In DEPORTATION Proceedings

I1ATTER OF H—

In DEPORTATION Proceedings

A-6942345

Decided by Board March 31, 1961

Decided by Board July 26, 1961

Deportability—Section 241(a)(4)—Sentenced to confinement or confined.

con

victed of crime involving moral turpitude committed within 5 years after

entry must he sentenced to confinement or confined for a year or more is

not satisfied when respondent who has served in excess of one year under

original sentence of 1 1/2 to 15 years is awarded new trial by Michigan court

following which he is placed on probation for 10 months.

(1) Respondent has not been sentenced to confinement for a year or more,

since effect of court's action in granting new trial was to vacate prior sentence. Thereafter, the only legally existing sentence was the sentence to

10 months' probation. (2) Time served by respondent under original sentence does not constitute confinement. For purposes of section 241(a) (4)

an alien has not been "confined" unless his incarceration has been pursuant

to an existing sentence to confinement.

Requirement in section 241(a) (4) of Aul. dial an Wien who has been

CHARGES :

Order: Act of 1952 — Section 241(a) (4) [8 U.S.C. 1251(a) (4)1 — Convicted

of crime Sentenced to confinement for year or more (First

Charge)

Lodged: Act of 1952—Section 241(a) (4) [8 U.S.C. 1251(a) (4)1—Convicted

of crime Confined therefor for a year or more. (Second Charge)

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BEFORE THE BOARD

(March 31, 1961)

DISCUSSION: The epecial inquiry officer terminated proceeding°

and certified the case; the examining officer also filed an appeal and

has submitted a helpful brief. No change will be made in the special

inquiry officer's order.

Respondent, a 24-year-old single male, native of England and citizen of Great Britain, last entered the United States in June 1954.

On July 10, 1958, he was convicted in a circuit court in Michigan

for breaking and entering in the nighttime and was sentenced to

imprisonment for a term of 18 months to 15 years; he was confined

from July 14, 1958, to August 3, 1959. On July 30, 1959, the same

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.oust directed that a new trial be granted and that respondent be

released from custody; on August 17, 1959, the court on a plea of

guilty entered an order placing respondent on probation for a period

of 10 months. The effect of these orders is in issue.

Deportation is sought under that portion of section 241(a) (4),

Immigration and Nationality Act, requiring the deportation of an

alien who—

is convicted of a crime involving moral turpitude committed within Eve years

after entry and either sentenced to confinement or confined therefor in a

prison or corrective institution, for a year or more * * *.

The special inquiry officer did not sustain either charge. As to

the first charge, which requires the Service to establish the existence

of a sentence for a year or more, the special inquiry officer held

that the only binding sentence was the one to probation. As to the

second charge, the special inquiry officer ruled that confinement

most be the result of a sentence to confinement for a year or more,

and that since the only sentence here was not to confinement at all

the charge could not be sustained.

The Service contends that no effect should be given to the second

sentence of the court, and that the revoked sentence to 18 months

or more given at the first trial is the controlling one in this deportation proceeding. The Service relies upon Un!itecl States ex rel.

Piparkoff v. ii.q)crily, 267 F.2d 72 (CA. 2, 1959), which involved

section 241(b) of the Immigration and Nationality Act, 8 U.S.C.

1251(b). This section, which is not involved here, provides that a

court may relieve a convicted alien from liability to deportation

by making a recommendation against his deportation at the time of

first imposing judgment or passing sentence. This provision concerns a purely federal matter; for a recommendation under it to be

effective, there must he strict compliance with the section. However, the section is not applicable where a recommendation against

deportation is not involved, and the section no more requires us to

ignore the valid order of a court, although modification of its judgment relieves an alien from liability to deportation, than it would

require us to ignore an original order sentencing an alien liable

to greater punishment to imprisonment of only 11 months, when

the court states that ith net- kill is taken to prevent the possibility

that the alien may be deported (Mai ter of G , 9—I ; c,tt, r of I.—.

6-5112).

In support of its position, the Service cites two cases as setting

up a federal standard which requires us to ignore the second order

of the court and give credit only to the first. It is sufficient to say

that a similar argument involving the same cases was rejected by the

Attorney General (Matter of G , 9-150). Other cases cited by the

Service are dist inguishable. Matter of A P' , 8 421), is eoillinekt.

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to narcotic cases (Matter of G, supra). Matter of L—, 8-3S9, concerns a section of law which does not involve 11 sentence to confinement.

In Matter of C—, 8 276, the action of a court changing a sentence

was expressly recognized.

The record does not show that the court was without jurisdiction

to enter the second order; the order is, therefore, not subject to

collateral attack in these proceedings. Nothing is presented in

this record which would indicate that the State of Michigan would

refuse to give recognition to the court's order of August 17, 1959.

Under these circumstances, the order must be given full faith and

credit (Matter of P—, 3-187; Matter of G—, 1 - 96 (Atty. Gen.,

1942) ; Matter of J—, 6-562; see Matter of V—, 7- 577; 15 Am. Jun,

Cr. Law, section 504). We believe that it was proper for the special

inquiry officer to dismiss the first charge.

