MA'TT'ER OF M—
In DEPORTATION Proceedings
A-10582561
Decided by Board June 28, 1962
Crime involving moral turpitude—Section 835(a), Title 14, Virgin Islands Code.
Conviction for drawing and delivering worthless checks in violation of section 835(a), Title 14, Virgin Islands Code, is conviction of a crime involving
moral turpitude. •
CHARGE:
Order: Act of 1952—Section 241(a) (4) [8 U.S.C. 1251(a) (4) j—Crime within
five years—Drawing and delivering worthless checks.
BEFORE THE BOARD
DISCUSSION: The special inquiry officer terminated the deportaportation proceeding and certified the case to this Board for final
decision.
The respondent is a 32-year-old married male, native of the Canal
Zone and British subject, who last entered the United States on
November 1, 1957, at which time he was admitted for permanent
residence. On December 22, 1961, he was convicted in the District
Court of the Virgin Islands on five counts of a criminal information
which charged the drawing and delivering of worthless checks and
he was sentenced to imprisonment for 2 1/2 years. Six months of the
sentence was to be served in jail and the remainder of the sentence
was suspended, the respondent being placed on probation during
the latter 2 years. The offenses were committed between June 9, and
August 12, 1961. The sole issue is whether the crimes involve moral
turpitude.
We have carefully considered the entire record. The Virgin Islands Code (Title 14, section 835(a)) provides, in part, as follows:
"Whoever makes, draws, utters, or delivers any check, draft or order
for the payment of money—(1) to the value of $100 or more upon
any bank or other depository Iniowing at the time of such making,
drawing, uttering or delivering that the maker or drawer has not
sufficient funds in, or credit with, such bank or other depository for
the payment of such check, draft or order, in full, upon its presenta-
743
tion, shall be fined not more than $1,000 or imprisoned not more than
5 years, or both …." The second subdivision of section 835 (a)
provides for a fine of not more than $200 or imprisonment of not
more than one year, or both, where the value of the check was less
than $100. Section 835 (b) provides that the making of a check, the
payment of which is refused by the drawee, shall be 'prima facie
evidence of the maker's knowledge of insufficient funds in such bank
if the maker has not paid the drawee the amount due together with
costs within ten days after receiving notice that such check has not
been paid by the drawee.
In Matter of B—, 4-297 (1951), we concluded that issuing worthless checks under the statutory provisions of Ohio and Indiana involved moral turpitude. In both of these statutes, however, an es-
.' tial element was the intent to defraud; whereas, the statutory provision under discussion here does not specifically refer to this as being
an element of the crime. For that reason, and due to certain language
in another reported case, the special inquiry officer was of the opinion
that the Government failed to establish that the crimes involve moral
turpitude.
The reported case last mentioned is Matter of B—, 3-278 (1948),
which was a decision by the Service that did not reach this Board for
review. It involved a conviction under a- French statutory provision
for issuing checks without having the necessary funds on deposit.
That statute did not require intent to defraud but did require the
element of bad faith. The discussion there related primarily to the
element of bad faith, and the Service concluded that it was not established that the crime involved moral turpitude. We do not consider
that case relevant since the statutory provision in this respondent's
case does not involve the term "bad faith." In that case, at pages 279–
80, there is a statement reading as follows : "Under the standards
prevailing in the United. States the crime of which this alien was convicted would involve moral turpitude only if the offense was committed with intent to defraud." We do not believe that a statement
so broad was necessary there. It seems to imply that issuing a worthless check in the United States would never involve moral turpitude
unless the statute of the particular State expressly made the intent
to defraud an element of the crime. For the reasons indicated below,
we disapprove any such implication from the quoted statement
In Matter of B—, 4-297, supra, the Ohio and Indiana statutory
provisions, by their specific language, made the intent to defraud an
essential element of the crime. Hence, that fact alone made the offense
one involving moral turpitude. On the other hand, it does not follow
that the absence of this element from the statutory language makes a
worthless check offense one that does not involve moral turpitude.
744
The statutory provision under which this respondent was cinivieted
specifically requires knowledge on the part of the maker of the dieck
that he does not have sufficient funds in the hank for the payment of
the check, and we believe that issuing a check under such circumstances
is tantamount to an intention to defraud. This is particularly so
since any possibility that the check might have been issued inadvertently or negligently is ruled out by the provision of section 835(h)
which affords the maker of the check ten days within which to arrange
pi yment.
