A-7196150
Decided by Board April 17, 1956
Amnesty — Italy — Does not affect inadmissibility under section 212 (a) (9), Immigration and Nationality Act.
(1) An amnesty has no greater effect than a pardon.
(2) Judicial pronouncements in this country clearly limit pardons and other acts in the nature of a pardon exclusively to domestic convictions.
(3) Therefore, an alien granted an amnesty under Italian law relating to his conviction of adultery in 1946 is inadmissible to the United States under section 212 (a) (9) of the Immigration and Nationality Act.
EXCLUDABLE:
Act of 1952 — Section 212 (a) (9) — Convicted of crime-adultery.
BEFORE THE BOARD
Discussion: This case is before us on appeal from a decision of a special inquiry officer holding that the applicant is inadmissible under section 212 (a) (9) of the Immigration and Nationality Act.
The applicant is a 37-year-old male, native and citizen of Italy, who last entered the United States on April 13, 1949, as a stowaway. He was found deportable and was granted voluntary departure and preexamination. Thereafter it developed that the applicant had been convicted of two offenses in Italy, namely, on July 11, 1944, for carrying a dangerous weapon (sentence suspended for two years) and on March 14, 1946, for adultery (sentenced to imprisonment of one year and three months). Evidence has been presented indicating that both offenses were within the terms of Italian amnesties. The special inquiry officer did not pass upon the question of whether the first offense involved moral turpitude but based his decision solely on the conviction for adultery. He held that the applicant was inadmissible because of that conviction notwithstanding the amnesty.
With respect to the conviction for adultery, the applicant testified that his female codefendant in the criminal prosecution for adultery had married about 1944; that subsequently she gave birth to a child; that he was charged with being the father; that he appealed his sentence and his appeal was sustained; and that he never served any term of imprisonment. Exhibit 5 shows that the applicant's version is incorrect since his sentence was, in fact, confirmed by the appellate court.
Exhibit 5 consists of a "Declaratory of Amnesty," relating to the conviction for adultery, and a translation which were submitted by counsel. The translation contains no certification as to its accuracy. However, the special inquiry officer stated that the interpreter of the Service would be requested to examine the documents and certify as to the correctness of the translation and we will assume that that action was taken.
The "Declaratory of Amnesty" was a decision of the Magistrate of the District of Bari on February 20, 1953. After referring to the applicant's conviction and sentence of one year and three months (confirmed March 14, 1946), the document contains the statement that the Magistrate examined the Presidential Decree of Amnesty No. 4 of June 22, 1946, and concluded that the applicant's conviction on March 14, 1946, was comprehended by the amnesty. He then declared the sentence extinguished.
The special inquiry officer held that a foreign amnesty is the equivalent of a foreign pardon which does not prevent deportation or exclusion. Counsel's brief on appeal presents two points. First, he contends that if the applicant's amnesty is a foreign pardon such pardon should be recognized under section 212 (a) of the Immigration and Nationality Act. No judicial authority is cited but he argues that there is nothing in the provisions relating to exclusion which speaks either of foreign or domestic pardons, that domestic pardons are recognized and that foreign pardons should also be recognized. Section 241 (b) of that act, relating to deportation proceedings, is specifically limited to such pardons as are issued by the President of the United States or by the Governor of any of the States. We believe that the absence of any specific provision under the sections dealing with exclusion constitutes merely evidence of congressional awareness of the settled rule that foreign pardons were ineffective to prevent deportation or exclusion ( Mercer v. Lence, 96 F. (2d) 122 (C.C.A. 10, 1938), cert. den. 305 U.S. 611; Weedin v. Hempel, 28 F. (2d) 603 (C.C.A. 9, 1928); United States ex rel. Palermo v. Smith, 17 F. (2d) 534 (C.C.A. 2, 1927)). Hence, we reject this contention of counsel.
The other point which counsel urges is that the amnesty was not a foreign pardon but one which annulled the crime. In view of the contention that a distinction exists between an amnesty and a pardon, we believe it was incumbent upon counsel to submit a copy of the Presidential Amnesty Decree No. 4 of June 22, 1946, upon which the applicant relies. In effect, exhibit 5 is merely the Magistrate's conclusion on February 20, 1953, that the applicant's conviction for adultery is within the terms of this amnesty decree. However, we disregard the failure to submit a copy of the amnesty decree since we are satisfied, for the reasons stated hereinafter, that the applicant is excludable regardless of the amnesty.
