56121/994
Decided by the Board September 11, 1943.
Sentence to imprisonment for a year or more — Indeterminate sentence — Crime involving moral turpitude — Burglary, third degree (New York) — Conviction — Evidence.
1. When an alien is given an indeterminate sentence for conviction of a crime, and by statute the maximum penalty for the offense is 3 years, he has been "sentenced to imprisonment for 1 year or more" within the meaning of section 19 of the Immigration Act of 1917. An indeterminate sentence is measured by the possible maximum of imprisonment.
2. Burglary, third degree in violation of section 404 (1) of the New York penal law, is a crime involving moral turpitude when the record of conviction shows that the defendant broke and entered a building with intent to commit larceny.
3. In determining whether an alien is deportable because of conviction of a crime involving moral turpitude, evidence outside of the record of conviction offered to show his innocence is incompetent.
CHARGES:
Warrant: Act of 1917 — Sentenced to imprisonment more than once for crimes involving moral turpitude — petit larceny, and burglary, third degree.
Lodged: Act of 1924 — Immigrant without immigration visa.
Mr. Leon Ulman, Board attoney-examiner.
STATEMENT OF THE CASE: The presiding inspector proposes that the respondent be found subject to deportation on the charges above specified. The Central Office concurs. Exceptions have been filed.
DISCUSSION: The respondent is a native and citizen of Panama, 37 years of age. He last entered the United States on September 3, 1925, at New York, N.Y., on the S.S. Fort Hamilton, as a member of the crew, arriving from Halifax, Nova Scotia. He entered the United States for permanent residence, but he did not have an immigration visa. He has never been admitted to the United States for permanent residence.
On October 23, 1931, the respondent was convicted in the Court of General Sessions for the County and State of New York of the crime of petit larceny committed on September 14, 1931, and sentenced to imprisonment in the penitentiary of the County of New York, there to be dealt with according to law. The State law providing for the imposition of the foregoing sentence prescribes that the term of imprisonment shall not exceed 3 years (Laws of 1915 (N.Y.) ch. 579, sec. 4). Within the meaning of section 19 of the Immigration Act of 1917, the term of such a sentence is regarded as the possible maximum period of incarceration, and, hence for more than 1 year ( United States ex rel. Amato v. Commissioner of Immigration, 18 F. Supp. 480 (D.C., N.Y., 1937); United States ex rel. Paladino v. Commissioner of Immigration, 43 F. 2d 821 (C.C.A. 2, 1930)). It has likewise been determined that the crime of petit larceny involves the element of moral turpitude ( United States ex rel. Meyer v. Day, 54 F. 2d 336 (C.C.A. 2)).
On May 31, 1941, the respondent was convicted in the same court of the crime of burglary, third degree, committed on March 11, 1941, and sentenced to imprisonment for a term of not less than 2 nor more than 4 years. The indictment on which the respondent was convicted charged that he committed the crime of burglary in the third degree in that "with intent to commit therein the crime of larceny [he] broke and entered the shop of —." Section 404 of the penal law of New York provides that:
A person who (1) with intent to commit a crime therein, breaks and enters a building; or (2) being in any building, commits a crime therein and breaks out of the same, is guilty of burglary in the third degree.
It is our judgment that the crime of burglary, third degree, involves moral turpitude when committed under the circumstances alleged in the indictment herein.
The respondent urges that in fact he was innocent of the crime of burglary. However, it is not within our power in this proceeding to try the issue of the respondent's guilt. It is our function alone to determine whether he has been convicted as charged. As to this there is no issue. We conclude that the charges have been sustained.
FINDINGS OF FACT: Upon the basis of all the evidence adduced at the hearing, it is found:
(1) That the respondent is an alien, a native and citizen of Panama;
(2) That the respondent last entered the United States on September 3, 1925, at the port of New York, N.Y., on the S.S. Fort Hamilton, as a member of the crew, arriving from Halifax, Nova Scotia;
(3) That the respondent entered the United States for permanent residence;
(4) That the respondent did not have an immigration visa;
(5) That the respondent has never been lawfully admitted to the United States for permanent residence;
(6) That on October 23, 1931, the respondent was convicted in the Court of General Sessions for the County and State of New York of the crime of petit larceny committed on September 14, 1931;
(7) That for the foregoing offense the respondent was sentenced to imprisonment for more than 1 year;
(8) That on May 31, 1941, the respondent was convicted in the Court of General Sessions of the County and State of New York of the crime of burglary, third degree, committed on March 11, 1941;
(9) That the indictment upon which the respondent was convicted charged that he committed the crime of burglary in the third degree in that with intent to commit the crime of larceny he broke into and entered a shop;
(10) That for the foregoing offense the respondent was sentenced to imprisonment for a term of not less than 2 nor more than 4 years.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under sections 13 and 14 of the Immigration Act of 1924 the respondent is subject to deportation in that at the time of entry he was an immigrant not in possession of a valid immigration visa and not exempted from the presentation thereof by said act or regulations made thereunder;
(2) That under section 19 of the Immigration Act of 1917 the respondent is subject to deportation in that after May 1, 1917, he has been sentenced to imprisonment more than once for a term of 1 year or more for the commission subsequent to entry of a crime involving moral turpitude, to wit: petit larceny and burglary, third degree;
(3) That under section 20 of the Immigration Act of 1917 the respondent is deportable to Panama at Government expense.
OTHER FACTORS: The respondent is deportable under the provision of section 19 (d) of the Immigration Act of 1917, as amended, relating to criminals. Consequently, he is not eligible for the discretionary relief provided for by section 19 (c). The respondent testified that he has a common-law wife who is confined to an institution for the mentally ill; that there are 3 minor children born in the United States, one of whom resides with a friend, the second is in a foundling home, and the third with its mother. Since the respondent's deportation is mandatory, his appeal for leniency on the ground that his deportation would result in a separation from his family and in serious economic detriment to his minor children must be denied.
ORDER: It is ordered that the alien be deported to Panama, at Government expense, on the charge contained in the warrant of arrest and on the further charge: That he is in the United States in violation of the Immigration Act of 1924 in that at the time of entry he was an immigrant not in possession of a valid immigration visa and not exempted from the presentation thereof by said act or regulations made thereunder.