In DEPORTATION Proceedings

MATTER OF S—

In DEPORTATION Proceedings

A-10654545

Decided by Board November 1, 1961

Crime involving moral turpitude—Homicide—Article 153 of the Penal Code

of Peru.

A. conviction under Article 153 of the Penal Code of Peru for killing another

unrIpr the influence of violent emotion which circumstances may render

excusable is equivalent to conviction in the United States for voluntary

manslaughter and is a crime involving moral turpitude.

CHARGES :

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

at entry under 8 U.S.C. 1182(a) (9)—Convicted of crime (homicide).

Lodged: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1) i—Excludable

at entry under 8 U.S.U. 1182(a) (19)—Visa procured by fraud or

misrepresentation.

BEFORE THE BOARD

DISCUSSION: This case is before us on appeal from a decision

of a special inquiry officer granting voluntary departure and directing that the respondent be deported if he fails to depart voluntarily.

For the reasons hereinafter stated, the appeal will be dismissed.

The respondent is a 37-year-old married male, native and citizen

of Mexico, who last entered the United States on or about January 17, 1960, as a returning resident. He was admitted for permanent residence on May 16, 1956. On June 20, 1952, he was convicted

in Peru of homicide, the crime having been . committed on November 11, 1950. He was sentenced to imprisonment for 3 years but

was given credit for the time he had been incarcerated. The period

of imprisonment was from November 1950 until about November

1953. The special inquiry officer found that the respondent withheld the facts of his conviction and imprisonment from the American consular officer when he procured his immigrant visa on January 20, 1956. The only issue involved is whether the respondent is

deportable on the two charges mentioned above.

We have carefully reviewed the entire record. The conviction

record (Exh 2) .indicates that the circumstances surrounding the

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homicide were as Tolima s. The respondent had traveled to Peru

early in November 1950 on a business trip. On the night of November 11, 1950, he asked a taxicab driver to take him to a place where

he would be able to dance. He was taken to a house of prostitution

and danced with one of the prostitutes. Later they had sexual intercourse and she requested a sum of money. An argument took

place during which she scratched him on the back of the neck and

he seized her by the throat with both hands, and threw her on the

bed, the strangulation causing her death. In pronouncing -judgment, the court said that the respondent did not have the intention

of killing this woman; that he was not, however, proceeding in his

legitimate defense; that he was intoxicated; and that he "made

disproportionate use of masculine strength * * *."

The English translation of Exhibit 2 contains the statement,

"* * * the substance of the crime in this trial is found comprehended

within the provisions of Articles 150, 100, 90 and 153 of the Penal

Cade." However, the original Spanish document indicates that the

first Article referred Lu was 51 rather than 150. Artiele.5 51, 90

and 100 specify the persons who are to be deemed responsible for

the commission of crimes and set forth certain matters which are to

be considered in determining the punishment. The special inquiry

officer found that the conviction occurred under Article 153 of the

Penal Code of Peru, and counsel concedes that this is the statutory

provision involved. Hence, the erroneous reference to Article 150

is not material.

According to the English translation of the pertinent part of

Article 153, it relates to "killing another under the influence of a

violent emotion which circumstances may render excusable." Where

an alien has been convicted of an offense in a foreign country, the

question of whether the crime involves moral turpitude must be

determined in accordance with standards prevailing in the United

States. Mercer v. Lence, 96 F.2d 122 (C.C.A. 10, 1938), cert. den.

305 U.S. 611. In construing the immigration laws, it has been consistently held that voluntary manslaughter involves moral turpitude

and that involuntary manslaughter does not. Matter of 8—, 2-559,

570 (A.G., 1947). There is no disagreement between counsel and the

Service as to any of these matters.

With reference to the special inquiry officer's statement that Article 153 of the Penal Code of Peru is sufficiently broad to include

crimes that involve moral turpitude and those which do not, counsel

contends that this precludes a conclusion that the respondent was

convicted of a crime involving moral turpitude in view of our statement in Matter of B—, 4-493, 496 (1951), that the definition of a

crime must be taken at its minimum. We disapprove the special inquiry officer's statement Dines we perceive nothing in the language of

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Article 153 which would indicate that it is a broad statutory provision

or that it could include a crime not involving moral, turpitude.

Counsel asserts that the special inquiry officer took into account

the circumstances surrounding the homicide and he contends that

this was error. He further urges that, even if the circumstances are

considered, they should lead to the conclusion that the crime does not

involve moral turpitude. Actually, the special inquiry officer considered only statements and findings which appear in the judgment

of the court (Exh 2), and we believe this was permissible under our

decisions in Matter of K—, I 190 (1951), and Matter of M.—, 9-132

(1960), where the convictions also occurred in foreign countries. In

the former case, we held that it was proper to consider any statement

of record made by the court in sentencing a defendant. In the latter,

we said that 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 code to roach an inckpendent conclusion

as to whether the offense is one which under our law would involve

moral turpitude.

