In DEPORTATION Proceedings

MA

R OF M—

In DEPORTATION Proceedings

A-7266391

Decided by Board December 1,1960

Crime involving moral turpitude—Forgery of public documents, swindling, and

violation of domicile, Italy.

(1) Forgery of public documents in violation of sections 275, 278, and 284 of

the /taiian Criminal Code of 1889 and sections 476 and 482 of the Criminal

Code of 1930 Is a crime involving moral turpitude.

(2) Swindling In violation of section 413 of the Italian Criminal Code of

1889 and section 640 of the Criminal Code of 1930 also involves moral

turpitude.

(3) The. offense of violation of domicile under section 157 of the Criminal

Code of 1889 does not involve moral turpitude.

CHABoEs:

. Order : Act of 1952—Section 241 (a ) (1) [8 U.S.C. 1251 (a) (1) I—Excluda

able—Convicted of forgery (twice), swindling (twice), and fraud

under Italian Penal Code.

Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)]—Es.cludable—Visa Invalid—Procured by fraud or misrepresentation.

Lodged : Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)1—Excludaable Convicted of forgery (twice) and swindling (three times)

under Italian Penal Law.

BEFORE THE BOARD

DISCUSSION: The respondent appeals from an order entered by

the special inquiry officer on December 11, 1959, directing his deportation as an alien who was excludable at the time of entry in

that he had been convicted of crimes involving moral turpitude and

in that he presented an immigration visa not valid because procured

by fraud and misrepresentation (8 U.S.C. 1251(a) (1) ). Exceptions

have been taken to the finding of deportability.

The respondent, male, married, 59 years of age, concedes that he

is an alien, a native and citizen of Italy, who last entered the United

States for permanent residence through the port of New York on

August 17, 1949. He denies the remaining allegations in the order

to show cause, to wit:

4. On November 15, 1941, you were convicted in the Court of

Appeals, Palermo, Italy, for the offense of forgery and fraud.

5. On June 12, 1996, you were convicted in the Court of Appeals in Palei.uio, Italy, for the offense of swindling and

violation of domicile.

6. On June 18, 1925, you were convicted in the Court of Appeals, Palermo, Italy, for the offense of swindling and

forgery.

7. You failed to reveal your conviction record when you applied

for your visa on June 21, 1949, at Palermo, Italy.

The respondent upon advice of counsel refused to testify concerning his alleged convictions in Italy, claiming privilege under the

Fifth Amendment to the Constitution of the United States. The

Government's case rests upon a preliminary statement taken from

the respondent on July 8, 1958 (exh. 4), together with Italian court

records duly certified by vice consuls of the United States at

Palermo, Italy, on February 19, 1957, and May 22, 1958 (exhs.

6 and 7).1

An investigator of the Immigration and Naturalization Service

identified the typewritten transcript entered as exhibit 4 as a sworn

statement taken from the respondent on July 8, 1958. The investigator testified that the statement was taken with the assistance of

an Italian interpreter; that the respondent made some corrections

which he initialed; that the statement was read to the respondent

in the Italian language; and that the respondent signed the statement and initialed each page. The investigator further testified,

and exhibit 4 shows, that the rezpundent identified as relating to

him the records of the Italian court proceedings entered as exhibits

2A, 6 and 7.

Exhibit 2C is a translation of exhibit 2A, a record of the proceedings before the Court of Appeals at Palermo, Italy, and the

judgment rendered by that court on November 15, 1941. This record shows that the Court of Appeals sustained the respondent's

conviction on June 2, 1941, by the Tribunal of Palermo of being an

accomplice in the crime of destroying official court documents in

violation of sections 476 and 482 of the Italian Criminal Code of

1930. The Court of Appeals also found the respondent guilty of

the crime of "continuous swindling" (a violation of section 640 of

the 1930 Code) in that he did obtain various sums of money by

tricking the other codefendants into believing, contrary to the truth,

that with his assistance they would not have to suffer the consequences of their convictions for violations of the Export Trade

-

Mark Law.

The Supreme Court of Caseation (Italy) denied the respondent's

appeal on May 21, 1945, for the reason that it was inadmissibble.

3

Translations of the Italian court documents

exhibit 20 and attr7bea to exhibits 6 and 7.

