In the Matter of O

Board of Immigration AppealsAug 20, 1957
7 I&N Dec. 539 (B.I.A. 1957)

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A-5825386

Decided by Board August 20, 1957

Conviction — Finality — Section 241 (a) (4), 1952 act, twice convicted alien — Conviction resulting in suspension of execution of sentence or suspension of imposition of sentence is final.

The requirement that a conviction must be "final" to support an order of deportation based on the second part of section 241 (a) (4) of the act relating to twice-convicted aliens is satisfied when the conviction results either in suspension of the execution of sentence or in suspension of the imposition of sentence. ( Matter of B---- R----, A-1233572, Int. Dec. No. 840, modified.)

CHARGE:

Warrant: Act of 1952 — Section 241 (a) (4) ( 8 U.S.C. 1251 (a) (4)) — Convicted of two crimes: Using United States mails to defraud, and Grand Larceny, first degree.

BEFORE THE BOARD


Discussion: This is an appeal from the order of the special inquiry officer requiring respondent's deportation on the ground stated above. The appeal will be dismissed.

The respondent is a 61-year-old married male, a native and last a citizen of Russia, who has been a resident of the United States since his admission for permanent residence on August 25, 1901. Respondent's deportation is sought by reason of his convictions of crime. He has been convicted at least twice. On December 8, 1932, he was sentenced by the United States District Court, Southern District of New York, to serve 5 years on each of 3 counts, to run concurrently, on charges of using the mails to defraud. On December 30, 1936, he was convicted, on a plea of guilty, of grand larceny in the first degree in the County Court, Broome County, New York, and was sentenced to imprisonment for an indeterminate term of not less than one year and no more than 2 years. Execution of the judgment was suspended during good behavior and upon restitution of a sum of money. The order of suspension has not been revoked. Upon these convictions, the Service bases its case.

We believe that the respondent's conviction in 1932 on 3 counts for mail fraud, would alone satisfy the requirements of the section under which deportation is sought. Although there existed a general scheme to defraud investors, the crime committed as to each of the 3 individuals to whom the respective counts related was not a simultaneous and continuous act but a selective, unrelated and separate act which in nowise depended upon the crime perpetrated against the other individuals. (See Matter of K----, A-5349021, Int. Dec. No. 793; Matter of M----, A-1917524, Int. Dec. No. 776; Matter of J----, A-3203990, 6, I. N. Dec. 382.) However, since this point was not raised at the hearings and since we believe that respondent is deportable on the theory on which the case was tried, we shall proceed to the issues raised by counsel.

Counsel argues two important issues. He holds that the respondent had a nondeportable status because he was not deportable before the Immigration and Nationality Act, and this status was preserved by the savings clause of the act. The contention must be dismissed ( Lehmann v. United States ex rel. Carson, 353 U.S. 685).

Counsel next argues that the conviction in 1936 resulting in a suspended sentence lacks the finality required to support an order of deportation. He cites People v. Shaw, 150 N.Y.S. (2d) 161, 133 N.E. (2d) 681; People v. Murray, 42 Calif. App. (2d) 209, 108 P. (2d) 748; Pino v. Landon, 349 U.S. 901, and Marino v. Brownell, Civil Action 4666-54, U.S.D.C., D.C., March 8, 1956, Judge Tamm.

The issue, therefore, is whether there has been a "conviction" for the purpose of section 241 (a) (4) of the Immigration and Nationality Act ( 8 U.S.C. 1251 (a) (4)).

The case against respondent rests on that portion of the section which provides for the deportation of an alien who has been convicted of two crimes. The section makes deportable an alien who —

[Part I] 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 [Part II] 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. [Matter in brackets added.]

What is a conviction for the purpose of the section has not been the subject of intensive interpretation. In Matter of M----, E-113322, 6 IN Dec. 346, dealing with part I of section 241 (a) (4), we said that a sentence to imprisonment, the execution of which had been suspended was sufficient. However, in Pino v. Landon, supra, which involved what was in effect the suspension of the imposition of a sentence, the court found that the conviction was not sufficient under part II of the section. A complete review of the issue is in order.

In this discussion "suspended sentence" means either a suspension of the imposition of sentence, or suspension of the execution of sentence, unless otherwise indicated.

