Interim Decision #1245
MAT= or Di Fuwx'o
In DEPORTATION Proceedings
A-12008546
Decided by Board September 7, 1962
Respondent's conviction for making false statements in violation of section 100
A(a) of the Unemployment Insurance Act of Canada, as amended, is not a
conviction of a crime involving moral turpitude.
CHARGE:
Order: Act of 1952—Seetion 241(a) (1) [8 U.S.C. 1251(a) (1)1—Excludable
at entry—crime prior, to wit: making false statement in violation
of section 100A of the Canadian Unemployment Insurance Act, and
theft.
The examining dicer has appealed. from the order of the special
inquiry officer terminating proceedings. The issue is whether respondent's conviction for violation of section 106A (a) of the Unemployment
Insurance Act of Canada involves moral turpitude.
The case was before the Board on a previous occasion. On March
19, 1962, the Board ordered proceedings reopened in connection with
the deportation charge for the purpose of obtaining additional information concerning the convictions, and, in connection with the application for relief, to enable respondent to refute derogatory information
in the record concerning his character.
Respondent is a 30-year-old married male, a native and citizen of
Italy who was admitted to the United States for permanent residence
on January 31, 1961, to join his wife, a citizen of the United States.
Respondent has been convicted of crime in. Canada on two occasions.
On October 22, 1959, he was convicted for theft under section 280(a)
of the Criminal Code of Canada for stealing $60 on October 20, 1959.
He was fined $100 and costs, and a jail sentence to a month was
suspended. The American Consul has found that this crime was a
petty offense and consequently its existence did not make respondent
ineligible for the issuance of the visa.
After respondent's admission to the United States, an information
in four counts was filed against him in Canada on February 8, 1961,
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Interim Decision #1245
charging him under section 106A (a) of the Unemployment Insurance
Act of .Canada with having made false statements on April 26, 1960,
and on May 10, 1960. He was convicted in a magistrates court in
Ontario Province on a plea of guilty to all counts; on March 13,
1961, he was fined $55 and costs of each count. He last returned to the
United States on April 25, 1961.
The record reveals that section 106A of the Unemployment Insurance Act of Canada, as amended, reads as follows:
Every person is guilty of an offense who
(a) in relation to any claim for benefit makes a statement or representation
that be 'mows to be false or misleading or
(b) being required under this Aet or the regulations to furnish information,
furnishes any information or makes any representation that be knows to
be false or misleading. (p. R-7.)
The special inquiry officer decided, both on the basis of the testimony of an expert witness and his own research, that moral turpitude
was not involved because the section does not require a. false statement
to be material, and because a false statement is sufficient for a conviction although it may have only a remote relationship to the obtaining of insurance benefits. The special inquiry officer expressed the
belief that the statute does not require a criminal intent. He found
this fact especially significant because a prior law called for a criminal
intent. The prior law, section 6'T of the Canadian Unemployment
Insurance Act of 1945, stated that the making of the false statement
must be "for the purpose of obtaining any benefit or payment"; section 106A eliminates the language concerning the purpose for which
the false statement is made. The special inquiry officer was also influenced by the fact that a person who had made false statements for
the purpose of defrauding the government could apparently be prosecuted for false pretenses under sections 303 and 304 of the Criminal
Code of Canada which do require criminal intent.
The examining officer contends that the difference in section 106A
and its predecessor is not significant for both laws concern an attempt
to gain a benefit by false or misleading statements. The examining
officer reasons that since another provision of the insurance law provides for the imposition of an administrative penalty where a person
has committed an offense described by section 106A, the institution
of criminal action implies that the actionable statements were material
to the claim for benefits. Reliance is also had upon legislative debate.
At oral argument, the Service representative pointed out that in two
cases involving false claims for unemployment insurance the Board
found moral turpitude has been involved. Matter of L—, 5 I. & N.
Dee. 705 and Halter of D—C—,
6 I. & N. Dec. 488
are cited. Counsel
at oral argument requested that no change be made in the opinion of
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Interim Decision #1245
the special inquiry officer but did ask that if the Board found moral
turpitude existed, the case be returned to the special inquiry officer for
ruling upon the respondent's request for a waiver under section 212(g)
of the Act.
Comparison between the present law and its predecessor, indicates
that a conviction under the present law may be obtained without proof
that the false statement was made for the purpose of obtaining benefits.
In other words, a conviction can be obtained merely upon proof that
a false statement had been made in connection with a matter relating
to unemployment insurance benefits. An intent to mislead is not required; the only criminal intent required appears to be that there
be knowledge of the falsity of the statement. Since the intent with
which the false statement was made is no longer material, we cannot
hold that moral turpitude is involved in the commission of the offense.
Legislative debate relied upon by the examining officer is general
and inconclusive. Matter of D—G—, supra, concerned a law which
made an intent to defraud "an essential element of the offense". This
element is lacking in the Canadian law in question. Matter of L—,
supra, concerned violation of a California law which made it a crime
to wilf
ully make a false statement or knowingly fail to disclose a
material fact for the purpose of obtaining benefits. The conviction
was under a law which the court of the state had construed required
an intent to defraud.
ORDER: It is ordered that the appeal of the examining officer be
and the same is hereby dismissed.
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