Interim Decision #1704
MATTER OF GOODALLE
In Deportation Proceedings
A-12346941
Decided by Board March 3, 1967
Respondent's conviction of aaaault in the second degree (by the use of a knife),
in violation of subdivision (4) of section 242 of the New York Penal Law
is conviction of a crime involving moral turpitude and sentence of respondent,
22 years of age, as a result thereof, to an indeterminate term at the New
York State Reformatory at Elmira, N.Y. is a "sentence to confinement" within
the meaning of section 241(a) (4) of the Immigration and Nationality Act.
CHARGE:
Order: Act of 1952 —Section 241(a) (4) [S U.S C. 1251 (a ) (4 ) 1—Convicted
of crime involving moral turpitude committed within
Eve years after entry, to wit: assault in the second
degree.
ON BEHALF OF RESPONDENT : ON BEHALF OF SERVICE :
Millard A. Ring, Esquire Irving A. Appleman_
11 Broadway Appellate Trial Attorney
New York, New York 10004 (Oral argument)
(Oral argument)
This case comes forward on appeal from the decision of the special
inquiry officer, finding respondent deportable as charged, ineligible
for any form of discretionary relief, and ordering him deported to
England, the country of designation, with an alternate designation
of the British West Indies.
Respondent is a 24-year-old single male alien, a native of Antigua,
British West Indies and a subject of Great Britain. He was lawfully
admitted to the United. States for permanent residence in January
1962, on the basis of a petition for nonquota status by his mother,
who is a. naturalized citizen of the United States.
On January 15, 1965, respondent was convicted in Bronx County,
New York, after trial, of assault in the second degree, committed on
or about August 23, 1964. On March 15, 1965, he was sentenced to an
indefinite term at the State Reformatory at Elmira, New York. He
is still serving that sentence.
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. Interim Decision #1704
Respondent, through counsel, admits the factual allegations in the
order to show cause but contests deportability on two grounds. First,
it is claimed that the crime of which respondent was convicted did
not involve moral turpitude. Second, it is urged that he was not
"sentenced to confinement", as that term is used in the law.
The crime of assault in the second degree, in violation of section 242
of the Penal Law of the State of New York, is defined in five ways. The
one most closely related to the indictment herein is subdivision (4)
of section 242, which relates to a person who:
"willfully and wrongfully assaults another by the use of a weapon, or other
instrument or thing likely to produce grievous bodily harm."
The indictment charges that respondent and his mother, acting in concert with each other, assaulted the complainant by the use of a knife.
(It may be noted that the indictment herein contained four counts,
the respondent's mother being charged with him on each count. Respondent's mother was acquitted on all four counts, while respondent was
convicted on the one count mentioned above.)
Counsel contends that no knife was ever used and that the weapon
actually used was one which neither respondent nor his mother had
brought with them; that it was a broken bottle which respondent
grabbed from the complainant or one of his group, to prevent the same
from being used upon him. Counsel urged that the record of conviction was incomplete because there was no mention of this changed
factor; it was then stipulated for the record that if counsel could
obtain any evidence or document, under the seal of the clerk of the
court, showing the conviction record to ha incomplete or incorrect
and making the appropriate correction, the same would be accepted
in evidence. Such material was not submitted. The record must, therefore, be considered in the light of the charge that a knife was the
weapon used. This is not to say that had a broken bottle been used instead of a knife, the character of the crime would have been different.
The statute refers not only to a weapon, but to any other instrument
or thing likely to produce grievous bodily harm.
As the special inquiry officer pointed out, the Board has ruled, in
Matter of Z — , 5 I. & N. Dec. 383, that assault in the second degree
as defined in subdivision (4) of section 242 of the New York Penal
Law, is a crime involving moral turpitude (d. citation of authority in
body and•ppendix of decision in Matter of 2—). In a further attempt
to rule out the element of moral turpitude, counsel submitted a letter
by Justice George Postal, the justice who presided at the trial and
sentencing of respondent. In that letter, the Justice stated that in his
opinion the assault arose as a result of a drunken brawl and did not
involve moral turpitude. However, we may not go beyond the record
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of conviction in reaching a conclusion as to whether the crime involves moral turpitude (U. S. ea) rel. Meyer v. Day, 51 F.2d 336, C.A.
