Forbes v. Brownell , 149 F. Supp. 848 ( 1957 )

RIZLEY, District Judge.

Plaintiff, a British subject residing in Canada, brings this action seeking an adjudication that a crime, for which he was convicted in Canada, did not involve “moral turpitude” within the meaning of the Immigration and Nationality Act of 1952.¹ In conjunction with the declaration, plaintiff seeks review of an order² excluding him from admission into this country by reason of a conviction for crime “involving moral turpitude”, which order has been affirmed by the Board of Immigration Appeals.³ Jurisdiction is founded upon the Declaratory Judgment Act⁴ and the Administrative Procedure Act.⁵

Whether the exclusion of the plaintiff, on the grounds relied upon by defendant, was proper depends upon construction of the Canadian statute defining the offense for which he was convicted and ascertainment of whether or not it proscribes conduct “necessarily” involving moral turpitude, within the meaning of that phrase as employed in the pertinent provision of the Immigration Act. Cf. Ablett v. Brownell, D.C.Cir., 240 F.2d 625. The Court is not at liberty to inquire as to whether or not the plaintiff was guilty or innocent of the crime for which he was convicted in Canada. And, the facts leading to the conviction of the plaintiff are not open to judicial evaluation. Ascertainment of the inherent nature of the offense, for which plaintiff stands convicted, is the extent of judicial inquiry permitted in this case.⁶

1 . Title 8, U.S.C.A. § 1182(a) (9), provides that the following aliens “shall be excluded from admission to the United States: * * * (9) Aliens who have been convicted of a crime involving moral turpitude * *

2 . In re: William George Forbes, June 7, 1954, File T 2,719,192 Order dated June 23, 1954.

3 . In re: William George Forbes, August 23, 1954, File T-2719192, United States Department of Justice, Board of Immigration Appeals.

4 . 28 U.S.C. § 2201; And see Brownell v. We Shung, 1956, 352 U.S. 180, 77 S.Ct. 252, 1 L.Ed.2d 225.

5 . 5 U.S.C.A. § 1009, 60 Stat. 243.

6 . United States ex rel. McKenzie v. Savoretti, 5 Cir., 1952, 200 F.2d 546; Vidal y Planas v. Landon, D.C.S.D.Cal.1952, 104 F.Supp. 384, and cases therein cited.