seem that contrary to the majority opinion, the Service

position is not in error but is eminently correct. Thus, in the instant

case, the Service and we, the Board, have a right to look to the record

of conviction which includes the indictment herein and contains four

counts which describe acts connnitted by the respondent certainly

involving moral turpitude. To hold otherwise would be a distortion of

the rule in Zaffarano. This is the guide for ascertaining the function

of the administrative ajudicators when the law which is violated does

not describe an act which inherently involves moral turpitude. Any

other conclusion drawn from Itylius or Zaffarano is in error.

There is one final point in this case having to do with the knowledge

of the respondent required under section 1071. The record shows that

the respondent was convicted on all four counts of the indictment "as

charged". She was thereafter sentenced to imprisonment for a period

of two years, the execution of which sentence was suspended. The respondent was then placed on probation for a period of two years.

Referring to section 1071 it can be seen that where the person convicted had notice or knowledge of the fact that a warrant or process

had been issued for the person concealed from arrest, the punishment

is a fine of not more than $1;000, or imprisonment for not more than one

year, or both, except that if the warrant or process issued on a charge

of felony, or after conviction of such person of any offense, the punishment shall be a fine of not more than $5,000, or imprisonment fOr

Lawrence Racsano v. immigration Naturalization Service.

852

Interim Decision #1896

not more than five years, or both. Taking the sentence imposed on respondent in its most favorable light toward her, it must be concluded

that the two year sentence imposed after conviction for violation of

section 1071, 371 and 4, Title 18, U.S.C., was meant to be concurrent

sentences and consequently the court must have found that the respondent had knowledge that the warrant or process issued on the charge

of felony or after conviction of such person of any offense.** All of

the above coupled with what we have discussed as to the meaning of

harboring and concealing together with the other elements of the

crime under Section 1071 "as to prevent his discovery or arrest," truly

must be dispositive of the moral turpitude aspect of the crime.

In summation, it is my position that the statute with its requisite

of knowledge that process or warrant. has been issued on a charge of

felony or after conviction of the person harbored for any off, ense

and that the person harboring does so to prevent the fugitive's discovery and arrest, does of itself describe a crime involving moral

turpitude. Furthermore, assuming arguendo that the statute fails to

describe such a crime, then it is my position that under both the Mynut

and Zaffarano cases, supra, the Immigration Service can resort to the

indictment which in this particular case does, indeed, describe a crime

involving moral turpitude.

Marianne B. McConnaughey, Member, Dissenting:

I concur in Mr. Griffin's dissenting opinion.

BEFORE THE ATTORNEY GENERAL ON REVIEW

(August 30, 1968)

The Board of Immigration Appeals, at the request of the Commissioner of Immigration and Naturalization, has referred this matter to me for review pursuant to 8 CFR 8.1(h) (1) (iii). The Board,

by order of December 21, 1966, denied by a vote of BA a motion of the

** Section 1071 indeed requires knowledge and guilty knowledge. It requires

a physical act of the secreting the body of the fugitive. (See United States v.

Shapero,113 F.2d 891, 893 (C.A2d 1940) ; United States v. Thornton,178 F. Stipp.

42, 43 (D.C. N.Y. 1959). Cf. Firpo v United States, 261 Fed. 850, 858 (CA. 2d

1919), wherein the court described the offense "to conceal" means to hide,

secrete, or keep out of sight. To "harbor" means "to lodge, then care for after

secreting the defender." The dissent in the Firpn ease which disagreed on other

grounds, lent weight to the majority opinion's meaning when it referred to the

offense as being "some physical act tending to the secretion of the body of the

defender." Cf. also Susnjan v. United States, 27 F.2d 223, 224 (C.A. 6th, 1828) ;

United States v. (rant, - 55 red. 414, 415 (ISM ; Jones v VanZandt, 48 U.S.

221 (1847).)

858

-Interim Decision *1896

Immigration and Naturalization Service for reconsideration of the

Board's order of August 18,1986, terminating the proceedings.

These proceedings were instituted pursuant to § 241(a) (4) of the

Immigration and Nationality Act, 8 U.S.C. 1251(a) (4), which provides that any alien shall be deported who is convicted of a crime involving moral turpitude within five years after entry and is then sentenced to imprisonment for a year or more. The original opinion of

the Board held that moral turpitude was not involved because the laws

that respondent violated did not inherently require force, an evil

intent or a depraved act for a conviction.

One of the crimes of which respondent was convicted was harboring

and concealing a person from arrest in violation of 18 U.S.C. 1071.

In its original opinion the Board held that a violation of this statute

would not be considered by society "as an act of IlltSVileS5 or vileness

or depravity in private or social duties which man owes his fellow

man or society in general." On reconsideration two members of the

Board were of the view that this was a crime that involved moral turpitude.

It is a crime under 18 U.S.C. 1071 for anyone to harbor or conceal

any person for whose arrest a warrant or process has been issued under

the provisions of any law of the United States, so as to prevent his

discovery and arrest, after notice or knowledge of the fact that a warrant or process has been issued for the apprehension of such person.

The applicable definition of moral turpitude, as enunciated in numerous administrative and judicial decisions, includes "anything done

contrary to justice" or "an act of baseness * * * in the private and

social duties which a man owes to his fellow man, or to society in

generl." 37 Op. A.G. 293,294.

In the light of this definition, I find, as did the dissenting members

of the Board, that the act of which the respondent was convicted—

that is, the active and knowing interference with the enforcement of

the laws of the United States in contravention of 18 U.S.C. 1071—

involves moral turpitude within the meaning of § 211(a) (4) of the

Immigration and Nationality Act.

Accordingly, the decision of the Board which ordered these proceedings terminated is reversed.

Because of my decision on this issue it is unnecessary to consider

any of the other grounds suggested for reversal.