2, 1931; U. S. ex reZ. Robinson v. Day,
51 F.2d 1022, C.A. 2, 1931),
and the opinion of the Justice on the question of moral turpitude is
not a part of that record.
The second facet of the defense is that respondent was not "sentenced to confinement", as that term is used in section 241(a) (4), because he was sentenced to a reformatory, rather than a state prison,
and the purpose of the sentence was for rehabilitation rather than
punishment. The record of conviction is not very explicit on the matter of the sentence. At the right of the cover or face sheet of the
court record (last page of Exhibit 3) there is the following notation:
"March 15, 1965. Committed to New York State Reformatory at Elmira.
(signed) George Postel, J.S.C. Hon. George Postel".
In the letter from Justice Postel referred to above there is the statement that respondent was sentenced:
"to an indefinite term to Elmira Reformatory, pursuant to section 288 of the
Correction Law and section 2184-a of the Penal Law, following his conviction
for an assault in the second degree."
However, since section 2184—a of the Penal Law by its terms relates
to Male persons between the ages of 16 and 21 years, and respondent,
according to the record, was over 22 when the crime was committeed,
it appears more likely that the sentencing was under section 2185,
which states:
Reformatory Term for Males between 21 and 30 Years of age.
A male between the ages of 21 and 30, convicted of a felony, who has not
heretofore been convicted of a crime punishable by imprisonment in a state
prison, may, in the discretion of the trial court, be sentenced to Imprisonment
in the Elmira Reformatory. to be there confined under the provisions of law
relating to reformatories. The term of imprisonment of any person sentenced
hereunder shall be known as a reformatory term and shall be terminated by
the board of parole in the executive department, but such term shall not
exceed five years.
The related section 288 of the Correction Law provides :
Sentence to a Reformatory.
Any person who is convicted of an offense punishable by a reformatory term,
who, upon such conviction is sentenced in accordance with the provisions of
section twenty-one eight-four-a, twenty-one eighty-five, or section twenty-one
eighty-seven-a of the penal law, and who is committed or transferred to a
reformatory, shall be imprisoned according to this article. The term of imprisonment of any person so convicted and sentenced shall be terminated by
the board of parole in the executive department, but such imprisonment shall
not exceed five years in the case of persons convicted of a felony, and three
years In the case of a person convicted of an offense less than a felony.
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Interim Decision 4t1704
We have heretofore, held that not every confinement, pursuant to
court order, after conviction of crime, is such a "sentence to confinement" as will support a charge of deportability under section 241
(a) (4) (see Matter of V—, 8 I. & N. Dec. 360 and Matter of N—,
8 I. & N. Dee. 660, for discussion and citation of other cases). Primarily, these holdings have related to commitment of persons under
21 years of age to state or federal youth authorities for training and
treatment rather than retributive punishment. (See, also Holzapfel v.
Wyrsolt,
259 F.2d. 890 (C.A. 3, 1958), where the court held that the
suspension of sentencing of an alien, not a minor, upon condition that
as part of a three-year probation period he take psychiatric treatment, under the provisions of the New Jersey Sex Offenders Act, was
not a sentence to confinement within the purview of section S41 (a) (4)
but was a requirement that the alien submit to beneficial treatment.)
We have not had before us the specific question here posed, whether
a 22-year-old, convicted of a felony, and sentenced to an indeterminate
term at Elmira Reformatory, rather than at a state prison, has been
sentenced to confinement. This question has been considered by the
Second Circuit in United States ea) rel. Popoff v. Reimer,
79 F.2d 513
(1935). That case involved an alien who, when he was seventeen years
of age, pleaded guilty to an indictment charging grand larceny in
the second degree, and was sentenced to be "imprisoned in the New
York State Reformatory at Elmira …". Relying upon a recently
decided case, Oerami v. Uhl,
78 F.2d 698, in which it had been held
that a 17-year-old alien who had been committed to the House of
Refuge on Randalls Island, New York City, for a term which might
continue during his minority, had not received such a sentence of
imprisonment as would subject him to deportation, the alien claimed
that his sentence to the reformatory was the same type of -sentence.
