MATTER OF S—
In DEPORTATION Proceedings
A-10654545
Decided by Board November 1, 1961
Crime involving moral turpitude—Homicide—Article 153 of the Penal Code
of Peru.
A. conviction under Article 153 of the Penal Code of Peru for killing another
unrIpr the influence of violent emotion which circumstances may render
excusable is equivalent to conviction in the United States for voluntary
manslaughter and is a crime involving moral turpitude.
CHARGES :
Order Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)1—Excludable
at entry under 8 U.S.C. 1182(a) (9)—Convicted of crime (homicide).
Lodged: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1) i—Excludable
at entry under 8 U.S.U. 1182(a) (19)—Visa procured by fraud or
misrepresentation.
BEFORE THE BOARD
DISCUSSION: This case is before us on appeal from a decision
of a special inquiry officer granting voluntary departure and directing that the respondent be deported if he fails to depart voluntarily.
For the reasons hereinafter stated, the appeal will be dismissed.
The respondent is a 37-year-old married male, native and citizen
of Mexico, who last entered the United States on or about January 17, 1960, as a returning resident. He was admitted for permanent residence on May 16, 1956. On June 20, 1952, he was convicted
in Peru of homicide, the crime having been . committed on November 11, 1950. He was sentenced to imprisonment for 3 years but
was given credit for the time he had been incarcerated. The period
of imprisonment was from November 1950 until about November
1953. The special inquiry officer found that the respondent withheld the facts of his conviction and imprisonment from the American consular officer when he procured his immigrant visa on January 20, 1956. The only issue involved is whether the respondent is
deportable on the two charges mentioned above.
We have carefully reviewed the entire record. The conviction
record (Exh 2) .indicates that the circumstances surrounding the
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homicide were as Tolima s. The respondent had traveled to Peru
early in November 1950 on a business trip. On the night of November 11, 1950, he asked a taxicab driver to take him to a place where
he would be able to dance. He was taken to a house of prostitution
and danced with one of the prostitutes. Later they had sexual intercourse and she requested a sum of money. An argument took
place during which she scratched him on the back of the neck and
he seized her by the throat with both hands, and threw her on the
bed, the strangulation causing her death. In pronouncing -judgment, the court said that the respondent did not have the intention
of killing this woman; that he was not, however, proceeding in his
legitimate defense; that he was intoxicated; and that he "made
disproportionate use of masculine strength …."
The English translation of Exhibit 2 contains the statement,
"… the substance of the crime in this trial is found comprehended
within the provisions of Articles 150, 100, 90 and 153 of the Penal
Cade." However, the original Spanish document indicates that the
first Article referred Lu was 51 rather than 150. Artiele.5 51, 90
and 100 specify the persons who are to be deemed responsible for
the commission of crimes and set forth certain matters which are to
be considered in determining the punishment. The special inquiry
officer found that the conviction occurred under Article 153 of the
Penal Code of Peru, and counsel concedes that this is the statutory
provision involved. Hence, the erroneous reference to Article 150
is not material.
According to the English translation of the pertinent part of
Article 153, it relates to "killing another under the influence of a
violent emotion which circumstances may render excusable." Where
an alien has been convicted of an offense in a foreign country, the
question of whether the crime involves moral turpitude must be
determined in accordance with standards prevailing in the United
States. Mercer v. Lence, 96 F.2d 122 (C.C.A. 10, 1938), cert. den.
305 U.S. 611. In construing the immigration laws, it has been consistently held that voluntary manslaughter involves moral turpitude
and that involuntary manslaughter does not. Matter of 8—, 2-559,
570 (A.G., 1947). There is no disagreement between counsel and the
Service as to any of these matters.
With reference to the special inquiry officer's statement that Article 153 of the Penal Code of Peru is sufficiently broad to include
crimes that involve moral turpitude and those which do not, counsel
contends that this precludes a conclusion that the respondent was
convicted of a crime involving moral turpitude in view of our statement in Matter of B—, 4-493, 496 (1951), that the definition of a
crime must be taken at its minimum. We disapprove the special inquiry officer's statement Dines we perceive nothing in the language of
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Article 153 which would indicate that it is a broad statutory provision
or that it could include a crime not involving moral, turpitude.
Counsel asserts that the special inquiry officer took into account
the circumstances surrounding the homicide and he contends that
this was error. He further urges that, even if the circumstances are
considered, they should lead to the conclusion that the crime does not
involve moral turpitude. Actually, the special inquiry officer considered only statements and findings which appear in the judgment
of the court (Exh 2), and we believe this was permissible under our
decisions in Matter of K—, I 190 (1951), and Matter of M.—, 9-132
(1960), where the convictions also occurred in foreign countries. In
the former case, we held that it was proper to consider any statement
of record made by the court in sentencing a defendant. In the latter,
we said that we may look beyond the foreign statute to consider such
facts as may appear from the record of conviction or from other sections of the foreign criminal code to roach an inckpendent conclusion
as to whether the offense is one which under our law would involve
moral turpitude.
