A-1616747
Decided by Central Office February 25, 1948
"Sentenced to imprisonment" — Section 19 of the Immigration Act of 1917.
An alien has not been sentenced to imprisonment for "a term of 1 year or more," within the meaning of section 19 of the Immigration Act of 1917 (though he served 12 years of a 20-40 years' sentence in the State of Michigan), if under the pertinent State law, a new trial was granted and as a result he was placed on probation for 60 days.
CHARGE:
Warrant: Act of 1917 — Sentenced within 5 years of entry of a crime involving moral turpitude, to wit: Robbery armed.
BEFORE THE CENTRAL OFFICE
Discussion: This is the case of a native and citizen of Poland, 37 years of age, male, married, who last entered the United States in June 1928, at Detroit, Mich. He was found deportable on March 9, 1931, on the above-stated ground and his deportation to Poland was ordered. On March 21, 1947, the order of deportation and the warrant of deportation predicated thereon were withdrawn, and the hearing reopened, for the introduction of new evidence.
In the Superior Court for the Court of Oakland, Mich., on January 8, 1930, the respondent was sentenced to imprisonment to a term of 20-40 years, following his conviction of robbery armed, committed July 21, 1929.
On August 28, 1946, respondent filed an affidavit in support of a motion for a new trial in the Circuit Court for the County of Oakland, Mich., for the following reasons: that at the time he was sentenced on January 7, 1930, to imprisonment for 20-40 years the court was not aware that upon completion of sentence he would be subject to deportation; that his record has been good since his release on parole on August 13, 1942, after serving 12 years of his sentence; that he has married since his release from prison, has an infant child, and has been gainfully employed; that he has no family ties abroad; that if he is deported his wife and child would most likely become public charges; and that since his release from imprisonment his habits have been those of a law-abiding citizen. On September 3, 1946, the court granted respondent's motion. At the new trial his plea of guilty was accepted by the court and he was placed on probation for 60 days, the court recommending that his conviction shall not constitute a basis for deportation.
As a general rule, where defendant has executed or entered upon the execution of a valid sentence, the court cannot, even during the term at which the sentence was entered, set it aside and render a new sentence. In re Richards, 150 Mich. 421; People v. Kelley, 79 Mich. 320; People v. Meservey, 76 Mich. 323; In re Mason, 8 Mich. 70: United States v. Lane, 221 Fed. 299. (Under sec. 17356 Mich. C.L. 1929, motions for new trials shall be made within 30 days after verdict.) However, the Circuit Court has power to order a new trial in a criminal case without limitation of time, on a proper showing. People v. Burnstein, 261 Mich. 534 (Jan. 3, 1933). In this case the Supreme Court of Michigan stated:
The statutory period within which defendants had the right to move for a new trial had expired before the so-called renewal motion was filed. It would have been proper procedure for defendants by motion to have sought leave of the court to move for a new trial. The circuit judge had power to order to new trial without limitation of time. People v. Hurwich, 259 Mich. 361. The motion for leave would have been an appeal to the discretion of the court. In cases of this character the matter of passing upon a motion for a new trial is peculiarly one over which the circuit court judge shuld exercise primary jurisdiction.
The above-cited cases reflect that resentencing of the alien is a valid judgment under the law of the State of Michigan. The only question which remains to be decided is what effect such resentence has upon the deportability of the alien at this time. Since the new sentence imposed a term of imprisonment for less than 1 year, namely 60 days, the court's recommendation against deportation was superfluous (sec. 19, Immigration Act of 1917).
In the instant case, considering the grounds upon which the motion for a new trial was granted, it is clear the alien seeks to escape deportation by invoking a novel procedure. At the retrial he again pleaded guilty to the original charge, the only new factors presented being the allegations of his good conduct. Nevertheless, the following reflects that the respondent is not now deportable.
In Matter of C----, 56090/576 (Jan. 8, 1944), the warrant of arrest contained the charge that the alien was convicted of a crime involving moral turpitude committed within 5 years after entry, to wit: Indecent liberties with female child under 16 years of age. The crime was committed on July 19, 1941. The alien was convicted on September 2, 1941, in the Circuit Court of Claire County, Mich., and was sentenced on September 9, 1941, to imprisonment for a term of 6 months to 10 years. During the course of his imprisonment, the alien was accorded a hearing on November 5, 1941, under the warrant of arrest, and on November 10, 1941, a proposed order of deportation was served on him. While the case was pending for decision, the sentencing court on July 20, 1942, entered a judgment placing the respondent on probation for a period of 2 years from July 20, 1942. The judgment further specifically superseded the 1941 sentence, released the respondent from that sentence and recommended that he be not deported. On February 5, 1943, the court entered a further order providing that the original sentence on September 9, 1941, be deemed amended nunc pro tunc by the addition of the recommendation that the respondent be not deported because of his conviction.