Although we believe that the statements made by the court in pronouncing judgment may properly be considered, we will base our decision in this case upon the language of the statute under which the

respondent was convicted. Before discussing the statutory language,

however, we will comment on counsel's contention that the circum-

stances of the homicide require a conclusion that the crime does not

involve moral turpitude. Counsel contends that the special inquiry

officer decided the case on a theory which would mean that a playful

but intentional push, resulting in death, would constitute voluntary

manslaughter. If the respondent had merely pushed the woman

from him and she had died as a result of falling and striking her

head, the circumstances would hardly suggest moral turpitude. On

the other hand, when the respondent grasped the prostitute by the

throat with both hands, it would seem that a court might well have

been warranted in finding that the respondent intended to kill the

woman

We are aware, of course, that the court specifically found that the

respondent did not have the intention of killing Ibis woman. Counsel relies on this finding and he contends that the distinction between

voluntary manslaughter and involuntary manslaughter is that an

pAsentinl element of the former is the intent to kill which is not

present in the latter. In his brief, counsel quoted the following

sentence appearing in 26 Am. Jur., Homicide § 18: "The mental

state that characterizes the crime of involuntary manslaughter is the

absence of intention to cause death, either actual or reasonably to be

implied from the homicidal act." Although an intention to cause

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death would preclude the possibility of classifying the crime as

involuntary manslaughter, this does not mean that the intention to

cause death is a necessary element of voluntary manslaughter. In

9.6 Am. Jun, Homicide § 19, appears the statement: "The offense

[voluntary manslaughter] is one involving moral turpitude, but

whether the slayer must have been actuated by a design or purpose

to kill is a question on which the authorities differ. According to

the expree.eions in some cases, voluntary manslaughter necessarily

involves the intention to deprive another of life, whereas other

opinions state that no design to kill is necessary; and authority may

be found in support of the position that the homicidal blow must

have been struck without intention to encompass death."

In connection with the latter statement above, that some authorities hold that voluntary manslaughter requires the absence of an

intention to cause death, this is the situation under the New York

statute which refers to manslaughter in the first degree as one "com

mitted without a design to effect death." In discussing this statutory

provision in United States en rel. SoNano v. Doak, 5 F. Supp. 561,

565 (N.D. N.Y., 1933), aff'd 68 F.2d 1019, the court said: "The only

intent lacking in manslaughter in the first degree is intent to effect

death. Had there been intent to kill, it would not have been manslaughter in the first degree but murder."

In Bishop v. United States, 107 F.2d 297, 302 (C.A. D.C., 1939),

the court. said: "The crime of manslaughter occurs when the killing

is done in 'heat of passion' engencle.re.d by adequate provocation. To

constitute this crime it is not required to show that the killing was

done purposely, deliberately, premeditatedly, or with malice aforethought. It is only necessary to show that the killing was committed

in 'heat of passion' upon sufficient provocation." The fact that it

is not necessary to show that the killing was done purposely indicates that the intent to kill is not a required clement of manslaughter.

In view of the foregoing, we do not believe that the fact that the

court said that the respondent did not intend to kill the woman shows

that the offense was involuntary manslaughter rather than voluntary

manslaughter. We need not discuss the cases cited by counsel for the

proposition that the determination of whether a crime involves moral

turpitude is to be made on the basis of the statutory provision

rather than on the circumstances of the case since we have indicated

above that our decision will be based on the language of Article 153

of the Penal Code of Peru. For the same reason, we pass by the cases

in which the courts or this Board looked beyond the statute to the

record of conviction. Similarly, the district court decision in

United States en. rel. Mongiovi v. Karnuth, 30 F.2d 825 (W.D., N.Y.,

1929), and those judicial and administrative decisions cited by counsel and the Service, which were based on the language of particular

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statutory provisions of various States, are not especially helpful in

the respondent's case in which consideration must be given to a provision of the laws of a foreign country.

In Vidal y Planar v. Landon, 104 F. Supp. 384 (S.D. Cal., 1952),

the plaintiff had been convicted of homicide "with a mitigating circumstance." The conviction occurred in Spain in 1924 and the

plaintiff was imprisoned until 1928 when he was pardoned. A man

named de Olmet, who was larger and stronger than the plaintiff,

attempted to choke him and the plaintiff, in order to protect himself,

shot de Olmet without intending to kill him. The court held that

the crime did not involve moral turpitude. The Service cited this

case as authority for the proposition that consideration may be given

to the findings of the court as stated in the judgment rendered. It

was also cited by counsel who contended that the respondent's offense

should be held not to involve moral turpitude because there was not

even the use of a dangerous weapon. The case involved unusual

circumstances, and the court specifically stated that the immigation

authorities had recognized that this was an exceptional case. The

opinion does not set forth the Spanish statutory provision under

which the conviction occurred and, since the law of a different country is involved here, we do not crnsider the decision in the Vidal y

Planar case to be controlling as to this respondent.

Another case involving a conviction for homicide in a foreign

country is Pillisz v. Smith, 46 F.2d 769 (C.C.A. 7, 1931). There,

the alien had been convicted of manslaughter in Hungary where

degrees of manslaughter are apparently not recognized. The court

found that the crime involved moral turpitude and said: "We know

of no greater moral law than that which discountenances the taking

of human life without excuse, and one who violates it is to that

extent morally depraved."

