I1ATTER OF H—
In DEPORTATION Proceedings
A-6942345
Decided by Board March 31, 1961
Decided by Board July 26, 1961
Deportability—Section 241(a)(4)—Sentenced to confinement or confined.
Requirement in section 241(a) (4) of Aul. dial an Wien who has been con
victed of crime involving moral turpitude committed within 5 years after
entry must he sentenced to confinement or confined for a year or more is
not satisfied when respondent who has served in excess of one year under
original sentence of 1 1/2 to 15 years is awarded new trial by Michigan court
following which he is placed on probation for 10 months.
(1) Respondent has not been sentenced to confinement for a year or more,
since effect of court's action in granting new trial was to vacate prior sentence. Thereafter, the only legally existing sentence was the sentence to
10 months' probation. (2) Time served by respondent under original sentence does not constitute confinement. For purposes of section 241(a) (4)
an alien has not been "confined" unless his incarceration has been pursuant
to an existing sentence to confinement.
CHARGES :
Order: Act of 1952 — Section 241(a) (4) [8 U.S.C. 1251(a) (4)1 — Convicted
of crime Sentenced to confinement for year or more (First
—
Charge)
Lodged: Act of 1952—Section 241(a) (4) [8 U.S.C. 1251(a) (4)1—Convicted
of crime Confined therefor for a year or more. (Second Charge)
BEFORE THE BOARD
(March 31, 1961)
DISCUSSION: The epecial inquiry officer terminated proceeding°
and certified the case; the examining officer also filed an appeal and
has submitted a helpful brief. No change will be made in the special
inquiry officer's order.
Respondent, a 24-year-old single male, native of England and citizen of Great Britain, last entered the United States in June 1954.
On July 10, 1958, he was convicted in a circuit court in Michigan
for breaking and entering in the nighttime and was sentenced to
imprisonment for a term of 18 months to 15 years; he was confined
from July 14, 1958, to August 3, 1959. On July 30, 1959, the same
380
.oust directed that a new trial be granted and that respondent be
released from custody; on August 17, 1959, the court on a plea of
guilty entered an order placing respondent on probation for a period
of 10 months. The effect of these orders is in issue.
Deportation is sought under that portion of section 241(a) (4),
Immigration and Nationality Act, requiring the deportation of an
alien who—
is convicted of a crime involving moral turpitude committed within Eve years
after entry and either sentenced to confinement or confined therefor in a
prison or corrective institution, for a year or more ….
The special inquiry officer did not sustain either charge. As to
the first charge, which requires the Service to establish the existence
of a sentence for a year or more, the special inquiry officer held
that the only binding sentence was the one to probation. As to the
second charge, the special inquiry officer ruled that confinement
most be the result of a sentence to confinement for a year or more,
and that since the only sentence here was not to confinement at all
the charge could not be sustained.
The Service contends that no effect should be given to the second
sentence of the court, and that the revoked sentence to 18 months
or more given at the first trial is the controlling one in this deportation proceeding. The Service relies upon Un!itecl States ex rel.
Piparkoff v. ii.q)crily, 267 F.2d 72 (CA. 2, 1959), which involved
section 241(b) of the Immigration and Nationality Act, 8 U.S.C.
1251(b). This section, which is not involved here, provides that a
court may relieve a convicted alien from liability to deportation
by making a recommendation against his deportation at the time of
first imposing judgment or passing sentence. This provision concerns a purely federal matter; for a recommendation under it to be
effective, there must he strict compliance with the section. However, the section is not applicable where a recommendation against
deportation is not involved, and the section no more requires us to
ignore the valid order of a court, although modification of its judgment relieves an alien from liability to deportation, than it would
require us to ignore an original order sentencing an alien liable
to greater punishment to imprisonment of only 11 months, when
the court states that ith net- kill is taken to prevent the possibility
that the alien may be deported (Mai ter of G , 9—I ; c,tt, r of I.—.
—
6-5112).
In support of its position, the Service cites two cases as setting
up a federal standard which requires us to ignore the second order
of the court and give credit only to the first. It is sufficient to say
that a similar argument involving the same cases was rejected by the
Attorney General (Matter of G , 9-150). Other cases cited by the
—
Service are dist inguishable. Matter of A P' , 8 421), is eoillinekt.
— — -
381
to narcotic cases (Matter of G, supra). Matter of L—, 8-3S9, concerns a section of law which does not involve 11 sentence to confinement.
In Matter of C—, 8 276, the action of a court changing a sentence
was expressly recognized.
The record does not show that the court was without jurisdiction
to enter the second order; the order is, therefore, not subject to
collateral attack in these proceedings. Nothing is presented in
this record which would indicate that the State of Michigan would
refuse to give recognition to the court's order of August 17, 1959.
Under these circumstances, the order must be given full faith and
credit (Matter of P—, 3-187; Matter of G—, 1 - 96 (Atty. Gen.,
1942) ; Matter of J—, 6-562; see Matter of V—, 7- 577; 15 Am. Jun,
Cr. Law, section 504). We believe that it was proper for the special
inquiry officer to dismiss the first charge.
