SQUIRES

                                                           Interim Decision #2833




                               MATTER OF SQUIRES

                           In Deportation Proceedings
                                     A-22712143
                      Decided by Board October 23, 1980

(1) Unlawfully obtaining by a false pretence $450.00 in Canadian currency with intent to
  defraud in violation of section 304(1a) of the Criminal Code of Canada is a crime
  involving moral turpitude.
(2) False pretence under section 319(1) of the Criminal Code of Canada is a representation of-a matter of fact either present or past, made by words or otherwise, that is
  known by the person who maim; it to be false and that is made with a fraudulent
  intent to induce the person to whom it is made to act upon it.
(3) A crime committed under section 304 of the Criminal Code of Canada cannot be
  considered a petty offense where the value of what is obtained exceeds $50.00 and
  punishment can be a term of imprinonmont for ton years.
(4) A conviction for intent to defraud has, as a general rule, been held to involve moral
  turpitude.
CHARGE:
  Order Act of 1952—Sec. 241(a)(1) [8 U.S.C. 1251(a)(1)]—Excludable—convicted of a
                         crime involving moral turpitude; false pretences
ON BEHALF or RESPONDENT Harry Kobel, Esquire
                                Rosin & Kobel
                                2156 City National Bank Building
                                Detroit, Michigan 48226
By:   Milhollan, Chairman; Maniatis, Appleman, and Maguire, Hoard Members


  In a decision dated October 30, 1979, an immigration judge found the
respondent deportable under section 241(a)(1) of the Immigration and
Nationality Act, 8 U.S.C. 1251(a)(1), as an alien excludable at the time
of entry for having been convicted of a crime involving moral turpitude
under section 212(a)(9) of the Act, 8 U.S.C. 1182(a)(9) and denied
voluntary departure. The respondent has appealed. The appeal will be
dismissed as to the issue of deportability and granted as to voluntary
departure.
  The respondent is a 50-year-old divorced male alien, a native and
citizen of Canada who, according to the allegations contained in the
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Order to Show Cause, entered the United States on June 14, 1979, as a
nonimmigrant visitor for pleasure authorized to remain until June 17,
1979.1 He had been employed in the business of public relations in
Canada but conceded that presently he is not employed in Canada. The
respondent further testified that he is presently engaged in making a
business known as "Emily Across the Street" a success and without
him the business would have failed. The respondent contends that he
fell in love with the owner of the business that was not doing well and
decided to give up his business in Canada and concentrate on making
"Emily Across the Street" successful. He concedes that he was engaging in his usual business of public relations for the past year without
any monetary return, but did so out of love. 2
   The Order to Show Cause issued the respondent on July 10, 1979,
charges that he is excludable under the provisions of section 212(a)(9)
of the Act for having committed a crime involving moral turpitude
prior to entry which was not a petty offense.
   The respondent admitted and evidence was submitted to show that
he was convicted on August 11, 1970 in the Provincial Court of Canada
(Criminal Division) of the crime of unlawfully obtaining by a false
pretence $450.00 in Canadian currency from Victoria and Grey Trust
Co. Ltd. with intent to defraud in violation of section 304(la) of the
Criminal Code of Canada. The sentence was suspended and the respondent was given probation for six months.
   On appeal, the respondent through counsel contends that because of
the sentence imposed, his conviction is a petty offense and that he
should be granted voluntary departure as a matter of discretion.
  The questions presented is whether the respondent's conviction for
unlawfully obtaining $450.00 by a false pretence is a crime involving
moral turpitude and whether this crime is classifiable as a petty
offense. False pretence under section 319(1) of the Criminal Code of
Canada is defined as follows: A false pretence is a representation of a
matter of fact either present or past, made by words or otherwise, that
is known by the person who makes it to be false and that is made with a
fraudulent intent to induce the person to whom it is made to act upon
it.
   The immigration judge found that the respondent's conviction was
for a crime involving moral turpitude. Section 304 of the Canadian
statute provides:
  (1) Everyone commits an offense who (a) by a false pretence, whether directly or
    The respondent testified that he could not remember the exact date of his entry and
how long he was authorized to stay but it was between June 14 and July 10, 1979.
  2The respondent testified that he had an agreement with the owner of "Emily Across
the Street" but he did not give the details of the agreement.

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  through the medium of a contract obtained by a false pretence, obtains anything in
  respect of which the offense of theft may be committed or causes it to be delivered to
  another person; ...
  (2) Everyone who commits an offense under paragraph (a) of subsection (1) is guilty of
  an indictable offense and is liable, to imprisonment for ten years ... where the value of
  what is obtained exceeds $50.00 .
When this crime is measured by United States standards, it cannot be
considered a misdemeanor and therefore cannot be considered a petty
offense. Section 1 of Title 18, United States Code provides: (1) Any
offense punishable by death or imprisonment for a term exceeding one
year is a felony. Further, a conviction for intent to defraud has, as a
general rule, been held to involve moral turpitude. See ETA ex. ret.
Portada v. Day, 

 (S.D.N.Y. 1926); Matter of P—, 3 I&N Dee.
56 (C.0. 1947; BIA 1948); Matter of C-0—, 

 (BIA 1959).
The immigration judge concluded that the respondent had been convicted of a crime involving moral turpitude not classifiable as a petty
offense and that his deportability had been established by clear, convincing, and unequivocal evidence.
  The respondent's application for voluntary departure was denied as
a matter of administrative discretion by the immigration judge. The
immigration judge found that a nonimmigrant visitor has no
authorization to wurk in the United States even if no money is paid.
The immigration judge further found that the immigration laws themselves are undermined when aliens without permission engage in their
professional occupation for an extended period of time and thereafter
defeat the intent of section 212(a)(14) of the Act, 8 U.S.C. 1182(a)(14)
by claiming that they have refrained from competing with United
States labor_ The immigration judge concluded that the respondent's
engagement in his public relations business by preventing the business
of his "girl friend" from failing and by assisting in all aspects of the
running of the store was engaging in employment without complying
with the normal visa requirements.
  We agree with the finding of the immigration judge that the respondent's convictions under section 304(a) of the Criminal Code of
Canada is a crime involving moral turpitude and is not classified as a
petty offense. We conclude that the respondent's deportability under
sections 241(a)(1) of the Act as an alien who at the time of entry was
excludable as one who was convicted of a crime involving moral turpitude under section 212(a)(9) of the Act has been established by clear,
convincing, and unequivocal evidence.
  In our review of the record, we do not find that the respondent's
conviction or his unauthorized employment is so unfavorable as to
preclude him from the benefit of voluntary departure. Therefore, the
decision of the immigration judge denying the respondent the privilege
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of voluntary departure is reversed.
  ORDER: The appeal is dismissed as to the finding of deportability
and sustained as to voluntary departure.
  FURTHER ORDER: The outstanding order of deportation is
withdrawn, and in lieu of an order of deportation the respondent is
allowed to depart voluntarily, without expense to the Government,
within 30 days from the date of this order or any extension beyond that
time as may be granted by the District Director and under such
conditions as he may direct. In the event of the respondent's failure to
so depart, the order of deportation will be reinstated and executed.




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