The Board observed in the C---- case that the Presiding Inspector was not persuaded that the criminal ground for deportation had been removed, stating that (1) the respondent was not granted a new trial and (2) the recommendation against deportation was ineffective. In a letter dated June 29, 1943, the Presiding Inspector referred to the subsequent proceedings in the criminal case as "irregular" in that there was a record of the same court sentencing the respondent twice, "once to Michigan State prison and once to a term of probation." The Board noted that the Central Office, on the other hand, was of the opinion that "the action of the court has the effect of defeating deportation * * * by reason of the fact that as the court record stands, the alien has not been sentenced to imprisonment for at least 1 year. While it has been the view of this Service that such proceedings on the part of courts for the apparent purpose of defeating deportation is irregular, such cases have not been contested, or if so, without success (55974/46), (55081/364), (55916/719)."
In deciding the warrant charge in the C---- case to be not sustainable, the Board of Immigration Appeals referred to the unreported decision of the United States District Court for the Southern District of New York on June 21, 1940, in the case of U.S. ex rel. Casado v. Uhl (Conger, J.C.D. No. 8-31, Imm. file 55916/719) and stated:
There the alien was likewise sentenced in Michigan to a term of imprisonment of 1 year or more because of conviction of the crime of robbery. During his confinement he was ordered deported on the ground that he had been sentenced, as indicated, because of conviction of a crime involving moral turpitude committed within 5 years after entry. Having served his sentence he was released. Apparently to avoid the deportation order outstanding against him he then moved the criminal court for a new trial. The motion was granted, and upon his plea of guilty the court vacated the former conviction and placed him on probation for 2 years with the recommendation that he should not be deported. In sustaining the alien's writ of habeas corpus and discharging him from custody the court said: "The Recorder's Court having set aside and vacated the former conviction and permitted the defendant to plead guilty to the crime for which he received a probationary sentence, he is no longer subject to deportation."
The Service questioned the correctness of Judge Conger's decision and on August 30, 1940, recommended to the Solicitor General that an appeal be taken. The principal argument made was that the proceedings subsequent to the imposition of the original sentence was invalid because the respondent was not present at the subsequent proceedings as required under Michigan law. However, it seems to have been conceded that had the respondent personally attended such proceedings, the superseding judgment would be effective. On September 17, 1940, the Acting Solicitor General directed that no appeal be taken.
In some respects the case before us is distinguishable on the ground that the court did not specifically grant a new trial. On the other hand, the respondent did appear at the later proceedings.
In our judgment, the case falls within the principle enunciated by the Casado decision, and we believe that the conviction is no longer a cause for respondent's deportation.
While the courts have held that the sentence in a criminal case is the final judgment ( Berman v. United States, 302 U.S. 211 (Dec. 6, 1937)), they have not maintained that it is either the only judgment or the only final judgment, except insofar as the term "sentence" is intended to mean the judicial determination by the court of a matter within its jurisdiction. ( United States v. Hawk, 320 U.S. 531 (Jan. 3, 1944). In Matter of G----, 56064/847 (June 6, 1941), 1 IN Dec. 96, where an alien was convicted of a crime on a plea of guilty and was given a suspended sentence, but later under special statutory procedure a new trial was granted and the case dismissed, the Board of Immigration Appeals held that the plea of guilty did not constitute an admission of the commission of the crime under section 19 of the Immigration Act of 1917. The Board stated that "With a final adjudication of the criminal court dismissing the charge, and with no indication that the court was not fully informed as to all the facts, we cannot conclude that the case before us, the respondent is now guilty of a criminal offense against the laws of the State of Texas. Admissions of the respondent cannot change this fact." In the instant case the resentence of the alien was tantamount to a setting aside of the original sentence. Whatever may have been the motive of procedure invoked in effecting the new sentence, it was valid under Michigan law. The motion upon which the new trial was granted in the present case shows the court was aware of all the facts. Pursuant to the judicial and administrative decisions above cited, respondent is not now deportable on the ground contained in the warrant of arrest.
Recommendation: It is recommended that the warrant of arrest dated March 9, 1931, be canceled and the proceedings closed.
So ordered.