Matter of Winter
| Decision Date | 09 February 1968 |
| Docket Number | Interim Decision Number 1841,A-7917572. |
| Citation | 12 I&N Dec. 638 |
| Parties | MATTER OF WINTER. In Deportation Proceedings. |
| Court | U.S. DOJ Board of Immigration Appeals |
ON BEHALF OF RESPONDENT: Sam Williamson, Esquire 1320 Americana Building Houston, Texas 77002 (Brief submitted)
Bernabe Q. Maldonado Trial Attorney (Brief submitted)
The Service appeals from a decision of the special inquiry officer finding respondent not deportable on either of the charges, and terminating proceedings.
Respondent is a 33-year-old married male alien, a native of England and citizen of Great Britain, who was lawfully admitted to the United States for permanent residence on December 14, 1950. His wife was lawfully admitted for permanent residence in 1963, and of their three children, two are native born United States citizens and one is a lawful permanent resident. In 1953, at the age of 19, respondent enlisted in the United States Air Force; he served, pursuant to this and two subsequent enlistments, for a period of ten years, until his discharge under honorable conditions in the spring of 1963.
We concur in the special inquiry officer's finding that respondent is not deportable under section 241(a)(5) as one who failed to give notification of his change of address, and we note that the Service does not appeal from this portion of the decision. We need not rule on the contention that the special inquiry officer erred in holding that the standard of proof set out in Woodby and Sherman v. Immigration and Naturalization Service (385 U.S. 276) was applicable, because it is not necessary to our decision. The record establishes that there is no real question of deportability on this charge. Respondent's failure to furnish notification of his December 9, 1965 change of address on or before December 19, 1965 is admitted by him. His testimony that he forgot about it in the pressure of external events is completely believable, and sufficient to rule out willfulness and make the omission reasonably excusable, when taken in the context of his lawful admission for permanent residence 15 years earlier, and the fact that within 20 days of the missed deadline he furnished the new address as part of his regular January address report.
The issue here is whether respondent is deportable on the second charge. On July 27, 1964, a two count complaint was filed against him in the District Court of Southern Essex, Essex County, Massachusetts, charging that on March 21 and March 28, 1964, he stole U.S. money of the value of less than $100, from each of two named victims. The record does not state under what statutory section he was charged, showing only "LARCENY two counts". On July 31, 1964 respondent appeared before the court, without counsel, and pleaded guilty to both counts. There was no sentence imposed and the record shows the following disposition:
Therefore, it is considered that the case be placed on file on the payment of $10, costs, on the first count and on the second count the case is placed on file.
On July 21, 1964, the Fourth District Court of Eastern Middlesex, Middlesex County, Massachusetts, a complaint was filed charging respondent with having, on March 14, 1964, drawn and uttered a check against a named bank, knowing he had insufficient funds in the bank, and with intent to defraud, and having thereby received $30 cash which was the property of another. This offense also was not identified by any particular statutory section number, but was shown as "larceny by check". On July 28, 1964 respondent appeared in court, without counsel, and pleaded guilty to the charge. On August 11, 1964, likewise without sentencing, the case was placed on file.
The procedure of placing a case "on file", employed by the courts of the State of Massachusetts, has been considered by the Supreme Court of the United States in Pino v. Landon, 349 U.S. 901, and has been held not to have sufficient finality as a conviction to support an order of deportation within the contemplation of section 241(a)(4). Therefore, these two charges and their disposition did not make respondent deportable.
Respondent left the United States, without intent to abandon his residence, on February 14, 1965. He was readmitted as a returning resident alien on December 2, 1965. The Government contends that he is now deportable for having been excludable when he reentered, in that at that time, by virtue of his plea of guilty on July 31, 1964 to the two counts of the complaint in the Essex County court, he was an alien who admitted having committed a crime involving moral turpitude.
It should be noted that in these proceedings there is no showing that respondent has ever made an independent admission of the commission of any crime, or conceded that he was guilty of the crimes above referred to. Instead, he is attempting to attack the validity of his plea of guilty upon the ground that it was improperly obtained because he was not advised of his right to counsel. The only statement which can be considered in determining whether a sufficient and valid admission was made, is the plea of guilty to the two count complaint in the Essex County court.
The special inquiry officer's decision that respondent is not deportable on the second charge proceeds from his own determination of the actual character of the offenses with which the respondent was charged, and the finding that they did not involve moral turpitude. Although the court record shows the offenses to be larceny and the special inquiry officer cites authority for the proposition that larceny involves moral turpitude, he goes on to find, from respondent's testimony at the hearing about the circumstances under which the charges arose, and an investigative report by a Service investigator, that the actual offenses were larceny by check, as defined in section 37 of Chapter 266 of the Massachusetts General Laws.
We concur in the Service position that the special inquiry officer erred in so holding. Exhibit 5, according to certification by the Clerk of the District Court of Southern Essex, is a true copy of respondent's record in that court. While no statutory section is mentioned, the record shows the charged offenses to be "LARCENY two counts". The factual recitation in each count, that the defendant "did steal United States money of the value of less than $100, the property of ...", is entirely consistent with the statutory definition of larceny contained in section 30 of Chapter 266. It is also sufficient under section 41 of Chapter 277 of the Massachusetts General Laws, which reads as follows:
Indictment of larceny. In an indictment for criminal dealing with personal property with intent to steal, an allegation that the defendant stole said property shall be sufficient; and such an indictment may be supported by proof that the defendant committed larceny of the property, or embezzled it, or obtained it by false pretenses.
Had the respondent made an independent admission of commission of a crime, or of the acts constituting the essential elements of a crime, there would be scope for ascertaining what specific acts were admitted and whether they constituted a crime under any section of the laws of the jurisdiction where they took place. However, where the admission claimed consists entirely of a plea of guilty to the count or counts of a complaint in criminal proceedings; where there is no ambiguity or inconsistency in the description and denomination of the crime charged in the complaint; and where the record shows no evidence of an amendment or correction of the counts in the complaint, then the plea of guilty must be deemed to be to the specific crimes named in the complaint, and there is no justification for going outside of the record to determine whether, based upon information later supplied by him, respondent was or should have been charged with a different crime, under a different section of the laws of the State of Massachusetts.1 The record herein establishes that respondent pleaded guilty to two counts of larceny, and larceny does involve moral turpitude. However, under the ruling in Pino v. Landon, supra, the disposition of the case lacks sufficient finality to be deemed a "conviction", and respondent was not thereby rendered excludable under section 212(a)(9) as one convicted of a crime involving moral turpitude.
The Government states:
That a judicial plea of guilty is tantamount to an admission within the immigration laws appears to be settled beyond dispute....
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