Counsel bases his argument primarily on section 151 of the Italian Penal Code and we believe it would have been the better practice to include that section, in its Italian form, in the record. Instead, there is a letter dated December 14, 1954, of the Acting Consul General of Italy at San Francisco, addressed to the applicant's counsel in that city, which furnishes what is stated to be a verbatim translation of section 151 of the Italian Penal Code relative to amnesties. The particular portion thereof, upon which counsel relies, is the following statement: "An amnesty annuls the crime, and if there has been a sentence, terminates the execution of the sentence and of any accessory punishment." Counsel contends that the crime itself has been annulled by the amnesty and that the amnesty has greater effect than a pardon which merely remits the punishment. We are not convinced that the crime was annulled because the "Declaratory of Amnesty" specifically states, " declares extinguished the sentence above mentioned and the penal effect to the same name." [Emphasis supplied.] That seems to indicate that the punishment was extinguished but not that the crime itself was "annulled."
Counsel argues that amnesty is similar to expungement and that under California law we have disregarded convictions which have been expunged. However, as we stated in Matter of E---- V----, 1610-9315, 5 IN Dec. 194, 195 (1953), the effect of an expungement of a record of conviction under section 1203.4 of the Penal Code of California is equivalent to a pardon. It was because the expungement had the same legal effect as a pardon that we had held for many years that deportation was precluded on the basis of an offense expunged under this California statutory provision.
Counsel also contends that we held that where an Italian conviction was expunged under section 585 of the Italian law the conviction will not render the alien inadmissible under our immigration law, citing unreported Matter of C----, A-7279638 (B.I.A., January 19, 1950). Under 8 CFR 6.1 (g) only selected decisions designated by the Board ( i.e., published decisions) serve as precedents. However, unreported Matter of C----, supra, was expressly modified to conform with our decision in Matter of G----, A-7873905, 5 IN Dec. 129 (1953) (see pages 131 and 133).
In Matter of G----, supra, counsel for the alien argued that his crime was extinguished under section 167 of the Italian Penal Code and that this was more than a pardon which extinguishes merely the penalty. Upon communicating with the Foreign Law Section of the Library of Congress, it was ascertained that section 167 did, in fact, provide for extinction of the offense. In other words, the situation which we ruled on in Matter of G----, supra, was exactly the proposition which counsel urges in the applicant's case. Nevertheless, we held in Matter of G----, supra (p. 133), that consideration of the exact effect or of fine distinctions of the Italian criminal law relating to pardons or suspensions of sentence, expunctions and extinctions are academic, since the judicial pronouncements in this country clearly limit pardons and other acts in the nature of a pardon exclusively to domestic convictions. On the basis of our reasoning in that case, we believe a similar ruling is warranted with respect to the applicant.
In Matter of F----y G----, A-7645205, 4 IN Dec. 717 (1952), we held that, for immigration purposes, a foreign amnesty has no greater effect than a foreign pardon, the latter being ineffective to prevent deportation. Counsel contends that the case mentioned involved a Cuban amnesty law and that its provisions may be different from the provisions of Italian law. We did not, however, reach our decision in that case upon any specific provision of Cuban law but rather on the effect of amnesties in general. Our reasoning was stated as follows in that decision:
* * * An amnesty is a pardon granted to all persons, in general, who have committed or been convicted of certain offenses. A pardon is granted to a specific individual covering a specific offense which he has committed. It would seem than an amnesty, pardoning a group of persons for various offenses, would have no greater effectiveness in obliterating a conviction than a specific pardon for the particular offense.
Counsel has also cited a statement in Black's Law Dictionary (3d edition) that amnesty is the abolition and forgetfulness of the offense and that pardon is forgiveness. However, the Supreme Court has indicated that there is no distinction between the terms and that a full pardon has the same legal effect as if the offense had not been committed (in other words, the effect which counsel seeks to attribute only to an amnesty). For example, in Ex parte Garland, 4 Wall. (71 U.S.) 333, 380 (1866), the court made the following statement:
* * * the inquiry arises as to the effect and operation of a pardon, and on this point all the authorities concur. A pardon reaches both the punishment prescribed for the offence and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence.
In Knote v. United States, 95 U.S. 149, 152 (1877), the court said:
Some distinction has been made, or attempted to be made, between pardon and amnesty. It is sometimes said that the latter operates as an extinction of the offence of which it is the object, causing it to be forgotten, so far as the public interests are concerned. whilst the former only operates to remove the penalties of the offence. This distinction is not, however, recognized in our law. The Constitution does not use the word `amnesty;' and, except that the term is generally employed where pardon is extended to whole classes or communities, instead of individuals, the distinction between them is one rather of philological interest than of legal importance.
Similarly, in Brown v. Walker, 161 U.S. 591, 601 (1896), it was stated that the distinction between amnesty and pardon is of no practical importance. In view of the foregoing, we adhere to the views stated in Matter of F---- y G----, supra, and Matter of G----, supra. We conclude that the applicant is inadmissible under section 212 (a) (9) of the Immigration and Nationality Act because he was convicted of a crime involving moral turpitude (adultery) in 1946, and we hold that the amnesty of which he received the benefit does not have the effect of rendering him admissible under that act. It follows that the appeal must be dismissed.
Order: It is ordered that the appeal be and the same is hereby dismissed.