A-3322135
Decided by Central Office April 14, 1949 Decided by Board September 13, 1949
"Sentenced to imprisonment for a year or more" — Section 19 of the Immigration Act of 1917.
A convicted alien, serving only 1 month in a county road camp under the circumstances set forth in this case, has not been sentenced to imprisonment for a year or more within the meaning of section 19 of the Immigration Act of 1917.
CHARGES:
Act of 1917 — Crime prior to entry, to wit: Burglary, reduced to malicious mischief.
Act of 1917 — Sentenced to imprisonment for a crime committed within 5 years after entry, to wit: Burglary.
BEFORE THE CENTRAL OFFICE
Discussion: This case was considered by the Board of Review on October 9, 1934, at which time the alien was found deportable on the foregoing charges and he was ordered deported to his native country. The charge with respect to his having been convicted of the crime of burglary relates to the alien's conviction in California on May 23, 1934, of the crime of burglary, second degree, for which he was sentenced to imprisonment in San Quentin Prison for the term prescribed by law, execution of sentence suspended, and probation granted for 15 years, first year of probationary period defendant must serve in the county road camp, three-fourths of his earnings from the road camp to go toward paying defendant's transportation to Mexico, and upon his release from jail defendant to be deported to Mexico, and he must remain outside the United States. On June 11, 1934, a judge of the Superior Court, Los Angeles, Calif., entered an order modifying alien's probation so that he could immediately be released to the probation officer and deported to Mexico, probation to be revoked if the respondent returned to the United States. Efforts to return the alien to Mexico have been unsuccessful.
In the Matter of K----, 55805/274 (1932), the alien involved had been sentenced to imprisonment more than once subsequent to May 1, 1917, for the crimes of larceny and burglary, second degree. On December 30, 1927, he was sentenced by the municipal court of the city of Portland to serve 1 year in the county jail, execution of sentence for a period of 8 months to be suspended, upon conviction of the crime of larceny. On August 31, 1932, the alien was found guilty by the Superior Court for the county of San Francisco of the crime of burglary in the second degree and he was sentenced to the California State prison, but on the same day, the execution of the judgement was suspended for a period of 1 year, on condition that the alien serve a term of 1 year in the county jail with the proviso that the alien might be removed at any time by the immigration authorities if they wish to deport him.
In the K---- case, supra, it was held that the first sentence was not a sentence to imprisonment for a term of 1 year or more because of the suspension of 8 months thereof, under authority of U.S. ex rel. Robinson v. Day, C.C.A. (2) 1931, 51 F. (2d) 1022. Since the alien in the instant case was convicted of burglary but the sentence suspended it is believed on the authorities cited above that he is not deportable on the warrant charge with respect to his having been convicted of the crime of burglary. We do not have copy of indictment or conviction with respect to the crime of malicious mischief and since some doubt now evists as to whether the other charge is supported, the order and warrant of deportation should be withdrawn and the case considered de novo. Motion is hereby made, That the case be reconsidered de novo on the basis of the foregoing.
Discussion: This case is before us on motion of the Assistant Commissioner to reconsider the proceedings de novo. On October 9, 1934, the Board of Review found the respondent deportable on the charge of having been sentenced to imprisonment for a crime (burglary) committed within 5 years after entry. Thereafter, he was ordered deported to his native country of Mexico.
The conviction for burglary referred to above occurred in California on May 23, 1934. At that time, respondent was sentenced to San Quentin Prison for the term prescribed by law for the crime of burglary, second degree, with execution of sentence suspended and probation granted for 15 years, provided that the defendant should serve the first year of his probationary period in the county road camp and that three-fourths of his earnings should be applied toward paying his transportation to Mexico. The court order also stated that defendant was to be deported to Mexico upon his release from jail and must remain outside of California for the remainder of his probationary period. On June 8, 1934, a court order was entered in the Superior Court of Los Angeles, Calif., modifying the previous court order so that respondent was immediately released to the probation officer for deportation to Mexico with probation to be revoked if respondent returned to the United States. Immigration officers were unsuccessful in their attempts to effect respondent's deportation for Mexico would not accept him. Since that time respondent has been living in Arizona with his wife and children. Since respondent served only a month in the county road camp, instead of the year's time prescribed by the court, respondent is not deportable on the charge of having been sentenced to imprisonment for a crime committed within 5 years after entry. Therefore, the deportation proceeding involving this defendant should be dismissed.
Order: It is hereby ordered that the deportation proceedings be canceled.