respondent for service under the provisions of the act mentioned by submitting to his draft board an affidavit stating that the respondent was executive assistant to the president of Taylorcraft Aviation Corp., had been so employed on August 2, 1943, and was in charge of financial and administrative matters for that corporation, whereas said statements were false and fraudulent.

The fifth count charged a conspiracy from about July 1, 1943, to January 30, 1946, to do the acts set forth in the fourth count in order to enable the respondent to evade the requirements of the Selective Training and Service Act.

A number of points have been raised by the respondent's counsel in their brief and oral argument. Of these points, the most important is, of course, whether the crimes involve moral turpitude since, if they do not, the deportation proceeding must be dismissed and the remaining points would not require discussion. However, before considering this question, we believe it proper to determine the date of the respondent's last entry. This is material only to the extent that if the respondent's last entry occurred on April 3, 1938, then only the crimes stated in the second and third counts of the indictment were committed within 5 years after entry, whereas if the respondent last entered the United States on April 17, 1939, the four offenses of which he was convicted were all committed within 5 years after entry.

The respondent testified that following his entry for permanent residence (April 3, 1938), he made several trips to Europe and that his last absence was during a cruise on the SS. Kungsholm to various Caribbean Islands; that he remained on the boat except for visits to these islands and returned to the United States on April 17, 1939. He was asked what countries and waters he visited on this trip and answered "My recollection was Haiti and Cuba as a last stop." His entry on April 17, 1939, has been verified.

Counsel contend that the respondent did not make an entry into the United States on April 17, 1939, citing Matter of J, A-6972834, 3, I. & N. Dec. 536 and Matter of O'D- A-1194276, 3, I. & N. Dec. 632. The facts in these cases bear no similarity to those in the respondent's case and these decisions are not controlling. In Matter of PA-4593207, 4, I. & N. Dec. 235, decided January 17, 1951, we gave full consideration to various court decisions relating to the question of what constitutes an entry. We held in that case that, with the exception of cases in which the absence from the United States or the presence in foreign territory may be said to have been involuntary, the rule stated in United States ex rel. Volpe v. Smith, 289 U. S. 422 (1933) is applicable. In that case, the Court stated that the word "entry" in section 19 of the Immigration Act of 1917 includes any coming of an alien from a foreign country into the United States whether such coming be the first or any subsequent one. The respondent voluntarily

embarked on the Caribbean cruise and we think that it is apparent that he was aware that the vessel would take him to foreign ports. The record indicates that he visited Haiti and Cuba, but even if he had not entered a foreign country, we would hold that his return from the foreign voyage constituted an entry. We conclude, therefore, that the alien's last entry occurred on April 17, 1939.

With respect to the principal issue involved in this case, that is, whether the crimes committed by the respondent involve moral turpitude, it is our considered opinion that the offenses were essentially a fraud perpetrated against the United States by the respondent for the purpose of evading an obligation which he owed to the Government, and that the crimes, therefore, involve moral turpitude.

The foregoing is consistent with our conclusion in Matter of M—, 56133/115, 1, I. & N. Dec. 619, decided December 3, 1943. Similarly in Matter of S, A-2857305, 4, I. & N. Dec. 509, decided March 7, 1952, we approved the Commissioner's conclusion that the offense of making a false statement in a Selective Service Questionnaire involved moral turpitude. The facts in the respondent's case are analogous to those in the two cases last cited except that in both cases the aliens themselves had made false statements whereas the respondent submitted affidavits containing false statements. We do not believe that this factor requires a different conclusion in the respondent's case. While we might rely merely on our previous decisions as controlling in this case, we believe that a further consideration of the question is warranted.