We come now to the Service contention that the alien is deportable

because he has been confined for a year or more. Prior to the 1m

migration and Nationality Act, a person confined for a year or more

but not under a "sentence to imprisonment" was not deportable

(Matter of P—, 3-187). 1 The term "sentenced to imprisonment"

was one of art meaning one actually confined under a sentence to

imprisonment for a year or more (Berman v. Reimer, 123 F.2d 331

(C.A. 2, 1940) ; United States ex rel. Robinson v. Day, 51 F.2d 1022

(C.A. 2, 1931)). The term "sentenced to confinement" which supplanted it in the Immigration and Nationality Act would, without

more, seem to call for actual confinement; however, the phrase "or

confined" added to it was made authority for eliminating the necessity

of actual confinement. 2

The necessity for actual confinement was eliminated because if

the phrase "sentenced to confinement" were interpreted as requiring

actual confinement, it would have merely duplicated the meaning of

the "or confined" phrase which followed it, thus resulting in a

situation where each phrase would have provided for the deportation

of an alien confined under a sentence to confinement. The first

phrase was, therefore, given the meaning apparent upon its face and

"A peibun may

have been cuufined fur a year ur more, although there is

no sentence to such confinement where after he had served a year or more

the court ordered a new trial and resentenced him to less than a year (Matter of P—, 3-187) ; a person refused bail may he so confined while awaiting

trial and final disposition of couvictluu; ur he may be confined for a year

d5

a

condition of probation although this is not considered a sentence to confinement

by the state court (Matter of F—, 1-343).

2 Prior to the Immigration and Nationality Act, the phrase read "sentenced

to imprisonment." The word "confinement," a broader term, was apparently

substituted to cover a detention in a "corrective institution" as well as a

prison (United States ex rel. Rizzio v. Kenney, 50 F.2d 418 (D.C. Conn., 1931),

illustrates the problem).

382

.sentence to confinement, not followed by confinement, was declared

basis for deportation (Wood v. Hoy, 266 F.2d 825 (C.A. 9, 1959) ;

lrrellano-Flores v. Hoy, 262 F.2d 667 (C.A. 9, 1958) ; United States

;x rel. Fells v. Garfinkel, 158 F. Supp. 524 (W.D. Pa., 1957), aff'd

251 F.2d 846 (C.A. 3, 1958) ; Matter of 0—, 7-539, 545-548; Matter

of M—, 6-346; Matter of 1—, 6-562, 568).

Because the words "sentenced to confinement" no longer required

a confinement, a new class of aliens became subject to deportation—

those who had been given a suspended sentence to a year or more

(the alien who had been confined under a sentence to a year or more

remained deportable). To these two classes of deportable aliens,

the examining officer would add a third class—a class, it must be

noted, which was not deportable under laws previous to the Immigration and Nationality Act. In the third class would fall the alien

confined for a year or more although, he had not been sentenced to

such confinement. We do not think the law authorizes the creation

of this third claps.

We believe that the examining officer's interpretation must be

rejected because it is in conflict with precedents holding that a

suspended sentence makes an alien deportable. This is the conflict.

We have already explained that the words "sentenced to confinement" standing alone are words of art requiring confinement, and

that they are now deprived of their added meaning by the fact that

they would otherwise have merely duplicated the alternative "or

confined," each phrase providing for the deportation of an alien

confined under a sentence to confinement. It was, therefore, reasonable to conclude that the first clause was no longer to be considered

one of art but was meant to be taken at face value, i.e., that a sentence without confinement (a suspended sentence) was sufficient.

If now, the "or confined" clause is given a meaning which is compatible with requiring the alien "sentenced to confinement" to be

confined (that a confinement for a year without a sentence to such

confinement is sufficient), then it would be improper to interpret

the "sentenced to confinement" phrase as not requiring confinement,

for this would violate well-established precedent. Then, if the

first clause would still require an alien to be confined under a sentence to confinement, a suspended sentence would be eliminated as a

ground of deportation; however, it would be improper to do this because such elimination would be in conflict with judicial decisions

which hold that a suspended sentence is sufficient. As long as the

courts require the first phrase to include a suspended sentence, it

would be improper to construe the second clause as is now suggested.

Moreover, a Congressional comment appears to envision the existence

of a sentence to confinement to make an alien deportable. In com383

menting on the language in question, a Senate Report summarizes it

as requiring the deportation of "Aliens who, within five years of

entry, are convicted of a crime involving moral turpitude and sentenced to confinement for a year or more" (p. 21, S. Rept. No. 1137,

82d Cong., 2d Sess.).

We find that a sentence to confinement must exist before an alien

may be found deportable under that part of section 241(a) (4) with

which we have been concerned. (See, Matter of N—, 8-660; .latter

of V , 8-360.)

ORDER: It is ordered that the appeal of the examining officer be

and the same is hereby dismissed.

It is further ordered that no change be made in the order of the

special inquiry officer.

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BEFORE THE BOARD

(July 26, 1961)

DISCUSSION : By order dated March 31, 1961, the Board held

that the special inquiry officer had properly terminated proceedings.

The Service moved to vacate the order or, in the alternative, for reopening of proceedings so that an additional charge may be lodged.

