I1ATTER OF H— 

In DEPORTATION Proceedings 

A-6942345 

Decided by Board March 31, 1961 

Decided by Board July 26, 1961 

Deportability—Section 241(a)(4)—Sentenced to confinement or confined. 

Requirement in section 241(a) (4) of Aul. dial an Wien who has been con 

victed of crime involving moral turpitude committed within 5 years after 

entry must he sentenced to confinement or confined for a year or more is 

not satisfied when respondent who has served in excess of one year under 

original sentence of 1 1/2 to 15 years is awarded new trial by Michigan court 

following which he is placed on probation for 10 months. 

(1) Respondent has not been sentenced to confinement for a year or more, 

since effect of court's action in granting new trial was to vacate prior sentence. Thereafter, the only legally existing sentence was the sentence to 

10 months' probation. (2) Time served by respondent under original sentence does not constitute confinement. For purposes of section 241(a) (4) 

an alien has not been "confined" unless his incarceration has been pursuant 

to an existing sentence to confinement. 

CHARGES : 

Order: Act of 1952—Section 241(a) (4) [8 U.S.C. 1251(a) (4)1 —Convicted 

of crime—Sentenced to confinement for year or more (First 

Charge) 

Lodged: Act of 1952—Section 241(a) (4) [8 U.S.C. 1251(a) (4)1—Convicted 

of crime Confined therefor for a year or more. (Second Charge) 

BEFORE THE BOARD 

(March 31, 1961) 

DISCUSSION: The epecial inquiry officer terminated proceeding° 

and certified the case; the examining officer also filed an appeal and 

has submitted a helpful brief. No change will be made in the special 

inquiry officer's order. 

Respondent, a 24-year-old single male, native of England and citizen of Great Britain, last entered the United States in June 1954. 

On July 10, 1958, he was convicted in a circuit court in Michigan 

for breaking and entering in the nighttime and was sentenced to 

imprisonment for a term of 18 months to 15 years; he was confined 

from July 14, 1958, to August 3, 1959. On July 30, 1959, the same 

380 
.oust directed that a new trial be granted and that respondent be 

released from custody; on August 17, 1959, the court on a plea of 

guilty entered an order placing respondent on probation for a period 

of 10 months. The effect of these orders is in issue. 

Deportation is sought under that portion of section 241(a) (4), 

Immigration and Nationality Act, requiring the deportation of an 

alien who— 

is convicted of a crime involving moral turpitude committed within Eve years 

after entry and either sentenced to confinement or confined therefor in a 

prison or corrective institution, for a year or more * * *. 

The special inquiry officer did not sustain either charge. As to 

the first charge, which requires the Service to establish the existence 

of a sentence for a year or more, the special inquiry officer held 

that the only binding sentence was the one to probation. As to the 

second charge, the special inquiry officer ruled that confinement 

most be the result of a sentence to confinement for a year or more, 

and that since the only sentence here was not to confinement at all 

the charge could not be sustained. 

The Service contends that no effect should be given to the second 

sentence of the court, and that the revoked sentence to 18 months 

or more given at the first trial is the controlling one in this deportation proceeding. The Service relies upon Un!itecl States ex rel. 

Piparkoff v. ii.q)crily, 267 F.2d 72 (CA. 2, 1959), which involved 

section 241(b) of the Immigration and Nationality Act, 8 U.S.C. 

1251(b). This section, which is not involved here, provides that a 

court may relieve a convicted alien from liability to deportation 

by making a recommendation against his deportation at the time of 

first imposing judgment or passing sentence. This provision concerns a purely federal matter; for a recommendation under it to be 

effective, there must he strict compliance with the section. However, the section is not applicable where a recommendation against 

deportation is not involved, and the section no more requires us to 

ignore the valid order of a court, although modification of its judgment relieves an alien from liability to deportation, than it would 

require us to ignore an original order sentencing an alien liable 

to greater punishment to imprisonment of only 11 months, when 

the court states that ith net- kill is taken to prevent the possibility 

that the alien may be deported (Mai ter of G — , 9—I ; c,tt, r of I.—. 

