Section 212 (a) (9) of the Immigration and Nationality Act requires that aliens who have been convicted of a crime involving moral turpitude shall be excluded from admission into the United States. The crime of attempted breaking and entering with intent to commit larceny, by definition involves larceny. Larceny is a crime involving moral turpitude, Quilodran-Brau v. Holland, 232 F.2d 183 (3 Cir., 1962). Since moral turpitude inheres in the intent, U.S. ex rel. Meyer v. Day, 54 F.2d 336 (2 Cir., 1931); Matter of R—, 4 I. & N. Dec. 644, 647 (CO, 1952, BIA, 1952), the crime of breaking and entering with intent to commit larceny involves moral turpitude. An attempt to commit the same offense would likewise involve moral turpitude, since there is no distinction for immigration purposes in respect to moral turpitude between the commission of the substantive crime and the attempt to commit it, U.S. ex rel. Meyer v. Day, supra, p. 337. We find, then, that applicant was guilty of a crime involving moral turpitude, Matter of P—, 4 I. & N. Dec. 252 (BIA, 1951). That case concerned a violation of section 28.592 of the Michigan Penal Code (larceny from dwelling house, store, factory, ship or other building) which is similar to the violation to which applicant pleaded guilty. Therefore, we agree with the special inquiry officer that the applicant comes within the ambit of section 212 (a) (9) of the Immigration and Nationality Act and, therefore, is excludable. The special inquiry officer correctly held that the doctrine contained in Rosenberg v. Fleuti, 374 U.S. 449, (1963), does not apply to the facts in the present case. The Fleuti doctrine is that an innocent, casual, and brief excursion by a resident alien outside this country's borders may not have been "intended" as a departure disruptive of his resident alien status and, therefore, may not subject him to the consequences of an "entry" into the country on his return. The Fleuti case was concerned with interpreting section 101 (a) (13) of the Immigration and Nationality Act, which is expressly aimed at resident aliens. The applicant, however, is not a true resident alien, but belongs instead to the class of aliens known as "commuters," a category created administratively for the convenience of aliens living in Canada and Mexico who have jobs in the United States. Under existing practice a commuter is a person nominally possessing the status of an alien lawfully admitted for permanent residence; who has employment of a permanent nature in the United States; and who possesses the right to take up physical residence in the United States although he does not elect to do so, but usually returns to his actual home in Canada or Mexico every night. Because he has no true permanent residence in the United States, a commuter does not enjoy all the benefits of an alien lawfully admitted for permanent residence. We have previously held that a commuter makes a meaningful departure every time he leaves the United States, thereby subjecting himself to possible exclusion upon his return to the United States, Matter of Estrada-Tena, 12 I. & N. Dec. 429 (BIA, 1967). That case specifically noted that the Fleuti doctrine would be inapplicable to such a situation. Moreover, a commuter's departure from the United States is not the casual stepping across the border found in Fleuti, but is a return to his actual residence. We do, however, disagree with the special inquiry officer's application of the standard of clear, convincing and unequivocal evidence to determine excludability. That standard, formulated in Woodby v. INS, 385 U.S. 276 (1966), applies only to deportation proceedings. Section 291 of the Immigation and Nationality Act provides that whenever any person makes application for admission, the burden of proof shall be upon such person to establish that he is not subject to exclusion under any provisions of the Immigration and Nationality Act. Section 235 (b) of the Act provides that every alien who may not appear to the examining immigration official to be clearly and beyond a doubt entitled to land shall be detained for further inquiry to be conducted by a special inquiry officer; and this was done in the instant case. This applicant is a commuter, and not an alien actually residing in the United States. Unlike the status of an alien who is returning to an actual unrelinquished permanent residence in the United States, a commuter's status is not assimilated to that of a resident alien who has not left the United States under the rule laid down in Kwong Hai Chew v. Colding, 344 U.S. 590 (1953). Were he an alien returning to an actual unrelinquished permanent residence in the United States, this applicant would be entitled to a hearing at which the Service bears the burden of proof, Kwong Hai Chew v. Rogers, 257 F.2d 606 (D.C. Cir., 1958). Compare Matter of Becerra-Miranda, 12 I. & N. Dec. 358 (BIA, 1967). He is not. The burden of proving