A-7873905
Decided by the Board February 17, 1953
Crimes involving moral turpitude, Foreign: Italy — Conviction record: effect of "extinction" in Italy — Pardon: foreign, effect on deportation ground.
(1) The crime of theft committed in Italy is an offense involving moral turpitude.
(2) The "extinction" of a record of conviction in Italy pursuant to section 167 of the Italian penal code is deemed to be equivalent to a legislative pardon.
(3) An alien remains subject to deportation as one convicted abroad prior to entry of a crime involving moral turpitude, even though he receives a legislative or executive pardon from the foreign government.
(4) Despite the presentation of a "negative" penal certificate, an alien convicted in Italy of a crime involving moral turpitude is deportable on the appropriate criminal charge.
CHARGES:
Warrant: Act of 1924 — No immigration visa Act of 1917 — Entered without inspection Act of 1917 — Stowaway
Lodged: Act of 1917 — Convicted of crime prior to entry — Theft
BEFORE THE BOARD
Discussion: This case comes forward on appeal from the order dated August 27, 1951, of the Assistant Commissioner ordering the respondent deported on the charges stated in the warrant of arrest and lodged during the course of the hearing.
The record relates to a native and citizen of Italy, 26 years old, male, whose only entry into the United States occurred at the port of New York on or about September 26, 1950, as a stowaway ex- SS. Brasil. He entered without inspection and without an immigration visa. There is no dispute that the charges contained in the warrant of arrest are sustained.
The lodged charge is predicated upon the respondent's conviction in the Superior Court for Criminal Matters at Catania, Italy, in April 1945 of the crime of theft, committed on or about March 12, 1945, as a result of which the respondent was sentenced to imprisonment for a term of 8 months, sentence suspended, fined 800 lira. It is clear that the offense involves moral turpitude. However, it is contended by counsel that under Italian law the respondent's conviction became extinguished after a lapse of 5 years without the commission of any other crime since the conviction, and that the extinction resulted in the expunging of the crime just as though it had never occurred. Counsel's argument is that this extinction of the crime under section 167 of the Italian Penal Code is more than a pardon which extinguishes merely the penalty, since here the crime itself is extinguished, and that therefore the juristic nature of the crime has become penally licit, and does not thereafter produce any juristic penal effect. As evidence of this contention, there has been submitted a general penal certificate issued by the Tribunal of Caltagirone, Italy, on May 8, 1951, attesting to the fact that nothing appears against the name of the alien in the judicial records. Counsel has supported this contention by a brief or memorandum of law prepared by Mr. Luigi Dionisi, an expert on Italian law, former member of the Italian bar from 1920 to 1928 and for more than 15 years consultant for the Italian Consulate General at New York. The purpose of counsel in attempting to upset the lodged charge based upon the Italian conviction is to remove the respondent from the class of deportable aliens comprehended within section 19(d) of the Immigration Act of 1917, as amended, and thus to render him eligible for consideration of the discretionary relief contained in 19(c) of said act.
Counsel sets forth that under the provisions of section 167 of the Italian Penal Code the crime which resulted in the alien's conviction became extinguished after 5 years elapsed since the commission of the crime and that the extinction brings about the expunging of the crime just as though it never existed. It is argued that this extinction is not caused by amnesty, grace, or rehabilitation but by the very sentence which imposed the penalty and which provided that the execution of the penalty be suspended for the period of 5 years, this suspension bringing into play the provisions of section 167 of the Penal Code. In support of his opinion counsel cites from the Italian Parliamentary Works prepared prior to the publication of the Penal Code of 1930 (vol. 5, pt. I, ed. 1929), as follows:
The legal institute of conditional sentences is considered among the causes extinguishing the crime inasmuch as the suspension fulfills the function of a resolutive condition because, after the lapse of a certain time, all penal effects of the sentence are terminated and even the right to punish is extinguished thereby.
Counsel further supports his opinion by reference to an article of Prof. Girolamo Penso of the University of Messina, printed in the Nuovo Digesto Italiano of 1938 in which the following distinction is made between the causes extinguishing the penalty and those extinguishing the crime:
The causes extinguishing the penalty do not change the juristic character of the act which remains a crime. They act, only as one of the effects of the latter, on the penalty which they cancel, diminish or commute.
* * * * * * *
The causes extinguishing the crime annul the juristic nature of crime of the act which is in abstract declared punishable by the law, so that said act becomes a penally licit, which is to say that it does not produce juristic penal effects.
Counsel concludes by reference to the official report of the Minister of Grace and Justice of Italy of the Penal Code of 1930 which stated that section 167 involves a true "abolitio crimis" (abolition of the crime).
Reference is made by counsel to Matter of C----, A-7279638 (B.I.A., January 19, 1950), which involved a conviction of adultery in Italy on March 11, 1928, as a result of which the alien received a suspended sentence, and the contention was there raised that under the provisions of Italian law then in effect (sec. 585, Italian Penal Code) the conviction had been expunged. Apparently in reliance on a memorandum of Italian law prepared by the same Mr. Dionisi who has prepared the memorandum of law in the instant case, the conclusion was reached that the alien's conviction in that case had been expunged. An analogy was drawn between the Italian statutory procedure and the statutory provisions found in some of the States in this country which permit withdrawal of a plea of guilty after a probationary period has been fulfilled and in certain specified cases, result in a subsequent dismissal of the proceedings. It was held that the alien in that case was not inadmissible as one convicted of or admitting the commission of a crime involving moral turpitude because of the expungement of the conviction.