The court compared the two situations :
When the local statutes relating to the respective institutions are examined,
important differences become at once apparent. Commitment to the house of
refuge is pursuant to section 2184 of the Penal Law …. It relates to boys between the ages of 16 and 18 and provides that, instead of sentencing the offender
to imprisonment in a state prison or a penitentiary, the court may direct him
to be confined in a house of refuge establisher] by the managers of the society
for the reformation of juvenile delinquents in the City of New York. Commitment to a reformatory is governed by section 2185, which in 1919 provided that
a male between the ages of 16 and 80, convicted of a felony, might, in the discretion of the trial court, be sentenced to imprisonment in the New York State
Reformatory at Elmira. * Thus the statute Itself, unlike section 2184, refers
to commitment to the reformatory es 'imprisonment', relates only to felons, and
includes men who may be 30 years of age. Felony was defined as a crime punishable by imprisonment in a state prison … and only an offender who was sen-
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Interim Decision #1704
tenced to one year or more could be sent to the state prison … ". Hence no one
could be committed to the reformatory unless he had committed a crime for
which he could have been sentenced to a term of imprisonment of one year or
more. Moreover, an incorrigible inmate of the house of refuge might be transferred to the reformatory. • • * From the foregoing references to the statutes
it is apparent that imprisonment in a reformatory was awarded to more serious
offenders and was regarded as more punitive than confinement in a house of
refuge. The duration of imprisonment in the reformatory was uncertain, but
the indeterminate duration of a sentence which may exceed one year has already
been held no obstacle to deportation under the Immigration Act. United States
ex rel. Paladino v. Commissioner, 43 F. (2d) 821 (C.C.A.2). Reformation of the
criminal is one of the objects of legislation permitting an indeterminate sentence.
Because commitment to a reformatory aims to reform as well as to punish, we
cannot bold that the appellant has not been sentenced to imprisonment, particularly when the very terms of the statute under which be was committed say
that be has. In modern times all penal discipline has some element of reformation, and we should have to count out all sentences if that alone were sufficient
to create an exception. The most that can be drawn from the cerami Case,
supra, is that, where the 'prime object' of confinement is correctional and the
punitive element relatively insignificant, there is no 'sentence to imprisonment
within the contemplation of the Immigration Act. As has been shown above, the
punitive purpose is clearly more substantial in the provisions for confinement
in the state reformatory. We deem it sufficiently substantial to require a different
conclusion. That commitment to a reformatory was a 'sentence to imprisonment'
was implicit in the decision of this court in the Paladino Case, supra. it was
explicit in the holdings of two District Court eases. United States ex reL Sirtie v.
Commissioner, 6 F. (2d) 233 (D.C.N.Y.) ; United States ex rel. Morlacci v. Smith,
8 F.(2d) 663 (D.C.,W.D.N.Y.). Whether United States ex rel Rizzio v. Kenney,
60 P. (2d)'418 (D.O. Conn.) can be reconciled with them because of differences in
statutes relating to reformatories in Connecticut need not be now considered.
Thus, in the Second Circuit, where the case before .us arises, the
court considered that a sentence to the Reformatory at Elmira of a
17-year-old alien was a sentence to confinement sufficient to bring him
within the deportation provisions of the Immigration Act. This was
held to be so at a time when, as the special inquiry officer pointed out,
the law referred only to a sentence to imprisonment, and did not
specify, as it does now, that the confinement could be "in a prison or
corrective institution." Further, we have held that a sentence to the
Illinois State Reformatory in Pontiac, Illinois is a sentence to imprisonment under the immigration laws. Matter of 0 ,
5 I. & N. Dec. 370.
—
It is established that respondent was admitted for permanent residence in January 1962, and that in 1965, within five years, he was convicted of a crime involving moral turpitude committed in 1964; that he
was sentenced to an indeterminate term in a State Correctional Institution, and has actually been confined for more than one year under that
sentence. On the basis thereof, we hold, with the special inquiry officer,
that respondent is deportable as charged.
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Since respondent's conviction of a crime involving moral turpitude
was less than five years prior to the date of the hearing, and since
voluntary departure requires a showing of five years of good moral
character, which cannot be met in view of the provisions of section
101(f) (8) of the Act, the respondent is statutorily ineligible for
voluntary departure. The special inquiry officer was, therefore, correct
in ordering that he be deported.
ORDER : It is ordered that the appeal herein be and the same is
hereby dismissed.
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