E-113322.
Decided by Board October 25, 1954.
Sentence, suspended — Deportability under section 241(a) (4) of Immigration and Nationality Act.
An alien whose sentence to confinement for a period of not less than two nor more than five years, as a result of conviction of a crime involving moral turpitude within five years after entry, was wholly suspended is deportable under section 241 (a) (4) of the Immigration and Nationality Act. Actual confinement is not necessary to sustain a charge under this section.
CHARGE:
Warrant: Act of 1952 — Convicted of crime within five years after entry and sentenced to a year or more: Burglary, 2d degree.
BEFORE THE BOARD
Discussion: The alien in this case was found subject to deportation on the above charge by the special inquiry officer, though the sentencing court had wholly suspended the sentence which was for confinement for a period of not less than two, nor more than five, years in the Indiana Reformatory. No appeal was taken. The case has been certified to the Board under 8 C.F.R. 6.1 (c) because of this interpretation of section 241 (a) (4) of the Immigration and Nationality Act by the special inquiry officer.
The brief submitted by the alien's attorney contests this interpretation because there was no actual confinement following sentence. The previous law on this charge referred to one "sentenced to imprisonment" and the prefinal drafts of what became the present law referred to one "sentenced to confinement," but the final draft which became law refers to one "either sentenced to confinement or confined therefor." (Italics supplied.)
Section 19, Immigration Act of 1917.
Senate Report No. 1137, Calendar No. 1072, to accompany S. 2550, 82d Cong., 2d sess., January 1952, p. 21. House Report No. 1365, to accompany H.R. 5678, 82d Cong., 2d sess., February 1952, p. 60.
House Report No. 2096, to accompany H.R. 5678, 82d Cong., 2d sess. June 9, 1952, is a conference report and sets forth this provision of law identically as it appears in section 241 (a) (4), ( supra), (see p. 45). This report contains a statement of the managers on the part of the House (p. 127, et seq.). This provision is not mentioned in this statement nor is there a comment on the change from the previous draft versions.
The language is clear, the meaning plain, and the pertinent added words must be deemed purposive to effect a change from former law. So that the phrase "sentenced to confinement" would unmistakably and beyond peradventure be considered as one of two alternatives set forth, the word "either" precedes and the word "or" follows this phrase. The conclusion is inescapable that a change in former law was to be effected by the present statute. The two phrases "either sentenced to confinement or confined therefor" cannot be construed as if they read "sentenced to confinement and confined therefor."
A study of the legislative history of the present law does not disclose that Congress did not mean what it said or inadvertently said what it did not mean. Congressional desire to modify this class of deportable aliens "to facilitate the deportation of undesirable criminal aliens" was expressed in Senate Report No. 1137 noted in footnote 2. It is evident that the Congress was moving in the direction of contraction of the sufferance of the criminal aliens in our midst from that which the law and courts allowed beforetime.
Aliens who, within 5 years of entry, are convicted of a crime involving moral turpitude and sentenced to confinement for a year or more; or who, at any time after entry, are convicted of two such crimes, whether or not sentenced; or who, at any time after entry, are convicted of any criminal offense and the Attorney General finds such aliens to be undesirable residents. [This class of deportable aliens has been modified to facilitate the deportation of undesirable criminal aliens. 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 convictions. The Attorney General is also authorized to deport any alien convicted of any other criminal offense if he determines that the alien is an undesirable resident. This provision follows generally the policy expressed by the Congress in the act of May 10, 1920 ( 41 Stat. 593-594; 8 U.S.C. 157), wherein it is provided that aliens convicted of certain offenses shall be deported if the Attorney General finds them to be undesirable residents of the United States. Likewise, the provision is broad enough to include aliens convicted of certain offenses presently made a ground for deportation under section 19 (b) of the act of February 5, 1917, but which are not set forth specifically under the bill. The committee feels that this ground for deportation is justified, since there are many offenses which, while not involving moral turpitude, are of such a character as to render an alien convicted of such offense undesirable as a resident. There is no reason to believe that such discretion by the chief law enforcement officer of this Government would be abused. The Special Committee to Investigate Organized Crime in Interstate Commerce in its third interim report recommended the adoption of similar provisions (S. Rept. No. 307, 82d Cong., p. 15).]
Under present law, this alien is deportable as charged, notwithstanding his sentence was wholly suspended by the sentencing court. The decision of the special inquiry officer will be affirmed.
Order: It is ordered that the decision of the special inquiry officer dated March 29, 1954, be affirmed.