In DEPORTATION Proceedings

MATTER OF P—

In DEPORTATION Proceedings

A-1195231.

Decided by Board August 14, 1959

Conviction Section 241(a)(4), 1952 act, twice convicted alien

not dependent upon length of sentence or confinement.

—

—

Deportability

Deportability under second clause of section 241(a) (4) of 1952 act relating to

twice convicted aliens (unlike first clause relating to single crime within

five years of entry) does not depend upon length of sentence or confinement

imposed on alien following conviction. An order of deportation based

thereon is not invalidated because conviction resulted in a sentence of less

than one year, a suspended sentence, probation, or mere fine.

CHARGE

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

of two erimps; involving moral turpitude after entry, not single

scheme Unnatural and lascivious act and open a.nd g rogg lewdness

and lascivious behavior.

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BEFORE THE BOARD

Discussion: The case comes forward on appeal front the order of

the special inquiry officer dated May 26, 1959, directing that the

respondent be deported on the charge contained in the order to show

cause.

The respondent, single, male, was born in the town of Upper Economy, Colchester County, Nova Scotia, Canada, on October 6, 1902.

Although the respondent testified that he had been told by his father and two uncles that his father was born in Machias, Maine,

and was a. United States citizen, the respondent admitted that he

had never represented himself as a citizen of the United States.

An attempt to verify the birth of the respondent's father at Machias,

Maine, was unsuccessful although the authorities advised that birth

records there were not complete. The respondent has identified his

birth certificate which shows the place of birth of the father of

respondent as "Lower Economy, Colchester" in the Province of Nova

Scotia, Canada. In addition, respondent has registered as an alien,

and was admitted to the United States as an alien. An investigation

conducted among close relatives of the respondent, including his

mother, indicates that only two out of six persons interviewed

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thought respondent's lather IN us a United States citizen, the others

believing he was born in Nova Scotia, which was the belief shared

by his wife. None of the persons interviewed possessed sufficient

knowledge regarding the respondent's father to make an affidavit

concerning him. It is concluded that the evidence of record establishes alienage.

The respondent first entered the United States for permanent

residence at the port of Vancehoro, Maine, on April 26, 1921, as an

immigrant. This entry has been verified. He last entered the

United States after a short visit to Canada on September 13, 1946.

On January 18, 1943, in the Municipal Court at Boston, Massachusetts, the respondent was convicted for the offense of committing

an unnatural and lascivious act with a male person, and was sentenced to sia months in the House of Correction with execution of

sentence suspended and was placed on probation for a period of one

year upon the condition, among others, that he personally appear

before the court 011 .Tamtaxy 19, 1944, and on said day last mentioned the term of said probation was dismissed by order of the

court. On February 3, 1958, the respondent was convicted of open

and gross lewdness and lascivious behavior in the presence of a

named person, committed January 24, 1958, and was sentenced to

the House of Correction for a teem of two years, execution of sentence was suspended and the respondent was placed on probation

until February 3, 1960.

Counsel argues that the offenses of which respondent has been

convicted, Which involve acts which are homosexual in nature, do

not necessarily involve moral turpitude. In a long and able brief,

counsel makes reference to what he declares are the present commonly accepted mores or the modern accepted moral conventions,

cites certain psychological and sociological researches and studies and

urges that such homosexual offenses should not he regarded as crimes.

However, we must take the law as we find it, and in Massachusetts

such acts are regarded as crimes. The respondent has been convicted

as a criminal and haS not been treated merely as an object of psychiatric consideration.' We have heretofore held that convictions of

these offenses involve moral turpitude. 2

157 F. Supp. 43, in which the defendant was con1 See Tiolzaptcl v. Wyrsch,

victed of an act of open lewdness but sentence was imposed pursuant to the

New Jersey Sex Offenders Act (N.J.S.A. 2A:164-3 et seq.) whereby the defendant was committed to the Diagnostic Center or the New Jersey Department

of Institution Agencies for examination which resulted in a determination

that his conduct represented a compulsive repetitive form of behavior and in

which it was concluded that there was no confinement of the alien in a prison

or corrective institution for a year or more pursuant to 8 U.S.C. 1251 ( a ) (4).

2 Matter of J—, 2 I. & N. Dec. 533; cf. Fitzgerald ex rel. Miceli v. Landon,

238 F.2d 864.

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, R971 2_R1

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The charge upon which deportation is predicated is the second part

of section 241(a) (4) of the Immigration and Nationality Act, 8

U.S.C. 1251(a) (4). This section; in its entirety, with the second

part underscored, provides that any alien in the United States shall

be deported who:

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

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

prison or corrective institution, for a year or more, or who at any time after

entry is convicted of two crimes involving moral turpitude, not arising out of

a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial.

We have already decided that the two crimes in the instant case

moral turpitude. It is apparent that these crimes which

were committed in 1943 and 1958 do not arise out of a single scheme

of criminal misconduct. Counsel contends that under the second

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

a suspended sentence, even one for a year or more, cannot serve as

a ground for deportation and also casts strong doubt that Congress

intended the deportation of an alien who has received a sentence for

less than a year, a suspended sentence, or straight probation, or has

been sentenced to pay a small fine. He asserts that this is too radical

a break from the requirement of the previous law of an actual prison

sentence of a year or more and too unprecedented a departure to

rest upon mere inference, and that inasmuch as the legislative history: is, silent on so important a change, such silence indicates most

forcibly that no drastic change of this type was intended.

