Interim Decision #2194 

MATTER OF GRAZLEY 

In Deportation Proceedings 

A-13768404 

Decided by Board April 12, 1973 

(1) Conviction of "false pretence" in violation of the provisions of section 319 or 

320 of the Criminal Code of Canada, a crime involving moral turpitude, which 

resulted in a sentence of 7 days imprisonment, is classifiable as a "petty 

offense" within the exception provisions of section 212(a)(9) of the Immigration 

and Nationality Act. 

(2) Where cash was the object of theft, conviction of "theft" in violation of section 

283 of the Criminal Code of Canada is conviction of a crime involving moral 

turpitude. 

CHARGE: 

Order: Act of 1952--Section 241(a)(1) [8 U.S.G. 1251(a)(1)]— Excludable at 

entry under section 212(a)(9), as alien who has been 

convicted of crime involving moral turpitude, to wit, 

theft under $50.00 and false pretence. 

ON BEHALF OF RESPONDENT: Leonard W. Moen, tsquire 

1501 Washington Building 

Tacoma, Washington 98402 

The respondent, a native and citizen of Canada, appeals from 

the March 1, 1973 decision of the immigration judge, fmding him 

deportable on the above charge. The appeal will be dismissed. 

The respondent admitted the first three allegations in the order 

to show cause; allegations 4 and 5, concerning convictions in 

Canada for "theft under fifty dollars" and "false pretence," were 

established by the Service by the introduction of certified copies of 

the conviction records. The immigration judge found, and we 

agree, that the allegations in the order to show cause were 

established by clear, convincing, and unequivocal evidence. The 

immigration judge also concluded that the charge in the order to 

show cause was sustained. We agree. 

Section 241(a) of the Immigration and Nationality Act provides: 

"Any alien in the United States (including an alien crewman) 

shall, upon the order of the Attorney General, be deported who3 3 0 
Interim Decision #2194 

(1) at the time of entry was within one or more of the classes of 

aliens excludable by the law existing at the time of such entry...." 

Section 212(a) of the Act provides, in pertinent part: 

Except as otherwise provided in this Act, the following classes of aliens shall 

be ineligible to receive visas and shall be excluded from admission into the 

United States: (9) Aliens who have been convicted of a crime involving moral 

turpitude (other than a purely political offense)... ; except that aliens who have 

committed only one such crime while under the age of eighteen years may be 

granted a visa and admitted if the crime was committed more than five years 

prior to the date of the application for a visa or other documentation, and more 

than five years prior to date of application for admission to the United States, 

unless the crime resulted in confinement in a prison or correctional institution, 

in which case such alien must have been released from such confinement more 

than five years prior to the date of the application for a visa or other documentation, and for admission, to the United States. Any alien who would be excludable because of the conviction , of a misdemeanor classifiable as a petty offense 

under the provisions of section 1(3) of title 18, United States Code, by reason of 

the punishment actually imposed, ... may be granted a visa and admitted to the 

United States if otherwise admissible: Provided, That the alien has committed 

only one such offense. . . ." (Emphasis supplied.) 

In his appeal the responded contends that the crimes of which 

he was convicted were misdemeanors, and that they did not 

involve moral turpitude. A crime may or may not involve moral 

turpitude whether it is a felony or a misdemeanor, Gonzales v. 

Barber, 207 F.2d 398, 400 (C.A. 9), affirmed 347 U.S. 637 (1953); 

Tillinghast v. Edmead, 31 F.2d 81, 83-84(C.A. 1, 1929). For purposes 

of this appeal, the following questions must be answered: (1) Does 

the crime in question involve moral turpitude? (2) If so, is it a 

misdemeanor? (3) If so, is it classifiable as a petty offense under 

Title 18 United States Code 1(3) by reason of the punishment 

actually imposed? (4) Has the alien committed only one such 

offense? If moral turpitude is not involved, or if all of the above 

questions are answered yes, then the alien is not excludable under 

section 212(aX9). 

United States standards are applied to determine whether or 

not a crime committed in a foreign country involves moral turpitude, Mercer v. Lence, 96 F.2d 122, 124 (C.A. 10), cert. den. 305 U.S. 

611 (1938); U.S. ex rel. Mci:enzie v. Savoretti, 200 F.2d 546 (C.A. 5, 

1952); Matter of M—, 9 I. & N. Dec. 132, 134 (BIA, 1960). The 

classification of a crime committed in a foreign country as a 

misdemeanor or a felony is likewise made according to United 

States standards; i.e., the offense is examined in the light of the 

maximum punishment imposable for an equivalent crime de.. 

scribed in. Title 18 of the United States Code or, if an equivalent 

offense is not found there, Title 22 of the D.C. Code, Giammario v. 

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Harney, 311 F.2d 285, 286 (C.A. 3, 1962); Matter of Adamo, 10 I. & N. 

Dec. 593, 595 (BIA, ,1964); Matter of T—, 6 I. & N. Dec. 508, 517 (AG, 

1955). A misdemeanor is any offense other than one punishable by 

death or by imprisonment for a term exceeding one year, 18 U.S.C. 

