Interim Decision # 1987
MATTER OF COLBOURNE
In Deportation Proceedings
A-17017085
Decided by Board June 19, 1969
Conviction for drawing and delivering a worthless check in violation of section 835(a) (1) of Title 14, Virgin Islands Code, is not a conviction of a
crime involving moral turpitude. [Matter of M--, 9 I. & N. Dec. 743, overruled.]
CHARGE:
Order: Act of 1952—Section 241(a) (4) [8 -U.S.C. 1251(a) (4)]—Conviction of a crime involving moral turpitude within 5
years of entry and sentenced to confinement for a
year or more.
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Alphonso A. Christian, Esquire R. A. Vielhaber
P. 0. Box 327 Appellate Trial Attorney
St. Thomas, Virgin Islands 00801 (Submitted memorandum)
Joseph W. Monsanto
Trial Attorney
(Submitted brief)
The special inquiry officer terminated deportation proceedings.
He held that respondent's conviction did not involve moral turpitude because intent to defraud was not an element of the crime
defined by the statute. He certified his order to the Board for final
decision. The trial attorney appealed from the termination. The
appeal will be dismissed. No change will be made in the order of
the special inquiry officer.
Respondent, a 33-year-old married male, a native of the Netherlands Antilles and a citizen of the Netherlands, has recided in
the United States since 1964. He was admitted for permanent
residence on February 28, 1967. His wife is a permanent resident,
his child a citizen.
The basis for the deportation charge is respondent's conviction
in a United States District Court, in the Virgin Islands, on May
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Interim Decision #1987
14, 1968 for drawing and delivering a worthless check in violation of section 835(a) (1) of Title 14, Virgin Islands Code. The
court sentenced him to imprisonment for 15 months, but withheld
execution of the sentence and placed him on probation.
Respondent testified that when he wrote the check he thought
he had sufficient funds to meet it, but through an error he did
not; that he had paid back over half of the amount of the check;
and that he was paying back the rest.
As applied to worthless check convidtions, our reading of the
precedents resulted in the ruling that moral turpitude is not involved, if the conviction can be obtained without proof that the
convicted person acted with intent to defraud; i.e., intent to deprive one of his property, Matter of Stasinski, 11 I. & N. Dec.
202 (BIA, 1965) ; Matter of Bailie.,
10 I. & N. Dec. 679 (BIA,
1964) ; Matter of Belisario, A-13095905, unreported (BIA, August 8, 1967, December 28. 1966). See Matter of Kinney,
10 I. &
N. Dec. 548 (BIA, 1964). The instant case fits the pattern. The
section under which respondent was convicted is modeled after a
Delaware law revised to eliminate intent to defraud as an element
of the crime. Applying the precedents, we would hold that respondent's conviction does not involve moral turpitude. However,
the Service believes that the precedents were improperly decided.
Its position is most comprehensively documented. The Service
points out that the precedents we cite are inconsistent with Matter of M—,
9 I. & N. Dec. 743 (BIA, 1962), where we held that a
conviction under the very section being considered here involved
moral turpitude_ The Service believes that moral turpitude is involVed when a person knowingly draws a check on an account
which has insufficient funds whether the maker "had larceny in
heart or whether he fully intended that the check be paid off
later …" (Appellate Trial Attorney's memorandum, p. 23).
We considered and rejected this argument previously. After
careful consideration, we see no reason to adopt it now, We will
comment briefly on some of the Service contentions.
The first involves a matter of semantics. Intent to defraud, as a
test for the existence of moral turpitude, requires the convicted
person to have intended to take someone's property unlawfully.
Words which the Service attempts to equate with this meaning
simply do not satisfy the test unless they are shown to have this
meaning. This, the Service has not done. It is to be noted, moreover, that the expressions the Service relies upon are not found in
cases concerned with the question of whether a crime involves
moral turpitude.
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Interim Decision #1087
As to Matter of M—, supra, we equated the drawer's knowledge that he had insufficient funds with intent to defraud. This is
too broad a leap to satisfy the requirement that proof of deportability be clear, convincing and unequivocal. Obviously, a drawer
may write a check on an account with insufficient funds and yet
intend covering it before it is presented for payment. We have
previously questioned the authority of Matter of M--. Stasinski,
supra; Bailie, supra; Belisario, supra, opinion of December 28,
1966, p. 6, n. 5. We now overrule it.
Matter of Sloan, 12 I. & N. Dec. 840 (A.G., 1968) is a case in
which the Attorney General held that a conviction for harboring
and concealing a person from arrest in violation of 18 LI.S.C. 1071
was contrary to justice and an act of baseness, so that it involved
moral turpitude. The Service believes that under Sloan, the Attorney General held that the conduct which is to be put to the test,
is not that comprised of the elements needed for a conviction, but
that which the alien actually engaged in. The Attorney General
reserved judgment on whether it was conduct rather than the law
which should be considered. He also reserved judgment as to
what sources could be considered in determining what the conduct was. Therefore, we do not believe that Sloan requires reconsideration of our cited precedents. We might point out, that there
is nothing in the record of conviction or the respondent's unrefuted statement that establishes that respondent issued the check
without the intention of paying it. In Sloan, the Attorney General
stated that an act contrary to justice or base involved moral turpitude. We do not believe that the community would consider the
issuance of a check with insufficient funds, where there was no
intention of depriving another of his property, an act so contrary
to justice or so base as to label it of a turpitudinous nature.
Because of the action we have taken, we find it unnecessary to
discuss the many contentions of counsel.
ORDER: The Service appeal is hereby dismissed.
Further order: No change is made in the special inquiry
officer's order.
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