IN THE MATTER OF G

In EXCLUSION Proceedings

A-7945009

Decided by Board November 15, 1951

Crime involving moral turpitude-Larceny (1948), New South Wales, Australia— Whether juvenile offender.

(1) The offense of larceny of which convicted in Sydney, New South Wales, Australia (sec. 116 of the Crimes Act of 1900 for New South Wales, Australia; the Larceny Act of 1916 (6 and 7 Geo. V., c. 50) in effect in all Australia) involves moral turpitude.

(2) Having passed her 18th birthday when she committed the larceny in question, according to terms of pertinent statutes she was not a juvenile at that time and from the evidence was not treated as one by the court. EXCLUDED BY BOARD OF SPECIAL INQUIRY:

Act of 1917- Convicted of crime, to wit: Larceny.

BEFORE THE BOARD

Discussion: This case is before us on appeal from a decision of the Acting Assistant Commissioner dated February 20, 1951, directing that the excluding decision of the board of special inquiry be affirmed.

Appellant, a 22-year-old native and citizen of Australia, applied for temporary admission to visit her United States citizen husband in Seattle, Wash. Appellant stated that her husband is in the United States Merchant Marine and she wishes permission to visit at her mother-in-law's house in that city, when her husband's ship is in port. She said that she had previously visited in Seattle on two occasions for a period of about 4 or 5 days.

Appellant's first marriage was to a United States citizen, a merchant seaman, in Australia on December 5, 1947. She received an Australian divorce on May 14, 1950, on the grounds of cruelty, because she had allegedly seen her husband only 2 or 3 months during their marriage. Appellant stated that she went to Canada to marry her recent husband, whom she had known for about a year's time. She said that she lives alone in an apartment in Vancouver, British Columbia, Canada, and is entirely supported by her husband, whom she sees only when he comes to Vancouver as a seaman. Appellant also stated that she

intends to live only temporarily in Canada, for she and her husband plan to return to Australia when they have saved a substantial sum of money and he then quits working as a seaman.

On May 3, 1948, appellant was convicted in the central police court at Sydney, New South Wales, Australia, of stealing a wristwatch. She was sentenced to 1' month of hard labor, with the sentence being suspended on entering a £20 recognizance, guaranteeing good behavior for a period of 2 years.

Appellant testified that she was working as a waitress and maid in the nurses' quarters of a hospital in Australia at the time she found the wristwatch in question outside the door of the nurses' quarters. Thereafter, she made no attempt to locate the owner and wore the watch for several months before the owner noticed it. Appellant said that she intended to keep the watch when she took possession of it. Section 116 of the Crimes Act of 1900 for New South Wales, Australia (2 New South Wales, Statutes Annotated 770) states as follows: Larceny. Every larceny, whatever the value of the property stolen shall be deemed to be of the same nature, and shall be subject to the same incidents in all respects as grand larceny was before the passing of the act seventh and eighth George the Fourth, chapter 29.1

In addition, the Larceny Act of 1916 (6 and 7 Geo. V, c. 50), effect in all Australia, provides:

in

Larceny. For the purposes of this act (1) a person steals who, without the consent of the owner, fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof: Provided, That a person may be guilty of stealing any such thing, notwithstanding that he has lawful possession thereof, if, being a bailee or part owner thereof, he fraudulently converts the same to his own use or the use of any person other than the owner; (2) (i) the expression “takes” includes obtaining the possession * * * (d) by finding, where at the time of the finding the finder believes that the owner can be discovered by taking reasonable steps; (ii) the expression "carries away" includes any removal of anything from the place which it occupies, but in the case of a thing attaches, only if it has completely detached; [Emphasis supplied.]'

According to Australian precedents, a person, who finds personal property, actually or apparently lost, and appropriates it with intent to take control over the property, is not guilty of larceny, if the owner actually cannot be found. However, if the person takes the actually or apparently lost property, while reasonably believing that the owner

1 Section 117 (Crimes Act of 1900, New South Wales, Australia) defines simple larceny and makes any stealing, for which there is no special penalty, a crime. Cf. Trainer v. R, 4 C. L. R. 126; R— v. King, SS. R. 562.

2 This is the first statutory definition of larceny in English law. It did not change the existing law, but sought to harmonize the accepted common law definitions with certain statutory additions, relating to bailees and part owners. Hamilton & Addison, Criminal Law and Procedure (for New South Wales), Fifth Ed., 1947, p. 142.

can be found, larceny has been committed, (Rv. Thurborn, 1 Den. 587; R v. Mortimer, 1 C. of Australia Rep. 20; Merry v. Green, 7 M. & W. 623; R-v. Gardner, L. & C. 243. There must, of course, be a felonious taking with intent to deprive the owner permanently of his property. R- v. Jones, 19 C. Austrl. Rep. 39; R v. Crump, 1 C. & P. 658; R-v. Holloway, 1 Den. 370.)

In addition, a necessary ingredient of the offense of larceny is the belief of the finder, at the time he takes possession of the property, that the owner could be found, R v. Clyde, L. R. 1 C. C. R. 139.) Furthermore, once the property has been appropriated to the person's own use or benefit, the fact that the taker "intended eventually to restore" the property does not constitute a valid defense to a larceny charge. (Section 118 (Crimes Act of 1900, New South Wales, Australia); R- v. Johnson, 6 S. C. R. 201.)

3

Hence, since moral turpitude inheres in the criminal intent and a general intent to deprive the owner of the enjoyment of his property permanently is required by the statutes of New South Wales, Australia, we conclude that appellant was in fact convicted of a crime involving moral turpitude.

