The appeal should be sustained and the proceedings terminated.

Maurice A. Roberts, Chairman, Dissenting:

I join in the foregoing dissenting opinion.

The decision reached by the majority respresents, in my view, an example of result-oriented decision-making. The unarticulated premise of the majority opinion seems to be that a person like the respondent, who has received a two and a half year sentence for a serious crime, is a bad person who should be deported. Not every serious crime, however, necessarily involves moral turpitude or calls for deportation.

No alien may be deported unless he clearly fits within one of the categories of deportable aliens specified by Congress. In determining whether an alien comes within any of those classes, certain well-defined principles have emerged through the years. Unless the alien is found to be within one of the deportable classes in the light of those principles, his deportation may not be ordered, no matter how unworthy or bad or immoral we may personally think him to be. We are bound to apply the rule of law.

Deportation statutes, because of their drastic consequences, must be strictly construed, Barber v. Gonzales, 347 U.S. 637, 642-643 (1954); Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948). In section 241(a)(4) of the Immigration and Nationality Act, Congress has prescribed deportation if an alien is convicted of "a crime involving moral turpitude" committed within five years of entry. It is the crime of which he is convicted, and not the alien's conduct, which determines deportability. If the crime of which he is convicted does not inherently involve moral turpitude, he may not be deported even if his actual conduct was immoral, U.S. ex rel. Robinson v. Day, 51 F.2d 1022 (C. A. 2, 1931); Ablett v. Brownell, 240 F.2d 625, 627 (D.C. Cir., 1957); U.S. ex rel. Giglio v. Neelly, 208 F.2d 337 (C.A. 7, 1953). On the other hand, if the crime of which he was convicted does involve moral turpitude, deportability is established even if the alien's actual conduct as he later describes it might not seem so reprehensible, U.S. ex rel. Manzella v. Zimmerman, 71 F. Supp. 534 (E.D. Pa., 1947). In other words, it is the alien's crime, and not his conduct, which is determinative under section 241(a)(4).

Whether or not a particular offense involves moral turpitude depends upon the ingredients of the crime, the elements which must be proved to establish guilt. If those ingredients necessarily involve baseness, vileness, depravity, an evil intent which shocks the public conscience, the crime involves moral turpitude, Guerrero de Nodahl v. INS, 407 F.2d 1405, 1406-07 (C.A. 9, 1969). To determine the nature of the crime, we must look primarily to the statutory definition of the offense, or, if it is

undefined, to the court decisions which define its elements, U.S. ex rel Zaffarano v. Corsi, 63 F.2d 757 (C.A. 2, 1933). If the crime as defined by the statute under all circumstances encompasses conduct which involves moral turpitude, the crime involves moral turpitude, U.S. ex rel. Guarino v. Uhl, 107 F.2d 399 (C. A. 2, 1939). If the crime as defined by statute punishes conduct which may or may not be turpitudinous, and if it is not clear under which aspect of the statute the conviction was rendered, the definition of the crime must be taken at its minimum, i.e., as not involving moral turpitude, U.S. ex rel. Manzella v. Zimmerman, 71 F. Supp. 534 (E.D. Pa., 1947).

If the charge is a violation of a statute in general terms, and the statute itself is divided into specified subdivisions, each of which necessarily involves moral turpitude, the crime obviously involves moral turpitude. If only some of the subdivisions of a divisible statute involve moral turpitude, then under the rule of strict construction the crime does not involve moral turpitude unless it can be established that the offense as charged was geared to one of the subdivisions involving moral turpitude, Wadman v. INS, 329 F.2d 812 (C.A. 9, 1964).

Reference can be had to the record of conviction (the indictment or information, the plea, the verdict or judgment, and the sentence) to establish under which subdivision the defendant was charged, U.S. ex rel. Zaffarano v. Corsi, 63 F.2d 757 (C.A. 2, 1933).