6-5112). 

In support of its position, the Service cites two cases as setting 

up a federal standard which requires us to ignore the second order 

of the court and give credit only to the first. It is sufficient to say 

that a similar argument involving the same cases was rejected by the 

Attorney General (Matter of G — , 9-150). Other cases cited by the 

Service are dist inguishable. Matter of A — P'— , 8-421), is eoillinekt. 

381 
to narcotic cases (Matter of G, supra). Matter of L—, 8-3S9, concerns a section of law which does not involve 11 sentence to confinement. 

In Matter of C—, 8 276, the action of a court changing a sentence 

was expressly recognized. 

The record does not show that the court was without jurisdiction 

to enter the second order; the order is, therefore, not subject to 

collateral attack in these proceedings. Nothing is presented in 

this record which would indicate that the State of Michigan would 

refuse to give recognition to the court's order of August 17, 1959. 

Under these circumstances, the order must be given full faith and 

credit (Matter of P—, 3-187; Matter of G—, 1-96 (Atty. Gen., 

1942) ; Matter of J—, 6-562; see Matter of V—, 7-577; 15 Am. Jun, 

Cr. Law, section 504). We believe that it was proper for the special 

inquiry officer to dismiss the first charge. 

We come now to the Service contention that the alien is deportable 

because he has been confined for a year or more. Prior to the 1m 

migration and Nationality Act, a person confined for a year or more 

but not under a "sentence to imprisonment" was not deportable 

(Matter of P—, 3-187). 1The term "sentenced to imprisonment" 

was one of art meaning one actually confined under a sentence to 

imprisonment for a year or more (Berman v. Reimer, 123 F.2d 331 

(C.A. 2, 1940) ; United States ex rel. Robinson v. Day, 51 F.2d 1022 

(C.A. 2, 1931)). The term "sentenced to confinement" which supplanted it in the Immigration and Nationality Act would, without 

more, seem to call for actual confinement; however, the phrase "or 

confined" added to it was made authority for eliminating the necessity 

of actual confinement. 2 

The necessity for actual confinement was eliminated because if 

the phrase "sentenced to confinement" were interpreted as requiring 

actual confinement, it would have merely duplicated the meaning of 

the "or confined" phrase which followed it, thus resulting in a 

situation where each phrase would have provided for the deportation 

of an alien confined under a sentence to confinement. The first 

phrase was, therefore, given the meaning apparent upon its face and 

"A peibun may have been cuufined fur a year ur more, although there is 

no sentence to such confinement where after he had served a year or more 

the court ordered a new trial and resentenced him to less than a year (Matter of P—, 3-187) ; a person refused bail may he so confined while awaiting 

trial and final disposition of couvictluu; ur he may be confined for a year d5 a 

condition of probation although this is not considered a sentence to confinement 

by the state court (Matter of F—, 1-343). 

2Prior to the Immigration and Nationality Act, the phrase read "sentenced 

to imprisonment." The word "confinement," a broader term, was apparently 

substituted to cover a detention in a "corrective institution" as well as a 

prison (United States ex rel. Rizzio v. Kenney, 50 F.2d 418 (D.C. Conn., 1931), 

illustrates the problem). 

382 
.sentence to confinement, not followed by confinement, was declared 

basis for deportation (Wood v. Hoy, 266 F.2d 825 (C.A. 9, 1959) ; 

lrrellano-Flores v. Hoy, 262 F.2d 667 (C.A. 9, 1958) ; United States 

;x rel. Fells v. Garfinkel, 158 F. Supp. 524 (W.D. Pa., 1957), aff'd 

251 F.2d 846 (C.A. 3, 1958) ; Matter of 0—, 7-539, 545-548; Matter 

of M—, 6-346; Matter of 1—, 6-562, 568). 