In Jordan v. DeGeorge, 341 U.S. 223 (1951), the Court was considering convictions for conspiracy to defraud the United States of
taxes and held that the offenses involved moral turpitude. However,
the Court went beyond that and said (p. 232) : "… the decided
cases make it plain that crimes in which fraud was an ingredient
have always been regarded as involving moral turpitude" and that
the phrase "crime involving moral turpitude" has without exception
been construed to embrace fraudulen, conduct. One of the cases
cited by the Court as involving an intent to defraud was United
States ex rel. Popoff v. Reimer,
79 F.2d 513 (C.C.A. 2, 1935). Popoff
had been convicted under 8 U.S.C. 414, 1934 ed., for knowingly aiding an alien not entitled thereto to apply for or to secure naturalization, etc. Although the statute did not contain any element of
intent to defraud the Government, the Circuit Court of Appeals
stated that the appellant's crime necessarily was aiding the applicant
to commit a fraud upon the Government and that the offense involved moral turpitude.
In Matter 1?—, 5-29 (approved by Atty. Gen., 1952), we readied
the conclusion that moral turpitude was involved in the conviction
of an alien for being a party to the making of a false statement concerning the alien's nonliability for military service in violation of 50
U.S.11. App. 311. Although the statutory provision contained no
language which could be considered as making the intent to defraud
an element of the crime, we held (p. 38) that fraud was inherent in the
offense. In Matter of G—R—, 2 733 (approved by Atty. Gen.,
1947), we held that assault with a deadly weapon involved moral
turpitude although the conviction was under a statute which had been
amended so that. "with intent to do bodily harm" had been deleted.
In Seaboard 011 Co. v. Cunningham,
51 F.2d 321 (C.C.A. 5,
1931), cert. den.
284 U.S. 657, the court considered two sections of
the laws of Florida relating to the issuance of checks without having
Ull lielmbit fur the pitymen:, thereof. The court
stated (p. 324) that neither of the sections by express words made
the intent to defraud an element of the crime, but that the general
rule is that criminal intent is an implied and nee(, . ,, ary ingredient.
745
In view of the foregoing, it is our considered opinion that the
crime set forth in section 835(a), Title 14, Virgin Islands Code,
involves moral turpitude, and we conclude that the respondent is
deportable on the charge stated in the order to show cause. During
the hearing, the respondent stated that he desired to apply for voluntary departure, but he is not eligible for that relief. Section
244(e) of the Immigration and Nationality Act prohibits the granting of voluntary departure to an alien who is deportable under section 241(a) (4) unless he is eligible for suspension of deportation
under paragraphs (4) or (5) of section 244(a). In addition, the
,
respondent is unable to prove the required good moral character
because of the provisions of section 101 ( f) (3) of the Act.
It appears that the respondent's wife is an alien lawfully admitted
r permanent residence. The special inquiry officer indicated to
the respondent that he could request, in the deportation proceeding,
that the crime be waived ; that the matter of submitting such an
application would be deferred temporarily ; and that the respondent
would be given an c-wortunity to submit the application if the
special inquiry officer concluded that he was deportable. The respondent is not eligible to apply, during the deportation proceeding,
for a waiver under section 212 (g) of the Immigration and Nationality Act, as amended September 26, 1961, but such application is to be
filed with the American consular officer at the time the alien may
apply for a new immigrant visa.' Matter of DeF—, 8-68 (Atty.
_Gen., 1959) ; Matter of DeG , 8 325 (Atty. Gen., 1959) ; 8 CFR
212.7(a). The respondent designated Panama as the country to which
he is to be deported, and the special inquiry officer informed him that
if Panama refused to accept him deportation would be directed to
England.
ORDER: It is ordered that the special inquiry officer's order terminating the deportation proceeding be withdrawn.
It is further ordered that the respondent be deported from the
United States to Panama, or in the alternative to England, on the
-charge stated in the order to show cause.
'We are not here concerned with applications made under sections 245 and
249 of the Immigration and Nationality Act, and filed in accordance with the
provisions of 8 OFR 242.17.
T46