We turn now to a consideration of the provisions of the Penal

Code of Peru. Exhibit 3 contains pertinent parts of the Spanish

text and an English translation. Article 156 provides that a person

who, through negligence, shall cause anyone's death, shall be reprimanded by imprisonment not to exceed 2 years. This appears to be

similar to the offense usually characterized as involuntary manslaughter in the United States. Article 153, which is involved in

this respondent's case, provides: "A penitentiary term not to exceed

10 years, or imprisonment of no less than one year nor more than

5 years, shall be imposed on anyone killing another under the influence of a violent emotion which circumstances may render excusable."

As we have indicated above, the question of whether a foreign

crime involves moral turpitude is to be determined in accordance

with standards prevailing in the United States. It appears appro-

priate, therefore, to consider the definitions of murder and man

slaughter as set forth in 18 U.S.C. 1111 and 1112, even though these

statutory provisions are limited to crimes committed within the

special maritime and territorial jurisdiction of the United States.

Section 1111 defines murder as "the unlawful killing of a human

being with malice aforethought." It further provides that murder

in the first degree is one perpetrated by poison or any other kind of

willful, deliberate, malicious, and premeditated killing, or committed in the perpetration of any arson, rape, burglary, or robbery.

Any other murder is murder in the second degree. 18 U.S.C. 1112

provides, in part, as follows:

(a) Manslaughter is the unlawful killing of a human being without malice.

It is of two kinds:

Voluntary—Upon a sudden quarrel or heat of passion.

involuntary—In the commission of an uniawrui act not amounting to a

felony, or in the commission in an unlawful manner, or without due caution

and circumspection, of a lawful act which might produce death.

Tt will he seen from the foregoing that murder involves the element of malice and that manslaughter does not. However, neither

voluntary nor involuntary manslaughter contains any requirement

that there must have been the intent to kill. As a matter of fact,

where the killing occurred in the perpetration of arson or the other

crimes mentioned in section 1111, a person is guilty of first degree

murder even though there was no intent to kill

We will now compare Article 153 of the Penal Code of Peru with

the definition of voluntary manslaughter in 18 U.S.C. 1112. The

"sudden quarrel or heat of passion" mentioned in 18 U.S.C. 1112 is

entirely similar to "influence of a violent emotion" in Article 153.

The additional requirement., as indicated in Bishop v. United States,

supra, that the "heat of passion" must have been produced by adequate provocation is equivalent to the requirement of Article 153

that the violent emotion must be excusable because of the circumstances. In view of the foregoing, it is our considered opinion that

a conviction under Article 153 of the Penal Code of Peru is for the

crime known as voluntary manslaughter in the United States and

that the crime involves moral turpitude. Accordingly, we hold that

the first charge is sustained.

The second charge in this case is that the respondent is deportable

because he was excludable at the time of entry under 8 U.S.C.

1182(a) (19) due to having procured his 1956 immigrant visa by

fraud or misrepresentation. In connection with this charge, we have

considered the respondent's case in the light of the Attorney General's decision of October 2, 1961, in Matter of S— and B—C--,

9 S:16, setting forth the rules to be followed in determining whether

a misrepresentation is material. Counsel argued that the offense did

501

not involve moral turpitude and that the respondent's concealment

of the arrest was not material. Since we have concluded that the

crime does involve moral turpitude, the misrepresentation clearly related to a material fact. The record shows that the misrepresentation

was made willfully, and we hold that the second charge is sustained.

Counsel also contended that the respondent is within the purview

of section 7 of the Act of September 11, 1957 [8 U.S.C. 1251a; 71

Stat. 640] relating to aliens who had procured visas by fraud or misrepresentation and who were the spouses or parents of United States

citizens. The respondent has a citizen wife and citizen children.

This statutory provision was repealed by section 24(a) of the Act

of September 26, 1961 [Public Law 87-301; 75 Stat. 650], but was

reenacted in section 10 of that Act in modified form. However,

neither the original nor the amended statutory provision would be of

assistance to this respondent because each required that the alien

must have been otherwise admissible at the time of entry, whereas

this respondent was then excludable on the additional ground, under

8 U.S.C. 1182(a) (9), that he had been convicted of a crime involving moral turpitude.

For the reasons discussed above, the appeal will be dismissed.

In his decision, the special inqu;ry officer adopted the six factual

allegations contained in the order to show cause and a seventh allegation (Exh. 4) lodged at the hearing. Tie also made additional findings of fact numbered 8' to 10, inclusive, and adopted as his conclusions of law the deportation charges set forth in Exhibits 1 and 4.

We adopt the findings of fact and conclusions of law of the special

inquiry officer except that finding of fact numbered (3), which is to

the effect that the respondent "last entered the United States" on or

about May 16, 1956, is amended by deleting the word "last," and

immediately preceding this finding there is inserted an additional

finding (2—A) reading as follows: "The respondent last entered the

United States at San Ysidro, California, on or about January 17,

1960, as a returning resident alien".

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

dismissed