Interim Decision #2390 

MATTER OF PATAKI 

In Deportation Proceedings 

A-10973345 

Decided by Board June 2, 1975 

The respondent was convicted of manslaughter in the death of his mother-hi-law under the 

Michigan Compiled Laws section 750.321. The wording in the indictment indicated 

voluntariness which made the crime one involving moral turpitude. The respondent was 

also convicted of the offense of assault with intent to do great bodily harm, in the 

stabbing of his wife, which act occurred a few minutes after the other crime. The 

immigration jt dge found the respondent deportable under the provisions of section 

241(a)(4) of the Immigration and Nationality Act as an alien who had been convicted of 

two crimes involving moral turpitude not arising out of a single scheme of criminal 

misconduct. However, the record showed that both crimes were committed within a few 

minutes of each other as the result of the same criminal impulse in the course of the 

same episode. This evidence is probative of the existence of a single scheme and the 

burden is on the Service to prove that they were not part of a single scheme. The 

Service did not meet this burden and the deportation order is overruled and proceedings 

terminated. 

CHARGE: 

Order: Act of 1952—Section 241(a)(4) [8 U.S.C. 1251(a)(4)J—Convieted of two crimes 

involving moral turpitude after entry, to-wit: Manslaughter 

(Michigan 1969) and Assault with Intent to do Great Bodily 

Harm (Michigan 1969). 

ON BEHALF OF RESPONDENT: 

Martin I Reis*, Deputy Defender 

Federal Defender's Office 

600 Woodard Avenue 

Detroit, Michigan 48226 

ON BEHALF OF SERVICE: 

Adolph F. Angelilli, Esquire 

Trial Attorney 

This case is before us on certification from an order of an immigration 

judge, finding the respondent deportable on the above-stated charge 

and directing his deportation to Hungary. The order of the immigration 

judge will be reversed and the proceedings terminated. 

The record relates to a 37-year-old divorced male alien, a native and 

citizen of Hungary. Since the respondent was a refugee from the Hungarian Revolution, the Attorney General created for him, effective 

January 3, 1957, a record of admission to the United States for perma324 
Interim Decision #2390 

nent residence pursuant to the provisions of the Act of July 25, 1958 

(P.L. 85-559). The respondent was convicted in the Circuit Court, 

Wayne County, Michigan, on February 9, 1979, upon his plea of guilty, 

of the offense of Manslaughter and of the offense of Assault with Intent 

to do Great Bodily Harm. He conceded the truth of the factual allegations of the order to show cause. However, he denied deportability on 

the basis of the following grounds: (1) that the convictions were not for 

two crimes involving moral turpitude, and (2) that both crimes arose out 

of a single scheme of criminal misconduct. 

The offenses with which we are concerned occurred on the same day, 

September 10, 1969. The respondnet was charged with Assault with 

Intent to Kill and Murder in violation of M.C.L.A. 750.83. The court 

accepted a plea of not guilty on this charge and entered a plea of guilty 

to Assault with Intent to do Great Bodily Harm less than the crime of 

Murder under the Michigan Penal Code. The crime to which he entered 

a plea of guilty has been held by the Board to be a crime involving moral 

turpitude, Matter ofP—,3 I. & N. Dec. 5 (BIA 1947; A.G. 1947). In any 

event, counsel does not raise the question. 

The respondent was charged with Murder in the first degree in 

violation of the Michigan Penal Code, Sec. 350.816, C.L. 1948. The court 

accepted a plea of not guilty to the Murder charge and entered a plea of 

guilty to the offense of Manslaughter under M.C.L.A. 750.321. After 

reading the record of conviction, including in its entirety the 'transcript 

of the respondent's testimony when the plea of guilty was entered, we 

agree with the immigration judge that the respondent entered a plea of 

guilty to Manslaughter and not to Involuntary Manslaughter as counsel 

for the respondent has suggested was done. 

The presense or absence of moral turpitude must be determined in the 

first instance from consideration of the crime as defined by the statute. 

