E-89656
Decided by the Board October 5, 1953
Crime involving moral turpitude — Manslaughter — Ireland — Deportability under section 241 (a) (1) of the Immigration and Nationality Act when ground of inadmissibility comes within exception contained in section 212 (a) (9) of that act.
(1) Where there is a conviction upon a plea of guilty to an indictment charging a voluntary killing under a statute which draws no distinction between voluntary and involuntary manslaughter, it is reasonable to conclude that the killing was voluntary in the absence of other evidence in the record of conviction. (See Matter of S----, A-5530239, 2 IN Dec. 559, 570 (Atty. Gen. 1947)). Therefore, the respondent was convicted prior to entry of voluntary manslaughter, a crime involving moral turpitude, and is deportable under section 241 (a) (1) of the Immigration and Nationality Act.
(2) A charge of deportability under section 241 (a) (1) of the Immigration and Nationality Act should not be sustained when based on a ground of inadmissibility under a repealed law (sec. 2 of the act of February 20, 1907, as a person who had been convicted of a crime involving moral turpitude) which would no longer constitute a basis of inadmissibility under the Immigration and Nationality Act by reason of the exception contained in section 212 (a) (9) of the act.
CHARGE:
Warrant: Section 241 (a) (1) of the Immigration and Nationality Act — Crime prior to entry — Manslaughter (Ireland).
BEFORE THE BOARD
Discussion: The case comes forward upon certification of the order of the special inquiry officer dated July 14, 1953, ordering that the proceedings be terminated.
The record relates to a native and citizen of Eire, 67 years old, male, who last entered the United States at the port of Philadelphia, Pa., on May 5, 1907 ex-SS. Westernland and was admitted for permanent residence. The respondent testified that when he was about 17 years of age, he was convicted of manslaughter in Ireland. He identified as relating to him a record of conviction showing that he and others were convicted upon a plea of guilty to an indictment charging that on March 17, 1900, they feloniously did kill and slay one P---- L----, and were sentenced to imprisonment for a term of 10 months from March 20, 1900.
The decision of the special inquiry officer incorporates therein the relevant provisions of English law relating to murder and manslaughter which were in existence in Ireland at the time of the offense in 1900. It was designated as murder for a person of sound memory and discretion unlawfully to kill any human creature in being and under the King's peace with malice aforethought, either express or implied by law provided the person killed died of the injury inflicted within a year and a day after the same. Manslaughter was defined as the unlawful killing of such a person without malice either express or implied. It was further provided that in any indictment for murder or manslaughter or for being an accessory to any murder or manslaughter, it was not necessary to set forth the means in which or the means by which the death of the deceased was caused, but it was sufficient in any indictment for murder to charge that the defendant did feloniously, willfully, and of his malice aforethought kill and murder the deceased; and it was sufficient in any indictment for manslaughter to charge that the defendant did feloniously kill and slay the deceased.
Halsbury's Laws of England, 2d edition, ch. 9, part XII; sec. 731 and sec. 6, ch. 100, "Offenses Against the Person"-Act A.D. 1861-in the 24th and 25th years of the reign of Victoria.
It appears that the statute under consideration draws no distinction between voluntary and involuntary manslaughter. The indictment, to which respondent pleaded guilty, charged that he feloniously killed and slayed the deceased. The testimony of the respondent is to the effect that the killing arose out of a drunken brawl. The special inquiry officer has concluded that in the absence of precedent decisions available, the offense is comprehended within the definition of involuntary manslaughter as defined in Bouvier's Law Dictionary which defines involuntary manslaughter as such as happens without the intention to inflict injury.
We are not satisfied that the offense herein involved constituted involuntary manslaughter. It is clear that the offense constitutes manslaughter and that the statute makes no distinction between voluntary and involuntary manslaughter. We believe that the holding of the Attorney General in Matter of S----, is controlling. There the Attorney General held that where the indictment clearly charges voluntary killings, and by a plea of guilty the alien admits these killings, in the absence of other evidence, the record of conviction (under a similar Ohio statute drawing no distinction between voluntary and involuntary manslaughter), it was reasonable to conclude that the homicides committed by the alien were voluntary. We reach the same conclusion in the instant case. We therefore find that the respondent was convicted prior to entry of voluntary manslaughter, a crime involving moral turpitude, and that he is subject to deportation on the charge stated in the warrant of arrest.
A-5530239, 2 IN Dec. 559, 570; Matter of D----, A-6214908, 3 IN Dec. 51 (1947).
However, further consideration of the case is necessary since the charges are laid under section 241 (a) (1) of the Immigration and Nationality Act which provides that any alien in the United States shall, upon the order of the Attorney General, be deported, who at the time of entry was within one or more of the classes of aliens excludable by the law existing at the time of such entry. At the time of his entry on May 5, 1907, the respondent was inadmissible under section 2 of the act of February 20, 1907 as a person who had been convicted of a crime involving moral turpitude. However, the like provision relating to criminal classes appearing in the Immigration and Nationality Act, section 212 (a) (9), contains the following exception:
* * * except that aliens who have committed only one such crime while under the age of 18 years may be granted a visa and admitted if the crime was committed more than 5 years prior to the date of application for a visa or other documentation, and more than 5 years prior to the date of application for admission to the United States, unless the crime resulted in confinement in a prison or correctional institution, in which case such alien must have been released from such confinement more than 5 years prior to the date of the application for a visa or other documentation, and for admission to the United States.
The facts in the instant case regarding the respondent's conviction of a crime involving moral turpitude in 1900 would bring him clearly within the exception set forth above to section 212 (a) (9). It would therefore appear that if the respondent were now seeking to enter the United States he would not be found to be inadmissible. However, the savings clause, section 405 of the Immigration and Nationality Act, would appear to preserve his deportability. In view of the congressional enactment set forth above, we feel that the criminal charge should not now be sustained.
This conclusion is in harmony with court decisions to the effect that appellate courts will dispose of matters before them in the light of any change in law or fact which has occurred since the judgment below was entered. This result is also in accord with the administrative practice which was followed in cases where an alien at time of entry was excludable because racially ineligible to citizenship, but, in deportation proceedings, following the removal of the racial bar to naturalization, the charge based upon his original racial inadmissibility was not sustained.
Vandenbark v. Owens-Illinois Glass Co., 311 U.S. 538; U.S. ex rel. Pizzuto v. Shaughnessy, 184 F. (2d) 666; U.S. ex rel. Wiczynski v. Shaughnessy, 185 F. (2d) 347; U.S. ex rel. Harisiades v. Shaughnessy, 187 F. (2d) 137; Patterson v. Alabama, 294 U.S. 600; Zank v. Landon, 205 F. (2d) 615.
Matter of L----, 56121/238 (A-9799488), (1944); Matter of C----, 56150/280, (1944); Matter of R----, A-9836929 (1946); Matter of B----, Int. Dec. No. 445 (May 27, 1953), A-5385180.
We therefore conclude that in view of the fact that the ground of inadmissibility under the repealed law would no longer constitute a present basis of inadmissibility under the Immigration and Nationality Act the charge of deportability based thereon should not be sustained for the reasons set forth above.
Order: It is ordered that the proceedings be and the same are hereby terminated.