STASINSKI

11 I. & N. Dec. 202

• Court: Board of Immigration Appeals
• Decided: July 1, 1965
• Docket: 1476
• Status: Published

Opinion

Interim Decision *1476

Mars= of &swam In Deportatioxf Proceedings A-8101839 A-•3228006 Decided by Board May M. 1966 A conviction for Wining or passing a viurti ►leas check in violation of paragraph 94324 of the Wisconsin Statutes is not a conviction of a crime involving moral turpitude. CHARGE: Order: Act of 1852--Section 241(a) (4) [8 tail 1251(a) -(4)]—Convicted after entry of two crimes involving moral taipitude, not arising out. of a single scheme of criminal mis- conduct, to wit, issue of worthless check.

The special inquiry officer certified his order terminating pro- ceedings. Respondents, a 40-year-old male and his 30-year-old wife, are natives and citizens of Polaind lawfully admitted to the United States for permanent residence: the male on September 11, 1951 and the female on January 5, 1952_ The deportation of each is sought because of their, separate -convictions for passing worthless checks in violation of paragraph 943.24 of the Wisconsin Statutes. The male was convicted on May 25; 1963 for passing of checks on Jan- uary 12, 1963 and on February 9, 1963; his wife Ivas convicted on- February 7, 1962 for issuing a worthless check on October 3, 1961 and one on November 28, 1961; and she was convicted on May 29, 1962 for issuing a worthless check on March 21, 1962. All convic- tions were on a plea of guilty; the defense of a single scheme is not raised. The statute provides that the crime is committed when one issues a check "which, at the time of issuance, he intends shall not be paid." The statute provides that lack of intent to pay may be found prima facie from proof that at the time of issuance there was no account, or from proof that there was a failure to- pay within five days after .• ' 202 Interim Decision #1476 notification of nonpayment and the drawer had insufficient funds either at the time the check was drawn or the time it was presented for payment. The special inquiry officer terminated proceedings be- cause he found that intent to defraud was not an element of the.' statute. The Service concedes that intent to defraud has not been ar element of the offense since 1955 but maintains that moral turpitude is involved because moral turpitude was found in a similar statute in- volving the Virgin Islands (Matter of M—, 9 I. & N. Dec. 743). The Service believes that Matter of Id— has not been modified or over- ruled. At oral argument, the Service representiltive contended that while the presence of an intent to defraud establishes moral turpi- tude, the absence of an intent to defraud does not necessarily estab- lish the nonexistence of moral turpitude. The Service representative points out that the statute was changed in 1955 to make possible the conviction of a person who had funds on deposit to pay a check but had issued a check intending to stop payment upon it. He attempts to distinguish Matter of Bailie, Int. Dec. No. 1379, from the case before us on the ground that Bailie, involving a similar statute, turned on the fact that a. person could be convicted who had no in- tent. to defraud whereas in the instant case the change of the statute was brought about by a desire to convict a person who had the intent to defraud but who because of the wording of the previous statute could not be convicted. He contends that an intent not to pay the check is an element of the crime. C,ormsAl contends the primary reason for the change in the statute before us was the inability of courts to cope under previous statutes with the large number of cases involving the issuance-cif worthless checks. He distinguishes the instant case from Matter of AL—, in that, here knowledge that sufficient funds did nut exist to meet the payment is not required whereas in Matter of M— such knowl- edge was required. He points out that the ...ecord establishes that the respondents did not intend to stop payment and that they hoped to pay the check. In Matter of Bailie, supra, and Matter of Kinney, Int. Dec. No. 1343, involving statutes similar to the one before us, we pointed out that since an intent to defraud was not involved, there was absent the moral turpitude required to support an order of deportation. We stated that the language in Matter of M—, supra, involving the Virgin Islands was broad and would be reexamined when a. ease involving the law of the Virgin Islands was again be- fore us. The issuance of Matter of Bailie, and the caution concern- ing the language contained in Matter of Af—, is sufficient to prevent Matter of M— being considered as a precedent for cases not involv- ing the law of the Virgin Islands. Matter of M— will be considered 203 Interim Decision #1476 in light of all the evidence concerning the law of that jurisdiction 'when the issue is again before us. The intent not to pay the check set up by the Wisconsin statute is found irrespective of the drawer's actual intent, upon a showing that one of several alternative methods of payment have not been made; . conviction is possible although the check was drawn and passed with intent to pay.* intent to defraud is not an element. It is well settled for the purpose of the immigra- tion laws that it is not the act committed by the alien which is to be made the basis for deportation proceedings but the act which is punished. by law. The statute here punishes an act committed with- out intent. to defraud. It cannot therefore be made the basis for deportation proceedings (Matter of Bailie, supra, Matter of Siwaey, supra). ORDER: It is ordered that no change be made in the order of the special inquiry officer.