We come now to the Service contention that the alien is deportable
because he has been confined for a year or more. Prior to the 1m
migration and Nationality Act, a person confined for a year or more
but not under a "sentence to imprisonment" was not deportable
(Matter of P—, 3-187). 1 The term "sentenced to imprisonment"
was one of art meaning one actually confined under a sentence to
imprisonment for a year or more (Berman v. Reimer, 123 F.2d 331
(C.A. 2, 1940) ; United States ex rel. Robinson v. Day,
51 F.2d 1022
(C.A. 2, 1931)). The term "sentenced to confinement" which supplanted it in the Immigration and Nationality Act would, without
more, seem to call for actual confinement; however, the phrase "or
confined" added to it was made authority for eliminating the necessity
of actual confinement. 2
The necessity for actual confinement was eliminated because if
the phrase "sentenced to confinement" were interpreted as requiring
actual confinement, it would have merely duplicated the meaning of
the "or confined" phrase which followed it, thus resulting in a
situation where each phrase would have provided for the deportation
of an alien confined under a sentence to confinement. The first
phrase was, therefore, given the meaning apparent upon its face and
"A peibun may have been cuufined fur a year ur more, although there is
no sentence to such confinement where after he had served a year or more
the court ordered a new trial and resentenced him to less than a year (Matter of P—, 3-187) ; a person refused bail may he so confined while awaiting
trial and final disposition of couvictluu; ur he may be confined for a year d5 a
condition of probation although this is not considered a sentence to confinement
by the state court (Matter of F—, 1-343).
2 Prior to the Immigration and Nationality Act, the phrase read "sentenced
to imprisonment." The word "confinement," a broader term, was apparently
substituted to cover a detention in a "corrective institution" as well as a
prison (United States ex rel. Rizzio v. Kenney,
50 F.2d 418 (D.C. Conn., 1931),
illustrates the problem).
382
.sentence to confinement, not followed by confinement, was declared
basis for deportation (Wood v. Hoy, 266 F.2d 825 (C.A. 9, 1959) ;
lrrellano-Flores v. Hoy,
262 F.2d 667 (C.A. 9, 1958) ; United States
;x rel. Fells v. Garfinkel,
158 F. Supp. 524 (W.D. Pa., 1957), aff'd
251 F.2d 846 (C.A. 3, 1958) ; Matter of 0—, 7-539, 545-548; Matter
of M—, 6-346; Matter of 1—, 6-562, 568).
Because the words "sentenced to confinement" no longer required
a confinement, a new class of aliens became subject to deportation—
those who had been given a suspended sentence to a year or more
(the alien who had been confined under a sentence to a year or more
remained deportable). To these two classes of deportable aliens,
the examining officer would add a third class—a class, it must be
noted, which was not deportable under laws previous to the Immigration and Nationality Act. In the third class would fall the alien
confined for a year or more although, he had not been sentenced to
such confinement. We do not think the law authorizes the creation
of this third claps.
We believe that the examining officer's interpretation must be
rejected because it is in conflict with precedents holding that a
suspended sentence makes an alien deportable. This is the conflict.
We have already explained that the words "sentenced to confinement" standing alone are words of art requiring confinement, and
that they are now deprived of their added meaning by the fact that
they would otherwise have merely duplicated the alternative "or
confined," each phrase providing for the deportation of an alien
confined under a sentence to confinement. It was, therefore, reasonable to conclude that the first clause was no longer to be considered
one of art but was meant to be taken at face value, i.e., that a sentence without confinement (a suspended sentence) was sufficient.
If now, the "or confined" clause is given a meaning which is compatible with requiring the alien "sentenced to confinement" to be
confined (that a confinement for a year without a sentence to such
confinement is sufficient), then it would be improper to interpret
the "sentenced to confinement" phrase as not requiring confinement,
for this would violate well-established precedent. Then, if the
first clause would still require an alien to be confined under a sentence to confinement, a suspended sentence would be eliminated as a
ground of deportation; however, it would be improper to do this because such elimination would be in conflict with judicial decisions
which hold that a suspended sentence is sufficient. As long as the
courts require the first phrase to include a suspended sentence, it
would be improper to construe the second clause as is now suggested.
Moreover, a Congressional comment appears to envision the existence
of a sentence to confinement to make an alien deportable. In com-
383
menting on the language in question, a Senate Report summarizes it
as requiring the deportation of "Aliens who, within five years of
entry, are convicted of a crime involving moral turpitude and sentenced to confinement for a year or more" (p. 21, S. Rept. No. 1137,
82d Cong., 2d Sess.).
We find that a sentence to confinement must exist before an alien
may be found deportable under that part of section 241(a) (4) with
which we have been concerned. (See, Matter of N—, 8-660; .latter
of V , 8-360.)
—
ORDER: It is ordered that the appeal of the examining officer be
and the same is hereby dismissed.
It is further ordered that no change be made in the order of the
special inquiry officer.
BEFORE THE BOARD
(July 26, 1961)
DISCUSSION : By order dated March 31, 1961, the Board held
that the special inquiry officer had properly terminated proceedings.
The Service moved to vacate the order or, in the alternative, for reopening of proceedings so that an additional charge may be lodged.