The obvious test which suggests itself is to consider that a conviction for the purpose of the section which the forum, here, the State of New York, considers a conviction. However, as we shall subsequently show, the law of New York is that a suspended sentence is a conviction for some purposes but not for others. And, the New York courts have never ruled on what is a conviction for the purpose of the section. Moreover, in Pino v. Landon, supra, the Supreme Court indicated that section 241 (a) (4) is not satisfied by the existence of a conviction unless the conviction had achieved a certain degree of "finality." We, therefore, are put to the test of selecting from the several types of convictions which exist in a particular forum that conviction which satisfies the requirement of the section. Because we are dealing with a federal statute concerning a subject over which the Federal government has plenary power, we must take action which can be applied with some degree of logic and uniformity to the unrelated and often conflicting criminal procedures of the 48 States, and the civilian and military courts of the Federal government. The problem is a complicated one because there is discord which cannot be harmonized in the disposition of a case following a finding of guilt in the various forums (and in fact in a particular forum). Moreover, the terms in which the problem must be discussed, i.e., "conviction," "sentence," "judgment," and "suspended sentence," are used loosely and often in different senses.

A ruling by a state court is extremely unlikely to happen. Moreover, a ruling would not be binding upon the Service because the question is a federal one, the law under consideration being a federal statue which deals in a field where Congress has plenary power. (Cf., Jerome v. United States, 318 U.S. 101, 104; United States v. Acri, 348 U.S. 211.)

Since we must select one conviction in preference to another, we shall list the possible types of convictions and proceed to examine each as to whether it will support an order of deportation under the section. After a finding of guilt, a court is free to select a course of action from among those set forth in one or more of the following categories which represent generally what is considered as a conviction for one purpose or another:

(1) The court imposes punishment of fine or imprisonment.

(2) The court imposes punishment of fine or imprisonment, but suspends payment of fine or the service of the imprisonment. The court has the power to place the defendant on probation, it may or may not be a discretionary one. This is a suspension of the execution of sentence.

(3) The court does not impose the punishment of fine or imprisonment, but enters an order suspending the imposition of sentence. The court has the power to place the defendant on probation, it may or may not be a discretionary one. This is a suspension of the imposition of sentence.

(4) The court postpones for a long period further consideration of the case. The case is still pending actually or theoretically for the imposition of a sentence of some sort. The court may or may not have the power to place the defendant on probation.

These generally are convictions for one purpose or another. The New York courts clearly have power to enter orders in the first 3 categories. Whether the power exists to take action in the fourth category has not been settled ( Richetti v. New York State Board of Parole, 300 N.Y. 357, 90 N.E. (2d) 893, 894). We shall attempt to determine which of the convictions are convictions under section 241 (a) (4).

Clearly, a conviction described in category (1) must serve as a conviction for the purpose of section 241 (a) (4). Such a conviction calls for no further action by the court. The case is at an end except that the defendant must endure his punishment. A person so found guilty and sentenced would normally be considered as having been convicted for all purposes.

However, it is clear that a conviction such as is found in category (1) cannot be the only one to satisfy the requirements of section 241 (a) (4). Since Congress intended that an alien whose sentence had been suspended was to be deportable ( Matter of M----, supra), and a conviction in category (1) does not include a suspended sentence, it follows that a conviction other than of the type set forth in category (1) must suffice. Otherwise, the law would make deportable only a person who had been confined (or fined). This conclusion cannot be justified. (Appendices A and D.)

Let us then consider the next 2 categories. The sentence in category (2) inflicts the traditional punishment of fine or imprisonment but stays the execution of the penalties. The sentence in category (3) does not inflict the traditional punishment of fine or imprisonment. The punishment of probation may or may not be imposed. However, the order of the court actually disposes of the case instead of merely postponing consideration of the sentencing of the defendant as is done in category (4).

In appearance, the orders in category (2) and category (3) seem to differ to a marked extent. However, in the State of New York there is no real distinction between the two ( People v. Stone, 25 N.Y.S. (2d) 94; see, People v. Shaw, supra, at p. 166). The sentence in neither category (2) nor (3) is considered a "final" conviction and neither sentence is a conviction for all purposes although both are convictions for some purposes. (In Appendix B, we discuss the use and effect of suspended sentences in New York, and generally in other forums.)

We believe the distinctions made by the State of New York as to when a suspended sentence is a conviction and when it is not, are not material to our problem. Congress intended that a suspended sentence should be sufficient. From Pino v. Landon, supra, as we shall point out later, we believe it is implied that an order in category (4) does not achieve the finality necessary to support an order of deportation under the section. This leaves only orders in categories (2) and (3). If they, equal in effect as they are, do not serve as convictions under the immigration laws, then, insofar as the State of New York is concerned, section 241 (a) (4) must be read as requiring deportation only of aliens convicted as in category (1). This would be so even though aliens convicted in the same manner in another jurisdiction — the Federal, for example — would be deportable. If, then, we are to give any effect to the express language of the law and legislative intent behind it, and if we are to interpret the law with consistency, we must find that in New York convictions in categories (2) and (3) satisfy the requirements of section 241 (a) (4) of the act regardless of whether they are considered convictions for all purposes, as long as they are considered convictions for any purpose.