Although we believe that the statements made by the court in pronouncing judgment may properly be considered, we will base our decision in this case upon the language of the statute under which the
respondent was convicted. Before discussing the statutory language,
however, we will comment on counsel's contention that the circumstances of the homicide require a conclusion that the crime does not
involve moral turpitude. Counsel contends that the special inquiry
officer decided the case on a theory which would mean that a playful
but intentional push, resulting in death, would constitute voluntary
manslaughter. If the respondent had merely pushed the woman
from him and she had died as a result of falling and striking her
head, the circumstances would hardly suggest moral turpitude. On
the other hand, when the respondent grasped the prostitute by the
throat with both hands, it would seem that a court might well have
been warranted in finding that the respondent intended to kill the
woman
We are aware, of course, that the court specifically found that the
respondent did not have the intention of killing Ibis woman. Counsel relies on this finding and he contends that the distinction between
voluntary manslaughter and involuntary manslaughter is that an
pAsentinl element of the former is the intent to kill which is not
present in the latter. In his brief, counsel quoted the following
sentence appearing in 26 Am. Jur., Homicide § 18: "The mental
state that characterizes the crime of involuntary manslaughter is the
absence of intention to cause death, either actual or reasonably to be
implied from the homicidal act." Although an intention to cause
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death would preclude the possibility of classifying the crime as
involuntary manslaughter, this does not mean that the intention to
cause death is a necessary element of voluntary manslaughter. In
9.6 Am. Jun, Homicide § 19, appears the statement: "The offense
[voluntary manslaughter] is one involving moral turpitude, but
whether the slayer must have been actuated by a design or purpose
to kill is a question on which the authorities differ. According to
the expree.eions in some cases, voluntary manslaughter necessarily
involves the intention to deprive another of life, whereas other
opinions state that no design to kill is necessary; and authority may
be found in support of the position that the homicidal blow must
have been struck without intention to encompass death."
In connection with the latter statement above, that some authorities hold that voluntary manslaughter requires the absence of an
intention to cause death, this is the situation under the New York
statute which refers to manslaughter in the first degree as one "com
mitted without a design to effect death." In discussing this statutory
provision in United States en rel. SoNano v. Doak, 5 F. Supp. 561,
565 (N.D. N.Y., 1933), aff'd
68 F.2d 1019, the court said: "The only
intent lacking in manslaughter in the first degree is intent to effect
death. Had there been intent to kill, it would not have been manslaughter in the first degree but murder."
In Bishop v. United States, 107 F.2d 297, 302 (C.A. D.C., 1939),
the court. said: "The crime of manslaughter occurs when the killing
is done in 'heat of passion' engencle.re.d by adequate provocation. To
constitute this crime it is not required to show that the killing was
done purposely, deliberately, premeditatedly, or with malice aforethought. It is only necessary to show that the killing was committed
in 'heat of passion' upon sufficient provocation." The fact that it
is not necessary to show that the killing was done purposely indicates that the intent to kill is not a required clement of manslaughter.
In view of the foregoing, we do not believe that the fact that the
court said that the respondent did not intend to kill the woman shows
that the offense was involuntary manslaughter rather than voluntary
manslaughter. We need not discuss the cases cited by counsel for the
proposition that the determination of whether a crime involves moral
turpitude is to be made on the basis of the statutory provision
rather than on the circumstances of the case since we have indicated
above that our decision will be based on the language of Article 153
of the Penal Code of Peru. For the same reason, we pass by the cases
in which the courts or this Board looked beyond the statute to the
record of conviction. Similarly, the district court decision in
United States en. rel. Mongiovi v. Karnuth, 30 F.2d 825 (W.D., N.Y.,
1929), and those judicial and administrative decisions cited by counsel and the Service, which were based on the language of particular
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statutory provisions of various States, are not especially helpful in
the respondent's case in which consideration must be given to a provision of the laws of a foreign country.
In Vidal y Planar v. Landon, 104 F. Supp. 384 (S.D. Cal., 1952),
the plaintiff had been convicted of homicide "with a mitigating circumstance." The conviction occurred in Spain in 1924 and the
plaintiff was imprisoned until 1928 when he was pardoned. A man
named de Olmet, who was larger and stronger than the plaintiff,
attempted to choke him and the plaintiff, in order to protect himself,
shot de Olmet without intending to kill him. The court held that
the crime did not involve moral turpitude. The Service cited this
case as authority for the proposition that consideration may be given
to the findings of the court as stated in the judgment rendered. It
was also cited by counsel who contended that the respondent's offense
should be held not to involve moral turpitude because there was not
even the use of a dangerous weapon. The case involved unusual
circumstances, and the court specifically stated that the immigation
authorities had recognized that this was an exceptional case. The
opinion does not set forth the Spanish statutory provision under
which the conviction occurred and, since the law of a different country is involved here, we do not crnsider the decision in the Vidal y
Planar case to be controlling as to this respondent.
Another case involving a conviction for homicide in a foreign
country is Pillisz v. Smith, 46 F.2d 769 (C.C.A. 7, 1931). There,
the alien had been convicted of manslaughter in Hungary where
degrees of manslaughter are apparently not recognized. The court
found that the crime involved moral turpitude and said: "We know
of no greater moral law than that which discountenances the taking
of human life without excuse, and one who violates it is to that
extent morally depraved."
