Minister for Defence of Ireland. A letter dated March 20, 1958, by the Department of External Affairs of Ireland contains statements to the effect that service in An Forsa is on a part-time basis; that attendance at training is voluntary, subject only to the condition that a member is required to attend a minimum number of training parades; that an obligation to render full-time military service would arise only if An Forsa were called out in defense of the state; and that such a situation has not arisen since the establishment of An Forsa.

In a letter dated March 30, 1959, counsel informed this Board that he had written to the Minister for Defence on January 5, 1959, concerning the apparent discrepancy between the two letters mentioned above, and he enclosed a copy of a reply dated March 4, 1959. In this letter the Minister for Defence stated that, although An Forsa was formed as a class within the Reserve and had certain attachments to the Defence Forces, the position of the respondent, in law, was that unless he was called out on permanent service he was not a member of the armed forces of Ireland. It was further stated that An Forsa was not called out on permanent service during the period from March 24, 1946, to March 23, 1951.

After careful examination of the record, it is our considered opinion that, while An Forsa itself may have been an integral part of the defense forces of Ireland, the respondent's service in An Forsa did not constitute service in the armed forces of Ireland. We believe the situation is analogous to Matter of Z, 2 I. & N. Dec. 346 (Atty. Gen., 1945), and Matter of L-F· 2 I. & N. Dec. 455 (1946), in which it was held that service in the Canadian Officers' Training Corps and the University Air Training Corps of Canada did not constitute service in the armed forces of Canada. In the first case, we specifically stated that only service in that part of a foreign army which is activated or subject to active military duty will satisfy the requirements of section 401 (c) of the Nationality Act of 1940.

The second question we have referred to above is whether the respondent's service after becoming 18 years of age was voluntary. As we have indicated, his enlistment while under the age of 18 would not have caused his expatriation even if An Forsa had been part of the armed forces of Ireland. It was stated in a communication dated February 3, 1958, that the respondent did not apply for discharge prior to the termination of his enlistment; that it was open to him to do so at any time; and that the discharge of a member of An Forsa during the period from 1946 to 1951 "could only have been effected on application by him for his discharge on compassionate grounds but he would have to prove adequate cause for his case to merit consideration on such grounds."

The record does not disclose precisely what is regarded by the Irish authorities as "compassionate grounds" for a discharge but presumably it means that the respondent would have had to prove that his continued service would result in hardship to him or other persons. While it was stated that the respondent could have applied for a discharge at any time, the fact that he failed to do so is not significant if actually he would have been unable to obtain a discharge.

The Service contends that the testimony of the respondent is to the effect that any member of An Forsa could obtain a discharge regardless of whether compassionate grounds existed. We agree that the respondent seems to have been of that opinion but the evidence introduced by the Service shows that he was mistaken and that he would have to prove that his case merited discharge on compassionate grounds. The respondent's testimony is that no change occurred in his situation or that of his family between the time of his enlistment and his discharge, and we believe it is clear that counsel has put in issue the question of whether the respondent's service in An Forsa after his 18th birthday was voluntary or involuntary. On the basis of the record before us, we do not believe that the Government has established by clear, convincing and unequivocal evidence that the respondent voluntarily served in An Forsa after reaching the age of 18 as required by the decision in Nishikawa v. Dulles, 356 U.S. 129 (1958). We conclude, therefore, that it has not been established that the respondent is an alien, and the special inquiry officer's action was correct.

Order: It is ordered that the special inquiry officer's order of February 12, 1959, terminating the proceedings, be and the same is hereby affirmed.

MATTEB OF S

In DEPORTATION Proceedings

A-10891495

Decided by Board May 22, 1959

Crime involving moral turpitude-Carrying concealed and deadly weapon with intent to use against the person of another, Minnesota.

Carrying a concealed and deadly weapon with intent to use against the person of another in violation of section 616.41, Minnesota Statutes (Annotated1957), is a crime involving moral turpitude.

CHARGE:

Order: Act of 1952-Section 241 (a) (4) [8 U.S.C. 1251(a)(4)]-Convicted

of crime involving moral turpitude committed within 5 years after entry and sentenced to confinement for a year or more, viz., carrying concealed weapon (Minnesota).

BEFORE THE BOARD

Discussion: This case is before us by certification. The respondent is a 19-year-old unmarried male alien, a native of the Ukraine (Soviet Union) alleged to be stateless, who last entered the United States on April 6, 1957. Following expulsion hearing, a special inquiry officer on March 10, 1959, rendered an oral decision in which he directed deportation on the charge in the order to show cause. Subsequently, upon further consideration of the pertinent issue of deportability, he prepared a decision on March 30, 1959, in which all of the pertinent points relating to the grounds for deportation have been carefully and thoroughly discussed. It has been decided that the allegations in the order to show cause are established by documentary evidence in the record and the pertinent law applicable thereto. The case has been certified to the Board for review. The question of deportability is the only issue before us.

