A-2098105
Decided by Board April 20, 1956
Conviction — Massachusetts — Where sentence is revoked and complaint dismissed, conviction may not be used to sustain deportability.
Where conviction in Massachusetts for a crime involving moral turpitude results in a suspended sentence and after completion of the period of probation the sentence is revoked and the complaint dismissed, the conviction is not of sufficient finality so that it may be used to sustain a ground of deportation under section 241 (a) (4) of the Immigration and Nationality Act.
CHARGE:
Warrant: Act of 1952 — Section 241 (a) (4) — At any time after entry has been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct-receiving stolen property, incest, and statutory rape.
BEFORE THE BOARD
Discussion: This case is before us on appeal from a special inquiry officer's order of January 24, 1956, directing respondent's deportation on the basis of his conviction of two crimes involving moral turpitude, to wit: receiving stolen property, and incest.
The record relates to a 47-year-old, married, male alien, a native and citizen of Italy. He was admitted to the United States for permanent residence on August 2, 1912. Apparently, he has remained in the United States at all times since that date.
On September 20, 1948, in the Superior Court, Lawrence, Essex County, Massachusetts, respondent, on his plea of guilty, was convicted of statutory rape and incest, and received concurrent 10-12 year sentences. Obviously, these crimes involve moral turpitude. However, as pointed out by the special inquiry officer, both these convictions were for the same act involving respondent's daughter. Therefore, they are part of a single scheme of criminal misconduct and do not, in and of themselves, form a basis for deportation.
On August 19, 1943, in the District Court, Lawrence, Essex County, Massachusetts, on his plea of guilty, respondent was convicted of receiving stolen property, under a complaint charging him with knowledge that it was stolen. On August 26, 1943, he was ordered committed to the house of correction for 4 months; execution of sentence was suspended with the condition of restitution, and respondent was placed on probation. On August 26, 1944, the suspended sentence was revoked and the complaint was dismissed.
There is no question but that the foregoing crime involves moral turpitude. However, there is a serious question as to whether or not there is here a conviction of sufficient finality to sustain an order of deportation within the contemplation of section 241 of the Immigration and Nationality Act. The determination of this question is the problem before us.
The United States Court of Appeals for the First Circuit was confronted with the same problem in a case involving a petition for naturalization ( United States v. Cunha, 209 F. (2d) 326 (U.S.C.A. 1, 1954)). There, the alien was arraigned to answer to a complaint charging attempted larceny of an automobile. He pleaded not guilty but was found guilty and sentenced to 2 months' hard labor in the house of correction. He appealed but later on the same day withdrew the appeal. The court suspended execution of the sentence and placed him on probation, one of the conditions of which was that he present himself before the court 6 months later. He so appeared and the court ordered the complaint dismissed.
The Court of Appeals had this to say concerning the effect of the order dismissing the complaint against Cunha (p. 330):
Up to this point in the opinion we have treated the record of the Municipal Court of the City of Boston summarized above as proof positive of the petitioner's conviction for the crime of attempted larceny of an automobile, and hence as definitely establishing his commission of that criminal act. We are not entirely satisfied that this is so, however, because the Municipal Court eventually ordered the complaint dismissed. It may be, indeed at first glance it would seem, that this order has the effect of expunging the record of conviction, and thus of wiping out proof of the commission of the crime so completely that it ought not to be considered at all in passing upon Cunha's moral character. On the other hand, the order of dismissal may amount to no more than a discharge from probation as the Government suggested at oral argument. Or, perhaps, the Municipal Court found Cunha worthy of relief from all penalties and disabilities resulting from his conviction, and, in spite of lack of statutory authority, adopted a procedure to attain that end akin to that authorized by the California Penal Code considered by the court in In re Paoli, D.C.N.D. Cal. 1943, 49 F. Supp. 128.
