56120/699
Decided by the Board June 23, 1943.
Sentenced more than once for crime involving moral turpitude.
When an alien was given a suspended sentence upon conviction of a crime involving moral turpitude and put on probation for 5 years, and he thereafter committed another crime involving moral turpitude for which he was sentenced to imprisonment for 1 year, the suspended sentence and probation order in connection with the first offense subsequently being revoked and a sentence not to exceed 10 years imposed therefor, he has been "sentenced more than once" within the meaning of section 19 of the Immigation Act of 1917.
CHARGES:
Warrant: Act of 1917 — Sentenced to imprisonment more than once for crimes involving moral turpitude — larceny and burglary.
Mr. Leon Ulman, Board attorney-examiner.
STATEMENT OF THE CASE: The presiding inspector proposes that the respondent be found subject to deportation on the charge above specified. The district director and the Central Office concur.
DISCUSSION: One respondent is a native and citizen of the Philippine Islands, 30 years of age, single. He last entered the United States on November 25, 1927, at Honolulu, Territory of Hawaii, as a passenger on the S.S. President Jefferson, and was admitted as a national of the United States. On February 15, 1939, the respondent was indicted in the Territory of Hawaii First Circuit Court on a charge of second degree burglary and was convicted. However, the imposition of sentence was suspended and on February 24, 1939, he was placed on probation for a period of 5 years. On July 15, 1940, the respondent was convicted in the Territory of Hawaii on his plea of guilty of the crime of larceny, second degree, and sentenced to imprisonment for a term of 1 year. This crime was committed on July 3, 1940. On February 14, 1942, the chief probation officer of the First Circuit Court of the Territory of Hawaii moved in that court for a termination of the respondent's probation in the 1939 case and for the imposition of sentence therein, setting forth the 1939 conviction and an alleged violation of the terms of probation because of the conviction in 1940 of the crime of second degree larceny. The court granted the motion, and on March 5, 1942, the respondent was sentenced to a term of imprisonment not to exceed 10 years.
Section 19 of the Immigration Act of 1917 provides for the deportation of an alien who has been sentenced to imprisonment more than once for a term of 1 year or more because of conviction of a crime involving moral turpitude, committed at any time after entry. Both crimes involved moral turpitude. However, whether the respondent has been sentenced to imprisonment more than once within the meaning of the statute is a question that requires discussion. We said in the case of M---- F---- (55994/669), citing Wallace v. Tecchio, 65 F. 250, that "It is our general view that an alien is not `sentenced more than once' unless he commits a crime, is convicted and sentenced, and then commits another crime for which he is also convicted and sentenced." This subject was discussed and analyzed at considerable length by the Solicitor of Labor in an opinion dated July 26, 1933, in which it was concluded that the decision in the Tecchio case correctly stated the intention of Congress. The Immigration Act of 1917 created many new classes of aliens subject to deportation, one of these in the first draft of the bill being aliens who within 5 years after entry commit a crime involving moral turpitude and receive a sentence of 1 year or more. During the course of the congressional debate, an amendment to that proviso was presented, adding the words now in section 19: "or who is hereafter sentenced more than once to such term of imprisonment because of conviction in this country of any crime involving moral turpitude committed at any time after entry." In support of the amendment it was explained that the Committee of the House sponsoring the bill had been particularly influenced by the testimony of the police commissioner of New York City regarding criminals of the confirmed class, who, it was agreed, ought to be deported. Mr. Burnett, the House Member in charge of the bill, taking the floor said:
The police commissioner wrote me a letter in which he stated that upon examination of the prison records he found that there were a great many of those cases, of men who served out their sentences and then renewed their careers of crime.
The Solicitor closes his discussion with the observation:
It follows, then, that Congress intended that an alien should be deported without limitation as to time of entry into the United States who commits a crime involving moral turpitude and who is sentenced to a term of imprisonment of a year or more and after serving his sentence again commits another crime of that kind and again is sentenced to a like term of imprisonment. These are the criminals of the "confirmed type."
The conclusion reached by the Solicitor was conveyed to the field in a letter of the Commissioner of Immigration and Naturalization dated November 15, 1933. Applying the foregoing to the facts of record, we conclude that the respondent has been "sentenced more than once." Probation is designed to encourage good behavior in a convicted criminal by leaving him at large subject to conditions, while his conduct is regular. On default of the conditions imposed he is subject to commitment until he serves a sentence of imprisonment (Bouvier's Law Dictionary, p. 2729; Santis v. Esola, 50 F. 2d 516 (C.C.A. 9, 1931)). We think that an alien who commits a second crime after having been placed on probation is as much a confirmed criminal as the alien who transgresses after having served a sentence.
FINDINGS OF FACT: Upon the basis of all the evidence presented, it is found:
(1) That the respondent is an alien, a native and citizen of the Philippine Islands;
(2) That the respondent last entered the United States on November 25, 1927, at the port of Honolulu, T.H., as a passenger on the S.S. President Jefferson, and was admitted as a national of the United States;
(3) That on February 15, 1939, the respondent was convicted in the Territory of Hawaii of the crime of burglary, second degree;
(4) That for the foregoing offense sentence was suspended and the respondent was placed on probation for a period of 5 years;
(5) That on July 15, 1940, the respondent was convicted in the Territory of Hawaii of the crime of larceny, second degree, and sentenced on account of the foregoing offense to a term of imprisonment for 1 year;
(6) That said crime was committed on July 3, 1940;
(7) That on March 5, 1942, the respondent's probation with respect to the 1939 conviction was revoked and the respondent was sentenced on account of said conviction to a term of imprisonment not to exceed 10 years.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 19 of the Immigration Act of 1917 the respondent is subject to deportation on the ground that he has been sentenced more than once to imprisonment for a term of 1 year or more because of conviction in this country of crimes involving moral turpitude, committed after entry, to wit: (1) burglary, second degree, and (2) larceny, second degree;
(2) That under section 20 of the Immigration Act of 1917, the respondent is deportable to the Philippine Islands at Government expense.
OTHER FACTORS: Respondent is single, and his immediate family resides in the Philippine Islands.
ORDER: It is ordered that the alien be deported to the Philippine Islands at Government expense on the charge contained in the warrant of arrest.
It is further ordered, That execution of warrant be deferred until alien is released from imprisonment.