Respondent, a 24-year-old single male, a native and citizen of

Great Britain, last entered the United States in June 1954. On

July 10, 1958, he was convicted in a circuit court in Michigan of a

crime involving moral turpitude and was sentenced to imprisonment

for a term of 18 months to 15 years. He was confined under that

order from July 14, 1958, to August 3, 1959. On July 30, 1959, the

court directed a new trial be granted and that respondent be released from the custody of the Corrections Department and returned

to the custody of the sheriff "pending trial." On August 17, 1959,

the court on respondent's plea of guilty entered an order placing

him on probation for a period of ten months from the date of the

new order. The issues before us were (1) whether respondent had

been sentenced to confinement for a year or more; and (2) whether

a person who has served a period of more than a year is deportable

although a sentence to confinement does not exist in his case. We

held that since the only binding sentence had been one to probation

for a period of ten months, respondent was not deportable on the

first charge which required a sentence to a year or more. We held

that responder t was not deportable on the second charge for no

such charge was authorized by law.

The Service is of the belief that the original sentence to 18 months

or more was not vacated but was only modified, and that the modification is prospective affecting only the portion of the original

confinement not served, so that it may be said that a sentence to

a year or more exists. It seems to us that whether the action of

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the court is a modification of the first sentence or not the only

sentence existing is one to less than a year, and that is controlling.

Moreover, we view the second order of the court not as a modification of sentence, but rather as the entry of a new sentence. The

court could grant a new trial and enter a new sentence, but it was

without authority to reduce a sentence after it had been partly

served (People v. Fox, 20 N.W.2d 732). Moreover, it is well established that the grant of a new trial vacates the judgment (Caine

v. Collins, 166 A.2d 675; Gonzales v Trujillo, 291 P.2d 1063; In re

Doelle, 35 N.W.2d 251). We must conclude that the court here

did what it said it was doing—granting a new trial which was followed by a sentence. The existing sentence which must be recognized by this Board is the one to probation for a period of ten

months. Such a sentence does not satisfy the requirement of the

law that there be a sentence to confinement for a year or more. The

first charge clearly is not sustained.

The Service motion holds that a convicted alien who has been confined for a year is deportable even though the confinement was not

under a sentence to confinement.' We have dealt fully with this

contention in our original order. It appears unnecessary to repeat

the reasons for our belief that confinement must be under a sentence to confinement and the language in question interpreted in

the light of history provides for deportation of two classes of aliens

(the alien who has received a suspended sentence and the alien

confined for some period of time under a sentence to confinement

for a year or more) and cannot bear the additional class the Service

is attempting to add (United States ex rel. Fells v. Garfinkel, 158 F.

Supp. 524 (W.D. Pa.), aff'd 251 F.2d 846 (C.A. 3, 1958) ; Burr v.

Edgar, 292 F.2d 593 (C.A. 9, 1961) ; Holzapfel v. Wyrseh, 259 F.2d

890 (C.A. 3, 1958) ; see Wood v. Hoy, 266 F.2d 825 (C.A. 9, 1959),

and Arrellano-Flores v. Hoy, 262 F.2d 667 (CA. 9, 1958) ; Tadashi

Miyaki v. Robinson, 257 F.2d 800 (C.A. 7, 1958), cert. den. 358 U.S.

894; Matter of AT—, 8- 660; Matter of

, 8-360; Matter of

7-577 ; Matter of 0—, 7 539, 545-548; Matter of M—,

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6- 346;

Matter of J . 6- 562, 568).

Matte?. of 31—, 6-346, upon which extensive reliance is placed by

the Service, concerned only the issue as to whether a person

convicted and sentenced but not confined (a suspended sentence)

was deportable. We decided that the words "sentenced to confinement," unlike a similar phrase in previous laws which did

require confinement, was qualified by the use of the words "or confined" so as to make a conviction and sentence to confinement. with

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Service statement of section 241(a) (4) of the Immigration and Nationality Act, found in footnote 1 on page 3 of its motion, supplies a comma

where none is present lu the law.

654377-63------26

385

out actual confinement sufficient as, of course, a sentence and conviction followed by confinement continued to be, The issue involved

here was absent in that case, but the language used there instead of

being inconsistent with that of our original order in this case is,

in our opinion., merely restated by us.

The motion states that the Board's interpretation raises constitutional problems. We have merely recognized what is provided for

by state procedure. If a constitutional problem exists, it is not

within our sphere. Other matters raised by the Service are either

not material or are answered by the original order.

The motion reveals that on October 10, 1960, respondent was convicted for felonious assault with a deadly weapon. The Service

charges that his conviction involves moral turpitude and respondent

is now deportable under that portion of section 241(a) (4) which

requires the deportation of an alien convicted after entry of two

crimes involving moral turpitude. The Service is apparently desirous of lodging this new charge in the event we do not sustain the

charges now of record. We shall, therefore, order reopening of

proceedings for this purpose and for such further action as the

special inquiry officer shall deem appropriate.

ORDER: It is ordered that the motion for reconsideration be and

the same is hereby denied.

It is further ordered that proceedings he reopened for the purposes heretofore stated.

086