Section 67 (supra) embodies the essential elements of the crime of false pretenses as found in sections 404 and 405 of the Canadian Criminal Code. We have consistently held that crimes laid under sections 404 and 405 of the Canadian Criminal Code involved moral turpitude (Matter of McL—, 56106/132, November 25, 1943; Matter of R56158/636, July 1, 1944; Matter of L- -, 6002353, January 2, 1945). Under the statute (sec. 67) it is essential not only that the representation should be false, but also that the person accused should know that it is false, and it must be made with a "fradulent intent" for the purpose of obtaining some benefit or payment under the Unemployment Insurance Act of Canada. Inasmuch as intent to defraud is an essential element of the offense, we find that the conviction under section 67 (supra) involves moral turpitude. Other Factors: The appellant's wife and children reside abroad. He has no close relatives in the United States. He stated that he desires to enter the United States occasionally to visit friends in this country. He admitted that there is no compelling reason for him to come to the United States and that his friends could visit him in Canada, if they so desired. We find no evidence of record sufficient to justify the exercise of the ninth proviso in accordance with the Attorney General's memorandum of January 13, 1947. Order: It is ordered that the excluding decision of the Board of Special Inquiry be and the same is hereby affirmed. IN THE MATTER OF K In DEPORTATION Proceedings A-5361313 Decided by Board April 4, 1947 Approved by Attorney General April 28, 1947 Suspension of deportation-Section 19 (c) 2 of the Immigration Act of 1917, as amended-Discretion. Though an alien's conduct was such as to raise a doubt of his loyalty to our institutions to the extent that permission to legalize his residence here might be denied were his own merits only concerned, descretionary relief may be granted because his deportation would cause an undesirable family separation from an American wife and minor child dependent upon him, and because there was favorable character evidence. CHARGE: Warrant: Act of 1924-No immigration visa. BEFORE THE BOARD Discussion: Upon consideration of the entire record, the findings of fact and conclusions of law with respect to deportability proposed by the Presiding Inspector, as approved by the Commissioner on February 21, 1947, are hereby adopted. The Commissioner proposes to deport respondent, a 46-year-old native and citizen of Germany, and thus separate him from his American wife and native-born citizen child, both of whom are dependent upon him for support. This recommendation is based on the Commissioner's doubts as to respondent's loyalty to our institutions. K K Respondent admits that for a period of 8 years he was in partnership in the painting business with W— C. K—, a notorious Nazi and one of the leaders of the German-American Bund. During the war Mr. K― was denaturalized by the Government. It was only when Mr. K—was arrested by the security officers that respondent's partnership with him came to an end. Respondent testified that his partnership with Mr. K― was only a business arrangement. He claims that he did not believe in K's political and social views. The record also shows that respondent on one occasion accompanied Kto a meeting of the German-American Bund at Camp Nordland. On another occasion respondent attended a meeting of the German-American Bund at Madison Square Garden. Respondent further admits that he received literature from the German Library of Information. While respondent denies membership in the German-American Bund, he does admit that he sought membership in the National Socialist Kriegsoferversorgund (known as NSKOV), an organization made up of Germans who had fought in the German Army during the first World War. Respondent testified that he thought this organization was only social and fraternal in character. He claims that he did not discover until after the organization was disbanded that it was Nazi-controlled. Furthermore, he testified that his membership application was never accepted and that he never formally became a member of the NSKOV. As against these adverse factors, a character investigation conducted by the Immigration and Naturalization Service proved favorable to respondent. In addition, evidence was submitted that he had never been in trouble with the police authorities. The United States Attorney declined to take any action against respondent because of an alleged violation of the Alien Registration Act of 1940. In addition, no alien enemy proceedings were instituted against him. Were the respondent single, with no ties in this country, we would not be disposed to permit him to legalize his residence in the United States. But he does have an American wife and child who are dependent upon him for support. His deportation would cause an undesirable family separation. These facts coupled with the favorable character evidence warrant granting him permission to legalize his residence. His deportation will be suspended. Order: It is ordered that deportation of the alien be suspended under the provisions of section 19 (c) (2) of the Immigration Act of 1917, as amended. It is further ordered, That if Congress takes no action adverse to the order granting suspension of deportation, and when the required fee is paid, proceedings be canceled. As the case involves suspension of deportation of an alien pursuant to