United States v. Corsi, No. 308.

• Court: U.S. Court of Appeals — Second Circuit
• Writing for the Court: PER CURIAM
• Citation: 63 F.2d 757
• Parties: UNITED STATES ex rel. ZAFFARANO v. CORSI, Commissioner of Immigration.
• Docket Number: No. 308.
• Decision Date: 30 March 1933

63 F.2d 757 (1933)

UNITED STATES ex rel. ZAFFARANO
v.
CORSI, Commissioner of Immigration.

No. 308.

Circuit Court of Appeals, Second Circuit.

March 13, 1933.

Rehearing Denied March 30, 1933.

John B. Coppola, of New York City, for appellant.

George Z. Medalie, U. S. Atty., of New York City (William Jay Hoff, Asst. U. S. Atty., of New York City, of counsel), for appellee.

Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

SWAN, Circuit Judge.

The relator is an alien of Italian nationality who entered the United States as a very young child nearly thirty years ago and has remained here ever since. He is held for deportation under section 19 of the Immigration Act of 1917 (8 USCA § 155) on the charge of having been twice convicted of a crime involving moral turpitude and sentenced on each conviction to imprisonment for a term of more than one year. One conviction, in 1927, was for the crime of attempted forgery; the other, in 1928, for assault in the second degree under N. Y. Penal Law (Consol. Laws, c. 40) § 242. For the latter offense, the relator received the maximum sentence, imprisonment for five years. Upon this appeal the only error urged is refusal to sustain the writ upon the ground that second degree assault does not necessarily involve moral turpitude.

We have heretofore held that, in determining whether the crime of which an alien stands convicted is one "involving moral turpitude," neither the immigration officials nor

63 F.2d 758

the courts sitting in review of their action may go beyond the record of conviction. United States ex rel. Meyer v. Day (C. C. A.) 54 F.(2d) 336, 337; United States ex rel. Robinson v. Day (C. C. A.) 51 F.(2d) 1022, and cases there cited. They must look only to the inherent nature of the crime or to the facts charged in the indictment upon which the alien was convicted, to find the moral turpitude requisite for deportation for this cause. In the case at bar the indictment is not in the record. Proof of the alien's conviction and sentence was made by his admissions at the hearing before the immigrant inspector and by a certificate of the clerk of Bronx County Court to the effect that the relator was indicted, tried, and found guilty of "the crime of assault in the second degree," and sentenced to state prison for a period of five years. Hence the order of deportation can be supported only if moral turpitude is inherent in second degree assault

It has frequently been said that a mere assault does not involve moral turpitude. See United States ex rel. Valenti v. Karmuth, 1 F.Supp. 370, 376 (D. C., N. D. N. Y.); Ciambelli ex rel. Maranci v. Johnson, 12 F.(2d) 465 (D. C. Mass.); United States ex rel. Griffo v. McCandless, 28 F.(2d) 287, 288 (D. C., E. D. Pa.); Ex parte George, 180 F. 785, 786 (D. C., N. D. Ala.). In New York there are first, second, and third degree assaults. Section 242, N. Y. Penal Law, defines assaults of the...