55798/581
Decided by the Board April 17, 1943.
Sentenced to imprisonment more than once.
When an alien was convicted on the same day of several crimes involving moral turpitude committed on different occasions and was sentenced to imprisonment for more than 1 year, separate terms being imposed with respect to the crimes but all the sentences to run concurrently; held, that he has not been "sentenced more than once" within the meaning of section 19 of the Immigration Act of 1917.
CHARGES:
Warrant: Act of 1917 — Sentenced to imprisonment more than once for crimes involving moral turpitude — assault and robbery, armed; assault with intent.
Mr. Irving Jaffe, Board attorney-examiner.
STATEMENT OF THE CASE: The alien was ordered deported by the Secretary of Labor on June 23, 1932, on the above charge, and warrant of deportation was issued on the same day, execution thereof being deferred until such time as the alien be released from imprisonment. As a result of considerable correspondence, which passed between the alien and the Immigration and Naturalization Service, and between the Immigation and Naturalization Service and members of the alien's family, it was believed that the case merited further consideration and has been forwarded to us. We shall consider the facts involved de novo.
DISCUSSION: The respondent is a native and citizen of Italy, now 32 years of age and single. He was lawfully admitted to the United States for permanent residence on April 9, 1912, when 17 months old, at the port of New York. He has never left the United States since his original entry.
On March 12, 1931, at Milwaukee, Wis., informations were filed against the respondent charging him with the commission, on three separate occasions, of the crime of assault and robbery, armed, committed on January 17, 1931, February 2, 1931, and February 18, 1931, respectively. On the same day another information was filed charging him with the commission on February 28, 1931, of assault with intent to rob, armed. On March 14, 1931, the respondent was convicted of each of these crimes and was sentenced to serve a term of imprisonment of not less nor more than 25 years for the crime committed on February 2, 1931, and to a term of imprisonment of not more than 25 years for each of the other crimes, all sentences to run concurrently.
Each of the crimes of which the respondent was convicted involved moral turpitude. The only question presented is whether he has been "sentenced more than once" within the meaning of the immigration laws.
The meaning of the words "sentenced more than once" have been variously interpreted by the courts ( see Opolich v. Fluckey, 47 F. 2d 950; Nishimoto v. Nagle, 44 F. 2d 304; United States ex rel. Boskenis v. Day, 41 F.2d 1019; Clark v. Orabona, 59 F.2d 187). We have followed the interpretation placed upon this clause in the case of Wallis v. Tecchio, 65 F.2d 250. The court there said:
Deportation is not rested on the mere commission of crime; but there must be conviction in this country, its courts must be troubled and the alien here publicly scandalized by sentence, and his punishment made as severe as a year in the penitentiary. After 5 years' residence his ties here may not be broken unless he has thus been "sentenced more than once." The language is not "sentenced for two crimes" or for "two terms in the penitentiary," but "sentenced more than one time." The difference between a sentencing and the terms of imprisonment which may be imposed by it is plain. The alien is sentenced once when, after a conviction or plea of guilty, he is called before the bar and receives judgment, whether for one or several crimes, with one or several terms of imprisonment. He is sentenced more than once when that happens again. It is no fair rendering of the words to say that a sentencing at the same time for two crimes suffices, or that to receive two terms of imprisonment imposed by the same sentence is to be sentenced more than once. One must have burdened the country's courts with his prosecution and have been publicly branded as a criminal by his sentence on at least two occasions. It may be within the choice of the prosecutor to so mold the proceedings as to make two separate prosecutions out of a situation, or to consolidate them into one; but should the former course be oppressively followed, the judge may defeat it by the power given him in the statute to veto deportation. On the record before us we think Tecchio has been sentenced but once, although he was then given several terms of imprisonment.
The Solicitor of Labor, in his memorandum dated July 26, 1933, discusses this same question, and after reviewing the congressional debates that preceded the inclusion of the clause "sentenced more than once" into section 19 of the Immigration Act of 1917, concludes that the decision in the Tecchio case, supra, clearly reflects the intention of Congress. The Solicitor succinctly defines our position as follows:
It follows, then, that Congress intended that an alien should be deported without limitation as to time of entry into the United States who commits a crime involving moral turpitude, and who is sentenced to a term of imprisonment of a year or more, and after serving his sentence again commits another crime of that kind and again is sentenced to a like term of imprisonment. * * *
In the light of the decision in the Wallis v. Tecchio case, supra, and our administrative policy since such decision, it is apparent that the respondent has not been "sentenced more than once" within the meaning of the immigration laws. He was sentenced once for several crimes and has not since such sentence again committed a crime involving moral turpitude for which he was again sentenced to a term of imprisonment of 1 year or more. The warrant of arrest shall, therefore, be canceled and the proceedings closed.
FINDINGS OF FACT: Upon the basis of all the evidence presented, it is found:
(1) That the respondent is an alien, a native and citizen of Italy;
(2) That the respondent last entered the United States at New York on April 9, 1912;
(3) That the respondent was convicted on March 14, 1931, in Milwaukee, Wis., of the crime of assault and robbery, armed, committed on February 2, 1931, and was sentenced therefor on March 14, 1931, to a term of imprisonment of not less nor more than 25 years;
(4) That the respondent was convicted on March 14, 1931, in Milwaukee, Wis., of the crime of assault and robbery, armed, committed on January 17, 1931, and was sentenced therefor on March 14, 1931, to a term of imprisonment of not more than 25 years, such sentence to run concurrently with the sentence imposed for the crime committed on February 2, 1931;
(5) That the respondent was convicted on March 14, 1931, in Milwaukee, Wis., of the crime of assault and robbery, armed, committed on February 18, 1931, and was sentenced therefor on March 14, 1931, to a term of imprisonment of not more than 25 years, such sentence to run concurrently with the sentence imposed for the crime committed on February 2, 1931;
(6) That the respondent was convicted on March 14, 1931, in Milwaukee, Wis., of the crime of assault with intent to rob, armed, committed on February 28, 1931, and was sentenced therefor on March 14, 1931, to a term of imprisonment of not more than 25 years, such sentence to run concurrently with the sentence imposed for the crime committed on February 2, 1931.
CONCLUSION OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
That under section 19 of the Immigration Act of February 5, 1917, the respondent is not subject to deportation on the ground that he has been sentenced more than once to imprisonment for a term of 1 year or more for the commission subsequent to entry of crimes involving moral turpitude, to wit, assault and robbery, armed (three crimes), and assault with intent to rob, armed.
ORDER: It is ordered that the warrant of arrest, order, and warrant of deportation be canceled and the proceedings closed.