that he is not subject to exclusion under any provision of the Immigration and Nationality Act is upon the commuter-applicant for admission. Section 291 of the Immigra tion and Nationality Act. This applicant has not met that burden. As clarified above, we affirm the special inquiry officer's decision and the following order will enter. ORDER: It is ordered that the decision of the special inquiry officer be and the same is hereby affirmed. MATTER OF MINCHEFF In Exclusion Proceedings A-12343764 Decided by Board September 17, 1970 and June 22, 1971 Where applicant, a native and citizen of Argentina, who was admitted for permanent residence in 1961; who registered with the Selective Service and was classified 1-A in 1965; and who in January 1967 requested exemption from U.S. military service under the treaty with Argentina, following which the Selective Service System (mistakenly concluding that under the 1951 amendment to the Selective Service laws it was powerless to grant a permanent resident complete exemption) cancelled the induction order, again classified him 1-A (in which classification he has remained), and indefinitely postponed further processing of his case, he was not effectively relieved from military service within the meaning of section 315(a) of the Immigration and Nationality Act so as to become ineligible to citizenship thereunder; hence, he was not inadmissible under section 212(a) (22) of the Act upon his return to this country from a brief trip abroad in 1967. While the right of a treaty alien to claim and obtain effective relief from military service may now be regarded as settled (Opinion of the Attorney General, 42 Op. Atty. Gen. 28 (1968); endorsed in Itzcovitz v. Selective Service Local Board No. 6, 301 F. Supp. 168 (S.D. N.Y., 1969), appeal dismissed as moot, 422 F.2d 828 (C.A. 2, 1970)), this was not the case at the time applicant applied for relief and obtained indefinite postponement of his induction in early 1967. EXCLUDABLE: Act of 1952-Section 212 (a) (22) [8 U.S.C. 1182 (a) (22)]— Alien ineligible to citizenship. ON BEHALF OF APPLICANT: 277 Park Avenue New York, New York 10017 Jack Wasserman, Esquire ON BEHALF OF SERVICE: Solomon Isenstein Irving A. Appleman John P. Ruggiero BEFORE THE BOARD (September 17, 1970) This is a Service appeal from an order of a special inquiry officer admitting the applicant to the United States as a returning resident alien. The special inquiry officer concluded that the applicant had not been effectively "relieved" from service in our armed forces within the meaning of section 315 (a) of the Immigration and Nationality Act and was, therefore, not inadmissible under section 212 (a) (22) of that Act as an alien ineligible to citizenship. We concur in that conclusion and dismiss the appeal. The facts are not in substantial dispute. The applicant is a 24 year old male alien, a native and citizen of Argentina, who is married to a permanent resident of the United States. He first entered the United States on September 17, 1961, when he was admitted as an immigrant. On attaining the age of 18 he registered under the Selective Service laws with his local draft board. On March 17, 1965 he was classified 1-A, the classification given a registrant who is immediately available for induction. He passed his pre-induction physical examination and on January 10, 1966 he was ordered to report on January 25, 1966 for induction into our armed forces. As previously instructed by the Argentine consul in New York City, the applicant brought his induction order in to the consul. The latter sent it to the Argentine Embassy, which arranged through the State Department to invoke in the applicant's behalf of the exemption provisions of our treaty with Argentina. On January 21, 1966, the applicant was notified by his draft board that his induction was postponed until further notice. Later that year, he was notified by the Argentine consul that he had been called up for service in the Argentine army and he was directed to report in Argentina for induction on March 2, 1967. In the meantime, because of a change in our Selective Service System procedures, the applicant was notified that he must submit a written request if he wished continued postponement of his induction into our armed forces. In a letter dated November 16, 1966, his draft board told him, among other things: We have now been advised by the Director of Selective Service that in order for administrative action to be taken to continued [sic] the postponement of your induction, it will be necessary for you to sign the attached request, in duplicate, for relief from military service on the basis of your alien status. . . If you decline to sign such statement, or if these forms are not received within thirty days, your postponement will be terminated, and you will be directed to report for induction under your outstanding Order to Report for Induction. [Emphasis supplied] |