It is not believed that the congressional history is as silent as

counsel would have us believe. Thus, the Report of the Committee

on the Judiciary pursuant to Senate Resolution 137 states with regard to deportation for commission of crimes which involve moral

turpitude, as follows:

As to such crimes committed subsequent to the time of the alien's entry, it

involve

is held that deportation should be required, in the case of a single conviction,

only if the conviction occurred within five years after entry and resulted in

confinement in a prison or corrective institution for a year : or more. In the

case of an alien convicted of two such crimes at any time after entry not

arising out of a cinglo scheme of criminal misconduct, the alien is deportable

regardless of whether sentenced to confinement?

In commenting on subsection 4 of section 241 of the Immigration

Act, the report from the Committee on the Judiciary submitted with the bill, S-2550, states that this a uction involves

aliens who, within - five years after entry, are convicted of a crime

involving moral turpitude and sentenced to itnprisonment for a year

or more; or who, at any time after entry, are convicted of two such

crimes, whether or not sentenced. The italicized words "such

and Nationality

3 Senate

Report No. 1515, 81st Cong., 2d Sess., pp. 391-392.

426

brimes" obviously refer to crimes involving moral turpitude. The

report further explains: "Thus, an alien who at any time after entry

is convicted of two crimes involving moral turpitude is deportable,

regardless of whether confined therefor, whereas under existing law

the alien must have been sentenced to a term of a year or more

because of such conviction." 4 There is judicial support for the

holding that a suspended sentence for conviction of a crime involving moral turpitude under section 241(a) (4) warrants deportation.5 The effect of conviction resulting in suspension of execution

of sentence was explored at length administratively in Matter of

0 , 7 I. & N. Dec. 539, and it was held that such suspended sentences constituted a basis for deportation under the second clause of

section 241(a) (4).

, supra, there was discussed the holding of the

In Ma.t.lex of 0

Supreme Court in Piano v. Landon, 349 U.S. 901, which involved a

conviction in the State of Massachusetts for stealing a dozen golf

balls. The alien had been sentenced to imprisonment, sentence suspended, placed on probation, and after the probationary period had

passed, sentence was revoked and the case was placed "on file." The

Supreme Court held that this type of conviction did not achieve a

degree of finality sufficient to support an order of deportation. However, in the instant case we do not have the same type of conviction.

Here, after the 1943 conviction execution of sentence was suspended,

the defendant was placed on probation until a certain date and on

that date the term of probation was dismissed by order of the court.

It is to be noted there was no revocation of the prison sentence and

a dismissal of the case (as was the situation in Matter of G , 7

I. & N. Dec. 171) . "The finding of guilty was unrevoked, and the

order of dismissal in the circumstances would have been no more

than a judicial determination that the ends of justice had been

served by the period of probationary discipline and surveillance—

'an authorized mode of mild and ambulatory punishment'—which

had been imposed for the offense of which the defendant' had been

found guilty." Pinto v. Nicolls, 215 F.2d 237, 242. The Supreme

Court reversal was on grounds not affecting this holding of the First

Circuit.

Counsel's third principal point raised is that assuming, without

conceding, that deportation under the second clause of section 241

4 Senate Report No. 1137, 82d Cong., 2d Sess., p. 21.

wood v. Hoy, 260 F.20 825 (C.A. 9, 1959) citing with approTal the court's

prior holding in Arrellano-Flores v. Hoy, 262 F.2d 667 (1958, appeal pending),

in which the court reaffirmed its holding that a conviction in California followed by a suspended sentence and placement on probation remains a conviction within the meaning or the linutignitiun um] Nationality Act, of 1952;

United Stoles ex rd. Felts v. Garfinkel, 158 F. Supp. 524 (W.D. Pa., 1957y,

aff'd 251 F.2d 846; Holzapfel v. Wyrsch, 157 F. Supp. 43 (D.C.N.J., 1957).

427

(a) (4) of the Immigration and Nationality Act could be based on

a suspended sentence, there is still no reason to suppose that the

second part of this section must also intend to sanction a deportation based upon a sentence for less than one year, executed or suspended, or on a sentence calling for straight probation or a mere

fine. Counsel cites no cases to support this argument but relies upon

the scheme of the old act. However, we have pointed out that it

was the congressional intent and purpose to alter the old act by more

easily reaching the repeater criminal.° In actual practice the courts

have sanctioned deportation where the sentence was for less than

one year?

The respondent's last conviction of the crime of open and gross

lewdness and lascivious behavior occurred in January 1958 and he

was still on probation at the time of the hearing. The respondent

does not appear to be eligible for discretionary relief. The appeal

will be dismissed.

Order : It is ordered that the appoa1 be and the same is hereby

dismissed.

See footnotes 3 and 4, supra.

Ma.tter of AI—, 7 I. & N. Dec. 144, upheld in Fitzgerald or rel. Miceli V.

Tandou, 238 F.2d 864 (C.A. 1, 1956) ; United States ex rel. Barite v. Mitrff, 116

F. Supp. 163 (D.C. Md., 1953).

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