Interim Decision #2372 

MATTER OF GHUNAIM 

In Deportation Proceedings 

A-17650517 

,Decided by Board April 17, 1975 

Respondent was charged With the crime of murder in the first degree under 29 Ohio 

Revised Code Annotated 2901.01 (1954). He pleaded guilty to a charge of Manslaughter First Degree, 29 Ohio Revised Code Annotated 2901.06 (1954), and was sentenced 

to serve not less than one nor more than twenty years in the Ohio State Reformatory. 

This manslaughter statute applies to both voluntary and involuntary manslaughter. In 

order to determine whether a crime involving moral turpitude has been committed under 

this statute, the conviction record must be analyzed. Here, respondent was indicted for 

murder, a voluntary crime. Examination of the conviction record leads to the conclusion 

that tho respondent's conviction was for voluntary manslaughter, a crime involving 

moral turpitude. Since respondent was admitted to the United States in 1966, and 

convicted of this crime involving moral turpitude in 1968, he was deportable under 

section 241(a)(4) of the Immigration and Nationality Act. 

CHARGE: 

Order: Act of 1952—Section 241(a)(4) [8 U.S.C. 1251(a)(4))—Convicted of a crime involving moral turpitude committed within five years after entry and 

sentenced to a year or more, to wit: manslaughter, first degree. 

ON BEHALF OF RESPONDENT:' Pro se 

This is an appeal from the June 30, 1970 decision of the immigration 

judge in which he found the respondent deportable as charged, denied 

the respondent's application for temporary withholding of deportation 

under section 243(h) of the Immigration and Nationality Act, found him 

ineligible for any discretionary relief, and ordered his deportation. We 

agree with the immigration judge, and shall dismiss the appeal. 

The alien respondent, a native and citizen of Jordan, last entered the 

United States on November 12, 1966. In the state of Ohio he was 

indicted for murder in the first degree under 29 Ohio Revised Code 

Annotated section 2901.01(1954). 3The indictment stated that on September 4, 1968 he "unlawfully, purposely and of deliberate and premediI No person shall purposely, and either of deliberate and premeditated malice, or by 

means of poison, or in perpetrating or attempting to perpetrate rape, arson, robbery, or 

burglary, kill another. . . . 

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Interim Decision #2372 

tated malice killed [a person]." The respondent originally pleaded not 

guilty to the offense charged in the indictment. Subsequently he retracted his former plea of not guilty and entered a plea of guilty to 

Manslaughter First Degree, 29 Ohio Revised Code Annotated section 

2901.06 (1954), a lesser included offense. He was sentenced to the Ohio 

State Reformatory for an intermediate period, not less than one year 

nor more than 20 years. 

The respondent is charged with being deportable under section 

241(a)(4) of the Act as an alien in the United States who has been 

"convicted of a crime involving moral turpitude committed within five 

years after entry and either sentenced to confinement or confined therefor in a pr.son or corrective' institution, for a year or more. . . ." The 

only issue to be resolved in this case is whether the crime of which the 

respondent was convicted is one involving moral turpitude. If there is a 

guilty plea to a lesser crime than that charged in the indictment, moral 

turpitude is assessed on the basis of the crime to which the alien pleaded 

guilty. Valenti v. Karmuth, 1 F. Supp. 370 (N.D.N.Y. 1932); Matter of 

V—T—, 2 I. & N. Dec. 213, 214-15 (BIA 1944). 

The respondent in this case was convicted under 29 Ohio Revised 

Code Annotated section 2901.06 (1954) of manslaughter in the first 

degree. 2 Before the 1935 codification of the Ohio criminal law, manslaughter was defined as follows: "That if any person shall unlawfully kill 

another wthout malice, either upon a sudden quarrel, or unintentionally while the slayer is in the commission of some unlawful act, every 

such person shall be deemed guilty of manslaughter." It has been held 

by the Ohio courts that the present manslaughter statute encompasses 

the same offenses as did the crime of manslaughter at common law, 

including both voluntary and involuntary manslaughter. Patrick v. Baldridge, 107 Ohio App. 331, 159 N.E.2d 461 (1958); State v. McDaniel, 

103 Ohio App. 1963, 1967, 144 N.E.2d 683 (1956). Murder and voluntary 

manslaughter are crimes involving moral turpitude; involuntary manslaughter is not. Matter of Lopez, 13 I. & N. Dee. 725 (BIA 1971). 

Because the Ohio statute includes both voluntary and involuntary 

manslaughter, one of which involves moral turpitude and the other of 

which does not, we must study the conviction record, i.e. the charge or 

indictment, the plea, the judgment or verdict, and the sentence, to 

determine under which aspect of the statute the respondent was convicted. Toper v. Miller, 87 F. Supp. 285, 287 (S.D.N.Y. 1949). 

The indictment charged that the respondent "unlawfully, purposely 

and of deliberate and premeditated malice killed [a person]." This is a 

first degree murder charge. However, the respondent was not convicted 

2No person shall unlawfully kill another. Whoever violates this section. . . [exceptions 

not relevant here] is guilty of manslaughter in the first degree, and shall be imprisoned not 

less than one nor more than 20 years. 

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of first degree murder. He was convicted of first degree manslaughter, a 

lesser included offense. Therefore, we must disregard those allegations 

contained in the indictment which are pertinent only to the greater 

crime but not to the lesser. Matter of Beato, 10 I. & N. Dec. '730, 732-3, 

735 (S.I.O.; BIA 1964). See Matter of W—, 4 I. & N. Dec. 241, 245 (BIA 

1951). The Ohio manslaughter statute -makes no mention of malice. It 

simply states that manslaughter is the unlawful killing of another person, not amounting to murder. 29 Ohio Revised Code Ann. §2901.06 

(1954), supra. 

For the respondent to have been convicted of manslaughter in the 

first degree, he had to have been convicted of unlawfully killing another, 

either upon a sudden quarrel (voluntary), or unintentionally while in the 

commission of some unlawful act (involuntary). State v. McDaniel, 

supra. It is not alleged in the . indictment that the respondent was 

involved in the commission of some unlawful act other than the unlawful 

killing. It appears, then, that the conviction was not for involuntary 

manslaughter, because a necessary element of that crime Was not alleged in the indictment. Id. The respondent was indicted for murder, a 

voluntary act by definition. Both because it appears that he was not 

convicted of involuntary manslaughter, and because he was indicted for 

a voluntary crime, our examination of the conviction record leads us to 

the conclusion that the respondent was convicted of voluntary manslaughter. 

In Matter of S—, 2 I. & N. Dec. 559 (A.G. 1947), an Ohio case 

involving the predecessor to section 2901.06, which was similar in wording and history to the statute here involved, the Attorney General found 

that the convictions did involve voluntary manslaughter because the 

original indictments, for second degree murder in that case, clearly 

charged the alien with voluntary killing. Matter of Lopez, supra, is 

distinguishable, although the Alaska statute involved there is virtually 

identical to the one in the present ease, because the manslaughter 

indictment in that case did not clearly charge that respondent with a 

voluntary killing. 

In sum, we find that the respondent's deportability as charged in the 

order to show cause has been established by evidence which is clear, 

convincing, and unequivocal. Moreover, we agree with the immigration 

judge that the respondent is ineligible for discretionary relief and for 

temporary withholding of deportation under section 243(h) for the reasons stated by the immigration judge in his excellent opinion. Accordingly, the following order will be entered. 

ORDER: The appeal is dismissed. 

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