133

are a part of the record u

However, it ruled that in the respondent's case the crime of "swindling" was extinguished by an amnesty. An Italian amnesty is of

no benefit to the respondent for immigration purposes (Matter of

B—, 7 I. & N. Dec. 166, B.I.A., Apr. 17, 1956).

Exhibit 6, with translation attached, is a judgment of conviction

rendered by the Civil and Penal Tribunal of Palermo; Sixth Section, on June 12, 1926. The Tribunal denied the respondent's

appeal from a conviction and sentence by the Praetor of Palermo

on October 29, 1925, to confinement at hard labor for six months

and a fine of 300 liras for the crime of swindling of 65 liras and

for breaking into the apartment of one C—P— (violation of domicile). The fact that the penalty was pardoned does not benefit the

respondent in an immigration proceeding

(Matter of G

—

, 5

-

129

(B.I.A., Feb. 17, 1953)).

Exhibit 7, with translation attached, is a record of the proceedings before the Court of Appeals for the District of Palermo, Third

Penal Section. The Court of Appeals on June 18, 1925, affirmed the

respondent's conviction by the Tribunal of Palermo of the crimes

of forgery and swindle in connection with obtaining and cashing a

money order. The court found the respondent guilty pursuant to

the provisions of sections 413, 278 and 284 of the Italian Criminal

Code of 1889.

A preponderance of substantial and probative evidence establishes

that the respondent was convicted in Italy in 1925, 1926 and 1941

of certain offenses described in exhibits 2A, 6 and 7 as "forgery and

continuous swindling" (exh. 2A), "swindling and violation of domicile (exh. 6), and "forgery and swindling" (exh. 7). The principal issue before us is whether these crimes, as a matter of law,

involve moral turpitude.

Whether a particular crime committed in a foreign jurisdiction

involves moral turpitude must be determined by standards prevailing in the United States. 37 Op. Atty. Gen. 293 (1933) ; 39 Op.

Atty. Gen. 95, 96 (1937) ; 39 Op. Atty. Gen. 215, 220 (1938). Counsel on appeal urges that when judged by legal standards prevailing

in the United States the crimes committed by the respondent in

Italy and described in the Italian court documgrits do not involve

moral turpitude. Counsel also maintains that the Italian system

of jurisprudence does not provide the constitutional guarantee of

"innocent until proven guilty" and, therefore, the respondent's conviction does not meet an accepted otandard which prevails in the

United States.

It is well settled that when a record of conviction is introduced

as evidence in an immigration proceeding the nature of the crime

is conclusively established by that record. United States ex rel.

Zaffarano v. Corsi. 63 F.2d 757, 758 (C.C.A. 2, 1933). In deter134

mining moral turpitude, the crime as defined by statute and as limited by the record of conviction must inherently and necessarily

involve an evil intent or depraved motive. United States ex rel.

Mongiovi v. Karnut16, 30 F.2d 825 (W.D. N.Y., 1929) ; United Stales

ex rel. Meyer v. Day, 54 F.2d 336 (C.C.A. 2, 1931) ; United States

ex rel. Shiadzien v. Warden, 45 F.2d 204 (E.D. Pa., 1930).

We may look beyond the foreign statute under certain circumstances to consider such facts as may appear from the record of

conviction or the admissions of the alien and reach an independent

conclusion as to whether the offense is one which under our law

involves moral turpitude (Matter of T—, 2 22, 42 (Atty. Gen.,

Feb. 24, 1944) ). We have applied this rule when it is difficult to

determine whether the foreign statute defines offenses which are designated as crimes under our laws (Matter of T—, supra).

Exhibit 9 is a compilation of the various sections of the Italian

Criminal Codes of 1889 and 1930 under which the respondent was

convicted. It was prepared by Dr. Fran Gjupanovich of the European Law Division, Law Library of Congress. A translation of

the substantive provisions defining the crimes of which the respondent was convicted is set forth in Appendix A attached to this

opinion.

A crime defined by statute may or may not require an evil

intent and, therefore, may or may not involve moral turpitude

(Matter of G—, 1 103 (B.I.A., Jan. 21, 1943)). If the definition

of the crime eliminates motive or intent, and the alien may be convicted although his conduct was prompted by innocent motives,

then his crime does not involve moral turpitude. United States ex

rel. MyUtz.? v. Uhl ; 203 Fed. 152 (S.D. N.Y., 1913), aff'd 210 Fed.

