Matter of B----, A-5731074
| Decision Date | 31 December 1958 |
| Docket Number | A-5731074 |
| Citation | 8 I&N Dec. 236 |
| Parties | MATTER OF B---- In DEPORTATION Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
Discussion: This is an appeal from the order of the special inquiry officer requiring respondent's deportation upon the grounds stated above. The appeal will be dismissed.
Respondent, a 51-year-old divorced female, was born in China and is a national of Great Britain. She was admitted to the United States for permanent residence on July 11, 1929. She alleges that she was outside the United States in 1935 with her husband, a United States citizen, who was employed in the Canal Zone by this government, and that she had a reentry permit when she returned.
The criminal grounds of deportation are based upon the fact that after her last entry, the respondent was convicted of crimes involving moral turpitude. The issue is whether these convictions were based on offenses "arising out of a single scheme of criminal misconduct." We hold that a single scheme did not exist.
Respondent was convicted in De Kalb County Superior Court, Georgia, for larceny by trust (2 counts) and passing a forged check (2 counts). A grand jury sitting in the December 1957 term of the Superior Court, De Kalb County, Georgia, handed down two indictments concerning the respondent. Indictment No. 7022, in two counts charged the respondent with larceny after trust. The first count charged that on August 3, 1955, and other unspecified times from January 1955 to December 1956, the respondent had converted to her own use money which she had been given by a partnership of 3 doctors for the use of the partnership. The sum involved was over a hundred-thousand dollars. The second count charged her with the same crime committed on June 28, 1957, and other unspecified times from January 1, 1957, to July 31, 1957, and involved over fifty-thousand dollars. The money described in the second count was the property of the partnership consisting of the same three doctors and a fourth doctor. This partnership used the name "The Decatur Clinic." Respondent was first tried on indictment 7022. She entered a plea of not guilty but was found guilty. On February 10, 1958, she was sentenced to 5 years on each count, the sentence to be served concurrently.1
Indictment No. 7023 charged the respondent with fraudulently passing a forged check on 2 occasions. Count 1 charged that she had drawn check No. 803 on The Decatur Clinic payable to C---- C---- in the sum of $65.69. The check was dated July 15, 1957, and was passed on August 1, 1957. Count 2 charged the passing of forged check No. 806 drawn upon the same bank and same account. The check was also dated July 15, 1957, but was passed on August 10, 1957. It was payable to J---- H---- and was in the sum of $99.62. On the same day on which she was sentenced on the larceny counts she entered a plea of guilty to both counts in indictment 7023 for passing forged checks, and on the same date received a sentence of from 2 to 5 years on each count concurrently, the sentences to run concurrently with those imposed on indictment 7022.
If convictions arise out of a single scheme, the law prevents their use for deportation purposes where proceedings are brought on the ground that the alien had been twice convicted [section 241(a) (4), Immigration and Nationality Act; 8 U.S.C. 1251(a) (4)]. The problem of interpreting the phrase "single scheme" has been before us since the passage of the Immigration and Nationality Act of 1952 in which it appeared for the first time. The problem of interpretation is particularly difficult in a case such as this which involves continuing criminal misconduct. The pull of logic is to find a "single scheme" because there exists a planned scheme of crime involving the same criminal and victim. However, viewed with the insights gained from immigration history, we have found that Congress could not have intended that the words be given such a meaning, but rather that Congress intended to continue the protection which existed against the deportation of an alien who had been twice convicted for what was essentially one act.
Before the Immigration and Nationality Act, there existed this safeguard against the deportation of an alien who had been convicted of two offences arising out of one act or transaction; one act resulting in two convictions could not result in deportation. To make the alien deportable, he had to commit one crime for which he was convicted, and sentenced, confined, and then, despite the judicial deterrent, he again had to commit a crime for which he was convicted, sentenced, and confined. In the Immigration and Nationality Act, Congress removed the necessity for the intervening judicial action, and the necessity for the confinement. Had nothing further been said, a question would have existed as to whether two convictions arising from the commission of one act or episode should serve as a ground of deportation. By the use of the term "single scheme" Congress indicated that it still desired to retain the protection against the deportation of the alien whose conviction arose out of one episode. The difficult question was whether Congress intended the protection to extend strictly to the situation where there was only one act affecting one person (counterfeiting and possession of counterfeit money) or whether Congress intended to protect the alien who had committed several acts, which, factually viewed, were in essence one act or episode (assault on home owner and burglary). We decided in favor of the broader construction because of the nature of deportation proceedings and the...
To continue reading
Request your trial