MATTER OF C R
In DEPORTATION Proceedings
A-5751606
Docidcd by Docird Juno 25, 19.78
Conviction of crime—Conviction in civil proceedings for theft under city ordinance is conviction of crime within section 241(a)(4)—Pardon by mayor of
first-elany city in Nehrnnksa in nifortivii pardon within nnetinn MO) when conviction was under city ordinance.
(1) Conviction in Police Court under Scottsbluff [Nebraska] City Ordinance
for theft under $35 is a conviction for "crime" within meaning of section
241(a) (4) of the 1952 act notwithstanding that Nebraska courts view prosecution for violation of city ordinance as a civil proceeding.
(2) Full and unconditional pardon granted respondent by Mayor of Scottsbluff
for above offense is an effective pardon within meaning of section 241(b) of
the act since Nebraska law designates mayor of first–class city as supreme
pardoning authority in regard to conviction under city ordinance. (Cf. Matter of D—, A-7940390, 7 L & N. Dec. 476.)
CHARGES'
Order: Act of 1952—Section 241(a) (4) (8 U.S.C. 1251 (a) (4))--Convicted
for two crimes involving moral turpitude.
Lodged: Act of 1952—Section 241(a) (1) (8 U.S.C. 1251(a) (1) )—No visa or
passport—Sections 13(a), Act of May 26, 1924 (8 U.S.C. 213(a),
1946 ed.).
BEFORE THE BOARD
Discussion: An order entered by the special inquiry officer on
December 3, 1957, suspends the deportation of the respondent
herein under the provisions of section 244(a) (1) of the Immigration
and Nationality Act (8 U.S.C. 1254(a) (1)). The Acting Regional
Commissioner for the Northwest Region has certified the case to this
Board for a review of the finding that the respondent is not deportable as a criminal alien under section 241(a) (4) of the Immigration and Nationality Act (8 U.S.C. 1251(a) (4) ), as well as
the finding that the eneiti.,k1 of dietueCitni is warranted wider the
circumstances. He seeks a remand of the case for proper development of the record. A memorandum of law and argument has been
submitted by the examining officer.
The respondent, a native and national of Mexico, male, married,
43 years of age, last entered the United States through the port of
59
Laredo, Texas, during the year 1933. The respondent originally
entered the United States when he was less than one year of age
(1915). When he was approximately 15 years of age his parents
took him to Mexico where he resided until his last catty in 1933.
The evidence of record affirmatively establishes deportability on the
documentary charge lodged under section 241(a) (1) of the Immigration and Nationality Act (8 U.S.C. 1251(a) (1)) and no exceptions
have been taken thereto.
The order to show cause charges that the respondent is subject to
deportntion under section 241(a)(4) of the Immigration and Nationality Act in that after entry he has been convicted of two
crimes involving moral turpitude not arising out of a single scheme
of criminal misconduct. The respondent admits that he was convicted in the United States District Court for the Western District
of Missouri on May 6, 1939, for violation of section 3 of the National Motor Vehicle Theft Act, transporting a stolen automobile
in interstate commerce. It is well established that section 3 of the
National Motor Vehicle Theft Act defines a crime involving moral
turpitude.' The respondent also admits that he was convicted in the
Police Court of the City of Scottsbluff, Nebraska, on Juno 94, 1956,
for theft of property valued at less than $35.00 contrary to an
ordinance of that city.2
The special inquiry officer finds that in the State of Nebraska an
offense prosecuted in a police court under a municipal ordinance does
not amount to a conviction of a crime within the meaning of section
241(a) (4) of the Immigration and Nationality Act. His finding is
supported by two cases 3 in which the Supreme Court of Nebraska
Matter of B—, 515856/94, B.I.A., Dec. 31, 1943; Matter of G , 96198189,
R A , Mar 24, 1944: Matter of Ft—. A-2033407. B.I.A.. July 8, 1949; Matter
of A----, A-3027293, B.I.A., July 13, 1946 (unreported cases).
Ordinance No. 458 of the City of Scottsbluff, Nebraska, sections 63 and 69
provide as follows:
Section 68. It is hereby declared unlawful for any person within the corporate limits of this City to steal any money, goods or chattels of any kind
whatever, and any person who shall within the said City steal property of any
kind whatever, whether the same be wholly in money or wholly in property of
some other character, or partly in money and partly In other property, of the
value of less than thirty-five dollars ($35.00), shall be deemed and considered
a thief, and guilty of a misdemeanor.
