A-10071385
Decided by Board September 5, 1957
Crime involving moral turpitude — Effect of suspension of imposition of sentence with respect to the first part of section 241 (a) (4) of the Immigration and Nationality Act.
(1) A conviction for a crime involving moral turpitude in New York which results in suspension of imposition of sentence does not render an alien deportable under the first part of section 241 (a) (4) of the act which specifies, among other things, that there must have been a sentence to confinement.
(2) Hence, an alien who, having entered the United States in 1955, was convicted in New York in 1956 on a plea of guilty of assault, second degree, for which he was given a suspended sentence with probation for 5 years was not sentenced to confinement within the meaning of section 241 (a) (4) of the act and is not deportable under that section.
CHARGE:
Order To Show Cause: Act of 1952 — Section 241 (a) (4) ( 8 U.S.C. 1251 (a) (4)) — Convicted within 5 years after entry for a crime involving moral turpitude (assault, second degree) and sentenced to confinement for one year or more.
BEFORE THE BOARD
Discussion: This is a motion for reconsideration of our order of February 4, 1957, dismissing respondent's appeal. The motion will be granted.
The facts have been fully stated in our previous order. Briefly, respondent, a 38-year-old male, a native and citizen of Cuba, entered the United States in 1955. In 1956, he was convicted on a plea of guilty of assault, second degree, in the County Court for Bronx County, New York, and on July 13, 1956, was sentenced to imprisonment from 2 years 6 months to 5 years, with the sentence being suspended on 5 years' probation. We held that the suspended sentence was sufficient to make the respondent deportable under section 241 (a) (4), Immigration and Nationality Act ( 8 U.S.C. 1251 (a) (4)) as one who had been convicted within 5 years of entry for crime involving moral turpitude and sentenced to confinement for a year or more. Our order is dated February 4, 1957.
Prior to the entry of our order, but without our knowledge, the court on December 27, 1956, had ordered the sentence of July 13, 1956, vacated and set aside and had resentenced the defendant giving him a suspended sentence with probation for 5 years. In other words, instead of imposing sentence and suspending the execution, the court suspended the imposition of sentence. The question is whether the suspension of the imposition of sentence satisfies the requirement that there be a sentence to confinement for a year or more. The issue is one of first impression. The Service has submitted a memorandum asking that the motion be denied. The Service position is that under New York law a court, after conviction, may either suspend the imposition of sentence or impose a sentence and suspend the execution, and that there is no difference in legal effect. Counsel points out that in the event of a violation of the probation, the court could impose any minimum sentence and that in the instant case the sentence could be less than a year.
We are not concerned with whether a suspended sentence is sufficient to satisfy the immigration law ( See Matter of O----, A-5825386, August 20, 1957, Int. Dec. No. 886). The question is whether there has been a sentence to confinement for a year or more under the first part of section 241 (a) (4).
Both the suspension of the imposition of sentence and the suspension of the execution of a sentence are of equal effect in New York. As pointed out by the Service representative, where there is a suspension of the imposition of sentence the defendant may be placed on probation for the maximum term for which he could have been sentenced to imprisonment. However, we do not believe that the suspension of the imposition of sentence, although it is of equal effect with a suspension of the execution of a sentence which has been imposed, satisfies the requirement of the first part of section 241 (a) (4). The deportation law does not make an alien deportable who is sentenced to "probation" for a year or more, it requires that he be sentenced to confinement. This has not been done where there has been a suspension of the imposition of sentence.
The first part of section 241 (a) (4) requires that certain conditions exist before an alien becomes deportable. The crime must have occurred within 5 years after entry. It must be a crime involving moral turpitude. There must have been a sentence to confinement for a year or more. The reason for the selection of these conditions has not been supplied by Congress. These limitations however do exist. We are without authority to change them by accepting a substitute, even though it is just as good as the requirement imposed by Congress. Moreover, the substitute presented here is not just as good. It would enlarge the scope of the section. The Service view would make an alien deportable if he were sentenced under a law which carried a possible sentence to confinement for a year or more. The law does not say this.
This was the very test rejected by Congress in regard to section 212 (a) (10) (p. 128, Conference Report, H.R. No. 2096, 82nd Cong., 2d sess.).
Congress applied a limitation on the deportation of the first offender. This limitation must be adhered to. There must be a sentence to confinement for a year or more. The motion for reconsideration will be granted. No ground of deportation appears of record. Proceedings will be terminated.
Order: It is ordered that the motion for reconsideration be and the same is hereby granted.
It is further ordered that proceedings be and the same are hereby terminated.