Interim Decision #1583 

Marra or SANTORO 

In Deportation Proceedings 

A-42818895. 

Decided by Board May 13, 190 

A conviction of Mayhem, as defined in Title 11, chapter 29, section 1, of the 

General Laws of Rhode Island, is conviction of a crime involving moral 

turpitude. 

CussesOrder; Act of 1952—Section 241(a) (4) [811.S.C. 1251(a) (4)]—Crime within five years—mayhem. 

This case is before us on appeal from a decision of a special inquiry officer directing the respondent's deportation.- • 

The respondent is a 30-year-old married male, native and citizen 

of Italy, who entered the United States on September 15, 1962 at 

which time he was admitted for permanent residence. On November 

25, 1964, he was convicted of mayhem in the Superior Court of 

Rhode Island and on August 11, 1965 he was sentenced to confinement in the Adult Correctional Institution for five years but execution of the sentence was suspended and he was placed on probation 

for eight years. The offense was committed on March 8, 1966. The 

sole issue in this case is whether the -respondent is deportable on the 

charge stated above. 

We have carefully reviewed the entire record. The revbrse of the 

notice of4ppeal (Form I-290A) contains the only argument which 

has been made by counsel. The principal contentions are: (1) that. 

 mayhem, as defined by the law-of Rhode Island, is not a crime involving moral turpitude; (2) that, in determining whether the 

crime committed by the respondent involved moral turpitude, the 

mitigating.circumstances must be considered; and (3) that the respondent has not been actually sentenced to imprisonment for one 

year because a lesser sentence might be imposed in the future. 

With respect to the first contention, the indictment (Ex. 3) 

charged that the respondent "feloniously; .voluntarily, maliciously 

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and of purpose did bite off and disable a member of Nancy Santoro; 

to wit, the nose of the said Nancy Santoro." Title 11, Chapter 29, 

Section 1 of the General Laws of Rhode Island defines the crime of 

mayheiii as follows: 

11-28-1. Penalty fur mutilation or iliNablIng.--Every person who shall voluntarily, maliciously or-of purpose put out an eye, slit the nose, ear or Up, or 

cut off or bite off or disable any limb or member of another, shell be imprisoned not exceeding ten (10) years nor less than one (1) year. 

It is clear that an accidental or even a. negligent mutilation or 

disabling would not constitute the -offense of mayhem. The statute 

specifically requires that the act be done "voluntarily, maliciously 

or of purpose". In view of the evil intent required to constitute 

mayhem and the serious nature of the crime, we conclude that the 

crime of which the respondent was convicted involves moral 

turpitude. 

In connection with counsel's second contention, Exhibit 4 is a 

letter from the Rhode Island Bureau of Probation and Parole indicating that the respondent has complied. with the conditions of his 

probittion; that he "would be considered a model probationer"; and 

that the crime was brought about by a domestic situation that had 

mitigating circumstances. Nancy Santoro, who was the victim of 

the crime, was and is the respondent's wife. She had corresponded 

with the respondent and then went to Italy to marry him. Thereafter, she filed a visa petition and he secured nonquota status. The 

respondent testified that, although he had repeatedly sought to have 

sexual intercourse with his wife, she had continued to refuse, ,and 

that it was this factor which finally led. to his commission of the 

offense. It is unnecessary for us to decide to what extent his wife's 

action may have been a mitigating circumstance since it has long 

been settled judicially that the immigration authorities may not go 

behind the record of conviction to examine the circumstances under '. 

which the crime was committed, and the determination of whether 

the crime involves moral turpitude must be made on the basis of the 

statutory definition of the crime and the record of conviction. 

United States en rel. Zaffarano v. Corsi, 63 F.2d 757 (2d Mi., 1933) ; 

United States en rel. Meyer v.- Day, 54 F.2d 336, 337 (2d Cir., 1931) ; 

United States en rel. Robinson v. Day, 51 F.2d 1022 (2d Cir., 1931). 

Accordingly, counsel's second contention is dismissed. . 

Counsel's third contention is that the respondent has not been 

actually sentenced to imprisonifient for one year because a lesser 

sentence might be imposed in the future. This contention is based 

on Title.12, Chapter 19, Section 14 of the General- Laws of Rhode 

Island which provides, in effect, that where there has been suspen608 
Interim Decision #1583 

sion of execution of sentence and violation of probation, the court 

may continue the suspension or may revoke the suspension and order 

_ the defendant committed. on the sentence previously imposed or any 

lesser sentence. As we have previously indicated, the sentence imposed was confinement for five years with execution of the sentence 

suspended and probation for eight years. If the respondent violated his probation., it appears highly conjectural that the court 

would then impose a sentence of less than one year. In any event, 

we must dispose of the appeal on the basis of the present record and 

not on the basis of some future contingency which may or may not 

occur. Accordingly, we reject this contention of counsel. 

An additional matter, which was not specifically urged on appeal, 

is that the respondent was not actually imprisoned under the conviction slues execution of the sentence was suspended. As the special 

inquiry officer pointed out, we have held that an alien who was sentenced to imprisonment for over one year but whose sentence was 

wholly suspended 'was, nevertheless, deportable under 8 U.S.C. 

1251(a) (4). Matter of M —, 6 I. & N. Dec. 846 (1954). The special 

inquiry officer has also discussed his reasons for concluding that no 

discretionary relief from deportation is available to the respondent, 

and we concur in his conclusion. In view of the foregoing, the appeal will be dismissed. 

ORDER: It is ordered that the appeal be and the same is hereby 

dismissed. 

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