Section 69. Any person, persons, firm, company or corporation, who shall be
convicted of violating any of the provieiona of the thirteen preceding Sections
of this Chapter, for which penalty is not therein provided, shall, upon conviction thereof, be fined in any sum not less than One ($1.00) Dollar nor more
than One Hundred ($100.00) Dollars, and, In default of payment thereof shall
be adjudged to stand committed to the City Jail until said fine and costs of
prosecution are paid, secured or otherwise discharged according to law.
°State v. Hamer, 147 Neb. 284,
23 N.W. 2d 81 (1946) ; State v. Hauser,
137
Neb. 138,
288 N.W. 318 (1959).
60
held that a prosecution for violation of a city ordinance, while in
the form of a criminal prosecution, is, in fact, a civil proceeding to
recover a penalty and a preponderance of the evidence is all that is
required to sustain a conviction.' He concludes that the criminal
charge laid unticr. section 241(a) (4) is not sustained as a matter
of law.
We do not concur. Here we are concerned with interpreting a
Federal statute in which Congress has expressed its disapproval of
the type of behavior for which the respondent was convicted under
a city ordinance in the State of Nebraska. The fact that the misconduct is considered a civil proceeding by the courts of that state
does not control when interpreting the immigration laws. Au act
of Congress is not circumscribed by restrictive holdings of state
courts defining the jurisdictional and procedural limits of inferior
courts of criminal jurisdiction. United States v. Flares- Reeig -Igvez,
237 F.2d 405, 409, and cases cited at page 410 (CA. 2, 1956).
Since the respondent has been convicted of two crimes involving
moral turpitude, we must decide whether a pardon granted by the
Mayor of Scottsbluff, Nebraska, meets the requirement of section
241(b) of the Immigration and Nationality Act (8 IT-S•C. 1251(b))
that it be granted by a governor of a state. The pardon entered as
exhibit 6 is full and unconditional and was executed on June 18, 1957.
Section 13 of Article IV of the State Constitution of Nebraska
vests the power to pardon "after conviction … for any offenses
committed against the criminal laws of this state, except treason and
cases of impeachment …" in the Governor, the Attorney General
and the Secretary of State, to be known as the "Board of Pardons,"
with the Governor as chairman. The corporate and general powers
delegated to first-class cities e by the Legislature is set forth in
Chapter 16, Article II, of the Revised Statutes of Nebraska. 1943.
Section 316 thereof reads as follows:
The mayor shalt have power after conviction to remit fines and forfeitures,
and to grant reprieves and pardons for all offenses arising under the ordinances
of the city.
That portion of section 241 (b) of the Immigration and Nationality
Act. limiting the grant of an effective pardon to the President of the
United States or the governor of a state has been interpreted to
include a pardon granted by a state which has statutory provision
for executive pardons to be issued by other than the governor of
.1t is urges Dy the Immigration 6ervire that aria <ale, uppuea only where
the city ordinance does not embrace a violation of a criminal statute of the
state. It is noted, however, that in both the Noisier and Hauser cases (supra,
footnote 3) the offenses in question were criminal under the laws of the state.
Scottsbluff, Nebraska, is a first-class city under the laws of the State of
Nebraska.
61
the state (Matter of D--, A-7940390, 7 I. & N. Dec. 476,
May 28, 1957).
The Immigration Service urges in substance that the Mayor of
Scottsbluff, Nebraska, is not the supreme paiduning power with
respect to the respondent's conviction since the offense of "petty
larceny" as defined by the ordinance here under considerhtion is also
made criminal by Chapter 28, section 512, Revised Statutes of Nebraska, 1943. It is the position of the Immigration Service, in other
words, that although the Legislature has delegated authority to the
mayor of a first-class city to pardon convictions obtained under city
ordinances, nevertheless the Board of Pardons has coextensive jurisdiction where the ordinance also embraces a violation of a state
criminal statute.
We do not agree with this interpretation nor do we find that the
authority s cited by the examining officer supports his position.
It is urged that the cited decisions separate city ordinances into two
categories, namely, (1) offenses made criminal by state law, and
(2) civil proceedings to recover a penalty.