Respondent, a 24-year-old single male, a native and citizen of
Great Britain, last entered the United States in June 1954. On
July 10, 1958, he was convicted in a circuit court in Michigan of a
crime involving moral turpitude and was sentenced to imprisonment
for a term of 18 months to 15 years. He was confined under that
order from July 14, 1958, to August 3, 1959. On July 30, 1959, the
court directed a new trial be granted and that respondent be released from the custody of the Corrections Department and returned
to the custody of the sheriff "pending trial." On August 17, 1959,
the court on respondent's plea of guilty entered an order placing
him on probation for a period of ten months from the date of the
new order. The issues before us were (1) whether respondent had
been sentenced to confinement for a year or more; and (2) whether
a person who has served a period of more than a year is deportable
although a sentence to confinement does not exist in his case. We
held that since the only binding sentence had been one to probation
for a period of ten months, respondent was not deportable on the
first charge which required a sentence to a year or more. We held
that responder t was not deportable on the second charge for no
such charge was authorized by law.
The Service is of the belief that the original sentence to 18 months
or more was not vacated but was only modified, and that the modification is prospective affecting only the portion of the original
confinement not served, so that it may be said that a sentence to
a year or more exists. It seems to us that whether the action of
384
the court is a modification of the first sentence or not the only
sentence existing is one to less than a year, and that is controlling.
Moreover, we view the second order of the court not as a modification of sentence, but rather as the entry of a new sentence. The
court could grant a new trial and enter a new sentence, but it was
without authority to reduce a sentence after it had been partly
served (People v. Fox, 20 N.W.2d 732). Moreover, it is well established that the grant of a new trial vacates the judgment (Caine
v. Collins,
166 A.2d 675; Gonzales v Trujillo,
291 P.2d 1063; In re
Doelle,
35 N.W.2d 251). We must conclude that the court here
did what it said it was doing—granting a new trial which was followed by a sentence. The existing sentence which must be recognized by this Board is the one to probation for a period of ten
months. Such a sentence does not satisfy the requirement of the
law that there be a sentence to confinement for a year or more. The
first charge clearly is not sustained.
The Service motion holds that a convicted alien who has been confined for a year is deportable even though the confinement was not
under a sentence to confinement.' We have dealt fully with this
contention in our original order. It appears unnecessary to repeat
the reasons for our belief that confinement must be under a sentence to confinement and the language in question interpreted in
the light of history provides for deportation of two classes of aliens
(the alien who has received a suspended sentence and the alien
confined for some period of time under a sentence to confinement
for a year or more) and cannot bear the additional class the Service
is attempting to add (United States ex rel. Fells v. Garfinkel,
158 F.
Supp. 524 (W.D. Pa.), aff'd
251 F.2d 846 (C.A. 3, 1958) ; Burr v.
Edgar,
292 F.2d 593 (C.A. 9, 1961) ; Holzapfel v. Wyrseh,
259 F.2d
890 (C.A. 3, 1958) ; see Wood v. Hoy,
266 F.2d 825 (C.A. 9, 1959),
and Arrellano-Flores v. Hoy,
262 F.2d 667 (CA. 9, 1958) ; Tadashi
Miyaki v. Robinson,
257 F.2d 800 (C.A. 7, 1958), cert. den.
358 U.S.
894; Matter of AT—, 8- 660; Matter of , 8-360; Matter of
7-577 ; Matter of 0—, 7 539, 545-548; Matter of M—,
- 6- 346;
Matter of J . 6- 562, 568).
—
Matte?. of 31—, 6-346, upon which extensive reliance is placed by
the Service, concerned only the issue as to whether a person
convicted and sentenced but not confined (a suspended sentence)
was deportable. We decided that the words "sentenced to confinement," unlike a similar phrase in previous laws which did
require confinement, was qualified by the use of the words "or confined" so as to make a conviction and sentence to confinement. with
Service statement of section 241(a) (4) of the Immigration and Nationality Act, found in footnote 1 on page 3 of its motion, supplies a comma
where none is present lu the law.
385
654377-63------26
out actual confinement sufficient as, of course, a sentence and conviction followed by confinement continued to be, The issue involved
here was absent in that case, but the language used there instead of
being inconsistent with that of our original order in this case is,
in our opinion., merely restated by us.
The motion states that the Board's interpretation raises constitutional problems. We have merely recognized what is provided for
by state procedure. If a constitutional problem exists, it is not
within our sphere. Other matters raised by the Service are either
not material or are answered by the original order.
The motion reveals that on October 10, 1960, respondent was convicted for felonious assault with a deadly weapon. The Service
charges that his conviction involves moral turpitude and respondent
is now deportable under that portion of section 241(a) (4) which
requires the deportation of an alien convicted after entry of two
crimes involving moral turpitude. The Service is apparently desirous of lodging this new charge in the event we do not sustain the
charges now of record. We shall, therefore, order reopening of
proceedings for this purpose and for such further action as the
special inquiry officer shall deem appropriate.
ORDER: It is ordered that the motion for reconsideration be and
the same is hereby denied.
It is further ordered that proceedings he reopened for the purposes heretofore stated.
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