56064/847
Decided by the Board June 6, 1941. Approved by the Attorney General January 14, 1942.
Admission of crime — Plea of guilty — Dismissal of charge.
When an alien was convicted of a crime on a plea of guilty and was given a suspended sentence, but later under special statutory procedure a new trial was granted and the case dismissed; held, the plea of guilty does not constitute an admission of the commission of the crime under section 19 of the Immigration Act of 1917.
CHARGE:
Warrant: Act of 1917 — Convicted of or admits the commission of a crime prior to entry — rape.
Mr. R.H. Jernigan, of Beaumont, Tex., for the respondent.
Mr. Albert E. Reitzel, for the Immigration and Naturalization Service.
BEFORE THE BOARD
STATEMENT OF THE CASE: Warrant of arrest issued on the charge above stated January 27, 1941. It was served upon the respondent February 7, 1941, and hearing was conducted on February 12, 1941, at Port Arthur, Tex. The presiding inspector found the respondent subject to deportation on the ground that he had been convicted of a crime involving moral turpitude prior to entry into the United States: to wit, rape, and recommended that he be deported to Mexico. Exceptions to the recommendation of the presiding inspector have been filed on behalf of the respondent by his counsel. These exceptions were supplemented by oral argument before the Board of Immigration Appeals in which cancellation of the proceedings was requested.
The Service attorney, Mr. Reitzel, in a memorandum dated May 1, 1941, takes the view that the respondent is subject to deportation.
The case is now before this Board for review and decision.
DISCUSSION: The respondent is a native and citizen of Mexico and unmarried. At the age of 9 he was legally admitted to the United States for permanent residence at Eagle Pass, Tex. This entry occurred March 8, 1924. He has made his residence in the United States continuously since that time. By occupation he is a seaman. Last entry to the United States occurred on April 11, 1938, at Port Arthur, Tex., when the respondent reentered from a round-trip voyage as a seaman on the American S.S. Roanoke.
This proceeding was instituted because of the conviction of the respondent for the crime of statutory rape on March 26, 1936, prior to his last entry into the United States. For this offense he was sentenced to imprisonment for a term of 5 years, but as he had never previously been convicted of a felony and as the jury recommended suspension of sentence, the court suspended the execution of the sentence.
Subsequent to the conclusion of the deportation hearing, and on March 21, 1941, the court entered the following order in the criminal case:
It is therefore ordered, adjudged and decreed by this court that said cause No. 12,193, be in all things reinstated upon the docket of this court, that a new trial be granted herein as provided by law, and that this cause be and the same is hereby in all things dismissed.
During the course of his oral presentation of the matter to the Board of Immigration Appeals counsel presented a certified copy of this order. The order was made under the authority of Article 780 of the Code of Criminal Procedure of the State of Texas, which is as follows:
Dismissal of charges. — In any case of suspended sentence, at any time after the expiration of the time assessed as punishment by the jury, the defendant may make his written sworn motion for a new trial and dismissal of such case, stating therein that since such former trial and conviction he has not been convicted of any felony, which motion shall be heard by the court during the first term time after same is filed. If it appears to the court, upon such hearing, that the defendant has not been convicted of any other felony, the court shall enter an order reciting the fact, and shall grant the defendant a new trial and shall then dismiss said cause. After the setting aside and dismissal of any judgment of conviction as herein provided for, the fact of such conviction shall not be shown or inquired into for any purpose except in cases where the defendant has been again indicted for a felony and invokes the benefit of this law.
The deportation proceeding is based upon that part of section 19 of the Immigration Act of February 5, 1917, which provides for the deportation at any time after entry of "any alien who was convicted, or who admits the commission, prior to entry, of a felony or other crime or misdemeanor involving moral turpitude."
It is apparent that as a new trial was granted subsequent to the judgment of conviction, and the indictment of statutory rape was dismissed, today there is not outstanding a conviction of the respondent for this crime. Thus, while deportation may not be ordered because of the conviction of crime prior to entry into the United States, another issue is involved — namely, whether the respondent is deportable because of the admission of the commission of the crime of statutory rape.
The record of conviction shows that the respondent entered a plea of guilty to the charge made against him. On page 11 of the deportation hearing the following question and answer appear:
Q. Do you admit the conviction on March 26, 1936, of a felony or other crime or misdemeanor prior to your last entry into the United States; to wit, rape?