4

It should be noted in passing that appellant had admittedly passed her 18th birthday, when she committed larceny in question. Appellant testified that she was treated as an adult and detained in prison with adult offenders. Thus, according to the terms of section 429 and section 552 of the Crimes Act of 1900 (2 New South Wales Statutes Annotated 852) as well as section 5 and section 59 of the Child Welfare Act of 1923 (1 New South Wales Statutes 556),5 appellant was not a juvenile at that time and was not treated as one by the court. However, since appellant has a bona fide and meritorious reason for seeking temporary admission to the United States, we will authorize entry under the 9th proviso to section 3 (act of 1917).

Order: It is hereby ordered that the alien be admitted as a temporary visitor for 3 months under the 9th proviso to section 3 of the Act of 1917, notwithstanding her commission and conviction for larceny in Australia in 1948.

APPENDIX

Crimes Act of 1900, 2 New South Wales Statutes Annotated 852 part XII (Sentences)-Section 429. Juvenile offenders.

(1) Where any person, under the age of 16 years, is convicted on an indictment under this act

3

U. S. ex rel. Mongiovi v. Karnuth, 30 F. (2d) 825 (W. D. N. Y. 1929); U. S. ex rel. Meyer v. Day, 54 F. (2d) 336 (C. C. A. 2, 1931); U. S. ex rel. Shladzien v. Warden, 45 F. (2d) 204 (E. D. Pa., 1930).

'See appendix for text of statutes.

See appendix for text of statutes.

The Court may abstain from passing any sentence upon him, on his entering into a recognizance, with sureties, that he will appear and receive sentence, if within 3 years required so to do, and will keep the peace and be of good behaviour for that period; or

The court may, instead of, or in addition to, any sentence, whether of penal servitude or imprisonment, direct that the offender shall be sent forthwith, or at the expiration of his sentence, to a reformatory school under the provisions of any act relating to reformatory schools.

(2) Where a person of or above the age of 16 years and under the age of 18 years is convicted

(a) of an offense under sections 71, 72, or 76 of this act, and the jury was satisfied that the girl in question was at the time of the offense of or above the age of 14 years and under the age of 16 years; or

(b) of an offense under sections 72-A, 78-A, or 78-B; he may be dealt with in the manner provided in subsection 1 of this section, or under the provisions of sections 65, 66, 67, and 68 of the Child Welfare Act, 1923.

(NOTE. Whenever inconsistent with act of 1923, section is repealed. Act #21, 1923, s.3.)

Section 552. Discharge of juvenile first offenders.-Where any person under the age of 16 years is summarily convicted before justices under this act, and it is a first conviction, then justices may, if they think fit, discharge the offender upon his asking such satisfaction to the party aggrieved for damages and costs as they think just, or upon his entering into a recognizance, with one or more surety or sureties, that he will be of good behavior for a term to be fixed by them, not exceeding the 12 months next ensuing.

CHILD WELFARE ACT OF 1923 (1 N. SW. STATUTES 556)

Section 5. "Child" means boy or girl under 16 years of age and in part IV and part IX means boy or girl under 18 years of age.

Part IV. Institutions; ss. 16-28.

Part IX. Committal of neglected or uncontrollable children or juvenile offenders; ss. 50-68.

Part IX.-Section 59. Where a child (under 18 years) is summarily convicted of an offense for which the penalty is punishment by imprisonment, or imprisonment in default of payment of a fine, the court may

(a) Release the child on probation upon such terms and conditions and for such period of time as the court may think fit; or

(b) Commit the child for such period of time as the court may think fit to the care of some person who is willing to undertake such care; or

(c) Commit the child to an institution; or

(d) Sentence the child according to law.

Visa petition proceedings-Preference quota status-Chinese person as beneficiary petitioner-Children under the age of 21-Denial of petition.

(1) The act of December 17, 1943, which repeals the Chinese exclusion laws and establishes a quota for Chinese does not authorize the grant of preference quota status, as allotted under section 6(a)(1)(A) of the Immigration Act of 1924, to Chinese persons. (For definition of "Chinese person," see section 5(b) of the act of July 2, 1946.) Hence, a petition for preference quota status in the issuance of an immigration visa filed by citizen children on behalf of their Chinese father beneficiary cannot be approved.

(2) A further ground for denial of such petition lies in the fact that the petitioners are under 21 years of age. Citizen children seeking a preference for their parents under section 6(a)(1) (A) of the Immigration Act of 1924 must be 21 years of age or over.

(3) The Chinese husband of a United States citizen is not entitled to nonquota status under section 4(a) of the Immigration Act of 1924. Although the act of December 17, 1943, allows nonquota status in the issuance of an immigration visa to be conferred upon the Chinese wife of a United States citizen (and certain other classes of immigrants), that act otherwise requires that all Chinese persons entering the United States as immigrants shall be charged to the quota for Chinese.

BEFORE THE CENTRAL OFFICE

Discussion: The visa petition was executed on June 19, 1951, pursuant to section 9 of the Immigration Act of 1924, for the purpose of establishing that the beneficiary RS- H— M—, is entitled to a nonquota status in the issuance of an immigration visa as the husband of a United States citizen as provided by section 4(a) of the Immigration Act of 1924. The attorney for the petitioner requests that the petition as filed with his accompanying letter be considered as an application by the minor citizen children of the beneficiary for the issuance of a quota immigration visa within the 50 percent of the quota as allotted under section 6(a)(1) (A) of the Immigration Act of 1924, to quota immigrants who are the fathers or the mothers of citizens of the United States who are 21 years of age or