Deportability is predicated on documentary evidence which shows that the respondent pleaded guilty to a criminal charge (an information) on October 28, 1958, which set forth that he had committed the crime, carrying a concealed weapon, in violation of section 616.41, Minnesota Statutes (Annotated-1957), (committed on or about October 20, 1958) in the City of Minneapolis, Hennepin County, Minnesota. The pertinent charge reads:

then and there being, did willfully, unlawfully, wrongfully and knowingly carry, conceal and have in his possession and on his person, with intent to use against the person of one JCC, a certain dangerous weapon, to wit: a .38 caliber pistol commonly called a revolver, a more particular description of said revolver being to me unknown, said revolver being then and there loaded with gunpowder and leaden bullets, the said V- -S- not then and there being a public officer

Respondent was convicted in District Court, Fourth Judicial District, Hennepin County, Minnesota, and sentenced on December 3, 1958, for the term of one year, "Defendant to be paroled after serving 6 months with 41 days time off for time served in County Jail." Although the case is submitted without argument or brief, the respondent challenges the finding that he has been sentenced to a term of "one-year or more" within the meaning of section 241(a) (4) of the Immigration and Nationality Act.1

The applicable provision of law in the Minnesota Statutes (Annotated), defining and' specifying the elements of the crime committed by the respondent, and the statute under which he was convicted, is section 616.41 entitled "Deadly weapons" which reads as follows: Every person who shall manufacture, or cause to be manufactured, sell, keep for sale, offer, or dispose of, any instrument or weapon of the kind usually known as a slung-shot, sandclub, or metal knuckles; or who shall attempt to use against another, or with intent so to use, shall carry, conceal, or possess, any of the weapons hereinbefore specified, or any dagger, dirk, knife, pistol, or other dangerous weapon, shall be guilty of a gross misdemeanor. The possession by any person, other than a public officer, of any such weapon concealed or furtively carried on the person shall be presumptive evidence of carrying, concealing, or possessing with intent to use the same.

The punishment or penalty for crimes committed in violation of the aforementioned statute (gross misdemeanors), is set forth in section 610.20 of the Minnesota Statutes (Annotated), which reads:

Whoever shall be convicted of a gross misdemeanor for which no punishment is prescribed by any statute in force at the time of conviction and sentence shall be punished by imprisonment in the county jail for not more than one year, or by a fine of not more than $1,000.

First, we will briefly review the elements of the offense herein involved and considered whether such crime is one having the elements of moral turpitude. In other words, we will determine by review whether there is a basis for action other than that which has been taken by the special inquiry officer.

Concisely, the overt acts that are the basis for the alien's conviction are contained in the information to which the respondent en

1 SEC. 241. (a) Any alien in the United States (including an alien crewman) shall, upon the order of the Attorney General, be deported who- * * *

(4) is convicted of a crime involving moral turpitude committed within five years after entry and either sentenced to confinement or confined therefor in a prison or corrective institution, for a year or more

562713-61- -24

tered a plea of guilty. These acts were that he willfully, unlawfully, wrongfully and knowingly did carry on his person, conceal and have in his possession and on his person, a certain dangerous weapon, a loaded revolver, with intent to use the weapon against the person of another. It is essential to know the specific kind of weapon used in the concealment and possession of a weapon with intent to use it, or attempt to use the weapon against the person of another, in order to determine whether it is dangerous (Matter of B, 1 I. & N. Dec. 52).

The weapon in the instant case was a revolver, loaded, which has been held to be a dangerous weapon; and the shooting of a person has been held to be a crime involving moral turpitude (United States ex rel. Morlacci v. Smith, 8 F.2d 663). Nor can it be disputed that the use of a dangerous weapon against the person of another is motivated by an evil, base, and vicious intent. The essence of the offense is the carrying of the dangerous weapon with a base, evil and vicious intent to injure another (State v. Simon, 163 Minn. 317). The intent to commit an offense having the elements of moral turpitude has the same elements as the offense (United States ex rel. Meyer v. Day, 54 F.2d 336). The special inquiry officer, after thorough consideration of the issue, has reached the conclusion that carrying a concealed weapon with intent to use it against the person of another is a crime involving moral turpitude. We concur in that decision.

The sentence of the respondent to imprisonment for the term of one year satisfies the provisions of section 241 (a) (4) of the Immigration and Nationality Act. The sentence is measured by the possible maximum time the alien is liable to serve.2 The maximum time this respondent was given to serve was a term of one year.

Respondent has complained that he was not represented by counsel at the time of his appearance and arraignment before the State Court in the criminal trial. While the matter of legal representation at the time of court trial and conviction is not a matter for our consideration, we observe that the court record shows the respondent did have legal representation.

In view of the foregoing findings and conclusions, and our review of the record in the case, the decision of the special inquiry officer will be affirmed. The respondent may be able to apply for an executive pardon to relieve him from deportation.

Order: It is ordered that the decision of the special inquiry officer be affirmed.

2 Matter of RDec. 578.

1 I. & N. Dec. 209, 211; and Matter of B

2 I. & N.