860; United States v. Oarrollo, 30 F. Supp. 3 (W.D. Mc., 1939).

It is clear from a reading of the several statutes set forth in

Appendix A that they are silent with regard to a depraved motive

or an evil intent as an element thereof. The special inquiry officer

concedes that sections 476, 482 (forgery of public documents), and

640 (swindling) of the Italian Criminal Code of 1930 do not mention the element of an evil intent as a requirement for conviction.

He maintains that mens rea is an essential concomitant for guilt

under the Italian Code of 1930, relying on our decision in Matter

of A—, 7 —626 (B.I.A., Dec. 12, 1957). 2

The Board in Matter of A—, supra, had before it the issue of whether

of the crime

of receiving stolen goods as defined by section 648 of the Italian Criminal

Code of 1930. The statute did not, in express terms, require that the accused

have knowledge that the property was stolen or otherwise unlawfully acquired. Research of Italian law and the decisions of Italian courts made it

clear that the accused must have actual or implied knowledge that the propknowledge that the property was stolen is en easential element

135

The special inquiry officer with regard to the respondent's conviction for offenses defined by the Italian Criminal Code of 1889

is of the opinion that section 413 (swindling) manifests that an

evil intent is required for guilt thereunder. Relative to the offenses

defined by section 157 (violation of domicile) and sections 275, 278

and 284 (forgery of public documents), the special intluiry officer

is of the opinion that an evil intent or a depraved motive is not a

required element for any of them.

Here we are faced with an interpretation of foreign laws which

define offenses in terms unlike those found in similar offenses under

our common law system of jurisprudence. This is precisely the

situation where we may look beyond the foreign statute to consider

such facts as may appear from the record of conviction or from

other sections of the foreign criminal codes concerned to reach an

independent conclusion as to whether the offenses are ones which

under our law involve moral turpitude. (Cf. Matter of T—,

supra.)

Accordingly, with the assistance of the Law Library of Congress

we have made a study of the Italian Criminal Codes of 1889 and

1930 to determine whether a conviction may be had in the several

offenses committed by the respondent without proof of criminal

intent. Section 45, paragraph 1, of the Italian Criminal Code of

1889 (see Appendix B) states in substance that no one may be

punished for a crime unless he wanted to commit the act which

constitutes the crime, except when the law otherwise makes an individual responsible for it, as a consequence of his act of commission or omission. The general rule appears to be that crimes are

punishable only if the acts and the ensuing violations of law by an

individual are voluntarily committed. 3

The Supreme Court of Cessation, Italy, has interpreted this provision as follows:

For a crime to be distinguished from a petty offense the element of intent

to do what was actually done must be present.

The act which constitutes the crime consists in the agent's intent to do a

thing which the law specifies as a crime.

A crime of any kind cannot exist unless the intent to commit the act or

the omission which constitutes a violation of the law is uresent. 3

The 1930 Italian Criminal Code, section 43 (see Appendix B),

states that an offense is committed with criminal intent (dolo) when

erty was stolen or otherwise unlawfully acquired in order to obtain a conviction under the statute. We do not consider our decision in Matter of A—,

supra, as a precedent for the special inquiry officer's ruling that the mans rea

is an essential concomitant for guilt under the 1930 Italian Criminal Code.

3 Codice Penale con la Giurisprudenza e gli Atti

(Criminal Code,

Annotated, with Court Decisions of Official Documents) ; Barbera, G., editor;

Firenze: 1910. DD. 38, 102, 117, 118, 120 and 121.

136

the offender has foreseen and desired the injurious or dangerous

occurrence which is the result of his act and upon which the law

makes dependent the presence of the crime. The foreseeability of,

and desire to accomplish the injurious and dangerous occurrence

is a theory accepted by the 1930 Code. Section 43 specifically provides for criminal intent, criminal negligence and a third kind of

intent called preterintentional. 4

The Supreme Court of Cassation, Italy, has ruled as follows with

regard to the element of criminal intent mentioned in sections 42

and 43 of the Italian Criminal Code of 1930:

Knowledge of the illegality of a particular act is not an element required

for the presence of criminal intent. Knowledge and desire to produce an effect

as a result of one's own act of commission or omission is sufficient. 5

The subjective basis for criminal responsibility for a crime committed with

criminal intent is without doubt the intent of willfulneaa and not that of

anticipation. . .. since he who anticipates that the event will certainly take

place and acts with adequate means desires the event itself and therefore

(acts) with criminal intent (dolo).e

Criminal Intent is preaent in the perpetrator when he sate with intent directed toward achieving a definite criminal purpose ..

