Matter of Lopez
| Decision Date | 19 July 1971 |
| Docket Number | A-14611600,Interim Decision Number 2088 |
| Citation | 13 I&N Dec. 725 |
| Parties | MATTER OF LOPEZ In Deportation Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
This is an appeal from an order of the special inquiry officer, dated April 12, 1971, finding the respondent deportable under section 241(a)(4) of the Immigration and Nationality Act, because of a conviction for a crime involving moral turpitude (manslaughter) within five years of entry. The appeal will be sustained.
The respondent is a 43-year-old married male, a native and citizen of the Republic of the Philippines, who was admitted as an immigrant on February 8, 1966. The record indicates that he was convicted, on April 10, 1970, upon his plea of guilty, of the offense of manslaughter in violation of Alaska Statutes 11.15.040 "as charged in the indictment" The single issue presented by this appeal is whether or not the offense for which respondent was convicted is an offense involving moral turpitude within the contemplation of the immigration and nationality laws.
The presence or absence of moral turpitude must be determined in the first instance from a consideration of the crime as defined by the statute. It is only when the statute includes within its scope offenses which do and some which do not involve moral turpitude that we turn to a consideration of the indictment, plea, verdict and sentence, Matter of S----, 2 I. & N. Dec. 353 (BIA, 1945 and A.G., 1945), at page 357.
It is well settled that the definition of a crime must be taken at its minimum, Matter of B----, 4 I. & N. Dec. 493 (BIA, 1951), and that voluntary manslaughter involves moral turpitude, although involuntary manslaughter does not, Matter of B----, supra. Therefore, we must establish whether the respondent was convicted of voluntary manslaughter or involuntary manslaughter.
We find that the statute under which respondent was convicted, Alaska Statutes 11.15.040,1 makes no distinction between voluntary and involuntary manslaughter, Jennings v. State, 404 P.2d 652 (Alaska 1965).2 In the present case the indictment charged:
That on or about the 18th day of March, 1969, at or near Cold Bay, in the Third Judicial District, State of Alaska, Agripino Santos Lopez did unlawfully and feloniously kill James J. Schiavone by shooting him with a gun. All of which is contrary to and in violation of AS 11.15.040 and against the peace and dignity of the State of Alaska.
The special inquiry officer based his determination upon the ruling found in Matter of S----, 2 I. & N. Dec. 559 (C.O., 1946; BIA, 1946; and A.G., 1947), a case in which an Ohio manslaughter statute was considered. It was also found to make no distinction between voluntary and involuntary manslaughter. The case was finally decided by the Attorney General who found, at page 570, that the convictions did involve voluntary manslaughter inasmuch as the original indictment, for second degree murder, clearly charged the alien with voluntary killing. We noted, at page 560, that "the indictment in each instance alleged that the respondent `unlawfully, purposely and maliciously killed'."
The present case is distinguishable from the following cases referred to by the special inquiry officer, in each of which we held either there was an actual conviction for voluntary...
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