The cited cases concern convictions for violations of city ordinances concerned with indcoont conduct, maintaining a dicordcrly
house and permitting manure to accumulate on the premises. The
Supreme Court of Nebraska in each instance held that the prosecution was a civil and not a criminal proceeding and, therefore, the
prosecution had to prove its case by only a preponderance of the
evidence. The reference in the opinions to the fact that the violations were not made an offense by state law are dicta. We note that
in the Neimer case (supra, footnote 6) the offense of maintaining a
disorderly house is an offense made criminal by state law (section
28-910, keeper of a disorderly house guilty of a nuisance; section
29--917, offense made criminal). We also note that in the Hauser
case (supra, footnote 3) the municipal ordinance there involved concerns operating a motor vehicle while intoxicated which is also an
offense made criminal by state law. The Supreme Court in both
instances disregarded any distinction between violations that are
and those that are not made criminal by the law of the state.
We are here concerned with the issue of whether the substantive
law of the State of Nebraska designates the mayor of a first-class
city of that state as the supreme pardoning authority with regard
to a conviction under an ordinance of his city. Since this issue
requires an interpretation of the law of the State of Nebraska and
not an act of Congress we must necessarily following the rulings of
the Nebraska State courts. The precedent case on this subject is
°State v. Neinter, 147 Neb. 284,
23 N.W. 24 81 (1940); Wells v. State,
42
N.W. 24 263 (1950); State v. Renensland, 69 N.W, 2d 860 (1955); State v.
Warren,
76 N.W. 2d 728 (1956).
62
Ex parte Campion, 112 N.W. 585,
79 Neb. 564, decided by the
Supreme Court of Nebraska in 1907.
The relator, Campion, was convicted in a bastardy proceeding
and in default of payment of maintenance and the giving of security
he woo eettouittect to jail. The governor, who at that time was the
supreme pardoning authority (now the Board of Pardons), forwarded a full and unconditional pardon of Campion to the sheriff
who refused to recognize it on the ground that it was not issued
under authority of law. The court ruled that a prosecution in bastardy proceedings, though criminal in natme, is a civil action for
the recovery of a penalty which may be enforced by imprisonment
and the governor has no authority under the stale ceeetitutioe' to
remit a civil obligation. The court said, "Unless there has been a
crime and conviction, the governor cannot interfere with a pardon"
(p. 388).
The weight of authority in Nebraska, is that a prosecution for
violation of a city ordinance while in form a criminal prosecution,
is in fact a civil proceeding to recover a penalty.° The Supreme
Court of Nebraska has ruled ° that under that portion of the state
constitution which limits the governor's (Board of Pardons) power
to issue pardons "after conviction … for any offense (crimes)
committed against the criminal laws of this state," there is no
authority for the granting of a pardon in a civil proceeding, although criminal in nature. We conclude, therefore, that Chapter 16,
Article II, Section 916, of the Revised .Statutes of Nebraska, 1015,
designates the mayor of a first-class city in Nebraska as the supreme
pardoning authority in the case of a conviction -under a city ordinance of his municipality. Applying the principle enunciated in
Matter of D—, supra, we find that the unconditional pardon
granted the respondent under the legislative provision referred to
above is an effective pardon within the meaning of section 241(b)
of the Immigration and Nationality Act (8 U.S.C. 1251 (b) ). Accordingly, the respondent is not deportable on the criminal charge
laid under section 241(a) (4) of the Immigration and Nationality
Act.
The respondent is deportable on the documentary charge lodged
during the hearing. The special inquiry officer has granted him suspension of deportation under section 244(a) (1) of the Immigration
and Nationality Act. The Acting Regional Commissioner maintains
that the question of the respondent's character is not properly de-
'Article IV, section 13, Constitution of the State of Nebraska.
'State v. Haas er,
137 Neb. 138, 288 N-W. 518; Foley v. State,
60 N.W. 574;
State v. Novak,
45 N.W. 2d 625.
r. Ex parte
Campion, supra.
1,, Articie IV, section 13, Constitution Of the State of Nebraska.
63
veloped in the record. We note that the respondent has an extensive
arrest record for the period 1935 through 1954. We also note that
the record does not contain a current report of a character investigation.
Under the circumstances we will defer final decision in the case
and will remand for a reopened hearing on the issue of discretionary
relief, the record to be fully developed with regard to allegations
that the respondent is addicted to excessive drinking and has had
relationships with persons other than his wife. A report of a current character investigation is to be made a part of the record and
the case returned to the Board of Immigration Appeals for final decision. An appropriate order will be entered.
Order: It is directed that the case be remanded to the special
inquiry officer for a reopened hearing in accordance with the foregoing opinion.
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