Interim Decision #1258
Mawr= OF CASSISI
In DEPORTATION Proceedings
A-10202132
Decided by Board <7 altuary 15,1983
Recourse may not be had to the remarks of the State's Attorney to the court at
the time of sentencing in order to determine whether or not the crime involves
moral turpitude where respondent was convicted under a broad, divisible
statute which enumerates several nets, the commission of which may or may
not involve moral turpitude, and the record of conviction merely refers to the
section of law involved.
CHARGE
Order : Act of 1952--Section 241(a) (4) [8 U.S.C. 1251(a) (4) 3—Crime involving moral turpitude committed within five
years—Sentenced to confinement a year or more—Encouraging abortion (Conn. 1959).
The case comes forward on appeal by the trial attorney from the
order of the special inquiry officer dated September 26, 1962 ordering
that the proceedings be terminated.
The record relates to a, native and citizen of Italy, 27 years of old,
male, who last entered the United States at the port of New York on
December 1, 1955 when he was admitted for permanent residence. On
April 14, 1959 he was convicted in the Superior Court, New Haven,
Connecticut of the offense of Encouraging the Commission of Abortion in violation of section 53-31 of the General Statutes of Connecticut and was sentenced to confinement in jail for a period of one
year, execution of sentence suspended, and placed on probation for
2 years.
The record of conviction discloses that the respondent was first
charged with violation of section 53-29 of the General Statutes of
Connecticut, "Attempt to Procure Miscarriage". He entered. a plea
of not guilty to that charge. Thereafter, the State's Attorney, with
consent of the court, filed a substituted information charging the respondent with violation of section 53-31 of the General Statutes of
Connecticut, "Encouraging Abortion". The substituted information
merely states that on February 21, 1959 the respondent and another
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Interim Decision #1258
person, Carmen Coscia, did violate section 53-31 of the General Statutes. There is no further description or specification of the acts
committed. The respondent pleaded guilty to the substituted information on Apri114,1959.
The section of law under which the respondent was convicted, section 53 31 of the General Statutes of Connecticut, is entitled "En-
-
couraging the Commission of Abortion" and provides:
Any person who, by publication, lecture or otherwise or by advertisement or by
sale or circulation of any publication, encourages or prompts to the commission of
the offenses described in sections 53-29 [Attempt to Procure Miscarriage] or
53-30 [Abortion or Miscarriage] who sells or advertises medicines or instruments or other devices for the commission of any of said offenses, except to a
Itopngpg1 physician or to a hospital approved by the State Department of Health,
or who advertises any so-called monthly regulator for women, shall be tined not
more than $500 or imprisoned for not more than one year or both.
It is noted that the section of law of which the respondent was convicted is a broad, divisible statute which enumerates several wits, the
commission of which may or may not involve moral turpitude. The
record of conviction, which includes the charge (information or indictment), plea, verdict and sentence, does not throw any light upon
the nature of the crime committed inasmuch as the substituted information merely charged the commission of the crime by reference to
the section of the law involved. The trial attorney urges that recourse
may be had to'the remarks of the State's Attorney to the court at the
time of sentencing but we concur with the special inquiry officer that
the established authority is to the contrary.
We do not believe that the case of Marinelli v. Ryarb 2 assists the
Service. In that case, while the record before the criminal court did
not contain a copy of the "information", the court remarked that the
substance of the information appeared in the judgment of that court
and from the counts specified in the judgment the court was able to
determine that the crime involved moral turpitude. The appellate
court found it unnecessary to reconsider what it had laid down in
United States ex rel. Zaffarano v. Corsi, 63 F.2d 757; i.e., that in
reviewing an order of deportation, the court may not look beyond the
indictment, the plea, the verdict and the sentence and, therefore,
the question did not arise as to whether the evidence before the court
that sentenced the alien might be examined to ascertain whether the
sentence brought him within the deportation statute.
The special inquiry officer has noted that in the case of the co-defendant of this respondent, who was convicted of the same offense, the
Attains v. UM, 210 Fed. 860 (2d Cir., 1914) ; United States en rel. Robinson
v. _Dam 51 F_2(1_ 1022 (2d Cir., 1931) ; United ,States en rel. Zaffarano v. Corsi, 63
F2d 757 (2d Cir., 1933).
2
285 F.2d 474 (2d Cir., 1961).
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Interim Decision 4t1258
proceedings were terminated upon. a finding that upon the record the
Service had failed to bear its burden of establishing that the respondent was deportable by evidence which was reasonable, substantial and
probative.s We concur with the conclusion of the special inquiry
officer in the instant case that from the record of conviction it is not
possible to establish that the crime of which respondent was convicted
necessarily involves moral turpitude. The special inquiry officer
properly terminated the proceedings. The appeal of the trial attorney
willbe dismissed.
ORDER: It is ordered that the appeal by the trial attorney from
the special inquiry officer's decision of September 26, 1962 terminating
the proceedings be and the same is hereby dismissed.
3 Matter of 0 , A-10029078 (May 1, 1992).
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