Interim Decision *1492
MATTER OF SANCHEZ-MAIRN ET AL.
In ExClusion Proceedings
A.-12807440
A-18350491 -
A-13350492
Decided by Board -August 8, 1965
(1) Where an alien indicted for murder, second degree (Massachusetts), pleaded guilty to the lesser offense of manslaughter, it is reasonable to conclude
from his .plea of guilty that the homicide committed by him was voluntary;
therefore, it is a crime involving moral turpitude even though under the
Massachusetts statute no distinction is made between voluntary and involuntary manslaughter. •
(2) An alien convicted under the Massachusetts statutes of accessory to manslaughter after the fact has been convicted of a crime involving moral turpitude where the principal was found guilty of voluntary manslaughter, a
crime involving moral turpitude.
EXCLUDABLE: Act of 1952--Section 212(a) (9) [8- U.S.C. 1182(a) (9)3—Convicted of a crime involving . moral turpitude. to
wit: manslaughter (first and second aliens).
Act of 1952—Section 212(a) (9) [8 U.S.C. 1182(a) (9)]--Convicted of crime involving moral turpitude, to wit:
accessory after fact, manslaughter (third alien).
Act of 19:,2—Section 212(a) (20) [8 U.S.C. 1182(a) (20)]—Immigrant—no visa tall three aliens).
The records relate to a group of male natives and citizens of Cuba,
the first being 22 years old and single, the second 26 years old and
married, the third 22 years old and single. They were paroled into
the United States under the pxovisions of section 212(d) (5) of the
Immigration and Nationality Act on January 10, 1963, January 23,
1964, and January 23, 1964, respectively. Their parole was cancelled
administratively on February 4,• 1965, and they were referred to a.
special inquiry officer for a hearing in exclusion proceedings. The
applicants entered the United States for the purpose of remaining
indefinitely because they did not like the Castro regime in Cuba.
They have never applied for or received an immigrant visa for' .
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Interim Decision #1492
permanent residence in the United States and were never previously
in this country. They are excludable under section 212(a) (20) of
the Immigration and Nationality Act as immigrants who at the time
of application for admission were not in Possession of valid unexpired immigrant visas, reentry permits, border crossing identification cards or other valid entry documents required by the Act.
On June 5, 1964, in the Superior Court for the County of Suffolk
at Boston the applicants Raul Sanchez-Marhi and Neinesio MesaRodriguez were indicted of assaulting and beating one Merrill N..
Hussey, with intent to murder him and by such assault and beating
did kill and murder the said person, committed May 22, 1964, constituting the crime of murder in the second degree. On November 9,
1964, these applicants pleaded guilty to so much of the indictment
as charged manslaughter. Marin was sentenced to the Massachusetts
Correctional Institution for not more than 15 years and not less
than 12 years and•Rodriguez was sentenced to the Same institution
for not more than 12 years and not less than 10 years. The other
applicant, Roberto Rameriz-Gonzalez, was indicted on June 5, 1964;
on the charge that well knowing the other two aliens had committed
murder in the second degree, did harbor, conceal, maintain and assist the other two alient with intent that the said aliens should avoid
and escape detention, arrest, trial, and punishment. On November
9.; 1964, he pleaded guilty to accessory after fact to manslaughter
and was sentenced to the Massachusetts Correctional Institution foi
not more than 5 years and not less than 3 years.
Chapter 265, section 1, Annotated Laws of Massachusetts defines
murder as murder committed with deliberately premeditated malice
aforethought, or with extreme• atrocity or Cruelty, or in the commission or attempted commission of a crime punishable with death
or imprisonment for life is murder in the first degree. Murder
which does not appear to be in the *first degree is murder in the second degree. The legislature of Massachusetts manifestly considers
murder as one kind or species of crime, the. punishment of which
may be more or lets severe according to certain aggravating circumstances which may appear on the trial.' Second degree murder has..
been .defined as an unlawful killing with malice aforethought, and
malice, as used in this definition, includes.every unlawful and unjustifiable motive and it may be implied from any deliberate or cruel
act against anothei. 2
Chapter 265, aevbion13, Annotatepl. 'Lowe of. Massachusetts provides that whoever commits manslaughter shall be punished by fin-
. •
' Camritonttealth. v. DIEftattio, 298'dtasuc 502. 1.1 N.Eld 759.