Counsel contend that when the respondent committed the offenses, he was a neutral alien; that the respondent could have claimed exemption from military service as such, and later did so; that at that time he was under deportation proceedings; and that it is inequitable to say that he should be compelled to serve the Government which was seeking to deport him. These same arguments were advanced before the court of appeals and were rejected (United States v. Rubinstein et al., supra). We also find that these matters are immaterial to the question of whether the crime involves moral turpitude, and in any event, in determining this question, we cannot go beyond the record of conviction and the indictment to weigh extraneous matters, United States ex rel. Zaffarano v. Corsi, 63 F. (2d) 757 (C. C. A. 2, 1933). In addition, it is clear that in determining whether the crimes committed by the respondent involve moral turpitude, we cannot apply one rule to his case because he was under deportation proceedings or because he was a neutral alien, and another rule to a case where those factors were not present. Either the crimes involve moral turpitude or they do not and the question of who committed the crime is entirely immaterial.

On a par with the matters last mentioned, are certain other contentions of counsel which, although they have some relevancy to the issue involved in the respondent's case, would nevertheless serve to lead us

far afield in determining the basic question involved of whether the specific crimes committed by the respondent involve moral turpitude. Along this line are Matter of G—, 56056/326, 1, I. & N. Dec. 73, and the provisions of section 241 (a) (17) of the Immigration and Nationality Act of 1952 (66 Stat. 207). These matters require only brief discussion. Matter of G- involved the use of a friend's passport in obtaining a Canadian immigration visa and in entering Canada. No false swearing was involved and it was held that the offenses did not involve moral turpitude.

With respect to section 241 (a) (17) of the Immigration and Nationality Act, that section provides for the deportation of aliens who have been or may hereafter be convicted of violating certain statutory provisions, including the Selective Training and Service Act of 1940, upon a finding by the Attorney General that such person is an undesirable resident of the United States. We do not agree with counsel that Congress has thus indicated that it does not consider violations of the Selective Training and Service Act as coming under section 241 (a) (4) relating to convictions of crimes involving moral turpitude. We previously said in Matter of M———— (supra) that it may be that some violations of the Selective Training and Service Act, particularly those of a negative nature, do not involve moral turpitude. The only conclusion that can be drawn from the two sections of the Immigration and Nationality Act is that if the particular violation of the Selective Training and Service Act involves moral turpitude and the other conditions mentioned in section 241 (a) (4) exist, the alien may be deported under that provision, and that if the particular violation does not involve moral turpitude, the alien may be deported under section 241 (a) (17) if the Attorney General finds the individual to be an undesirable resident.

Counsel for the respondent have cited Matter of S-, A-5702971, 2, I. & N. Dec. 353 and Matter of C, 56048/346, 1, I. & N. Dec. 14, decided by Attorney General January 16, 1941. These cases are not applicable since they related to false statements under a different statute (Alien Registration Act of 1940) and there is no indication that fraud was involved.

Counsel have also cited our decision in Matter of S— BA-5496423, 4, I. & N. Dec. 682, decided July 21, 1952 in which we held that desertion from the armed forces of the United States in time of war is not an offense involving moral turpitude. While this crime may be punished by death, the fact that a severe penalty may be imposed for this crime and a relatively minor penalty may be imposed for some other crime is no criterion in determining whether moral turpitude is involved. In the case mentioned, the alien's offense was his absence without leave with the intention not to return. The military offense of desertion has frequently been applied to cases

which involved little more than absence without official leave. Many such cases involved no premeditated intention of deserting and arose only by impulsive acts. The crime of desertion involves no element of fraud. In view of the extremely broad scope of the 58th Article of War, (10 U. S. C. 1530) under which the alien in the cited case was convicted, we concluded that it could not be said in every instance that the elements of the offense were such that the commission thereof would be commonly regarded as a manifestation of personal depravity or baseness. In any event, we do not believe our decision in that case is of any assistance to the respondent since we are concerned here with an entirely different section of law.