Because the words "sentenced to confinement" no longer required 

a confinement, a new class of aliens became subject to deportation—

those who had been given a suspended sentence to a year or more 

(the alien who had been confined under a sentence to a year or more 

remained deportable). To these two classes of deportable aliens, 

the examining officer would add a third class—a class, it must be 

noted, which was not deportable under laws previous to the Immigration and Nationality Act. In the third class would fall the alien 

confined for a year or more although, he had not been sentenced to 

such confinement. We do not think the law authorizes the creation 

of this third claps. 

We believe that the examining officer's interpretation must be 

rejected because it is in conflict with precedents holding that a 

suspended sentence makes an alien deportable. This is the conflict. 

We have already explained that the words "sentenced to confinement" standing alone are words of art requiring confinement, and 

that they are now deprived of their added meaning by the fact that 

they would otherwise have merely duplicated the alternative "or 

confined," each phrase providing for the deportation of an alien 

confined under a sentence to confinement. It was, therefore, reasonable to conclude that the first clause was no longer to be considered 

one of art but was meant to be taken at face value, i.e., that a sentence without confinement (a suspended sentence) was sufficient. 

If now, the "or confined" clause is given a meaning which is compatible with requiring the alien "sentenced to confinement" to be 

confined (that a confinement for a year without a sentence to such 

confinement is sufficient), then it would be improper to interpret 

the "sentenced to confinement" phrase as not requiring confinement, 

for this would violate well-established precedent. Then, if the 

first clause would still require an alien to be confined under a sentence to confinement, a suspended sentence would be eliminated as a 

ground of deportation; however, it would be improper to do this because such elimination would be in conflict with judicial decisions 

which hold that a suspended sentence is sufficient. As long as the 

courts require the first phrase to include a suspended sentence, it 

would be improper to construe the second clause as is now suggested. 

Moreover, a Congressional comment appears to envision the existence 

of a sentence to confinement to make an alien deportable. In com383 
menting on the language in question, a Senate Report summarizes it 

as requiring the deportation of "Aliens who, within five years of 

entry, are convicted of a crime involving moral turpitude and sentenced to confinement for a year or more" (p. 21, S. Rept. No. 1137, 

82d Cong., 2d Sess.). 

We find that a sentence to confinement must exist before an alien 

may be found deportable under that part of section 241(a) (4) with 

which we have been concerned. (See, Matter of N—, 8-660; .latter 

of V — , 8-360.) 

ORDER: It is ordered that the appeal of the examining officer be 

and the same is hereby dismissed. 

It is further ordered that no change be made in the order of the 

special inquiry officer. 

BEFORE THE BOARD 

(July 26, 1961) 

DISCUSSION : By order dated March 31, 1961, the Board held 

that the special inquiry officer had properly terminated proceedings. 

The Service moved to vacate the order or, in the alternative, for reopening of proceedings so that an additional charge may be lodged. 

Respondent, a 24-year-old single male, a native and citizen of 

Great Britain, last entered the United States in June 1954. On 

July 10, 1958, he was convicted in a circuit court in Michigan of a 

crime involving moral turpitude and was sentenced to imprisonment 

for a term of 18 months to 15 years. He was confined under that 

order from July 14, 1958, to August 3, 1959. On July 30, 1959, the 

court directed a new trial be granted and that respondent be released from the custody of the Corrections Department and returned 

to the custody of the sheriff "pending trial." On August 17, 1959, 

the court on respondent's plea of guilty entered an order placing 

him on probation for a period of ten months from the date of the 

new order. The issues before us were (1) whether respondent had 

been sentenced to confinement for a year or more; and (2) whether 

a person who has served a period of more than a year is deportable 

although a sentence to confinement does not exist in his case. We 

held that since the only binding sentence had been one to probation 

for a period of ten months, respondent was not deportable on the 

first charge which required a sentence to a year or more. We held 

that responder t was not deportable on the second charge for no 

such charge was authorized by law. 

The Service is of the belief that the original sentence to 18 months 

or more was not vacated but was only modified, and that the modification is prospective affecting only the portion of the original 

confinement not served, so that it may be said that a sentence to 

a year or more exists. It seems to us that whether the action of 

384 
the court is a modification of the first sentence or not the only 

sentence existing is one to less than a year, and that is controlling. 

