A-10130255.
Decided by Board November 22, 1955.
Suspension of deportation — Section 244 (a) (5) of Immigration and Nationality Act — Ineligible where conviction occurred within ten-year period though act was committed prior to that period.
An alien deportable under section 241 (a) (4) of the act for having committed voluntary manslaughter in 1921 for which he was convicted and sentenced in 1955 is not eligible for suspension of deportation under section 244 (a) (5) of the Immigration and Nationality Act. As the ground of deportation did not come into being until his conviction and sentence in 1955, he cannot show ten years' physical presence and good moral character immediately following "the commission of an act, or the assumption of a status," constituting the ground of deportation.
CHARGE:
Warrant: Act of 1952 — Section 241 (a) (4) — Convicted of crime within five years after entry.
BEFORE THE BOARD
Discussion: Respondent is a 65-year-old native and citizen of Italy who last entered the United States on January 11, 1920. He was found deportable on the charge stated in the warrant of arrest and ordered deported from the United States by the special inquiry officer. He appeals to this Board from that decision and requests a reopening in order that he may apply for suspension of deportation.
The record establishes that the respondent first came to the United States in 1909 and returned to Italy in 1914 to serve in the armed forces of that country. He married in Italy in 1916. In February 1921 he brought his wife to the United States. Respondent gave a party to celebrate the arrival in this country of his wife. At the party he had an altercation with one P---- L----. After the party respondent's wife became ill, several days later she died. Respondent believed that her death was caused by L---- and the quarrel they had. He sought out and killed P---- L---- at the town of Wellsburg, West Virginia, on March 10, 1921.
Respondent became a fugitive from justice, went to California and has lived in California under a false name since that time. He lived three years in Los Angeles, three years in San Francisco, and has lived the rest of the time at Lodi, California. He has worked as a contract laborer and farm worker on the farms and orchards in that area. He has been known as A---- S----. He registered under the Alien Registration Act of 1940, and has reported his address in compliance with the law from January 1951 through January 1955 using that name.
Seeking to become a citizen of the United States sometime toward the end of 1954 or early in 1955, respondent gave the information with regard to the crime he had committed in West Virginia to a notary public at Stockton, California. He was extradited to West Virgina, indicted for murder, and permitted to plead guilty to voluntary manslaughter. He was given the minimum sentence of 1 to 5 years, with a recommendation by the court that he be permitted to serve the minimum sentence. He was then placed on probation, the State of West Virginia offering no objection; he to pay the costs of the extradition and proceedings.
No application for suspension of deportation was made at the time of the hearing, and the alien and his attorney were not informed, so far as the record shows, that such an application was desirable or necessary. Counsel, therefore, requested that this Board reopen the proceedings in order that the alien may apply for suspension of deportation under the Immigration and Nationality Act of 1952. The Service Representative opposed the application for reopening on the grounds, first, that the alien should have applied for suspension of deportation at the time of his hearing and, second, that he is not eligible for suspension of deportation under the terms of the Immigration and Nationality Act.
There is no statute regulating immigration under which respondent is eligible for suspension of deportation. Suspension could not be granted him under section 244 (a) (1) of the Immigration and Nationality Act, because he is a member of a class of aliens whose deportation could not have been suspended under section 19 (d) of the Immigration Act of 1917, as amended, by reason of his conviction for the crime of voluntary manslaughter. Persons falling within the class of "criminals" were precluded by that section from a grant of suspension of deportation.
Respondent is deportable under section 241 (a) (4) of the Immigration and Nationality Act which provides that the alien is deportable if he "is convicted of a crime involving moral turpitude committed within five years after entry and either sentenced to confinement or confined therefor in a prison or corrective institution, for a year or more, * * *." It takes the commission of the crime plus the conviction and the sentence to render him deportable under this section. The commission of the crime must have been within five years after entry, but the conviction and sentence may have occurred at any time, as in the case now before us.
Section 244 (a) (5) requires that to be eligible for suspension under that subsection the alien must have been "physically present in the United States for a continuous period of not less than ten years immediately following the commission of an act, or the assumption of a status, constituting a ground for deportation * * *." The commission of the act of voluntary manslaughter occurred in 1921, but it did not become "a ground for deportation" until he was convicted of that act and sentenced therefor. The conviction and sentencing which perfected the ground of deportation occurred in 1955. Therefore, the alien cannot show ten years of "physical presence" in the United States and that he has been a person of good moral character for ten years following "the commission of the act" (including conviction and sentence) and "assumption of the status" required to qualify for suspension of deportation under section 244 (a) (5).
Counsel suggests that the circumstances under which the crime was committed here were such that the act does not constitute a "crime involving moral turpitude." We have no authority to look behind the record to the circumstances surrounding the commission of a crime. We can find only that a crime as described by the record, consisting of a plea, indictment, sentence, and applicable local statutes, either does or does not describe a crime involving moral turpitude. We have found in many cases that voluntary manslaughter is a crime involving moral turpitude ( Matter of D----, A-6214908, 3 IN Dec. 51; Matter of N----, 55723/332, 1 IN Dec. 181; Matter of S----, 56131/71, 1 IN Dec. 519; Matter of J----, A-7712748, 2 IN Dec. 477; Matter of K----, A-7421321-2-3, 4 IN Dec. 108; Matter of H---- R----, A-5206530, 4 IN Dec. 742; Matter of R----, E-89656, 5 IN Dec. 463).
In Matter of S----, the issue was submitted to the Attorney General in connection with the specific Ohio statute, as to whether or not it defines voluntary manslaughter, as the crime is known at common law. The Attorney General determined that the Ohio statute did describe such a crime, and that that crime involved moral turpitude. In Matter of D----, 3 IN Dec. 51, referred to above, the Board also referred to the fact that we are precluded from going behind the record of conviction to determine whether the killing was voluntary or involuntary, with citations of authority. These are only the reported cases on the point. There are many others which are unreported, but this list is sufficient to indicate that it is well established that conviction for voluntary manslaughter is conviction of a crime involving moral turpitude.
Exhibit 5, the order granting probation, shows that the alien was sentenced to imprisonment "with the recommendation that he serve the minimum sentence." The minimum sentence imposed by the court consisted of 1 to 5 years in the state penitentiary. The order granting probation was dated the same day as the sentencing, March 30, 1955, and the sentence was thereby suspended. This Board has found in at least two cases that an alien who was sentenced to imprisonment, though not actually confined because of a totally suspended sentence, is deportable under section 241 (a) (4). The wording of the present act requires a different result from that dictated by section 19 of the Immigration Act of 1917 ( Matter of M----, E-113322, Int. Dec. No. 654; Matter of W----, A-8632482, January 6, 1955, unreported).
Section 19 (a) of the Immigration Act of 1917 provided deportation for "any alien who is hereafter sentenced to imprisonment for a term of one year or more because of conviction in this country of a crime involving moral turpitude."
It is the decision of the Board that the respondent is ineligible for suspension of deportation under the Immigration and Nationality Act of 1952 for the reasons set forth above. Therefore, it would serve no purpose to reopen this record to permit him to apply for suspension.
Order: It is ordered that the appeal be and it hereby is dismissed.