We find no authority in the Massachusetts statutes for the procedure adopted by the Municipal Court of the City of Boston in this case, and while we do not doubt that court's power under the Common Law of Massachusetts to take that procedure, we are at a loss to know what it means or implies with respect to Cunha's guilt, or, if technically guilty, his moral culpability. Moreover, we are at a loss to know whether or not the District Court accepted the explanation made by Cunha's counsel of the circumstances surrounding Cunha's arrest and conviction as true, and if it accepted the statement as true, whether it considered that Cunha's moral character emerged unscathed from the prank. The record is too meager for us to exercise our appellate function intelligently with the result that we must send this case back for retrial as we did in Stasiukevich's case cited above.
Thus, the Court of Appeals vacated the District Court order granting the petition for naturalization and remanded the case for further proceedings.
Seven months later, the same court again had occasion to consider this very problem, in a case where an alien's deportation was sought under the identical provisions of the Immigration and Nationality Act involved in the case now before us ( Pino v. Nicolls, 215 F. (2d) 237). In that case, one of the grounds of deportation urged against the alien was that he had been convicted of larceny (petty) of 12 golf balls. He was found guilty and he appealed but later withdrew the appeal. He was sentenced to a year in the house of correction, but execution of the sentence was suspended and he was placed on probation for the year. At the end of that year, on January 30, 1950, the sentence was revoked and the case was placed "on file."
Apparently the Court of Appeals had resolved its doubt as to the effect of the dismissal of a complaint at the time it considered the Pino case, supra, as evidenced by this language (p. 242):
What was the District Court to do on January 30, 1950? The period had expired within which the execution of the sentence of imprisonment was suspended by prior order. Unless something was done about it, the sentence, no longer suspended, was subject to be carried into execution. If at that date the District Court was finally satisfied that the object of the one-year's probation had been accomplished, in such a way as not to require imprisonment of the defendant either for his own reformation or in the interests of the public, the logical thing to have done would have been to revoke the prison sentence and to dismiss the case, which final disposition the District Court had power to make. See Marks v. Wentworth, supra. But such action would not have been equivalent to wiping out the record of conviction in the District Court. 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. See Korematsu v. United States, 1943, 319 U.S. 432, 435, 63 S. Ct. 1124, 87 L. Ed. 1497.
The court then went on to hold that Pino stood "convicted" within the meaning of section 241 of the Immigration and Nationality Act and was deportable.
However, the Supreme Court reversed the Court of Appeals ( Pino v. Landon, 349 U.S. 901, 99 L. Ed. 1239, 75 S. Ct. 576). In doing so, it used this language:
On the record here we are unable to say that the conviction has attained such finality as to support an order of deportation within the contemplation of section 241 of the Immigration and Nationality Act. The judgment is reversed.
It may well be that the procedure adopted by the Massachusetts courts has as its desired end the wiping out of the effect of the criminal conviction of an alien insofar as his deportability is concerned. We have held, in cases arising in California, that this result has been accomplished by virtue of specific provisions of the penal code thereof relating to "expungement of the record of conviction." And while there appears to be no similar statutory authority in Massachusetts, such factor is immaterial in this administrative proceeding. The proper function of this Board here is solely to determine the legal effect of the procedure followed by the Massachusetts courts on respondent's deportability under section 241 of the Immigration and Nationality Act.
The Supreme Court's decision in the Pino case ( supra) is not controlling here for the simple reason that this precise issue was not before the court. By the same token, however, the Court of Appeals' statement in the same case has the status of dictum and, while it is an authoritative statement of judicial opinion on the point, we entertain substantial doubt as to the propriety of resolving this legal question on the basis thereof. This is particularly true since the same court in the Cunha case ( supra), which is the outstanding unreversed judicial decision on the matter, expressed uncertainty as to the legal effect of the procedure and that it might accomplish the same result reached in California by statute. On this latter point, the effect of holdings in Federal cases is that the record of a conviction which has been "expunged" may not be relied upon as establishing commission of the acts involved. (Cf. In re Ringnalda, 48 F. Supp. 975 (D.C., S.D. Cal., 1943); and In re Paoli, 49 F. Supp. 128 (D.C., N.D. Cal., 1943).)
Accordingly, we take the position that in cases such as the instant one the charges are not sustained. The appeal will, therefore, be sustained and the proceedings will be terminated.
Order: It is ordered that the appeal be sustained and that the proceedings be terminated.