Moreover, we view the second order of the court not as a modification of sentence, but rather as the entry of a new sentence. The 

court could grant a new trial and enter a new sentence, but it was 

without authority to reduce a sentence after it had been partly 

served (People v. Fox, 20 N.W.2d 732). Moreover, it is well established that the grant of a new trial vacates the judgment (Caine 

v. Collins, 166 A.2d 675; Gonzales v Trujillo, 291 P.2d 1063; In re 

Doelle, 35 N.W.2d 251). We must conclude that the court here 

did what it said it was doing—granting a new trial which was followed by a sentence. The existing sentence which must be recognized by this Board is the one to probation for a period of ten 

months. Such a sentence does not satisfy the requirement of the 

law that there be a sentence to confinement for a year or more. The 

first charge clearly is not sustained. 

The Service motion holds that a convicted alien who has been confined for a year is deportable even though the confinement was not 

under a sentence to confinement.' We have dealt fully with this 

contention in our original order. It appears unnecessary to repeat 

the reasons for our belief that confinement must be under a sentence to confinement and the language in question interpreted in 

the light of history provides for deportation of two classes of aliens 

(the alien who has received a suspended sentence and the alien 

confined for some period of time under a sentence to confinement 

for a year or more) and cannot bear the additional class the Service 

is attempting to add (United States ex rel. Fells v. Garfinkel, 158 F. 

Supp. 524 (W.D. Pa.), aff'd 251 F.2d 846 (C.A. 3, 1958) ; Burr v. 

Edgar, 292 F.2d 593 (C.A. 9, 1961) ; Holzapfel v. Wyrseh, 259 F.2d 

890 (C.A. 3, 1958) ; see Wood v. Hoy, 266 F.2d 825 (C.A. 9, 1959), 

and Arrellano-Flores v. Hoy, 262 F.2d 667 (CA. 9, 1958) ; Tadashi 

Miyaki v. Robinson, 257 F.2d 800 (C.A. 7, 1958), cert. den. 358 U.S. 

894; Matter of AT—, 8-660; Matter of , 8-360; Matter of 

7-577 ; Matter of 0—, 7-539, 545-548; Matter of M—, 6-346; 

Matter of J—. 6-562, 568). 

Matte?. of 31—, 6-346, upon which extensive reliance is placed by 

the Service, concerned only the issue as to whether a person 

convicted and sentenced but not confined (a suspended sentence) 

was deportable. We decided that the words "sentenced to confinement," unlike a similar phrase in previous laws which did 

require confinement, was qualified by the use of the words "or confined" so as to make a conviction and sentence to confinement. with 

 Service statement of section 241(a) (4) of the Immigration and Nationality Act, found in footnote 1 on page 3 of its motion, supplies a comma 

where none is present lu the law. 

385 

654377-63------26 
out actual confinement sufficient as, of course, a sentence and conviction followed by confinement continued to be, The issue involved 

here was absent in that case, but the language used there instead of 

being inconsistent with that of our original order in this case is, 

in our opinion., merely restated by us. 

The motion states that the Board's interpretation raises constitutional problems. We have merely recognized what is provided for 

by state procedure. If a constitutional problem exists, it is not 

within our sphere. Other matters raised by the Service are either 

not material or are answered by the original order. 

The motion reveals that on October 10, 1960, respondent was convicted for felonious assault with a deadly weapon. The Service 

charges that his conviction involves moral turpitude and respondent 

is now deportable under that portion of section 241(a) (4) which 

requires the deportation of an alien convicted after entry of two 

crimes involving moral turpitude. The Service is apparently desirous of lodging this new charge in the event we do not sustain the 

charges now of record. We shall, therefore, order reopening of 

proceedings for this purpose and for such further action as the 

special inquiry officer shall deem appropriate. 

ORDER: It is ordered that the motion for reconsideration be and 

the same is hereby denied. 

It is further ordered that proceedings he reopened for the purposes heretofore stated. 

086