In all cases, the nature of the offense and the guilt of the alien can be determined only by the record of conviction. The alien cannot be heard at the deportation hearing to testify that he was not guilty of the offense, or that his actions were actually different from those described in the record of conviction. The criminal case cannot be retired in the deportation proceedings, Zgodda v. Holland, 184 F. Supp. 847 (E.D. Pa., 1960). Similarly, if the crime as made out by the record of conviction does not involve moral turpitude, the testimony of the alien at the deportation hearing cannot be accepted to prove that his conduct was actually turpitudinous.

Applying these principles, it seems to me that the offense of which the respondent was charged cannot be said to involve moral turpitude. When it comes to assault and battery, whether or not moral turpitude is involved is largely a matter of intent. Simple assault and battery does not involve moral turpitude, Ciambelli ex rel. Maranci v. Johnson, 12 F.2d 465 (D. Mass., 1926); Matter of B—, 5 I. & N. Dec. 538 (BIA 1953). Assault with intent to kill does, Clark v. Orabona, 59 F.2d 187 (C.A. 1, 1932), cert. denied 287 U.S. 629; U.S. ex rel. Shladzien v. Warden, 45 F.2d 204 (E.D. Pa., 1930). So does assault with a deadly weapon or one likely to inflict great bodily harm, Gonzales v. Barber, 207 F.2d 398 (C.A. 9, 1953).

Respondent was convicted of assault in the third degree. As the crime

is defined in the Virgin Islands statute before us, five different types of conduct are covered. Categories (1), (2), (3) and (5) must be ruled out. There is nothing in the record of conviction to show either that (1) there was an intent to commit a felony; or (2) that a deadly weapon was used; or (3) that there was a premeditated design and that respondent used means calculated to inflict great bodily harm; or (5) that the victim was a peace officer and that a weapon was used. This leaves the fourth subdivision as the only possible basis for the third degree assault charge. Although that subdivision is obviously different from simple assault and battery, the difference does not lie in the intent involved but in the nature of the resultant injury. Under the fourth subdivision, it is the serious bodily injury which results from the assault, and not the intent with which the assault was committed, that is determinative. A simple assault and battery which unintentionally results in serious bodily injury is within the ambit of the fourth subdivision. Absent the evil intent which goes beyond simple assault and battery, the crime defined by the fourth subdivision cannot be said to involve moral turpitude; the gravity of the punishment is not controlling, U.S. ex rel. Zaffarano v. Corsi, 63 F.2d 757 (C.A. 2, 1933); Gonzales v. Barber, 207 F.2d 398 (C.A. 9, 1953).

The respondent's testimony at the deportation hearing that he struck the victim with a partly full beer bottle from which he had been drinking does not supply the missing link to moral turpitude. The nature of the offense must be determined from the conviction record, not from the alien's testimony at the deportation hearing, U.S. ex rel. Mylius v. Uhl, 210 Fed. 860 (C. A. 2, 1914); U.S. ex rel. Manzella v. Zimmerman, 71 F. Supp. 534 (E.D. Pa., 1947). In relying for its decision on such testimony given at the deportation hearing, the majority recedes from a long and well-established principle and sets a precedent which may turn out to be unfortunate in many ways. If the testimony of an alien may be adduced to prove that the crime of which he was convicted did involve moral turpitude, no reason appears why an alien should not be permitted to testify as to facts indicating that the crime did not involve moral turpitude. The net result will be to open the door to retrial in the deportation hearing of the question of the nature of the crime and whether the alien was actually guilty of the crime. This is a major and unwarranted departure from precedents which have stood the test of time.

Since I conclude that the Service has not borne its burden of proving by clear, convincing and unequivocal evidence that the respondent was convicted of a crime involving moral turpitude, I would sustain the appeal and terminate the proceedings.

