Interim Decision #1811
MAITRE OF WINTER
In Deportation Proceedings
A-7917572
Decided by Board Novnieber 13, 1967 and February 9, 1968
Respondent's plea of guilts, to charges of larceny in Massachusetts criminal proceedings is not, without more, tantamount to an admission of the commission of
such crime for immigration purposes where at the conclusion of the Massachusetts court proceedings in 1964 sentence was not imposed and the case was
placed on file. Hence. respondent who departed and reentered the United States
subsequent to such criminal proceedings, is not deportable as one excludable at
entry because of admission of the commission of a crime involving moral turpitude.
CRAIKIES :
Order : Aet of 1952--Section 241 (a ) (5) [8 V.S.C. 1251 (a) (5)7—Failure to furnish notification of change of address.
Act of 1952—Seetion 241(a) (1) [8 U.S.C. 1251(a) (1)3—Excludable at
entry under section 212(a) (9), as one who admits commission of crimes involving moral turpitude, to wit:
larceny.
ON Beams OF RESPONDENT : ON RENALF or Stamm :
Sam Williamson, Esquire R. A. Tielhaber
1820 Americana Building Appellate Trial Attorney
Houston, Texas 77002 Bernabe Q. Maldonado
(Brief submitted) Trial Attorney
(Brief submitted)
Solomon Isenstein
Acting General Counsel
The Service appCals from a decision of the special inquiry officer
finding respondent not deportable on either of the charges, and terminating proceedings.
Respondent is a 28 year old married male alien, a native of England
- -
and citizen of Great Britain, who was lawfully admitted to the 'United
States for permanent residence on December 14, 1950. His wife was
lawfully admitted for permanent residence in 1968, and of their three
children; two are native born 'United States citizens and one is a law-
638
Interim Decision #1841
ful permanent resident. In 1953, at the age of 19, respondent enlisted
in the United States Air Force; he served, pursuant to this and two
-subsequent enlistments, for a period of ten years, until his discharge
under honorable conditions in the spring of 1963.
We concur in the special inquiry officer's finding that respondent is
not deportable under section 241(a) (5) as one who failed to give
notification of his change of address, and we note that the Service
does not appeal from this portion of the decision. We need not rule on
the contention that the special inquiry officer erred in holding that the
.standard of proof set out in TV ood.by and Sherman.v. Immigration and
IV aturo2ization Service (385 U.S. 276) was applicable, because it is
not necessary to our decision. The record establishes that there is no
real question of deportability on this charge. Respondent's failure to
furnish notification of his December 9, 1965 change of address on or
before December 19, 1965 is admitted by him. His testimony that he
forgot about it in the pressure of external events is completely believable, and sufficient to rule out willfulness and make the omission
reasonably excusable, when taken in the context of his lawful admission
for permanent residence 15 years earlier, and the fact that within 20
days of the missed deadline he furni shed the new address as part of
his regular January address report.
The issue here is whether respondent is deportable on the second
charge. On July 27, 1964, a two count complaint was filed against him
in the District Court of Southern Essex, Essex County, Massachusetts, charging that on March 21 and March 28, 1964, he stole U.S.
money of the value of less than $100, from each of two named victims.
The record does not state under what statutory section he was charged,
showing only "LARCENY two counts". On July 81, 1964 respondent
appeared before the court, without counsel, and pleaded guilty to both
counts. There was no sentence imposed and the record shows the following disposition:
Therefore, It is considered that the case be placed on file on the payment of 40,
costs, on the first count and on the second count the case is placed on file.
On July 21, 1964, the Fourth District Court of Eastern Middlesex,
Middlesex County, Massachusetts, a complaint was filed charging respondent with having, on March 14, 1964, drawn and uttered a. check
against a named bank, knowing he had insufficient funds in the bank,
and with intent to defraud, and having thereby received $30 cash
which was the property of another. This offense also was not identified
by any particular statutory section number, but was shown as "larceny by check". On July 28, 1964 respondent appeared in. court, without counsel, and pleaded guilty to the charge. On August 11, 1964,
likewise without sentencing, the case was placed on file.