The Service representatives in their brief cited In re Pontarelli, 66 N. E. 2d 83, 393 Ill. 310 (Sup. Ct. Ill., 1936) and In re Hofstede, 173 Pac. 1087, 31 Idaho 448 (Sup. Ct. Idaho 1918). In both cases, attorneys were disbarred on the ground that the offense, of which each had been convicted, involved moral turpitude. Pontarelli had been convicted of failure to report for induction in violation of 50 U.S. C. App. 311. The Hofstede case involved a conviction for counseling men not to register for military service in violation of the draft legislation of World War I (act of May 18, 1917, 40 Stat. 76). The respondent's counsel argue that these cases should not be followed because an attorney owes greater respect for the law and that, while for him, the offense may involve moral turpitude, the situation for an alien must be otherwise. We believe this argument is palpably untenable because either a crime involves moral turpitude or it does not, and if it does, then no matter who commits that particular crime whether it be an attorney, a judge, a citizen or an alienneither adds to, nor detracts in any manner from the obliquity of the crime. We agree with the respondent's counsel, however, that these decisions are not controlling since the crimes which resulted in the disbarment of these two attorneys are not identical with the crimes of which the respondent was convicted. Nevertheless, we believe that these judicial pronouncements cannot be ignored in determining the question before us. As a matter of fact, it might be said that if the mere failure to report for induction is a crime involving moral turpitude, then the respondent's attempt to secure deferment by means of fraudulent statements should, a fortiori, be considered such a crime.. Counsel argue that the essence of the crimes for which the respondent was convicted was draft evasion and that it was held in Matter of G—, A-6459196 (unreported) (B. I. A., March 11, 1947), that draft evasion does not involve moral turpitude. We are inclined to agree that what is commonly referred to by the generic term of "draft evasion" may well be applied to the offenses committed by the respondent, and this is borne out by the fact that 50 U. S. C. App. 311, immediately following the specific clause relating to false statements concerning nonliability for service, contains the statement "or who

otherwise evades registration or service in the land or naval forces or any of the requirements of this act."

In the G case, the central office held that the crime committed by the alien did not involve moral turpitude and ordered his deportation on other grounds. The discussion as to whether the crime involved moral turpitude was limited to a statement that the crime was not in the nature of an offense which, to the extralegal moral sense, evidences an act of baseness, vileness or depravity, and to the conclusion that the essence of the crime does not involve moral turpitude. There was no attempt to distinguish the case from our previous decision in Matter of M, 1, I. & N. Dec. 619, (supra). We affirmed the Commissioner's decision on May 18, 1947, without specific comment. While we were in agreement with that decision, that is with the order of deportation, it does not follow that we approved the Commissioner's opinion in toto.

G― received a notice directing him to report for induction on September 22, 1942, and a few days prior thereto he departed to Mexico where he remained until November 1945. He was convicted of a violation of 50 U. S. C. App. 311 in that he unlawfully, willfully, knowingly and feloniously departed from the United States with the intention of evading the Selective Training and Service Act of 1940. It is obvious that the charge in the indictment was laid under that portion of section 311 which is quoted above and which relates to otherwise evading service, and that he had committed a different crime from that committed by the respondent. Hence, this case is not controlling with respect to the respondent. However, for the reasons hereinafter stated, we believe that draft evasion involves moral turpitude and the contrary holding in the G― case is hereby overruled.

We turn now to the contention of respondent's counsel that the crimes do not involve fraud. With respect to counsel's statement that in order to constitute fraud, the fraudulent representation must be acted upon by the party deceived to his damage and that there is no claim that the Government was actually deceived, we note from the opinion of the Court in United States v. Rubinstein et al. (supra) that as the result of the hearing on February 2, 1943 before the respondent's draft board, at which time he submitted the false affidavit referred to in count two of the indictment, he was granted an occupational deferment and reclassified II-B by the local board. Hence, it is obvious that reliance was placed on the false affidavit which was submitted at that time.

The case of Cahill v. Curtiss-Wright Corp., 57 F. Supp. 614 (W. D. Ky., 1944) does not sustain the argument of the respondent's counsel that mere deceit even in dealing with the Government does not constitute fraud, since in that case the plaintiff did not even allege that any claim, fraudulent or otherwise, had as yet been presented to the