1(1), (2). 

The respondent was convicted under the Criminal Code of 

Canada of "false pretence." The Canadian statute is not set forth 

in the record, nor is the section number given. We assume, after 

consulting the index to the Criminal Code of Canada, that the 

appropriate provisions are in sections 319 and 320 of the Code. 

Section 319 defines a false pretense as a knowing misrepresentation of a past or present fact, made with fraudulent intent to 

induce the person to whom it is made to act upon it. Section 320 

describes various offenses in which a false pretense may be 

involved. Because of the element of fraud, any of these offenses 

would be crimes involving moral turpitude, Jordan v. DeGeorge, 

341 U.S. 223, 232, 71 S. Ct. 103, 95 L. Ed. 886, 893 (1951); Burr v. 

INS, 350 F.2d 87, 91 (C.A. 9, 1965), cert. den. 383 U.S. 915 (1966); 

Matter of McLean, 12 I. & N. Dec. 551, 552 (BIA, 1967). 

There is no equivalent crime in the United States Code, but 

there is in the D.C. Code, section 22-1301, false pretenses. There 

the equivalent crime is a misdemeanor, as defined in 18 U.S.C. 1(2), 

and by reason of the punishment actually imposed—seven days in 

the Common Gaol of the County of Vancouver—it is a petty 

offense, 18 U.S.C. 1(3), i.e., the punishment actually imposed was less 

than six months or $500 or both. If this were the only crime involving moral turpitude committed by the respondent, he would not be 

deportable by reason of the petty offense exception and proviso of 

section 212(a)(9) of the Immigration and Nationality Act. 

However, the respondent was also convicted of "theft" under the 

Criminal Code of Canada and sentenced to 30 days in the Common 

Gaol of the County of Vancouver. Once again the provisions of the 

statute are not set forth in the record, nor is the section number 

given, and this makes our task much more difficult; but our 

research reveals that the relevant statute evidently is section 283 

of the Criminal Code of Canada. That section reads, in pertinent 

part, as follows: 

(1) Every one commits theft who fraudulently and without colour of right 

takes, or fraudulently and without colour of right converts to his use or to the 

use of another person, anything whether animate or inanimate, with intent, 

(a) to deprive, temporarily or absolutely, the owner of it or a person who has 

a special property or interest in it, of the thing or of his property or 

interest in it, ... 

' (2) A person commits theft when, with intent to steal anything, he moves it 

or causes it to move or to be moved, or begins to cause it to become movable. 

... (Emphasis supplied.) 

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We note that this section provides for conviction for theft 

whether the taking is permanent or temporary. Ordinarily, a 

conviction for theft is considered to involve moral turpitude only 

when a permanent taking is intended. Since section 283 includes 

some offenses which do involve moral turpitude and others which 

do not, it is treated as a "divisible" statute. Therefore it is 

permissible to look beyond the statute to consider such facts as 

may appear from the record of conviction to determine whether 

the conviction was rendered under the portion of the statute 

dealing with crimes that do involve moral turpitude. See Matter of 

T—, 2 I. & N. Dec. 22 (AG, 1944), which related to a conviction 

under an earlier version of section 283. 

The record of conviction in the present case states that the 

respondent "... unlawfully did commit theft of a change purse 

containing money and stamps of a total value not in excess of fifty 

dollars. ..." While we have no direct evidence as to what the 

respondent's intent was at the time he took the purse, we believe 

it is reasonable to assume, since cash was taken, that he took it 

with the intention of retaining it permanently. We hold, therefore, 

that the circumstances surrounding the offense in question indicate that the respondent was convicted for theft involving a 

permanent taking. Consequently, we hold that this offense involved moral turpitude. The fact that the theft may have been 

petty is immaterial to the question of whether or not it involved 

moral turpitude, Brett v. INS, 386 F.2d 439 (C.A. 2, 1967), cert. den. 

392 U.S. 935 (1968); Morasch v. INS, 363 F.2d 30, 31 (C.A. 9, 1966). 

As indicated above, even if this were a misdemeanor classifiable as 

a petty offense under 18 U.S.C. 1(3), the exception for a petty 

offense contained in section 212(a)(9) of the Immigration and 

Nationality Act would not apply because the respondent was 

convicted of more than one such offense. 

It does not help the respondent that these crimes were committed more than eight years ago. The exception for crimes committed and time served in prison more than five years before the date 

of application for admission applies only to aliens who, while under 

the age of IS, have committed only one such crime. The respondent was over 18 when these crimes were committed, and he was 

convicted of more than one crime involving moral turpitude. 

Since the respondent has withdrawn his request for voluntary 

departure, we need not reach the question of his eligibility for such 

relief or the exercise of the Attorney General's discretion in his 

behalf. 

Accordingly, we agree with the immigration judge that the 

respondent was excludable at the time of entry because he had 

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committed a crime involving moral turpitude, and that he is, 

therefore, deportable as charged. 

ORDER: The appeal is dismissed. 

334