Voluntary manslaughter involves moral turpitude and involuntary manslaughter does not, Matter of Lopez, 13 L & N. Dee. 725 (BIA 1971); 

Matter, of B—, 4 I. & N. Dee. 493 (BIA 1951). We find that the statute 

on manslaughter under which the respondent was convicted, M.C.L.A. 

750.3211, makes no distinction between voluntary and involuntary manslaughter, People v. Berles, 30 Mich. App. 716 (1971); People v. 

O'Leary, 6 Mich. App. 115 (1967). The original indictment, which led to 

the respondent's plea of guilty to the lesser offense of manslaughter, 

charged the following: That on or about September 10, 1969, at Norwood, Allen Park, Michigan, the defendant "feloniously, deliberately, 

wilfully, with malice aforethought, and with premeditation, did kill and 

I "Manslaughter — Any person who shall commit the crime of manslaughter shall be 

guilty of a felony punishable by imprisonment in the State prison, not more than fifteen 

(15) years or by fine of not more than seven thousand five hundred (7,500) dollars, or both 

at the discretion of the court." 

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murder one :Rosalia Hadvina, Contrary to Sec. 750.316, C.L. 19482' 

This case can be distinguished fromMatter of Lopez, supra. In that case, 

although it refers to unlawfully and feloniously killing the defendant by 

shooting him with a gun, the wording of the charge in the indictment 

does not indicate voluntariness. In this case, however, the indictment 

indicated voluntariness by the allegation that the respondent "deliberately, wilfully, with malice aforethought, and with premeditation did 

kill . . . ." See 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. Hence, we find that the respondent was convicted of voluntary manslaughter, a crime involving moral turpitude. 

Since both of the crimes were conunitted more than five years after 

entry, a finding of deportability under section 241(a)(4) of the Act rests 

upon whether or not the two crimes did or did not arise out of a single 

scheme of criminal misconduct. We are not considering the affidavit of 

Recorder's Court Judge R. Murphy, formerly the judge who sentenced 

the respondent. The affidavit is an expression of legal opinion, made 

some three years after sentencing, and is not binding on the federal 

authorities, Fitzgerald ex rel. Miceli v. Landon, 238 F.2d 864, 867 (C.A. 

1, 1956). However, in the Record of Sentence (Exh. 2) the Judge said: 

"But the problem really is that in his rage when he pushed his mother-in-law down the 

stairs, that rage didn't abate at that time. The rage continued to the point when he went 

and got a knife and stabbed his wife, and I can only assOme he intended to do her some 

great injury." ',Sentencing transcript - at p. 5) 

The Government has the burden of proving deportability by clear, 

convincing and unequivocal evidence, Woodby v. INS, 384 U.S. 904 

(1966). Additionally, it is the burden of the Service to establish that the 

two crimes did not arise out of a 'single scheme of criminal misconduct, 

Wood v. Hoy 266 F.2d 825 (C.A. 9, 1959). By its introduction of the two 

records of conviction, against different victims, the Government presented a priina facie case of deportability under the charge stated in the 

order to show cause. However, the information elicited from the statements made to the court on March 2, 1970 before imposition of sentence 

shows evidence to the contrary. This evidence indicates that the • crimes 

for which the :respondent was convicted stem from a marriage problem. 

In his rage, the respondent pushed his mother-in-law down the stairs. 

The rage continued to the point that a few minutes later, he went for a 

knife and ther stabbed his wife. We are satisfied that both crimes were 

committed within a few minutes of each other as the result of the same 

criminal impulse in the course of the same episode. This evidence is 

probative of the existence of a single scheme. See Zito v. Moufal, 174 F. 

Supp. 521 (N.D. El. 1959); Jeronimo v. Mscrff, 157 F. Supp. 808 

(S.D.N.Y. 1957). The record before us gives equal support to inconsis326 
Interim Decision #2390 

tent inferences. Thus; the Government has not met its burden of proving that the two critical acts were not part of a single scheme of 

criminal misconduct. 

ORDER: The immigration judge's order is overruled and the deportation proceedings are terminated. 

327