A-1675763 (56138/124).
Decided by Board May 14, 1946.
Crime involving moral turpitude — Abandonment of minor child (New York) — Statutory rape (Pennsylvania).
1. Abandonment of a minor child in violation of section 480 of the Penal Laws of the State of New York (which requires (1) an abandonment of a child under 16 years of age in destitute circumstances, (2) a failure to furnish necessary and proper food, clothing or shelter, for such child, and (3) that said omission be wilful), is a crime involving moral turpitude.
2. Statutory rape in violation of Pennsylvania law is a crime involving moral turpitude.
CHARGE:
Warrant: Act of 1917 — Sentenced more than once for crimes involving moral turpitude: Statutory rape, abandonment.
BEFORE THE BOARD.
Discussion: The respondent, a native citizen of Czechoslovakia, 43 year of age, testified that his only entry into the United States occurred on January 8, 1921, at the port of New York where he arrived ex S.S. Celtic. Entry as claimed has been verified, together with the fact that at said time the respondent was admitted for permanent residence.
The record establishes that on September 23, 1942, the respondent was convicted on his plea of guilty in the Court of Quarter Sessions for Luzerne County, Pa., for the crime of Statutory Rape for which he was sentenced to from 1 to 3 years, which sentence he was serving at the time of the hearing in these proceedings. It has also been established that on September 15, 1932, the respondent was sentenced by the County Court of Westchester County, N.Y., to imprisonment for 1 year in the Westchester County Penitentiary at hard labor upon his plea of guilty to the crime of abandonment, which sentence was not suspended.
The Presiding Inspector, finding the charge designated above sustained by the evidence, recommended that the respondent be deported to Czechoslovakia and the Central Office concurred but the alien's attorney excepted to the proposed order of deportation on the ground that the crime of abandonment for which the alien was convicted in New York in 1932 is not a crime involving moral turpitude.
Criminal statutes on this subject are by no means uniform in language nor in the purpose of their enactment and this Board, in the Matter of E----, considered in detail the historical background, together with the evolution, of abandonment and nonsupport statutes with the result that it was there concluded that the crime of nonsupport in the State of Ohio, as defined by section 13008 of the Ohio General Code, is not a crime involving moral turpitude. Similar conclusions had been reached by this Board in two previous instances arising in Ohio and the Attorney General affirmed the above-stated conclusion in the E---- case.
131 A.L.R. 482.
56063/394 (July 12, 1944). (See 11 IN Dec. 134.)
Matter of L----, 56063/548, August 7, 1942; Matter of M----, 56080/880 January 21, 1943.
Similar offenses in California and Canada have also been held not to involve moral turpitude but the basis for the decision in all of the cases so far referred to was that the statutes under which convictions were had were too broadly phrased to permit holdings that the crime therein defined necessarily involved moral turpitude.
Matter of Y----, 56064/472, July 9, 1941; Matter of S----, 56080/651, August 7, 1942.
Matter of H----, 56127/824, June 3, 1943.
In 1930 the Board of Review held that a conviction for failure to support a wife and child in Missouri constituted a deportable offense but, in habeas corpus proceedings, a district judge for the Eastern District of Missouri held that such failure was not a crime involving moral turpitude because, "when I look at the reasons which I find in the textbooks for the passage of laws of this character, I am more than ever convinced that it does not inherently, within the definition, involve moral turpitude."
In the case of a conviction in Colorado for nonsupport, this Board held said offense to involve moral turpitude "because of the narrow application of the Colorado statute" but the law there involved was considerably broader in scope than the New York statute under which the respondent was convicted in 1932.
Matter of L----, 56081/222, January 26, 1942.
Section 480 of the New York Penal Law provides that,
A parent or other person charged with the care or custody for nurture or education of a child under the age of sixteen years, who abandons the child in destitute circumstances and wilfully omits to furnish necessary and proper food, clothing or shelter for such child is guilty of a felony punishable by imprisonment for not more than two years, or by a fine not to exceed one thousand dollars, or by both * * *.