We turn now to a consideration of the provisions of the Penal
Code of Peru. Exhibit 3 contains pertinent parts of the Spanish
text and an English translation. Article 156 provides that a person
who, through negligence, shall cause anyone's death, shall be reprimanded by imprisonment not to exceed 2 years. This appears to be
similar to the offense usually characterized as involuntary manslaughter in the United States. Article 153, which is involved in
this respondent's case, provides: "A penitentiary term not to exceed
10 years, or imprisonment of no less than one year nor more than
5 years, shall be imposed on anyone killing another under the influence of a violent emotion which circumstances may render excusable."
As we have indicated above, the question of whether a foreign
crime involves moral turpitude is to be determined in accordance
with standards prevailing in the United States. It appears appro-
priate, therefore, to consider the definitions of murder and man
slaughter as set forth in 18 U.S.C. 1111 and 1112, even though these
statutory provisions are limited to crimes committed within the
special maritime and territorial jurisdiction of the United States.
Section 1111 defines murder as "the unlawful killing of a human
being with malice aforethought." It further provides that murder
in the first degree is one perpetrated by poison or any other kind of
willful, deliberate, malicious, and premeditated killing, or committed in the perpetration of any arson, rape, burglary, or robbery.
Any other murder is murder in the second degree. 18 U.S.C. 1112
provides, in part, as follows:
(a) Manslaughter is the unlawful killing of a human being without malice.
It is of two kinds:
Voluntary—Upon a sudden quarrel or heat of passion.
involuntary—In the commission of an uniawrui act not amounting to a
felony, or in the commission in an unlawful manner, or without due caution
and circumspection, of a lawful act which might produce death.
Tt will he seen from the foregoing that murder involves the element of malice and that manslaughter does not. However, neither
voluntary nor involuntary manslaughter contains any requirement
that there must have been the intent to kill. As a matter of fact,
where the killing occurred in the perpetration of arson or the other
crimes mentioned in section 1111, a person is guilty of first degree
murder even though there was no intent to kill
We will now compare Article 153 of the Penal Code of Peru with
the definition of voluntary manslaughter in 18 U.S.C. 1112. The
"sudden quarrel or heat of passion" mentioned in 18 U.S.C. 1112 is
entirely similar to "influence of a violent emotion" in Article 153.
The additional requirement., as indicated in Bishop v. United States,
supra, that the "heat of passion" must have been produced by adequate provocation is equivalent to the requirement of Article 153
that the violent emotion must be excusable because of the circumstances. In view of the foregoing, it is our considered opinion that
a conviction under Article 153 of the Penal Code of Peru is for the
crime known as voluntary manslaughter in the United States and
that the crime involves moral turpitude. Accordingly, we hold that
the first charge is sustained.
The second charge in this case is that the respondent is deportable
because he was excludable at the time of entry under 8 U.S.C.
1182(a) (19) due to having procured his 1956 immigrant visa by
fraud or misrepresentation. In connection with this charge, we have
considered the respondent's case in the light of the Attorney General's decision of October 2, 1961, in Matter of S— and B—C--,
9 S:16, setting forth the rules to be followed in determining whether
a misrepresentation is material. Counsel argued that the offense did
501
not involve moral turpitude and that the respondent's concealment
of the arrest was not material. Since we have concluded that the
crime does involve moral turpitude, the misrepresentation clearly related to a material fact. The record shows that the misrepresentation
was made willfully, and we hold that the second charge is sustained.
Counsel also contended that the respondent is within the purview
of section 7 of the Act of September 11, 1957 [8 U.S.C. 1251a; 71
Stat. 640] relating to aliens who had procured visas by fraud or misrepresentation and who were the spouses or parents of United States
citizens. The respondent has a citizen wife and citizen children.
This statutory provision was repealed by section 24(a) of the Act
of September 26, 1961 [
Public Law 87-301;
75 Stat. 650], but was
reenacted in section 10 of that Act in modified form. However,
neither the original nor the amended statutory provision would be of
assistance to this respondent because each required that the alien
must have been otherwise admissible at the time of entry, whereas
this respondent was then excludable on the additional ground, under
8 U.S.C. 1182(a) (9), that he had been convicted of a crime involving moral turpitude.
For the reasons discussed above, the appeal will be dismissed.
In his decision, the special inqu;ry officer adopted the six factual
allegations contained in the order to show cause and a seventh allegation (Exh. 4) lodged at the hearing. Tie also made additional findings of fact numbered 8' to 10, inclusive, and adopted as his conclusions of law the deportation charges set forth in Exhibits 1 and 4.
We adopt the findings of fact and conclusions of law of the special
inquiry officer except that finding of fact numbered (3), which is to
the effect that the respondent "last entered the United States" on or
about May 16, 1956, is amended by deleting the word "last," and
immediately preceding this finding there is inserted an additional
finding (2—A) reading as follows: "The respondent last entered the
United States at San Ysidro, California, on or about January 17,
1960, as a returning resident alien".
ORDER: It is ordered that the appeal be and the same is hereby
dismissed