Counsel relies upon the Pino decision for his belief that the suspended sentence given to respondent does not satisfy section 241 (a) (4). The Pino decision does show that we may not accept all "convictions" as sufficient under the section. Pino involved an alien whose deportation, like the respondent's, was sought under the provision of the section regarding conviction for more than one crime. In issue was Pino's conviction in the State of Massachusetts for stealing a dozen golf balls in 1948. Pino had been sentenced to imprisonment and placed on probation. After the probationary period passed, sentence was revoked and the case was placed "on file." (See Appendix C for significance of procedure.) The Supreme Court, reversing the lower courts, in a brief per curiam opinion held:

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 procedure of placing a case "on file" appears to accomplish the same result as an indefinite suspension of the imposition of sentence. However, as we have pointed out in Appendix C, procedural and historical differences do exist. A case placed "on file" is not a case in which sentence is suspended. Pino in his brief on the merits stated to the Supreme Court that, "The record in our case indicates that there is no outstanding suspended sentence and that the defendant has been removed from the probation system. There is merely a continuance." A court using a similar device to "filing" did not consider it in the same category as the suspension of the imposition of sentence ( Ex parte St. Hilaire, 64 A. 883). Pino claimed that if a case is taken from the "file" and sentence is imposed, the defendant would be entitled to a trial de novo ( Pino v. Nicolls, 215 F. (2d) 237, 242; reversed, Pino v. Landon, supra). If this is so, the procedure is very different from that found in the suspended sentence case.

We do not presume to know whether in Pino it was the differences between placing the case on file and a suspended sentence that influenced the court, or the fact that the sentence was revoked, or the argument that Pino would be entitled to a trial de novo, or some deficiency in the record before the court. The opinion of the court is too short and summary to enable us to draw conclusions which would have profound and far-reaching effect upon every type of conviction. Certainly we cannot say that Pino controls the issue as to whether a conviction exists for deportation purposes in a case which has not been "filed." We consider the conviction in Pino to be of the type found in category (4). At most, we can say that Pino requires us to examine each conviction, not in category (1), to determine whether the action if any action follows the finding of guilt, is in the nature of a suspended sentence as it is generally known, or whether it is, as apparently is the case in Massachusetts, the approval of an agreement whereby the court does not receive the case for the imposition of sentence until the prosecuting attorney requests that sentence be imposed (see Ex parte St. Hilaire, supra; Orabona v. Linscott, 144 A. 52 Supreme Court, Rhode Island; Matter of C----, A-1000352, 5, I. N. Dec. 198). If it is the latter situation or if it is an actual postponement for sentence during which the case is pending in court (see, Welch v. State, 120 Me. 294, 113 A. 737, it would appear that even though the action is regarded as a "conviction" by the state, as it was in Pino, it would not have achieved the finality required to support an order of deportation.

The cases cited by counsel are distinguishable. People v. Shaw, supra, states that a suspended sentence is not a conviction for the purpose of increasing punishment under a New York law of a convicted person who has been twice previously convicted. It does not state that a suspended sentence is not a "conviction" for any purpose. People v. Murray, supra, holds that under a California law increasing punishment of one previously convicted, it is necessary to show, because of the express language of the law, that in connection with the previous conviction there was "actual servitude." Marino v. Brownell, supra, does by the way of dicta offer some support to counsel's contention. However, it appears the important fact in Marino is the court's finding that the record failed to properly establish concerning an alleged conviction, that there actually had been such a conviction. In the instant case, the existence of a conviction is established by the proper documentary evidence.

Comment is required of an additional case dealing with section 241 (a) (4). In Matter of L---- R----, A-8769665, Int. Dec. No. 846, the Attorney General ruled that a "conviction" under the Texas Suspended Sentence Act did not satisfy the requirement of section 241 (a) (4). The sentence however in Matter of L---- R----, supra, was entered under a provision which stated that "neither the verdict of conviction nor the judgment entered thereon shall become final," except upon final conviction for another felony. There was no subsequent conviction. The effect of the Texas procedure is that even the finding of guilt is held in abeyance. The court has no power to imprison the defendant or place the "convicted" person on probation ( Ex parte Edwards, 125 Cr. R. 188, 67 S.W. (2d) 308; Ex parte Pittman, 157 Cr. R. 301, 248 S.W. (2d) 159) (under a different procedure, the court may suspend sentence of a person found guilty and place him upon probation, article 781b, Vernon's Texas Code of Criminal Procedure). In Matter of L---- R----, supra, we have a situation which differs markedly from the instant one where there is a final finding of guilt and a sentence to imprisonment on which the defendant could have been confined, had not the court as a matter of grace permitted the defendant to remain at large.

