Interim Decision #1583
Marra or SANTORO
In Deportation Proceedings
A-42818895.
Decided by Board May 13, 190
A conviction of Mayhem, as defined in Title 11, chapter 29, section 1, of the
General Laws of Rhode Island, is conviction of a crime involving moral
turpitude.
CussesOrder; Act of 1952—Section 241(a) (4) [811.S.C. 1251(a) (4)]—Crime within five years—mayhem.
This case is before us on appeal from a decision of a special inquiry officer directing the respondent's deportation.- •
The respondent is a 30-year-old married male, native and citizen
of Italy, who entered the United States on September 15, 1962 at
which time he was admitted for permanent residence. On November
25, 1964, he was convicted of mayhem in the Superior Court of
Rhode Island and on August 11, 1965 he was sentenced to confinement in the Adult Correctional Institution for five years but execution of the sentence was suspended and he was placed on probation
for eight years. The offense was committed on March 8, 1966. The
sole issue in this case is whether the -respondent is deportable on the
charge stated above.
We have carefully reviewed the entire record. The revbrse of the
notice of4ppeal (Form I-290A) contains the only argument which
has been made by counsel. The principal contentions are: (1) that .
mayhe,sdfinbtlaw-oRhdeIsn,itacrmvolving moral turpitude; (2) that, in determining whether the
crime committed by the respondent involved moral turpitude, the
mitigating.circumstances must be considered; and (3) that the respondent has not been actually sentenced to imprisonment for one
year because a lesser sentence might be imposed in the future.
With respect to the first contention, the indictment (Ex. 3)
charged that the respondent "feloniously; .voluntarily, maliciously
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and of purpose did bite off and disable a member of Nancy Santoro;
to wit, the nose of the said Nancy Santoro." Title 11, Chapter 29,
Section 1 of the General Laws of Rhode Island defines the crime of
mayheiii as follows:
11-28-1. Penalty fur mutilation or iliNablIng.--Every person who shall voluntarily, maliciously or-of purpose put out an eye, slit the nose, ear or Up, or
cut off or bite off or disable any limb or member of another, shell be imprisoned not exceeding ten (10) years nor less than one (1) year.
It is clear that an accidental or even a. negligent mutilation or
disabling would not constitute the -offense of mayhem. The statute
specifically requires that the act be done "voluntarily, maliciously
or of purpose". In view of the evil intent required to constitute
mayhem and the serious nature of the crime, we conclude that the
crime of which the respondent was convicted involves moral
turpitude.
In connection with counsel's second contention, Exhibit 4 is a
letter from the Rhode Island Bureau of Probation and Parole indicating that the respondent has complied. with the conditions of his
probittion; that he "would be considered a model probationer"; and
that the crime was brought about by a domestic situation that had
mitigating circumstances. Nancy Santoro, who was the victim of
the crime, was and is the respondent's wife. She had corresponded
with the respondent and then went to Italy to marry him. Thereafter, she filed a visa petition and he secured nonquota status. The
respondent testified that, although he had repeatedly sought to have
sexual intercourse with his wife, she had continued to refuse, , and
that it was this factor which finally led. to his commission of the
offense. It is unnecessary for us to decide to what extent his wife's
action may have been a mitigating circumstance since it has long
been settled judicially that the immigration authorities may not go
behind the record of conviction to examine the circumstances under '.
which the crime was committed, and the determination of whether
the crime involves moral turpitude must be made on the basis of the
statutory definition of the crime and the record of conviction.
United States en rel. Zaffarano v. Corsi, 63 F.2d 757 (2d Mi., 1933) ;
United States en rel. Meyer v.- Day,
54 F.2d 336, 337 (2d Cir., 1931) ;
United States en rel. Robinson v. Day,
51 F.2d 1022 (2d Cir., 1931).
Accordingly, counsel's second contention is dismissed. .
Counsel's third contention is that the respondent has not been
actually sentenced to imprisonifient for one year because a lesser
sentence might be imposed in the future. This contention is based
on Title.12, Chapter 19, Section 14 of the General- Laws of Rhode
Island which provides, in effect, that where there has been suspen-
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sion of execution of sentence and violation of probation, the court
may continue the suspension or may revoke the suspension and order
_ the defendant committed. on the sentence previously imposed or any
lesser sentence. As we have previously indicated, the sentence imposed was confinement for five years with execution of the sentence
suspended and probation for eight years. If the respondent violated his probation., it appears highly conjectural that the court
would then impose a sentence of less than one year. In any event,
we must dispose of the appeal on the basis of the present record and
not on the basis of some future contingency which may or may not
occur. Accordingly, we reject this contention of counsel.
An additional matter, which was not specifically urged on appeal,
is that the respondent was not actually imprisoned under the conexecution of the sentence was suspended. As the special
viction slues
inquiry officer pointed out, we have held that an alien who was sentenced to imprisonment for over one year but whose sentence was
wholly suspended 'was, nevertheless, deportable under 8 U.S.C.
1251(a) (4). Matter of M , 6 I. & N. Dec. 846 (1954). The special
—
inquiry officer has also discussed his reasons for concluding that no
discretionary relief from deportation is available to the respondent,
and we concur in his conclusion. In view of the foregoing, the appeal will be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
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