such further appropriate action as may be proper in the premises.'
At the second hearing
the Government introduced into evidence, inter alia, certified records of petitioner's convictions in the Lower Court of Bremen, Germany, for two separate offenses of simple larceny, on December 6, 1944, and for the offense of concealing stolen goods, on December 12, 1944. These records show that the convictions were based upon petitioner's confessions. Certain other certified records were also introduced into evidence which would indicate that the records of these convictions were expunged under German law on September 30, 1954.
The Special Inquiry Officer, after discussion of the issues, adopted the allegations and the charges in the order to show cause as his findings of fact and conclusions of law, respectively, and entered an order of deportation.
On appeal, the Board of Immigration Appeals decided that the offense of concealing stolen goods was not one involving moral turpitude, but otherwise concurred in the decision of the Special Inquiry Officer. Accordingly, the Board ordered that the appeal be dismissed, with the proviso that the conviction for concealing stolen goods 'is not to be used as a basis for deportation.'
The scope of our review in this proceeding was stated by our Court of Appeals in its recent opinion in Bufalino v. Holland, 1960, 277 F.2d 270, 281:
'The right of review by the court of the action of the administrative agency in this case is limited to whether the decision of deportability was based on reasonable, substantial and probative evidence and was neither arbitrary, capricious nor violative of procedural due process (citing cases).'
After careful review of the administrative record, we are persuaded that the decision of petitioner's deportability was neither arbitrary, capricious nor violative of procedural due process. Petitioner conceded her convictions of simple larceny, as charged in the order to show cause. That the crime of larceny is one involving moral turpitude seems settled beyond dispute. In Quilodran-Brau v. Holland, 3 Cir., 1956, 232 F.2d 183, 184, the Court said:
'It is well settled as a matter of law that the crime of larceny is one involving moral turpitude regardless of the value of that which is stolen. See e.g., Tillinghast v. Edmead, 1 Cir., 1929, 31 F.2d 81 (15 dollars); Wilson v. Carr, 9 Cir., 1930, 41 F.2d 704 (petit larceny); Pino v. Nicolls, 1 Cir., 1954, 215 F.2d 237 (a dozen golf balls), reversed on other grounds, Pino v. Landon, 1955, 349 U.S. 901, 75 S. Ct. 576, 99 L. Ed. (1239) 1273; United States ex rel. Ventura v. Shaughnessy, 2 Cir., 1955, 219 F.2d 249 (two sacks of corn meal); United States ex rel. Chartrand v. Karnuth, D.C.W.D.N.Y.1904, 31 F.Supp. 799 (shoes valued at 12 dollars). Whether there is a possible exception in an extreme case such as that instanced by troubled judges where a man takes the property of another to provide for his starving family is not a problem we need to worry about here.'
Counsel for petitioner contends -- as he did before the Immigration authorities -- that the circumstances in which petitioner's offenses were committed 'are important in ascertaining any degree of moral turpitude that may be involved.' He reminds us -- and it is a matter of common knowledge -- that in the latter part of 1944, the Nazi regime was expiring in a Wagnerian finale of death and flame and swirling violence. The City of Bremen, a highly important industrial and strategic center, was the target of savage and unrelenting air attack. Normal civilian life was disrupted, the population lived largely underground, and there was that inevitable decline and disintegration of public morality that comes with war. Petitioner, a young and immature girl, left her home in Hanover and came to this seared and stricken city in search of employment. Her transgressions involved the theft of a small sum of money and a few articles of personal apparel, and one can surmise that privation was the motivating influence.
Counsel's argument makes a powerful appeal to reason and conscience. It poses the question whether the moral quality of an act can be assessed apart from the impact of attendant circumstance. Unfortunately for this petitioner, the question is not an open one. We regret that we are not free, as we understand the law, to go back of the convictions. Pino v. Nicolls, 1 Cir., 1954, 215 F.2d 237; United States ex rel. Giglio v. Neelly, 7 Cir., 1953, 208 F.2d 337; United States ex rel. Zaffarano v. Corsi, 2 Cir., 1933, 63 F.2d 757; United States ex rel. Manzella v. Zimmerman, D.C.E.D.Pa. 1947, 71 F.Supp. 534. In the Pino case, the court said (215 F.2d at page 245):
'If the crime in its general nature is one which in common usage would be classified as a crime involving moral turpitude, neither the administrative officials in a deportation proceeding nor the courts on review of administrative action are under the oppressive burden of taking and considering evidence of the circumstances of a particular offense so as to determine whether there were extenuating factors which might relieve the offender of the stigma of moral obliquity.'
The expunction of petitioner's convictions by the German authorities does not operate to eliminate the convictions as a basis for exclusion or deportation. Even a foreign pardon does not relieve the alien from the effect of the conviction insofar as the immigration laws are concerned. United States ex rel. Palermo v. Smith, 2 Cir., 1927, 17 F.2d 534; Weedin v. Hempel, 9 Cir., 1928, 28 F.2d 603; Mercer v. Lence, 10 Cir., 1938, 96 F.2d 122; United States ex rel. Consola v. Karnuth, 2 Cir., 1939, 108 F.2d 178; Sohaiby v. Savoretti, 5 Cir., 1952, 195 F.2d 139; Vidal Y Planas v. Landon, D.C.S.D.Cal.1952, 104 F.Supp. 384.
While the petitioner's plight evokes our sympathy, we are not free to substitute our inclination or judgment for that of Congress. Our conclusion with respect to the first charge against petitioner makes it unnecessary to consider the remaining charges.
Now, June 20th, 1960, respondent's motion to dismiss the petition for review is denied and respondent's alternative motion for summary judgment is granted and judgment is now entered in favor of respondent and against Margarete Zgodda.
The order staying proceedings, heretofore entered, is vacated.