Interim Decision #2902
MATTER OF MARTIN
In Deportation Proceedings
A-21898402
Decided by Board June 9, 1982
(1) Robbery is a crime involving moral turpitude.
(2) Where the alien respondent was convicted of aggravated robbery and received a
sentence to confinement totaling 12 years, but thereafter that sentence was voided and
the respondent resentenced to 3 months' confinement and 5 years' probation pursuant
to the provisions of Colorado Rule of Criminal Procedure 35(a), -her sentence does not
constitute a "sentence to confinement for a year or more,' under oeetion 241(0(4) of the , -
Immigration and Nationality Act, 8 U.S.C. 1251(a)(4); therefore, she is not deportable
under that section of the Act.
CHARGE:
Order. Act of .1062--Sec. 241(4)(4)(0 U.S.C. 12.51(4)(4))—Conviction -of a crime Involving
moral turpitude within 5 years after entry and sentenced to confinement for a year or more
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
William M. Lederer, Esquire Arnie 1L Brassart
805 South Cascade Avenue General Attorney
Colorado Springs, Colorado 80903
BY: Milhollan, Chairman; Monied.% Dunne, Morris, and Vacca, Board Members
This matter is before the Board on appeal from the immigration judge's
decision of October 16, 1981, finding the respondent deportable under
section 241(a)(4) of the Immigration and Nationality Act, 8 U.S.C.
1251(a)(4), as an alien who has been convictedof a crime involving moral
turpitude committed within 5 years of entry and sentenced to confinement for a year or more. The appeal will be sustained.
The respondent is a 26-year-old native and citizen of Great Britain
who entered the United States on October 4, 1976, as the nonimmigrant
fiancee of a United States citizen. Her status was adjusted tb that of a
permanent resident on August 9, 1977, based upori classification as the
spouse of a United States citizen. On November 21, 1980, the respondent was convicted in Colorado County District Court on three counts of
aggravated robbery and une want& conspiracy to commit aggravated
robbery. She was sentenced to 8 years in the Colorado State Prison for
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Interim Decision #2902
each of the three robbery counts, to run concurrently, and to 4 years for
the conspiracy count, to run consecutively. However, she thereafter
moved for reconsideration of her sentence, and on February 25, 1981,
the same court (with a different judge presiding) resentenced the respondent to 3 months time served and placed her on probation for 5 years.
It is clear, and the respondent, does not contend otherwise, that robbery is universally recognized as a crime involving moral turpitude. See
U.S. ex rel. Cerami v. • Uhl, 78 F.2d 698 (2d Cir. 1935); Matter of
G—R—,
2 I&N Dec. 733 (BIA 1946; A.G. 1947); Matter of Kim,
17 I&N
Dec. 144 (BIA 1979); Matter of Rodriguez-Palma,
17 I&N Dec. 465
(BIA 1980); see also U.S. ex rel. Meyer v. Day,
54 F.2d 336 (2d Cir.
1931) (gramd larceny); Brett v. INS,
386 F.2d 439 (2d Cir. 1967) (petit
larceny); U.S. ex rel. Ventura v. Shaughnessy,
219 F.2d 249 (2d Cir.
1955) (receiving stolen property). Nevertheless, we disagree with the
inmiigration judge's finding that the respondent's conviction and sentence renders her deportable under section 241(a)(4) of the Act.
The respondent moved for and obtained reconsideration of her first,
12-year sentence under the terms of Colorado Rule of Criminal Procedure 35(a), which provides as follows:
Correction of illegal Sentence. The court may correct an illegal sentence at any time
and may correct a sentence imposed in an illegal manner within the time ATw provided
herein for the reduction of sentence.
The Supreme Court of Colorado characterized this rule thusly:
The rule allows the courts to reconsider in the interests of justice the sentence
previously imposed, in the light of all relevant and material factors in the particular case
which may or may not have been initially considered by the court and, in its sound
discretion, to resetdence the defendant to a lesser term within the statutory limits.
It is the expectation that this rule will aid in Minimizing aberrations in sentencing and
will contribute to the imposition of more consistently uniform sentences for those convicted of like crimes.
PeoPle v. Smith, 536 P.2d 820, 822 (Colo. 1975), reh. denied July 7, 1975
(emphasis added); see also Spann v. People,
561 P.2d 1268 (Colo. 1977).
Accordingly, it is clear that under Rule 36(a), by its very terms, a
defendant's initial sentence is deemed to have been illegal and thus is
regarded as void and of no force and effect. The trial court reconsiders
the imposition of sentence and sentences the defendant anew. The new,
reduced sentence stands as the only valid and lawful sentence imposed
upon the defendant.
In view of the foregoing, we find that by operation of Colo. R.Crim.
P. 35(a), the respondent's initial sentence of 12 years' imprisonment is
void and of no consequence, and her sentence is regarded as consisting
solely of the legally-imposed 3 months' imprisonment and 5 years'
probation. This sentence does not constitute a "sentence to confinement
for a year or more" under section 241(a)(4) of the Act; therefore, the
respondent's deportability under that charge cannot be upheld. Accord-
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ingly, the appeal will be sustained and these deportation proceedings
terminated.
ORDER The appeal is sustained and the proceedings are terminated.
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