Interim Decision *1543

Interim Decision *1543

MaTTER or QUADAnk:

In Deportation Proceedings • ,

A-11593423

• Decided by Board January 11, 1966

(1) conviction of assault, second degree, with intent to commit the crime of

robbery is conviction of a crime involving moral turpitude.

(2) Where an alien, following conviction in New York of a crime involving

moral turpitude committed within 5 years after entry, was sentenced to not

less than one year nor more than two years in the State pilson, a final judgknent of conviction exists on which to predicate a ground of deportation

under section 241(a) (4), Immigration and•Nationality Act, notwithstanding

execution of sentence was suspended and be was placed on probation on

condition of restitution.

Ozzazot:

Order:. Act of 1952—Section 241(a) (4) i8 U.S.C. 1251(a) (4)1—Convicted

of a crime involving 'Moral turpitude committed

within five years of entry and sentenced to a .year

or more, to wit, assault, second degree.

The case comes forward on appeal from the order- of the special

inquiry officer dated June 14, 1965 finding the respondent deportable

on the charge stated in the order to show cause and ordering that

he be deported to Italy.

The record relates to a native and citizen of Italy, 21 years old,

male, who last entered the United States at the port of New York

on April 29, 1959. He was admitted for permanent residence as a

nonquota immigrant, the. unmarried minor son of a citizen of the

United. States.

The respondent's mother was a native-born citizen of the United

States by birth on March 27, 1915 in this country. She left the

United States at. the age of.eeven and did not return to this country

until 1958; again left in 1959 and returned to the United States in

April 1964. She is presently a resident of this United States. The

respondent's father was born in Italy and is not a United States

citizen. He came to the United States on April 29, 1959, stayed for

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Interim Decision #1543

only four or five months and returned to Italy. The respondent

testified that his parents were married but he does not know the

date. It is concluded that the respondent did not acquire United

States citizenship at birth because his mother did not have the requisite residence in the United States prior to such birth as set forth

in section 301(a) (7) of the Immigration and Nationality Act or by

virtue of any prior statute.

On April 30, 1964 the respondent was charged with committing

a .crime on April 17, 1984, which was a period within five years of

his last entry. He was indicted on seven counts and during his trial

on November 30, 1964 he pleaded - guilty to the crime of assault sec-and degree under count three of the indictment. The third count of

the indictment alleged that the respondent was guilty of the crime

of assault in the second degree committed as follows:

The said defendant, in the County of Now Tot44'on or about odd Aladi 17,

1964 with intent to commit the crime or robbery, alionited said Merino Tones.

Inasmuch as the intent to commit robbery wilhtwhich the crime was

committed obviously involves moral turpitude, the conviction of

assault in the second degree with intent to commit robbery likewise

involves moral turpitude. The respondent was sentenced to not lea

than one year and not more than two years in the State Prison, execution of the sentence was suspended and the respondent was placed

on probation on condition of restitution of $2000 at a rate of $50 per

month to be .paid to the probation department. At oral argument

counsel filed a brief arguing that the respondent is not deportable

on the basis of the suspended sentence, setting out portions of the

New York Code of Criminal Procedure. 'Although this belated service of brief was contrary to regulations, we shall dispose of the issue

raised.

Counsel contends that the sentence to a. term,of not less than one

year and no more than two years, execution of sentence suspended,

probation, does not constitute a ground of deportation under the first

clause of section 241(a) (4) of the Immigration and Nationality Act

which provides for deportation of an alien who is convicted of a

crime involving moral turpitude committed within five years after

entry and sentenced to confinement or confined therefor in a prison

or corrective institution for a year or more. In support of this contention he relies principally upon sections 470-a and 483 of the New

York Code of Criminal Procedure which allegedly has the net effect

that no definite period of confinement has resulted

Counsel also relies upon the case of Holzapfel v:TVyrach, 259 F.2d

890 (3rd Cir., 1958). This case involved an -alien who was convicted

of the offense of open lewdness and pursu a

- nt to the New Jersey Sex

458

Interim Decision #154

Offenders Act was committed to a diagnostic center for a - complete :

after consid- physicalndmetxio.-,ThcuntyCr

eration the report and, reCommenclation of the diagnostic. center,

ordered:and adjudged that the Alien be confined in the, New Jersey, ,

State Reformatory,, sentence he suspended, and defeidant placed in,

the custody of the,Probatjun Officer for a period of three years, one

of the conditions of-probation being that:the defendant takes psychiatric treatment. > The,, court; commented ; egaxding the New Jersey

Sex Offenders Act, that it appears clear that this Act is directed

primarily .at rehabilitation and cure of persons 'found to :require med- •

teal treatment; its penal asp9cts are decidedly secondary. The appellee had to be given a suspended sentence in order for the court to be

able to enforce its probationary order that he undergo psychiatric

treatment. Although the sentence was penal in form, in substance it

merely•provided for a series of psychiatric treatments. The coercive

effect of the suspended sentence was intended to insure the participation of the -appellee in the out-patient medical care. The penal element in this legislation was so unquestionably secondary that the

humanitarian:nature of the Act should not be subverted by any formalistic interpretation of its provisions. The court concluded that

the suspended sentence was merely a technical means of enforcing

the prbb4tion order and therefore was-not within the purview of section 241(a)(4) of the Immignition and Nationality Act of 1952

authoriiing depoitition. The facts of the Holzapfel case are clearly

inapposite-to the present case.