Matter of B---- R----, A-1233572, Int. Dec. No. 840, insofar as it is inconsistent with this opinion will not be followed.

We conclude that respondent's suspended sentence in 1936 brought him within the provisions of section 241 (a) (4). No application for relief is before us. The appeal must be dismissed.

Order: It is ordered that the appeal in this case be dismissed.

APPENDIX A

ACTUAL CONFINEMENT IS NOT NECESSARY TO SUSTAIN THE CHARGE, A SUSPENDED SENTENCE WILL SUFFICE

In the Matter of M----, E-113322, 6 IN Dec. 346, we found that a suspended sentence satisfies that portion of part I of section 241 (a) (4) which requires deportation of a person sentenced to confinement or confined. The language of part I reveals that the deportation is contemplated of one who has been sentenced to confinement but has not been required to serve the sentence — that is, one who has received a suspended sentence. We believe that part II of the section is also satisfied by a conviction which has resulted in a suspended sentence. The import of part II is more easily gathered when the section is considered as a whole and with reference to its history. Part I of the section refers to an alien who had been given a sentence, whether or not it had been suspended. This idea is expressed not in specific words but by the statement that confinement is not necessary. So also in part II, the fact that a suspended sentence is sufficient can be drawn from the fact that it is stated that confinement is not necessary. The history of the section confirms this conclusion. Part II of the section makes deportable one convicted of two crimes involving moral turpitude, regardless of whether there was confinement and regardless of whether the convictions were in a single trial. Under previous law, the deportation of the alien who had been convicted more than once could be effected only if he had been tried, convicted and incarcerated, and following that combination of events he again had been tried, convicted and incarcerated (section 19 (a), Immigration Act of 1917, 39 Stat. 874, 889, as amended; see Appendix D, section (C)). The requirement that the alien's convictions must have occurred in separate trials was not found in the express words of the law, which merely stated that the alien must have been "sentenced more than once." Only after considerable conflicting judicial interpretation, was it found to have been the intent of Congress that the convictions must not have occurred in a single trial ( Fong Haw Tan v. Phelan, 333 U.S. 6).

The requirement under the previous law that the alien must have been confined was not stated in so many words. The law merely required a sentence to imprisonment for a term of one year or more. However, the courts found that Congress had intended that confinement must have taken place under the sentence to make the alien deportable. Thus, the term "sentenced to imprisonment" became a term of art and meant confined under a sentence to imprisonment for a year or more ( Bermann v. Reimer, 123 F. (2d) 331 (C.C.A. 2, 1941); United States ex rel. Robinson v. Day, 51 F. (2d) 1022 (C.C.A. 2, 1931); Matters of S----, A-3322135, 3 IN Dec. 579).

In light of the wording of the previous law and the interpretation given to it, it is fair to say that when Congress stated in section 241 (a) (4) that it is proper to use convictions occurring in a single trial, it was done to overcome the effect of Fong Haw Tan, supra; and that when Congress said that an alien is deportable regardless of whether he was confined, it was to overcome the ruling that a suspended sentence was not effective.

Viewed in light of the fact that a conviction under the previous act required confinement, and the term "sentenced to imprisonment" meant confined under a sentence, the following congressional comment explaining the changes made as to the class of deportable aliens found in part II of section 241 (a) (4) loses the incongruity of thought which appears upon its face:

Aliens [are deportable] 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 confined. 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 more than once to a term of a year or more because of such convictions. [Emphasis added.] (House Report No. 1365, 82d Cong., 2d Sess., p. 60)

The though expressed by the comment is that under the Immigration and Nationality Act a suspended sentence would suffice.

Indeed, in view of the history of the meaning of the word conviction under immigration laws; the increasing use of suspended sentences since the time of the passage of the 1917 act, when the Federal courts did not even have the power to suspend sentence (vol. 3, National Commission on Law Observance and Enforcement Report on Penal Institutions, Probation and Parole, Government Printing Office, Washington, 1931); and the desire of Congress that the deportation provisions of the Immigration and Nationality Act concerning criminals be given broad effect, it is not surprising that Congress permitted the use of suspended sentence under section 241 (a) (4). The factors we have outlined would make it as unwarranted to preclude consideration of suspended sentences in the absence of specific indications to the contrary.