MATTER OF MOSS

In Exclusion Proceedings

A-19265092

Decided by Board August 16, 1974

Request, on appeal in exclusion proceedings, for remand of case to the immigration judge for further proceedings to give applicant an opportunity to further develop the evidence of his "active opposition” to Communism for the purpose of defector classification under section 212(a)(28)(I)(ii) of the Immigration and Nationality Act, as amended, is granted where applicant made a full and voluntary disclosure to the American consul of his voluntary membership in the Communist Party of Great Britain from 1948 to 1952; he testified candidly and extensively at the exclusion hearing as to such membership; and he was not represented at the hearing by counsel, mistakenly thinking he could handle his hearing by himself.

EXCLUDABLE: Act of 1952-Section 212(a)(28) [8 U.S.C. 1182(a)(28)]—Prior membership in Communist Party of Great Britain.

ON BEHALF OF APPLICANT: Francis Hoague, Esquire

1500 Hoge Building

Seattle, Washington 98104

In a decision dated May 6, 1974, the immigration judge found the applicant inadmissible under section 212(a)(28) of the Immigration and Nationality Act because of his membership in the Communist Party of Great Britain, denied his application for a waiver of inadmissibility under section 212(a)(28)(I)(ii), and ordered his exclusion and deportation from the United States. The applicant has appealed from that decision. The record will be recommended to the immigration judge.

The applicant, a 58-year-old alien who is a native of England and a critizen of Canada, seeks to enter the United States so that he may reside in a retirement home that he and his wife are building at Point Roberts, Washington. He applied for an immigrant visa at the American Consulate in Vancouver, British Columbia. After voluntarily informing the Consul of his former membership in the Communist Party, the applicant was refused a visa because of that membership. He then applied at the border for admission to the United States and was referred for an exclusion hearing.

At the hearing, the applicant stated that he joined the Communist

Party in Liverpool, England in 1948. His reason for joining was that he desired social reform in certain areas such as education, aid to the elderly, health care, and insurance. He stated that the Communist Party was more interested in reforms in these areas than were the other political parties in England, and that the Communist Party "offered what appeared to be ready made answers" (Tr. p. 16).

He testified that he joined the Party at the urging of one of his neighbors. The "cell" to which he belonged had six members; the membership remained constant during the four years he belonged.

The applicant stated that he became disillusioned with the Communist Party because it focused most of its attention on the Soviet Union's international aims, with which he disagreed, and it did not devote sufficient attention to reform in England. The applicant's opposition to the international aims of communism caused him to break with the Party in 1952. He thereupon moved from the Liverpool area to North Wales in order to get away from the Party. The move involved terminating his business, selling his home, and moving his family to an area where it "was harder to scrape up a business" (Tr. p. 27). He immigrated to Canada in 1968.

The applicant was not represented by counsel at the hearing. The immigration judge informed him of the terms of section 212(a)(28)(I)(ii) of the Act. This section provides for a waiver of inadmissibility for an alien who has defected from the Communist Party and who since that defection "is and has been, for at least five years prior to the date of application for admission actively opposed to the doctrine, program, principles, and ideology of such party or organization," and whose admission into the United States would be in the public interest.

The applicant testified that he has had nothing to do with communism since he quit the Party in 1952, and that he has actively opposed communism in statements made to friends since that time. The applicant submitted letters from four individuals attesting to his strong anti-communist point of view (Exhs. 6, 7, 8, 9). He also produced one of these individuals who testified as to several specific examples of the applicant's anti-communist position. In one instance the applicant had expressed opposition to Soviet intervention in Czechoslovakia, and in another instance he had expressed the opinion that communists from Chile were "troublemakers" who would not be assets to Canada. In addition, the applicant submitted to the immigration judge ten letters attesting to his good moral character.

The immigration judge found that the applicant did not appear to have been involved with communism since 1952, but that he also did not appear to have actively opposed communism, and that he had not established that his admission into the United States would be in the public interest. He concluded, therefore, that the applicant was exclud