The sections referred to by counsel in the New York Code of

Criminal Procedure: Were' considered in People Weinberger, 251

A.D.; 1964). • The court there stated that

N.Y.S.2d 790

the term "convicted" or "conviction" is of equivocal meaning. It

may mean verdict. The use of the term may vary with the particular

statute involved and' ita .mewning presents a question of legislative

intent. The court then pointed out that in civil matters, under certain laws, a plea or verdict of guilty followed by 'suspension of sentence is a conviction while under other laws, it is not. It stated however that in criminal cases the sentence is the judgment, and there

can be no judgment until sentence has been imposed. Thus, a plea

of guilty followed by. suspension of sentence is not a conviction for

fourth' offender purposes under section 1942 of the Pehal Law. Although Su.tension of sentence is not a rendition of judgment, section

4704) of the Code of Criminal Procedure specifically provides that a

Plea or :verdict of guilty and suspension of sentence or suspension of

execution of the whole or a part of the judgment shall be regarded

459

Interim Decision #1548

as a conviction for second offender purposes. The court concluded

that it viewed this section as a clear expression of legislative intent

that "a plea of guilty, standing alone and not followed by suspension

of sentence or by imposition of sentence and suspension of its execution does not constitute a conviction within the meaning of section

1941 of the Penal Law as applied. to a second offender." By clear

implication, a plea of guilty, followed by suspension of sentence or

by imposition of sentence.and suspension of its execution, does consti•

tute a conviction.1

The 1952 Immigration and. Nationality Act made a change in

-

prior language and- under section 241(a) (4) made subject to deportation an alien who was convicted of a. crime involving moral

turpitude committed within five years after entry and either sentenced to confinemen't or confined therefoi in a prison for a year or

more. This change eliminated the necessity for actual confinement

or imprisonment and made sentences to a, year or more which were

suspended a ground, for deportation. 2 We conclude that the record

of conviction and sentence to two years suspended„ constitutes a

final judgment of conviction and sentence and establishes deportability.

Counsel alternitively requests that the case be remanded for consideration of an application for adjustinent of status inasmuch as

it is now alleged that the respondent has since June 27, .1965 been

married to a lawful permanent resident of the United States who

is now pregnant and a visa petition submitted by the wife on his

behalf was approved on -September 20, 1965. However adjustment

of status pursuant to section'245 is a matter of discretion. In view

1 See also People ez rei Troiani v. Pap, 201 N.Y.S. 2d 394 (8.0t., Al). 19014

cert. den. 368 .U.S. 1003, where it was held that for certain purposes, a sus-.

waded sentence is not valid or the equivalent of a judgment of conviction

for other purposes, the imposition of a suspended sentence is valid and the

.equivalent of a judgment of conviction (see, e.g., Penal Law, •Sec. 2188; Code

Crim. Proc., Secs. 700, 470:a, 470-b). •

Matter of M—, 6 1. & N. Dec. 346; Burr v. Immigration and Naturalization

Service, 350 F.2d 87 (9th Cir. 1965) ; reaffirming Burr v. Edgar, 292 FM

593 (9th, Cir. 19ti1); Kelly v. Immigration and Naturalization Service, 349

F24 473 (9th Olt, 1965) ; Arreliano-Flores v. isto, 262 P.24 637 (9th Cir.,

1958), cert. den..382 U.S. 921; Garcia-Gonzalest v. Immigration and NaturaSzalion Service, 244 P.24 804 (9th On, 1985), eert. den. 34 14.3d. 319; Gutierrez v.

• Immigration and Naturalization Service, 323 Fad 593 (902 Cir. 1903), cert.

den. 12( L.Ed. 179; Zabanazad v. Rosenberg, 306 F.26 861 (9th Cir., 1962);

Adams v. -United States, 299 F.2d 327 (9th Cir., 1962) ; Wood v. Hem 266 F.

2d 825 (9th Cir., 1959) ; United States ex rei Pella v. Garfinkel, 158 F. Sapp.

524 (W.D. Pa., 1937), air& 251 P.25 846 (8rd ay., 1958).

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Interim Decision #1543

of the recency of the respondent's conviction and inasmuch as it appears that the respondent is still on probation and is still making

restitution under the terms of the court order, it does not appear

that discretionary relief is warranted. The appeal will be dismissed.

ORDER: It is ordered that -the appeal be and the same is hereby

„civatiea.

•••

461