This statute requires the existence of three factors to constitute a violation, namely, (1) an abandonment of a child under sixteen years of age in destitute circumstances, (2) a failure to furnish necessary and proper food, clothing or shelter, for such child, and (3) that said omission be wilful. No State law on the subject under consideration which has been held by this Board to describe a crime not involving moral turpitude, includes all of these features. The Ohio statute, supra, does not require that there be an abandonment, it does not require that the child or children involved be in destitute circumstances, and it does not require that the omission to furnish necessaries be wilful. The California statute does not require an abandonment or that the child or children concerned be in destitute circumstances. The Missouri statute covers both an abandonment or a failure to provide but it is not necessary to prove both. It does not require that the abandonment or the omission to provide be wilful nor does it require that the child or children concerned be in destitute circumstances. The Canadian statute does not require an abandonment or that the omission to provide be wilful but it does specify that the wife or child involved must be in "destitute or necessitous circumstances." After consideration of the cases arising under this foreign statute, however, this Board concluded that, "in view of the interpretation given to section 242 (3) of the Canadian Criminal Code by the Courts of that country, we are of the opinion that that statutory provision does not differ substantially from those previously considered in the N---- and Y---- cases. Hence, we must conclude that a violation of this criminal provision does not involve moral turpitude."
Calif. Penal Code, Sec. 270.
R.S. of Mo., Sec. 4026.
Crim. Code of Canada, Sec. 242 (3).
The issue presently before this Board is, therefore, whether a violation of section 480 of the New York Penal Code involves moral turpitude. It has already been pointed out that this is not a purely "nonsupport" law. New York has another statute under which "persons who actually abandon their wives or children, without adequate support, or leave them in danger of becoming a burden upon the public, or who neglect to provide for them according to their means" may be convicted of being disorderly persons and this section has been held to be directed against abandoned wives or children becoming public charges.
Heinle v. Heinle, 188 N.Y.S. 399, 1921.
Section 480, however, was enacted for the protection of children and the conviction of a father thereunder, irrespective of proof of an abandonment and failure to provide, will not be sustained where it is shown that the child or children involved are being adequately supported by the mother. On the other hand, a conviction will lie in New York where there has been an abandonment and the deserting father, subsequent thereto, wilfully refuses to furnish his destitute children with the necessities of life when it is shown that their mother is unable to provide for them.
People v. Lewis, 116 N.Y.S. 893, 1909.
In this latter situation the Court said:
It is true that leaving a child in proper care is not necessarily an abandonment, for it may be compelled by a variety of sufficient reasons. But, if after having lawfully and for sufficient reasons left his family and furnished money and arranged for their care and protection, a father wilfully and voluntarily discontinues all provisions for them, and as a result his children are left in destitute circumstances, the statute is then violated, although at the time of its violation the parent is actually separated from his children. [Italics supplied.]
The State of New York also has a penal statute covering the act of physically abandoning a child under circumstances which render it probable that the life or health of the child may be imperiled or that it may be subjected to suffering or bodily harm but, while it is conceded that this offense is more heinous than that described in section 480, supra, it does not follow that the act of abandoning a child under 16 years of age in destitute circumstances and wilfully omitting to furnish said child with necessary and proper food, clothing or shelter does not involve moral turpitude.
N.Y. Penal Code, Sec. 481.
People v. Joyce, 98 N.Y.S. 863, 1906.
The requirement in section 480, supra, that the abandoned child must be "in destitute circumstances" necessarily imputes to a violator thereof a baseness of character consistent with a finding of moral turpitude in the offense and the existence of the word "wilfully" in the statute eliminates any contention that the proscribed omission to furnish necessaries might be involuntary or unintentional.
United States v. Murdock, 290 U.S. 389, 394-5, 1933; see also Cowley v. New York, 83 N.Y. 464, 1881.
Moral turpitude has been repeatedly defined as, "An act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow men, or to society in general, contrary to the accepted customary rule of right and duty between man and man," and the Supreme Court of North Dakota gives us the following yardstick by which to measure specific conduct for this element:
Ng Sui Wing v. United States, 46 F. (2d) 755, C.C.A. 7th, 1931.