Probation, although aimed at rehabilitation, is not inconsistent with deportation ( Ex parte Eng, 77 F. Supp. 74, D.C.N.D. Calif., 1948; see also, United States ex rel. Brazier v. Commissioner, 5 F. (2d) 162 (C.C.A. 2, 1924)). Even under the Immigration Act of 1917, a suspended sentence was sufficient to exclude an alien "convicted" of crime ( Bermann v. Reimer, 123 F. (2d) 331 (C.C.A. 2, 1941); United States ex rel. Fracassi v. Karnuth, 19 F. Supp. 581; 37 Op. Atty. Gen. 259). When Congress has not provided that conviction must be followed by imprisonment, a conviction which is followed by a suspended sentence has been found sufficient for deportation ( Ex parte Eng, supra; see United States ex rel. Cassetta v. Watkins, 73 F. Supp. 399, S.D.N.Y., 1947). We note after the passage of the Immigration and Nationality Act, that when Congress did not desire that a suspended sentence be considered as a "conviction" it referred to a penalty "actually imposed" in connection with the conviction (H.R. Document, Report on the Administration of the Immigration and Nationality Act, February 28, 1955, pp. 83-4; Conference Report No. 2096, June 9, 1952, to accompany H.R. 5678, p. 1755, U.S. Code Congressional and Administrative News, 82d Cong., 2d Sess.). Section 242 (h) of the act ( 8 U.S.C. 1252 (h)) provides for the deportation of an alien despite the fact that he had been placed on "parole or probation."

Another indication that Congress intended that a suspended sentence should be treated as a conviction may be seen in the fact that Congress made "conviction," which involved either state or federal laws, a ground of deportation (sections 241 (a) (11) and (14); 8 U.S.C. 1251 (a) (11) and (14)). Conviction under the federal law for deportation purposes exists even though the sentence has been suspended ( Ex parte Eng, supra). It is difficult to believe that Congress would require more of a state conviction to make an alien deportable than it would of a federal conviction.

The interpretation of section 241 (a) (4) which we believe is required by the language and the history of the act will undoubtedly result in making deportable persons who in the past were not deportable because their conviction of crime was not followed by actual imprisonment. Yet, this interpretation is consistent with the desire of Congress to broaden the scope of the law to facilitate deportation of criminals. It is in line with previous attempts of Congress to make the deportation of undesirable aliens "more certain and free from technical evasion" ( United States ex rel. Cassetta v. Watkins, supra) and with its express desire in the Immigration and Nationality Act to facilitate deportation of criminals and other undesirable aliens (Senate Report No. 725, 82d Cong., 1st Sess., p. 10; H.R. No. 1365, supra, at p 1679, U.S. Code Congressional and Administrative News, 1952).

It should also be noted that although Congress increased the number of aliens which are now subject to deportation because of convictions of crime, Congress also enacted a provision which for the first time permitted the administrative authorities, with congressional approval, to suspend the deportation of criminal aliens (section 244 (a) (5), Immigration and Nationality Act, 8 U.S.C. 1254 (a) (5)).

In enacting part II of the section, it seems clear that Congress was not concerned either with imposing additional punishment upon a convicted alien or with the manner in which the convicted alien had been punished. The object of Congress is to rid the nation of undesirable aliens. It has provided that an alien convicted twice of crimes involving moral turpitude after his entry, whether or not a suspended sentence is involved, is prima facie undesirable. We must give effect to this provision.

APPENDIX B

(A) THE SUSPENDED SENTENCE IN NEW YORK

After a finding of guilt, the court in New York has the option of imposing either a sentence to imprisonment and suspending the execution, or suspending the imposition of sentence (section 2188, Penal Law, Consolidated Laws, C. 40). Both actions are referred to as a suspended sentence and are of equal effect. A sentence which is imposed but the execution suspended may be revoked and the court may impose any punishment it might have pronounced at the time of conviction (section 470-a, Code of Criminal Procedure). Where no definite term of the suspension of imposition of sentence is set, it is for the longest time for which the defendant could have been sentenced ( People v. Raeder, 161 Misc. 557, 292 N.Y.S. 447, 453). Neither sentence is considered "final," nor is either the "rendition of a judgment" ( People v. Harcq, 292 N.Y. 321, 55 N.E. (2d) 179). A suspended sentence is considered a conviction for some purposes but not for others. It is a "conviction" for the purpose of a law providing for the forfeiture of a license to practice dentistry upon "conviction of a felony" ( Weinrib v. Beier, 294 N.Y. 628, 64 N.E. (2d) 175) and it is a conviction for the purpose of a law requiring a convict discharged before service of his full time to serve the full term upon conviction of a felony following discharge ( Richetti v. New York State Board of Parole, 300 N.Y. 357, 90 N.E. (2d) 893). A suspended sentence constitutes a conviction for the purpose of a second offender statute because the law expressly requires this ( People v. Marcley v. Laws, 254 N.Y. 249, 174 N.E. 487). However, it is not a conviction for the purpose of determining whether a defendant is punishable as a fourth offender ( People v. Marcley v. Laws, supra). Nor is it a conviction for the purpose of disenfranchising a voter as one "convicted of a felony" ( People v. Fabian, 192 N.Y. 443, 448; 85 N.E. 672, 674). Suspension of the execution of the judgment during the offender's good behavior does not obliterate the record of conviction nor relieve the offender of the stigma he bears as a law violator. It merely removes the harsh penal consequences and civil disabilities incident to conviction ( People ex rel. Cohen v. Rattigan, 157 N.Y.S. 1003, (aff'd. without op.) 172 App. Div. 957, 157 N.Y.S. 1140).

