United States v. Uhl

• Decision Date: 08 July 1935
• Docket Number: No. 393.,393.
• Citation: 78 F.2d 698
• Parties: UNITED STATES ex rel. CERAMI v. UHL, District Director of Immigration.
• Court: U.S. Court of Appeals — Second Circuit

78 F.2d 698 (1935)

UNITED STATES ex rel. CERAMI v. UHL, District Director of Immigration.

No. 393.

Circuit Court of Appeals, Second Circuit.

July 8, 1935.

Joseph P. Doyle, of Rochester, N. Y. (Hugh J. O'Brien, of Rochester, N. Y., of counsel), for appellant.

Martin Conboy, U. S. Atty., of New York City (Malcolm A. Crusius, Asst. U. S. Atty., of New York City, of counsel), for appellee.

Before MANTON, L. HAND, and CHASE, Circuit Judges.

CHASE, Circuit Judge.

The relator is a subject of the Kingdom of Italy who entered this country lawfully at the Port of New York ex steamship Santa Anna on June 10, 1913. He was then about three months old and has since resided continuously in the United States.

On May 27, 1930, having pleaded guilty in the City Court of Rochester, N. Y., to a charge of unlawful entry with intent to commit larceny, he was by that court committed to the care and custody of the managers of the Society for the Reformation of Juvenile Delinquents in the City of New York and delivered to the Superintendent of the New York House of Refuge on Randalls Island, New York City, to be dealt with according to law. As he was then seventeen years old and by the provisions of section 204 of the State Charities Law N. Y. (Laws 1909, c. 57 Consol. Laws N. Y. c. 55, as amended by Laws 1909, c. 340; Laws 1910, c. 449, § 14; Laws 1911, c. 486, renumbered § 196 by Laws 1928, c. 859, § 16) became a ward of the institution during his minority, whether or not discharged or paroled therefrom, the term of his commitment though indefinite was for more than one year. Compare United States ex rel. Paladino v. Commissioner of Immigration, 43 F.(2d) 821 (C. C. A. 2).

He was paroled from the House of Refuge, and on May 17, 1933, having pleaded guilty to the charge of robbery in the second degree in the County Court for the County of Monroe, N. Y., was sentenced by that court to imprisonment at hard labor in the State Prison at Auburn, N. Y., for the term of not less than one year nor more than three years.

Both of these offenses involving moral turpitude, a warrant for the deportation of this alien to Italy was issued by the Department of Labor on the ground that the relator had within the meaning of 8 USCA § 155 been sentenced more than once to imprisonment for a term of one year or more because of the conviction in this country of a crime involving moral turpitude committed at any time after entry. The District Court was of the opinion that the relator was deportable under the provisions of the above statute and accordingly so ordered.

The sentence of this alien to the state prison was one such sentence as the statute requires as a condition precedent to deportation, and the result of this appeal depends upon whether the previous commitment, conceding the crime to which the boy pleaded guilty to have been one involving moral turpitude, was another. Section 155 of title 8 USCA does not define the phrase "sentenced to imprisonment." Implicit in it, however, is the idea of punishment. While that may not be said to be exclusive of the corrective or reformatory aspect commonly associated in the minds of many with the prison system in this country, it must be agreed that the penal element in a sentence to imprisonment is paramount. The infliction twice of a penalty at least as severe as a sentence to imprisonment for a year or more following conviction of a crime as indicative of the character of the offender as are those involving moral turpitude is the substantial basis for deportation. When such punishment has not been inflicted, the required statutory consequence of the alien's conduct is lacking for purposes of deportation. While the fact that the continuous residence of the alien in this country since he was three months old would in all likelihood make his deportation the equivalent of exile is of no moment from the purely legal aspect of this appeal, it serves to indicate the importance of the issue presented. Some light is thrown on the matter by the state statute under which he was committed by the City Court of Rochester. That is section 2184 of the Penal Law of New York (Consol. Laws N. Y. c. 40) as amended by Laws 1924, c. 479, § 1, and at the time of the commitment the portion which was applicable read: "Where a male person of the age of sixteen years and under the age of eighteen years has been convicted of juvenile delinquency or a crime not punishable by death or life imprisonment, the trial court may, instead of sentencing him to imprisonment in a state prison or in a penitentiary, direct him to be confined in a house of refuge established by the managers of the society for the reformation of juvenile delinquents in the city of New York;...