It is self-evident from a reading of the Italian records of conviction that some of the acts committed by the respondent were immoral when judged by standards prevailing in the United States.

The record of the respondent's 1941 conviction (exhs. 2A and C)

shows that he altered, destroyed or simulated the destruction of

official court records of conviction for a consideration, thereby

obtaining for himself an unjust gain to the detriment of others.

Exhibit 6, the record of the respondent's conviction in 1926 for

"swindling," shows that the respondent led one C—P— to believe

that he wished to redeem from a pawn some property belonging to

her, thereby "grasping 65 lire from her . . ." Exhibit 7, the record

of the respondent's 1925 conviction, states in substance that the

respondent was an accomplice in a fraudulent undertaking "with the

intent of cashing the money orders . . . (and) necessarily took part

in the swindling itself" (p. 4, translation of exh. 7).

The offenses defined by sections 275, 278, 284 and 413 of the

Italian Criminal Code of 1889 and sections 476, 482 and 640 of the

Italian Criminal Code of 1930 (see Appendix A), when considered

in light of the acts elm:roll-I against the respondent in the records of

conviction (exhs. 2A and C, 6 and 7) and those provisions of both

4

Dirritto Penis (Criminal Law), General Part, 4th ed.; Bettiol, Giuseppe;

1068, pp. 842 245, 981_

Repertorio Generale Anniale (Annual General Collection of Italian Supreme Court Cases) ; Jannuzzi, Angelo, editor, Vol. 1, Milano : 1957, p. 1000,

Palermo:

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Case No. 3.

Mid. (1958 Reports), p. 894, Case No. 10.

Ibid., p. 894, Case No. 13.

137

the 1889 and 1930 Codes which make "criminal intent" an integral

part of the Italian statutes here under consideration, are, when

judged according to standards prevailing in the United States,

crimes involving moral turpitude.

We affirm the special inquiry officer's conclusion that the offense

defined by section 157 - of the Italian Criminal Code Of 1889 does

not involve moral turpitude. It is our opinion that this offense

comes within the exception set forth in section 45 of the 1889 Code

(see Appendix B) and, therefore, mans rea is not an essential

concomitant for guilt.

Counsel's argument that the respondent's conviction in Italy does

not meet standards which prevail in the United States because the

Italian system of jurisprudence does not provide the constitutional

guarantee of "innocent until proven guilty" is without merit. There

is no provision in the immigration laws to the effect that a foreign

ennvintinn must conform to the nonstitutional guarantees of the

United States. Furthermore, determination of constitutional questions is a judicial and not an administrative function. Marbury v.

Madison,i. Cranch (5 U.S.) 137; Smith. v. Indiana, 191 U.S. 138, 148.

The respondent, when he obtained his visa (exh. 5), failed to

reveal his criminal convictions. We agree with the special inquiry

officer that the misrepresentation was material and that the visa

the respondent presented was not valid because procured by fraud

and misrepresentation.

The findings of fact entered by the special inquiry officer in his

opinion of December 11, 1959, are hereby affirmed. Conclusion of

law No. 1 is hereby amended to provide for the respondent's deportation as an alien "who has been convicted of a felony or other

crime or misdemeanor involving moral turpitude prior to entry to

the United States under section 3 of the Act of February 5, 1917, to

wit: Forgery on two occasions and swindling on three occasions

under the Italian Penal Codes of 1889 and 1930."

The order entered by the special inquiry officer on December 11,

1959, is hereby affirmed. The appeal will be dismissed.

ORDER: It is directed that the appeal be and the same is hereby

dismissed.

APPENDIX A

Italian Criminal Code

I. :tabstantive provisions of the Italian Criminal Code

of 1889

under which the respondent was convicted.

Sec. 413. Whoever, by trick or subterfuge capable of cheating or taking by

surprise another's good faith, leads someone into error and obtains for himself or others an unjust gain to the detriment of another person, shall be

138

punished by confinement at hard labor for not more than three years and a

fine of not less than one hundred liras.