In New York the power of the court to suspend sentence also exists separate and apart from statute ( Ex parte Kuney, 168 Misc. 285, 5 N.Y.S. (2d) 644, 665). Exercising this right, a court is not required to place a defendant on probation.

(B) THE SUSPENDED SENTENCE GENERALLY

The Attorney General's Survey of Release Procedures (vol. 1, U.S. Government Printing Office, Washington, 1939) reveals a bewildering diversity in the various forums, both in the procedure following the finding of guilt, and the reasoning given for the actions taken. (See also 15 Am. Jur., Cr. Law, secs. 479-480, 492; 24 C.J.S., Criminal Law, secs. 1571, 1618). The complexity of the problem is such that only the general outlines can be given. Our review is a limited one and is inserted here to briefly show the extent of the problem facing Congress in passing the law and the executive authorities in enforcing it.

The Survey reveals that in some states a court may both suspend execution of sentence and the imposition of sentence; that in many jurisdictions, there is no power to indefinitely suspend the execution of sentence although there is the right to suspend indefinitely the imposition of sentence; that in at least one state the court could suspend execution of sentence only in fine cases. (What made a convicted person eligible for probation in one state (venereal disease) made him ineligible in another (Ninth Report on Penal Institutions, Probation and Parole, National Commission on Law Observance and Enforcement, Government Printing Office, Washington, 1931, p. 154)).

In those states in which the courts have power to both suspend execution of sentence or suspend imposition of sentence there appears to be a complete lack of significance in the fact that one or the other form is used. The Survey reveals that in California, a jurisdiction in which the courts have the right to either suspend the execution of sentence or the imposition of sentence, there is little uniformity in the procedure followed either in the various counties of the state or in the actions of judges of the same court in the same county. For example, in one Superior County Court of California, one judge suspended imposition of sentence, another imposed sentence and suspended its execution. In most counties the judges suspended the imposition of the sentence in preference to suspending execution, but in the largest county, it was usual to impose sentence first and suspend execution. There were also wide differences in the use of the power to suspend imposition of sentence in those jurisdictions where the courts had only that power of suspension. In two circuits in Arkansas the suspensions ran to about 39 per cent of the cases. In two other counties there were no suspensions.

Thus, the Survey reveals that in a particular jurisdiction no significance may exist from the type of suspended sentence granted to a convicted person; and that as one jurisdiction is contrasted with another, there is little significance to be attached to the actions taken in any particular case. In Korematsu v. United States, 319 U.S. 432 (1943), the Supreme Court said that in federal practice, the differences between a suspension of execution and suspension of imposition is "trifling."

In view of the situation described, it is hardly likely that Congress could have intended that the type of suspended sentence which was granted and the theoretical distinctions existing should be controlling in a deportation proceeding. We should, therefore, be concerned in cases of suspended sentences only with the question as to whether the sentence in any particular case is a disposition of the type set forth in categories (2) or (3) in contrast to a mere postponement of proceedings as is found in category (4), and whether it is a "conviction" for any purpose in the forum.

APPENDIX C

PLACING A CASE "ON FILE"

The Attorney General's Survey of Release Procedures describes the procedure as follows (pp. 506-7; footnotes omitted):

Suspension of sentence at common law. — There are no Massachusetts cases on the question whether, in the absence of statute, the courts have power after a plea or verdict of guilty to suspend the imposition or the execution of sentence. But the practice of "filing" can be termed a form of indefinite suspension of the imposition of sentence.