NOTE. — Questions explained to alien by attorney.
A. Yes; I was advised by my lawyer to plead guilty.
By this answer the respondent says that through his plea of guilty he admitted committing the crime. If the respondent only had replied "yes" to the question, it could be considered as an independent admission of the commission of the crime, but when he explains his "yes" by adding that he was advised by his lawyer to plead guilty in the criminal proceeding the only fair interpretation of the answer is that by pleading guilty to the indictment he (the respondent) admitted he committed the crime.
This leads, then, to the issue of whether, on the basis of the entire criminal record, we may accept the respondent's plea of guilty to the crime of statutory rape as an admission that he committed that crime.
If the final outcome of the 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 ( Blumen v. Haff, 78 F.2d 833).
There is here involved, however, another element. To find the respondent subject to deportation on the basis that his plea of guilty to the crime of statutory rape is an admission of the commission of that crime, we would be confronted with the anomalous situation that notwithstanding such plea the ultimate result of the criminal prosecution was a dismissal of the charge. In a word, we would be taking a part of the criminal record as evidence of the admission by the respondent of guilt of the crime for which he was charged when the court before whom that plea was made finally dismissed the complaint. If the State within whose jurisdiction the crime occurred, notwithstanding the plea of guilty to the charge of statutory rape, dismissed the indictment and thereafter in contemplation of law found the respondent not guilty of that crime, there is no logical reason why, in a deportation proceeding, that same plea of guilty must be taken as conclusive evidence of guilt. It is our view that the plea to the indictment is so much an integral part of the entire criminal proceeding that where the result of the proceeding is a dismissal of the charge, the plea may not be isolated from the entire criminal record and be taken as evidence of an admission of the commission of the offense.
Moreover, it must be remembered that we are not concerned with whether an alien admits committing a particular act. It is only when that act is a criminal offense under the laws of the jurisdiction where committed, and the alien admits guilt of such crime, that cognizance may be taken of the admission from a deportation standpoint. With a final adjudication of the criminal court dismissing the charge, and with no indication that the court was not fully informed as to all facts, we cannot conclude that in the case before us the respondent is now guilty of a criminal offense against the laws of the State of Texas. Admissions of the respondent cannot change this fact.
The Service attorney urges that the final dismissal of the charge of statutory rape should not have the effect of a complete acquittal and cites in support of his opposition Parrish v. State, 71 SW. 2d 274, a decision by the Court of Criminal Appeals of Texas. In this case the court was concerned with the question of whether, under article 776 of the Code of Criminal Procedure of Texas, the defendant was entitled to have his case considered for suspension of sentence. The observation of the court in this case, that the "suspended-sentence law is purely a penalty statute," has no application whatever to article 780, which deals with the ultimate dismissal of the criminal charge after sentence has been suspended. The contention of the Service attorney does not alter the view we have reached that the record establishes neither the conviction nor the admission of the commission of a crime involving moral turpitude prior to the respondent's last entry into the United States.
FINDINGS OF FACT: Upon the basis of all the evidence produced at the hearing and upon the entire record it is found:
(1) That the respondent is an alien, native and citizen of Mexico;
(2) That the respondent was legally admitted for permanent residence at the age of 9 years at Eagle Pass, Tex., on March 8, 1924;
(3) That the respondent last entered the United States after a round-trip voyage as a seaman at Port Arthur, Tex., April 11, 1938, on the American S.S. Roanoke;
(4) That the respondent has not been convicted of the crime of statutory rape;
(5) That the respondent has not admitted committing the crime of statutory rape.
CONCLUSION OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
That under section 19 of the Immigration Act of 1917, the respondent is not subject to deportation on the ground that he has been convicted of or admits committing a felony or other crime or misdemeanor involving moral turpitude prior to entry into the United States.
OTHER FACTORS: If deportable the case could receive consideration under the principle laid down by the Attorney General in the L---- case (56019/808) [ see page 1, this volume]. Although unmarried, the respondent has his mother in the United States and is contributing to her support. He was domiciled in the United States for considerably more than 7 consecutive years prior to his last entry. His absence from the country was clearly temporary. However, as we have found as a matter of law that the respondent is not subject to deportation, further discussion on this point is unnecessary.
ORDER: It is ordered that proceedings and outstanding bond be canceled.
The foregoing decision and order of the Board were certified to and approved by the Attorney General.