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 

497 

65437-53 33 
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 circumstances 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 

498 
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 

499 
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--, 

9S: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