Filing. — Massachusetts has a peculiar common law practice of placing an indictment on file. After a verdict of guilty, the case, with the consent of the parties and on such terms as the court may impose, may be "filed". The effect of such filing is merely to suspend active proceedings in the case and to dispose with the necessity of entering formal continuances on the docket. This practice has been upheld by the courts and recognized by statute. "Filing" is not the same as a dismissal of the case, because a prosecution which has been filed can be taken from the file at any time, whereupon the defendant can be required to serve his sentence. But while a "filed" case can be taken from the file this almost never happens. For most practical purposes a case which has been filed results in the release of the defendant. On the surface it seems to be merely another name for a suspended sentence. Guilt is established and then proceedings are suspended during the good behavior of the defendant. But in actual operation it seems to differ from the suspended sentence. The suspended sentence is granted by the judge. It may be on motion of the defendant, on motion of the prosecuting attorney, or on the judge's own initiative without such a motion. But in any event, it is, in fact as well as in form, the act of the judge. In Massachusetts the actual "filing" is by order of the judge, on motion of the prosecuting attorney, but the will of the prosecuting attorney generally determines the result. The difference seems to be this: A judge does not suspend a sentence unless he is satisfied that such a step is proper under all the circumstances; a prosecuting attorney's motion that a prosecution be "filed" in Massachusetts is granted unless the judge has definite doubts concerning the propriety of that disposition of the particular case. This is a very wide difference in actual practice.

Moreover, there is a further practical difference between a "filed case" and a suspended sentence. Although in theory the "filed case" may be taken from the file as readily as an order suspending sentence may be revoked, in practice the former is extremely rare whereas the latter is relatively common.

APPENDIX D

OTHER TESTS EXPLORED IN DETERMINING WHAT CONGRESS MEANT BY A "CONVICTION" FOR THE PURPOSE OF SECTION 241 (a) (4).

( A) A "final" judgment is not required

On the surface, a most appealing case can be made for the rule requiring all convictions to be "final" in order to bring the convicted alien within the provisions of section 241 (a) (4) of the Immigration and Nationality Act of 1952. Such a rule was said to have existed prior to the act. It appears to have the advantage of simplicity and to be capable of universal applicability. However, examination of the issue reveals that the language of the section prevents the application of such a rule, and that although the type of conviction set forth in category (1) made an alien deportable under the previous law (section 19 (a), Immigration Act of 1917, 39 Stat. 874, 889, Ch. 29, as amended; see Appendix D, section (c)), it made him deportable not because the conviction was a "final" one, but because a sentence to imprisonment which had not been suspended was the only kind of sentence which would satisfy the requirement of that provision of the immigration law. In fact, not all "final" convictions made an alien deportable. For example, a sentence to imprisonment which had been suspended, or even a sentence which had ordered the imposition of sentence suspended, is also considered a "final" judgment in federal jurisdiction ( Korematsu v. United States, supra). Yet, such a "final" judgment did not satisfy the requirement of the immigration law concerning the conviction of an alien who had been sentenced to imprisonment for a year or more. The generalization that a "final" judgment was required under the law previous to the Immigration and Nationality Act of 1952 is not accurate.

Let us examine the possibility that Congress nevertheless intended that a "final" judgment should be required to make an alien deportable under section 241 (a) (4) of the act. As to whether a judgment is "final" we must look to the designation given it by the jurisdiction which acted on the case. Here lies the difficulty. In many jurisdictions, a sentence which is suspended is not final. In others (see Korematsu v. United States, supra), it is a "final" judgment. The distinctions in the various forums as to what is a "final" decision are distinctions philosophical in nature and the result of legal or procedural traditions which are without significance insofar as the finding of guilt (or punishment) is concerned. To utilize the test of a "final" judgment would result in the deportation of an alien convicted and sentenced in one jurisdiction while an alien convicted and sentenced in a like manner in another jurisdiction for the same crime would not be deportable. We cannot believe that Congress intended that deportation should hinge on such an inconsequential matter as to whether a conviction occurred in one or the other of the many forums trying criminal cases in the United States. The fact that administratively there would be considerable difficulty in determining whether a judgment is "final" in each forum, is a further indication that Congress did not intend a "final" conviction to be the test. A judgment may be final for one purpose and not another ( Commonwealth v. Hershey, 85 N.E. (2d) 447).

Furthermore, it must be noted that the wording of the section does not specifically state that a conviction must be a "final" one. Where the law does not speak of a "final" judgment, the courts will not ordinarily interpolate such a specification ( Braswell v. United States, 224 F. (2d) 706, C.A. 10, certiorari denied 350 U.S. 845; see Lindsay v. United States, 134 F. (2d) 960, C.A. 10, certiorari denied 319 U.S. 763). We note that when Congress desired to specify that a "final judgment" would be required, it did so (section 241 (a) (17), 8 U.S.C. 1251 (a) (17)). (The significance of the requirement in the particular case is not readily apparent.)