the provisions of section 19 (c) (2) of the Immigration Act of 1917, as amended, in accordance with the provisions to title 8, section 90.12, Code of Federal Regulations, the Board refers the case to the Attorney General for review of its decision. BEFORE THE ATTORNEY GENERAL The findings of fact, conclusions of law and order of the Board of Immigration Appeals suspending the deportation of the respondent under the provisions of section 19 (c) of the Immigration Act of 1917, as amended, are hereby approved and adopted. IN THE MATTER OF O In DEPORTATION Proceedings A-3889600 Decided by Central Office, April 7, 1947 Decided by Board, November 18, 1947 Ruling by Attorney General, December 18, 1947 Discretionary relief-Section 19 (c) of the Immigration Act of 1917, as amended-Good moral character-Adultery. A terminated "adulterous" relationship, carried on during the 5-year period the alien is required to show good moral character under the provisions of section 19 (c) of the Immigration Act of 1917, as amended, need not bar him from making such a showing as to moral character, where such relationship injured no one, no family was broken up, the public was not offended, and the alien had no other blemish on his record. CHARGE: Warrant: Act of 1924-Remained longer-seaman. BEFORE THE CENTRAL OFFICE Discussion: This case relates to a 39-year-old native and citizen of Russia, who has been found both by this Service and the Board of Immigration Appeals to be deportable on the above-designated charge. This Service determined that the respondent had not been a person of good moral character within the requisite statutory period and, consequently, entered an order of deportation. The Board found to the contrary and granted the alien's application for voluntary departure and preexamination. The matter for determination at this time is, therefore, whether the order of the Board of Immigration Appeals, dated March 17, 1947, granting the respondent discretionary relief should be reviewed by the Attorney General. The information of record shows that the respondent and one S M- commenced to live together in New York in 1932 as man and wife; that this relationship continued until about September 1945, when they separated presumably because of the pendency of these proceedings; that they lived until recently in Connecticut where they appeared to have been held in due respect by the community. S M testified at the hearing that she was married to H— Bin 1923; that he deserted her in 1931; that she lived in an extra-mari tal relationship with the respondent from 1932-1945; that she had neither seen nor heard from her husband since he deserted her. The respondent testified that he took S M into his home shortly after her husband had deserted her; that he was then aware of the fact that she was married; that they held themselves out as man and wife both in New York and Connecticut; that no efforts were undertaken to ascertain whether the marriage was terminated or to have Mrs. B- obtain a divorce from her husband. On the basis of the above facts, the Board of Immigration Appeals has decided that the respondent is not precluded from establishing good moral character during the 5-year period and, therefore, that he is eligible for discretionary relief as set forth in section 19 (c) (1) of the Immigration Act of 1917, as amended. The Board has found that the relationship between the respondent and Mrs. B "does not appear to have been one which sprang from a desire for lust or unforgiveable immorality, but was bona fide in its inception and was conducted on a long-term, faithful relationship between two persons who considered themselves husband and wife and who were so considered by their neighbors." It is the view of this Service that the relationship between the respondent and Mrs. B (SM) was immoral and adulterous in nature and that such relationship, maintained during the statutory period, bars the alien from discretionary relief.1 The observation may be made at this time-taking issue with the Board of Immigration Appeals that the status between the parties was not "bona fide in its inception," since both parties were then aware of the existence of the prior marriage. Moreover, they took no steps during a period of 13 years to arrange for the legal dissolution of said marriage and for the adjustment of their own unlawful status. Alien's counsel has contended that while residing in Connecticut Mrs. B could easily have obtained a divorce on the grounds of separation and nonsupport, had she consulted her attorney for that purpose. The question remains as to why this was not done if the parties actually sought in good faith to establish a husband-wife relationship.2 We are confronted in the instant case with the fact that the alien has committed adultery during a substantial part of the statutory 1 Section 19 (c) of the Immigration Act of 1917, as amended, provides that suspension of deportation or voluntary departure may be granted to a deportable alien "who has proved good moral character for the past 5 years." 2 Cf., In re Schlau, 136 F. (2d) 480 and Petition of Rudder, 56 F. Supp. 969, which involved the question of good moral character where the parties in good faith entered into what they believed to be a legal marriage, which, in fact, for some technicality was subsequently found to be invalid. This Service in such cases has followed the view that good moral character could be established despite the invalidity of the marriage. |