Sec. 157. Whoever arbitrarily Introduces himself into, or remains in, another person's dwelling, or the appurtenances of the same, against the express

wish of the individual who has the right to exclude him, or introduces himself therein or remains there secretly or by fraud, shall be punished by confinement at hard labor for not less than one nor more than thirty months.

Sec. 275. A public official who, in the performance of his official duty,

wholly nr in part, falsely makes or (materially) alters a genuine document

which may cause public or private damage, shall be punished by confinement

at hard labor for not less than five years no (sic) more than twelve years.

Sec. 278. Whoever, not being a public official, perpetrates a forgery of a

public document in the manner specified In sec. 275, shall be punished by

confinement at hard labor for not less than three years nor more than ten

years; and, if the document is presumed by law to be genuine until charges

of forgery are made, the confinement at hard labor shall not be for less than

five years.

Sec. 284. For the purpose of the application of the provisions of the preceding sections, individuals who have authority to draw up documents which

the law considers to involve a public trust, are deemed to be equal to public

officials; and holographic wills, negotiable instruments and certificates of stock

transferable by endorsement of the bearer, are deemect to be equal to public

documents.

II. Substantive provisions of the Italian Criminal Code of 1930

under which the respondent was convicted.

Sec. 476. Forgery of public documents committed by a public official. A

public official who, in the performance of his official duties, draws up, wholly

or in part, a false document, or alters a genuine one, shall be punished by

confinement at hard labor for not less than one nor more than six years.

If the forgery relates to a document, or part thereof, which is held to be

genuine until charges of forgery are made, the confinement at hard labor shall

be for not less than three nor more than ten years.

Sec. 482. Forgery committed by a private individual. If any of the acts

specified in secs. 476, 477 and 478 are committed by a private individual, or

by a public official outside the scope of his employment, the pertinent punishments specified in the said sections, reduced by one third, shall apply.

Sec. 640. Swindling. Whoever, by trick or subterfuge, leads another into

error and obtains for himself or for others an unjust gain to the detriment

of another person, shall be punished by confinement at hard labor for not

less than six months nor more than three years and by a fine of not less

than 9,000 nor more than 80,000 liras.

APPENDIX B

Provisions of the Italian Criminal Code Relating to Crinanal Intent

I. The Italian Criminal Code of 1889.

nne may be punished for a crime unless he wanted [intended

to commit] the act which constitutes the crime, except when the law otherwise makes an individual responsible for it as a consequence of his act of

commission or omission.

in petty offenses everyone is responsible for his own act or omission, unless

it is proved that he wanted to commit the act contrary to law.

see_ 1,5 No

139

II. The Italian Criminal Code of 1930.

Sec. 42. Responsibility for criminal intent (dolo) or criminal negligence

(eolpa), or for a crime [committed] preterintentionally (delitto preterintenzionale). Objective responsibility. No one may be punished for an act of

commission or omission considered an offense by law unless he has committed

it knowingly and willfully.

No oue may be punished for an act considered a crime by law unless he

has committed it with criminal intent except in cases in which the law expressly states that such crime is committed with constructive intent or through

criminal negligence.

The law shall determine the cases in which the intent is otherwise charged

against the offender as a consequence of his act of commission or omission.

In petty offenses each individual shall be responsible for his own knowing

and willful act of commission or omission, regardless' of whether it is committed with criminal intent or through criminal negligence.

See. 43. Mental element of an offense. An offense [shall be considered

committed]:

with criminal intent (doloao) or intentionally when the. offender has foreseen and desired, as a consequence of his own act of commission or tanissiou,

the injurious or dangerous occurrence which is the result of his act of commission or omission and upon which the law makes dependent the presence of

the crime;

preterintentionally (preterintenzionale) or unintentionally (contro l'inten.ztione) when an injurious or dangerous occurrence derives from the act of

commission or omission which is more serious than the one desired by the

offender ;

through criminal negligence (colpago) or uuluLeutivnally (contra Vintonaiono)

when the offender did not desire, although he foresaw, the occurrence which

took place as a result of criminal negligence, imprudence, or lack of skill, or

failure to abide by laws, regulations, orders or instructions.

The distinction between an offense committed with criminal intent and one

committed through criminal negligence established by the present section for

crimes, shall apply also to petty offenses whenever, in regard to these, the

penal law makes a legal effect dependent upon such a distinction.

140