( B) A sentence which is appealable is not the only kind which will satisfy the section

Some thought was given to the possibility that the "finality" which the Supreme Court, in Pino, indicated must exist, was the "finality" which must be found before an appeal will be permitted. However, examination of the idea revealed no more reason for requiring a "conviction" to be one from which an appeal is permitted than was found for the rule that a conviction must be "final."

There is found here too a lack of uniformity. Although in the majority of cases discussing the question as to whether an appeal lies where sentence is suspended the courts did not make a distinction between the two types of suspended sentences (126 A.L.R. 1210, 1212), it appears that an appeal may be taken in many states from a sentence which has been imposed but the execution suspended but, if there is a suspension of the imposition of sentence, in most cases an appeal can not be taken (24 C.J.S., Cr. Law, p. 246). In some cases a defendant waives the right to appeal by accepting a suspended sentence (117 A.L.R. 929). Viewed from the standpoint of the uniform administration of a federal law, it appears illogical to adopt one type of sentence as making an alien deportable because it can be appealed while another cannot. The question as to whether an appeal can be taken in a suspended sentence case has no relation to the finding of guilt. That is fixed. The subjection of the defendant to the discipline of the court is also fixed in both instances, to the same degree. The philosophical distinctions made in the various jurisdictions should have no bearing on the issue of deportability.

Illogical results are found even when there is no comparison of one state within another. In Texas, a sentence under the Suspended Sentence Act is not final until another conviction occurs. If another conviction occurs, the one under the Suspended Sentence Act becomes final and would be the basis for deportation proceedings. Yet, when it becomes final, the right to appeal is expressly denied by statute ( Matteer of L---- R----, supra).

The test of "appealability" has not been used before. We note that the court in Braswell v. United States, supra, p. 710, in considering what was a "conviction" under the federal law where the conviction occurred in a state forum, stated that it need not be found that the conviction was "appealable." There is no reference to such a test in debate or congressional history. Such a test would have the effect of limiting a law which Congress desired to be broadly applied.

In California, the court may either suspend imposition of sentence or suspend execution. If imposition of sentence is suspended, there is no appeal. If execution of sentence is suspended, there is an appeal ( In re Phillips, 109 P. (2d) 344). The apparent lack of significance in the imposition of either type of sentence has been previously set forth.

( C) A sentence to imprisonment is not required under that portion of the section relating to the twice convicted alien

As we have pointed out, two sentences to imprisonment which had not been suspended were required prior to the Immigration and Nationality Act. We have pointed out that the act eliminated the prohibition against suspended sentences. The question arises as to whether it was also the desire of Congress to eliminate the requirement of a sentence to imprisonment in the case of the twice-convicted alien. We do believe that this was the intent of Congress.

Prior to the Immigration and Nationality Act the section corresponding to section 241 (a) (4) made deportable:

* * * any alien who is hereafter sentenced to imprisonment for a term of one year or more because of conviction in this country of a crime involving moral turpitude, committed within five years after the entry of the alien to the United States, or who is hereafter sentenced more than once to such a term of imprisonment because of conviction in this country of any crime involving moral turpitude, committed at any time after entry [Emphasis supplied.] (section 19 (a), Immigration Act of 1917, 39 Stat. 874, 889, Ch. 29, as amended).

The omission in part II, in the present act, of the language relating to imprisonment must be noted. The second portion of section 19 (a) provided for the deportation of the alien sentenced to "such a term of imprisonment," referring, of course, to the preceding language requiring a sentence to imprisonment for a year or more. A similar reference to confinement is not found in the second part of section 241 (a) (4). The section does refer to confinement, but we have pointed out that this reference to confinement was meant to remove the bar against the use of suspended sentences. Moreover, such a reference to confinement does not mean that there must be a sentence of confinement ( Ex parte Eng, supra, p. 78-9). The omission of the reference and the failure to specifically provide that a sentence to confinement was necessary must be-given effect, especially since Congress did retain the requirement of a sentence to confinement in the first portion of the section. This conclusion is reinforced by the rule followed in immigration cases that where the law does not specify a sentence to imprisonment is required for the existence of a conviction, it will not be implied. It has also been stated that the kind of conviction contemplated under the immigration laws is not limited to fine or imprisonment unless such is stated to be the fact ( Ex parte Eng, supra; United States ex rel. Cassetta v. Watkins, supra).

The requirement of a sentence to imprisonment in the case of the first offender is retained. Congress has not stated the reason for retaining it just as it has not stated the reason for requiring the confinement to be of one duration rather than another. The requirement in part I does have the effect of limiting the number of aliens who are made subject to deportation. There is no barrier to Congress applying one test to the first offender and another to the persistent violator of law.