Interim Decision *1476
Mars= of &swam
In Deportatioxf Proceedings
A-8101839
A-•3228006
Decided by Board May M. 1966
A conviction for Wining or passing a viurti ►leas check in violation of paragraph
94324 of the Wisconsin Statutes is not a conviction of a crime involving
moral turpitude.
CHARGE:
Order: Act of 1852--Section 241(a) (4) [8 tail 1251(a) -(4)]—Convicted
after entry of two crimes involving moral taipitude,
not arising out. of a single scheme of criminal misconduct, to wit, issue of worthless check.
The special inquiry officer certified his order terminating proceedings.
Respondents, a 40-year-old male and his 30-year-old wife, are
natives and citizens of Polaind lawfully admitted to the United
States for permanent residence: the male on September 11, 1951 and
the female on January 5, 1952_ The deportation of each is sought
because of their, separate -convictions for passing worthless checks
in violation of paragraph 943.24 of the Wisconsin Statutes. The
male was convicted on May 25; 1963 for passing of checks on January 12, 1963 and on February 9, 1963; his wife Ivas convicted onFebruary 7, 1962 for issuing a worthless check on October 3, 1961
and one on November 28, 1961; and she was convicted on May 29,
1962 for issuing a worthless check on March 21, 1962. All convictions were on a plea of guilty; the defense of a single scheme is not
raised.
The statute provides that the crime is committed when one issues a
check "which, at the time of issuance, he intends shall not be paid."
The statute provides that lack of intent to pay may be found prima
facie from proof that at the time of issuance there was no account,
or from proof that there was a failure to- pay within five days after .•
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Interim Decision #1476
notification of nonpayment and the drawer had insufficient funds
either at the time the check was drawn or the time it was presented
for payment. The special inquiry officer terminated proceedings because he found that intent to defraud was not an element of the.'
statute. The Service concedes that intent to defraud has not been ar
element of the offense since 1955 but maintains that moral turpitude
is involved because moral turpitude was found in a similar statute involving the Virgin Islands (Matter of M—,
9 I. & N. Dec. 743
). The
Service believes that Matter of Id— has not been modified or overruled. At oral argument, the Service representiltive contended that
while the presence of an intent to defraud establishes moral turpitude, the absence of an intent to defraud does not necessarily establish the nonexistence of moral turpitude. The Service representative
points out that the statute was changed in 1955 to make possible the
conviction of a person who had funds on deposit to pay a check but
had issued a check intending to stop payment upon it. He attempts
to distinguish Matter of Bailie, Int. Dec. No. 1379, from the case
before us on the ground that Bailie, involving a similar statute,
turned on the fact that a. person could be convicted who had no intent. to defraud whereas in the instant case the change of the statute
was brought about by a desire to convict a person who had the intent
to defraud but who because of the wording of the previous statute
could not be convicted. He contends that an intent not to pay the
check is an element of the crime.
C,ormsAl contends the primary reason for the change in the statute
before us was the inability of courts to cope under previous statutes
with the large number of cases involving the issuance-cif worthless
checks. He distinguishes the instant case from Matter of AL—,
in that, here knowledge that sufficient funds did nut exist to meet
the payment is not required whereas in Matter of M— such knowledge was required. He points out that the ...ecord establishes that
the respondents did not intend to stop payment and that they hoped
to pay the check. In Matter of Bailie, supra, and Matter of Kinney,
Int. Dec. No. 1343, involving statutes similar to the one before us,
we pointed out that since an intent to defraud was not involved,
there was absent the moral turpitude required to support an order of
deportation. We stated that the language in Matter of M—, supra,
involving the Virgin Islands was broad and would be reexamined
when a. ease involving the law of the Virgin Islands was again before us. The issuance of Matter of Bailie, and the caution concerning the language contained in Matter of Af—, is sufficient to prevent
Matter of M— being considered as a precedent for cases not involving the law of the Virgin Islands. Matter of M— will be considered
203
Interim Decision #1476
in light of all the evidence concerning the law of that jurisdiction
'when the issue is again before us. The intent not to pay the check
set up by the Wisconsin statute is found irrespective of the drawer's
actual intent, upon a showing that one of several alternative methods
of payment have not been made; . conviction is possible although the
check was drawn and passed with intent to pay.* intent to defraud
is not an element. It is well settled for the purpose of the immigration laws that it is not the act committed by the alien which is to be
made the basis for deportation proceedings but the act which is
punished. by law. The statute here punishes an act committed without intent. to defraud. It cannot therefore be made the basis for
deportation proceedings (Matter of Bailie, supra, Matter of Siwaey,
supra).
ORDER: It is ordered that no change be made in the order of the
special inquiry officer.
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