However much every man may be answerable for his acts to his own conscience, society cannot permit each individual to say for it what is moral and what is immoral * * *. Some standard must exist according to which the determination as to whether act or conduct is moral or immoral is to be made. That standard is public sentiment — the expression of the public conscience * * *. The standard is fixed by the consensus of opinion, the judgment of the majority * * *. The majority may become the minority and the standard change. But, so long as it is established, measurement must be made according to its terms. So we must say that those things which are discountenanced and regarded as evil and accordingly forbidden by society are immoral and that the doing of them contrary to the sentiment of society thus expressed involves moral turpitude * * *.
The courts of Iowa have designated the act of a father abandoning and failing to maintain his infant child as an "outrage against humanity" and the judiciary of Kansas terms such delinquent parents "degraded specimens of humanity." The United States District Court for the District of Washington has stated that, "by every law, natural, human, moral and divine," a father is obligated to protect, support, and care for his children and further research would undoubtedly disclose similar expressions in other jurisdictions but the time and effort involved is considered unjustified in view of the obvious reaction which the average American is bound to experience when confronted with a situation coming within the terms of section 480, supra.
State v. Weyant, 149 Iowa, 457, 1910.
State v. Miller, 206 Pac. 744, 1921.
In re Nosen, 49 F. (2d) 817, 818, 1931.
A 1928 decision of the Board of Review of the Immigration Service holding that the offense of abandonment of minor children in New York constitutes a crime involving moral turpitude is therefore concurred in and, there being no doubt that the crime of statutory rape involves this element, the charge contained in the warrant of arrest is sustained.
Matter of H----, 55635/235.
Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That the respondent is an alien, a native citizen of Czechoslovakia;
(2) That the respondent last entered the United States on January 8, 1921, at the port of New York ex S.S. Celtic;
(3) That on September 23, 1942, the respondent was convicted in Pennsylvania for the crime of Statutory Rape for which he was sentenced to from 1 to 3 years.
(4) That on September 15, 1932, the respondent was sentenced in New York to imprisonment for 1 year upon conviction for the crime of abandonment;
(5) That neither of the above-mentioned sentences was suspended.Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 3 of the Immigration Act of February 5, 1917, the respondent is subject to deportation on the ground that subsequent to May 1, 1917, he has been sentenced more than once to imprisonment for terms of 1 year or more because of conviction in this country of crimes involving moral turpitude committed after entry, to wit: Statutory Rape and Abandonment;
(2) That under section 20 of the Immigration Act of February 5, 1917, the respondent is deportable to Czechoslovakia at Government expense.Other Factors: The respondent testified that he left his wife and three children in 1930 or 1931, and that he has never filed suit for divorce, but that since 1934 he has been living out of wedlock with another woman by whom he has had two children. The subject's mistress has three children by her husband, now deceased, and the respondent testified, corroborated by her testimony, that he has supported them, as well as his own, during the years he has resided with them. The record establishes that, in addition to the convictions forming the basis of these proceedings, the respondent was sentenced in 1928 to 30 days' imprisonment for assault upon one M---- S----, and to 6 months' imprisonment in 1930 for assault upon one M---- O----. A report from the Federal Bureau of Investigation discloses no additional criminal record.
The respondent has filed Forms I-55 and I-255 requesting suspension of deportation on the basis of the economic detriment which would result to his mistress, as well as to her and their children, but in view of the ground for the subject's deportability, he is not eligible for the relief provided by section 19 (c) (2) of the Immigration Act of 1917, as amended. Two United States citizens testified in behalf of the alien, stating that in their opinion he is a man of good moral character, but they both admitted that they know him only in a business way. An independent investigation conducted by the Immigration and Naturalization Service discloses that the respondent has the reputation of drinking excessively and becoming abusive toward his family when under the influence of alcohol.
Order: It is ordered that the alien be deported to Czechoslovakia at Government expense on the charge stated in the warrant of arrest.
It is further ordered, That execution of the warrant be deferred until such time as the alien is released from imprisonment.
It is further ordered, That the alien's application for suspension of deportation is denied.