conimonireaith.v.Boyafian, 344 Mara. 44,181 Katie 571. -
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Interim Decision #1492
prisonment in the state prison for not more than 20 years or by a
fine of not more than $1,000 and imprisonment in jail for not more
than two and one-half years. The crime of manslaughter imports
the tqlring of human life by an act not justified in law, but without
malice aforethought which is necessary to constitute murder. There
is a difference between the intent to kill and intent to murder; and
the former may exist when one intends only such a killing as
amounts to manslaughter. A defendant charged in an indictment
with an assault to commit murder may be found guilty of so much
of the indictment as charges an assault with intent to lii11. 3 • On the
trial of an indictment for manslaughter ensuing from a blow which
the defendant seeks to justify on the ground of self-defence, evidence
of the manner and character of the blow is competent upon that
ground of justification; though incompetent upon the question of
his implied intent to kill by the blows
The only question in the case arises out of the fact that under the
Massachusetts statute, manslaughter is not divided into voluntary
and involuntary manslaughter. Voluntary manslaughter has generally been held to involve moral turpitude while involuntary manslaughter has not. However, the Attorney General, in construing -a
similar statute in the State of Ohio held that the indictments for
murder in the second degree clearly charged the alien with two voluntary killings and by his pleas of guilty to nYanslaughter, the alien
admitted these killings. In the absence of other. evidence in the
record of conviction, under the Ohio statute it is reasonable to conclude that tho homicides committed by the aliens were voluntary and
consequently the crimes involve moral turpitude.°
In the instant case, the indictments of the first two named aliens
clearly charge them with a voluntary killing and by their pleas
of guilty the applicants admitted the killing. It is reasonable to
conclude upon the record of conviction that , the homicide committed by the aliens was voluntary and consequently this crime involves moral turpitude. The first charge in the caption relating to
conviction of a crime' involving moral turpitude, to., wit, manslaughter, is sustained.
The third alien, Robert Ramirez-Gonzalez, was convicted upon
his plea of guilty of accessory after the fact to manslaughter. The
indictment %Ara him to the crime committed by the other two
2 Oommattivocath v. Dembaski, 233 Mass. 815,136 MEI. 580.
Commonwealth v. Woodward,
102 Mass. 155.
4
Matter of 5—, 2 I. & N. Dee. 559, at p. 570 (Atty. Gem. 1947) ; Matter of
D—. 3 L & N. Dee. 51; Matter of 2 I. & N. Dee. 477. Compare Matter of.
B—, 4 L & N. Dec. 493. at D. 497.
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Interim Decision #1492
aliens. Chapter 274, section 4 of the Annotated Laws of Massachusetts states that whoever, after the commission of a felony, harbors, conceals, maintains or assists the principal felon or accessory
before the fact, or gives such offender any other aid, knowing that
he has committed a felony or has been accessory thereto before the
fact, with intent that he shall avoid or escape detention, arrest,
trial or punishment, shall be an accessory after the fact, and, except as otherwise provided, be punished by imprisonment in the
state prison for not more than 7 years or in jail for not more than
two and one-half years or by a fine of not more than $1,000. …
Chapter 274, section 1, Annotated. Laws of Massachusetts provides
that a crime punishable by death or imprisonment in the state
prison is a felony. All other crimes are misdemeanors. Manslaughter has been held to be a felony.e
Chapter 274, section 5 of the Annotated Laws of Massachusetts
provides that an accessory to a felony after the fact may be indicted, convicted, and punished, whether the principal felon has
or has not been previously convicted, or is or is not amenable to
justice, either in the county where he became an accessory or in the •
county where the principal felon was convicted. In a prosecution
for being an accessory after the fact to a felony, proof of commission by the principal of the felony charged was essential to the
commonwealth's case? The felony charged as the voluntary manslaughter of which the principals were found. guilty and -which was
a crime involving moral turpitude. It is concluded. that the applicant, Ramirez-Gonzalez, is also subject to deportation because of
conviction of a crime involving moral turpitude, to wit, accessory
after the fact to manslaughter.
The applicants have no family ties in this country. Such ties
as they do possess are in Cuba. Their parole under the provisions
of section 212(d) (5) of the Immigration and Nationality Act has
been revoked. and they are found to be -excludable. Under such
circumstances, the applicants are not eligible for -withholding pursuant to section 248(h) of the Immigration and Nationality Act.*
The appeals will be dismissed.
ORDER: It is ordered that the appeals be and the same are hereby
dis'missed.
Mina/lion v. Aetna Idle Insurance Co., 285 Mass. 1, 8 N.E24 it
Commonwealth. v_ Tilley, 227 Masc. 540, 99 N.B. as 749; Canunotsurealth. v.
Spezzaro,
250 Mass. 454,
146 N.E. 3; Commonwealth, v. Wood,
302 Mass. 255,
19 N.131.25 320.
• Lao May Ma v. Barber, 857 17.1185.
267