639
Interim Decision #1841
The procedure of placing a case "on file", employed by the courts
of the State of Massachusetts, has been considered by the Supreme
Court of the United States in Pisa v. Landon, 349 U.S. 901, and has
been held not to have sufficient finality as a conviction to support an
order of deportation within the contemplation of section 241( a) (4).
Therefore, these two charges and their disposition did not make respondent deportable.
Respondent left the United States, without intent to abandon his
residence, on February 14, 1965. He was readmitted as a returning
resident alien on December 2, 1965. The Government contends that he
is now deportable for having been 'excludable when he reentered, in
that at that time, by virtue of his plea of guilty on July 31, 1964 to the
two counts of the complaint in the Essex County court, he was an alien
who admitted having committed a crime involving moral turpitude.
It should be noted that in these proceedings there is no showing that
respondent has ever made an independent admission of the commission of any crime, or conceded that he was guilty of the crimes above
referred to. Instead, he is attempting to attack the validity of his plea
of guilty upon the ground 'that it was improperly obtained because
he was not advised of his right to counsel. The only statement which
can be considered in determining whether a sufficient and valid admission was made, is the plea of guilty to the two count complaint in the
Essex County court.
The special inquiry officer's decision that respondent is not deportable on the second charge proceeds from his own determination of the
actual character of the offenses with which the respondent was
charged, and the finding that they did not involve moral turpitude.
Although the court record shows the offenses to be larceny and the
special inquiry officer cites authority for the proposition that larceny
involves moral turpitude, he goes on to find, from respondent's testimony at the hearing about the circumstances under which the charges
arose, and an investigative report by a Service investigator, that the
actual offenses were larceny by check, as defined in section 37 of Chapter 266 of the Massachusetts General Laws.
We concur in the Service position that the special inquiry officer
erred in so holding. Exhibit 5, according to certification by the Clerk
of the District Court of Southern Essex, is a true copy of respondent's
record in that court. While no statutory section is mentioned, the record shows the charged offenses to be "LARCENY two counts". The
factual recitation in each count, that the defendant "did steal United
States money of the value of less than $100, the property of. . is
entirely consistent with the statutory definition of larceny contained
in section 30 of Chapter 266. It is also sufficient under section 41 of
640
Interim Decision #1841
Chapter 277 of the Massachusetts General Laws, which reads as
follows :
Indictment of larceny. In an indictment for criminal dealing with personal
property with intent to steal, an allegation that the defendent stole said property
shall be sufficient; and such an indictment may be supported by proof that thedefendant committed larceny of the property, or embezzled it, or obtained it by
false pretenses.
Had the respondent made an independent admission of commission
of a crime, or of the acts constituting the essential elements of a crime,
there would be scope for ascertaining what specific acts were admitted
and whether they constituted a crime under any section of the laws of .
the jurisdiction where they took place. However, where the admission
claimed consists entirely of a plea of guilty to the count or counts of
a complaint in criminal proceedings; where there is no ambiguity or
inconsistency in the description and denomination of the crime charged
in the complaint; and where the record shows no evidence of an amendment or correction of the counts in the complaint, then the plea of
guilty must be deemed to be to the specific crimes named in the complaint, and there is no justification for going outside of the record to
determine whether, based upon information later supplied by him, respondent was or should have been charged with a different crime,.
under a different section of the laws of the State of Massachusetts?
The record herein establishes that respondent pleaded guilty to two
counts of larceny, and larceny does involve moral turpitude. However,.
under the ruling in Pino v. Landon, supra, the disposition of the case
lacks sufficient finality to be deemed a "conviction", and respondent
was not thereby rendered excludable under section 212(a) (9) as one
convicted of a crime involling moral turpitude.
The Government states:
That a judicial plea of guilty is tantamount to an admission within the immigration laws appears to be settled beyond dispute. Matter of A , 1. I. & N. Dec.
—
671; Matter of V S , 2 I. & N. Dec. 703.
— —
A more accurate statement is contained in Matter of G—, 1 L &
Dec. 96, wherein we held:
1 We do not agree with the special inquiry officer that the crime of larceny by
check, as defined in section 37, Chapter 266 of the Massachusetts General Laws,
does not involve moral turpitude (see Matter of Vosganian, bit. Dec. No. 1676),
nor do we consider the cases cited by him to be authority for his conclusion. The
Massachusetts statute makes intent to defraud an essential element of the crime,
as distinguished from the statutes considered in the cited eases, and the cited
decisions specifically state that where intent to defraud is a necessary element,
then moral turpitude inheres. Further discussion of this point is not warranted,.
however, because It is not necessary •to the making of our decision herein.
641
Interim Decision #1841
If the final outcome of a criminal prosecution was a conviction, we think it well
settled that a plea of guilty is evidence of the admission of the commission of
the crime. … (Emphasis supplied.)
In later decisions, it has been spelled out that such a conviction must
be equal in force and finality to a conviction necessary to sustain a
finding of deportability or excludability based on conviction of crime.
In cases where there has been a plea, of guilty in criminal proceedings,
followed by a conviction, even followed by an independent admission
of commission of the crime during deportation proceedings, it has been
found that there was an insufficient admission for excludability purposes where the conviction was followed by a pardon or expungement
(Mattes. of E—V--, 5 I. & N. Dec. 194), or by a timely judicial recommendation against deportation (Rasmussen v. Robinson,
163 F. 2d
732). We are aware of no case in which a plea of guilty made in criminal proceedings, which resulted in something less than a conviction,
or in a conviction with a recommendation against deportation or a
subsequent pardon or expungement, was found a sufficient admission,
without more, to sustain a finding of deportability.
As we pointed out in Matter of G—, supra, the plea to an indictment or complaint is so much an integral part of the entire criminal
proceeding that it cannot be isolated from the final result of that pro-
-ceeding, and given more force or finality than that result. Under the
interpretation urged by the Service, the mechanics of the criminal
proceeding would overshadow the outcome; an alien found guilty
-after trial, whose case is placed on file, is not excludable, whereas the
alien found guilty on his plea whose case is placed on file, would be
excludable. We are not persuaded that it was ever intended the "admission" provisions of section 212(a) (9) should have such a. result.
-Where, as here, an alien has been the subject of court proceedings on
-criminal charges and the ultimate disposition of those charges by the
court, falls short of a conviction, or nullifies that conviction for deportation or exclusion purposes by a recommendation against deportation
(or the same result is reached thereafter by a pardon), the "admission"
provisions cannot be called into play to give the intermediate step of
pleading a stronger effect than the ultimate disposition could have
under the immigration laws. We find, therefore, that on the facts
herein respondent is not deportable on the second charge in the order
to show cause.
For the reasons set forth herein, the disposition of this case below
was the proper one, and the appeal will be dismissed.
ORDER: It is ordered that the appeal. herein be and the same is
hereby dismissed.
642
Interim Decision #1841
BEFORE THE BOARD
On April 14, 1967, after several hearings, the special inquiry officer
rendered a decision finding respondent not to be deportable on either
of the charges in the order to show cause, and terminating proceedings.
The Service appealed, requesting oral argument; respondent's counsel
being unable to appear, the Government presented its argument unopposed on July 13, 1967. On November 13, 1967, for reasons set forth
fully in its opinion, the Board dismissed the appeal and affirmed the
finding that respondent was not deportable as charged. The Service
now asks that the Board reconsider and reverse its decision, that it
find respondent deportable on the second charge, and remand the proceedings for action by the special inquiry officer on applications for
discretionary relief heretofore filed by respondent.
The following is a summary of the relevant facts, which have been
fully set out in the prior decisions:
On July 31, 1904, in the District Court of Southern Raw; Essex
County, Massachusetts, respondent, without counsel, pleaded guilty to
both counts of a two-count complaint charging that he had committed
larceny on March 21 and March 28, 1964. There was no sentence imposed, and the court disposed of the proceedings thus
Therefore, it is considered that the case be placed on file on the payment of
$10, costs, on the first count and on the second count the case is placed on file'
Under the holding of the United States Supreme Court, in Pao v.
Landon, '349 U.S. 901, such a disposition has been held not to have
sufficient finality as a conviction to support an order of deportation
under section 241(a) (4). Respondent therefore was not rendered
deportable by the criminal proceedings. He left the United States in
1965, remained away for about ten months, and was admitted as a
returning resident alien on December 2, 1965. Inasmuch as the respondent had no "convictions" for crime, he could not be charged with
having been deportable as excludable on that entry as one previously
convicted of a crime involving moral turpitude. The Government
turned to the pleas of guilty in the court proceedings and charged
that on the basis thereof, respondent was deportable as one who was
excludable under section 212(a) (9), having admitted commission of
crimes involving moral turpitude.
=On July 21, 1964, respondent, also without . counsel, pleaded guilty in the
Fourth District Court of Eastern Middlesex, Middlesex County, Massachusetts
to a charge of larceny by cheek on 2,14reh 14, 1084, and that case was also dicrposed of by being placed on file. It is not considered here since it was not urged
as a ground of excludability or deportability in the order to show >cause, and
further, baying had the.same disposition as the offenses under consideration,
it would be controlled by our decision as to the effect of those charges and their
disposition.
643
Interim Decision #1841
In sum, it was the Board's position that if the final outcome of a
'criminal prosecution was a conviction, then a plea of guilty was
'evidence of the admission of the commission of the crime; but, where
the alien had been the subject of court proceedings on criminal charges,
'and the ultimate disposition of those charges by the court fell short
'of a conviction, or nullified that conviction for deportation or exclusion purposes by a recommendation against deportation (or the same
- result was thereafter reached by a pardon, or later expungement or
'dismissal), the "admission" provisions could not be called into play
'to give the intermediate step of pleading a stronger effect than the
ultimate disposition could have under the immigration laws. We are
-aware of no case in which a guilty plea, followed by something less
'than a conviction, or in a conviction with a recommendation against
-deportation or a subsequent pardon or expungement, has been found a
•sufficient admission, without more, to sustain a finding of deporta,bility.
The Government, in its motion, urges that we have overlooked or
misread the import of Man0m v. .Haff, 78 F.ad 833, from which the
fallowing statement is often separated and quoted:
We think it clear that a plea of guilty is a confession of guilt within the meaning of the immigration laws. It is an admission under the most solemn einem..
stances, a judicial confession.
In Illwinen v. Hoff, the court had before it a case in which there had
been a plea of guilty, a conviction that was in every respect final,
which was never expunged, wiped out by pardon or weakened by a
-recommendation against deportation, and after which the aliens served
six years in the penitentiary. They were each thereafter charged with
-being deportable as one who "had been convicted of or admits the
commission of a felony or crime or misdemeanor involving moral
'turpitude, to wit, grand larceny, prior to his entry in August, 1926."
'They denied that they had admitted commission of a crime, and it
was in answer thereto that the above statement was made. However,
taken in the context of what follows, we find it far from clear that this
-was the controlling or decisive factor in this decision. For the court
went on to hold:
Furthermore, as they were convicted of an offense committed before their last
entry, they were subject to deportation for that reason. U.S. es rel. Karpav v.
Uhl (GOA.)• 70 F.2d 792, and U.S. ex rel. Rosen v. Williams (GOA)
200 F. 538,
541; U.S. em rd. 'Volpe v. Smith,
289 U.S. 422, 53 S.Ot. 635, 77 L.Bd. 1298. Also,
As appellee [the Government] says, "they would have been deportable (8 1:1.S.C.A.
§ 155), If they had never left the United States, as aliens 'sentenced to imprisonment for a term of one year or more because of conviction in this country of a
•crime involving moral turpitude, committed within live years after the entry?
We conclude that the Secretary of Labor was right in ordering the petitioners
deported.
644
Interim Decision #1841
The second argument advanced by the Service is that we may not
disregard the "convictions" here, because they have in no way been
set aside, expunged, dismissed, or shown to be inconsistent with the
guilty pleas. However, this overlooks the important fact that there
have never been "convictions" in this case.
The motion does not set forth sufficient basis for a change in the
Board's decision, and will be denied.
ORDER: It is ordered that the motion be and the same is hereby
denied.
0
645