Sec. 1203.1, California Penal code; art. 780, Texas Code of Criminal Procedure.
Research facilities in Italian law are necessarily limited because of the language barrier and it has heretofore not been possible to fully explore the contentions set forth in the memorandum of law submitted by counsel's Italian expert. However, we are now in receipt of a memorandum entitled "Pardon and Suspended Sentence Under Italian Law" prepared by members of the Foreign Law Section of the Library of Congress and it is believed that this memorandum of law is of great informative value and throws additional light upon the specific problem presented here as to whether the respondent has been granted anything more than a pardon which, under the court decisions, would be ineffective to relieve him from liability for deportation on the lodged charge. We shall set forth at length the contents of the memorandum of law prepared by the Library of Congress in schedule A, appended hereto and made a part hereof.
United States ex rel Palermo v. Smith, 17 F.(2d) 534 (C.C.A. 2, 1927); Weedin v. Hempel, 28 F.(2d) 603 (C.C.A. 9, 1928); Mercer v. Lence, 96 F. (2d) 122 (C.C.A. 10, 1938), cert. denied 305 U.S. 611 (1939); Vidal y Planas v. Landon, 104 F.Supp. 384 (S.D.Calif.C.D. 1952).
In view of the additional information made available to us through the kind cooperation of the Foreign Law Section of the Library of Congress, we are now of the opinion that the respondent has under the applicable provisions of Italian law been granted nothing more than a legislative pardon. The certification as to a negative penal record would appear to have no significance. Under section 155, title 8, U.S.C.A., there is no distinction between a legislative and an executive pardon. Since we reach the conclusion that what the alien received here was in fact nothing more than a pardon, we find appropriate the words used by the court in United States ex rel Palermo v. Smith:
Mercer v. Lence, 96 F.(2d) 122, 125. See also 37 Opinions Attorney General 259 dealing with the case of an alien convicted of theft in Norway who received a suspended sentence and in regard to which it was stated that a suspended sentence under the laws of Norway had the same purpose as a royal pardon. The Attorney General held that the fact of a pardon would not render the alien admissible because even a so-called full pardon does not wipe out the alien's disqualification to enter the United States.
But the effect of a pardon in Italy or with other nationals, in restoring any such qualities probably was unknown to Congress, and this may have been an additional reason why it did not provide the same exoneration for an alien convicted prior to entry into the country as is provided in the case of one who was pardoned of a crime committed after his entry into this country. We need not consider the difference between commutation and pardon. Deportation is not a punishment. It is an exercise of one of the most fundamental rights of a sovereign, a right which is exercised by legislation thereto. * * * The question with us is merely one of construction of the statute, and we construe it to mean that a pardon is of assistance to the alien only when the crime of which he is pardoned was committed within the 5-year period after entry into this country.
In referring to the pardon proviso in section 19 of the Immigration Act of 1917 (8 U.S.C.A. 155) the court in Weedin v. Hempel used the following language:
28 F.(2d) 603, 604.
In harmony with the view expressed in Palermo v. Smith, ( supra) we are of the opinion that this proviso refers only to cases of conviction in this country. * * *
Convinced, as we are, that Congress did not intend to except cases of foreign pardon, we need not consider what either at home or abroad is generally held to be the effect of a pardon.
In United States ex rel Consola v. Karnuth, the contention was raised that by virtue of a Canadian statute the relator was unequivocally exonerated not only of the offense, but of the conviction, and therefore could not have admitted the commission of the crime. The court held that the Canadian statute had no bearing on the case; that what was involved was the right of deportation based on the United States statutes; that such statute, 8 U.S.C.A. 155, exempted from deportation aliens who had been convicted and had been pardoned; and that such statute did not apply to pardons in foreign countries.
27 F.Supp. 461, 463, affd. 108 F.(2d) 178 (C.C.A. 2, 1939).
Chap. 146, sec. 1078, Criminal Code of Canada, R.S.: "When any offender has been convicted of an offense not punishable by death, and has endured the punishment adjudged * * * the punishment so endured shall, as to the offense whereof the offender was so convicted, have the like effect and consequences as a pardon under the great seal."
The record establishes that the respondent was convicted of a crime involving moral turpitude in Italy in 1945 prior to his entry into this country. In line with the judicial pronouncements in this country, the exculpating provisions of the 1917 statute relating to pardons does not apply to such a foreign conviction. Consideration therefore of the exact effect or of fine distinctions of the Italian criminal law relating to pardons or suspension of sentence, expunction and extinctions are therefore academic, since the court decisions clearly limit pardons and other acts in the nature of a pardon exclusively to domestic convictions. Insofar as our language in Matter of C----, A-7279638, is inconsistent with the language and reasoning herein, we modify our decision in that case. Accordingly, we will sustain the finding of deportability on the lodged charge as well as on the warrant charges in the instant case.
The case presents certain appealing features as to family ties in that the respondent has a citizen wife and two citizen minor children. However, in view of his entry into the United States as a stowaway, residence here only since September 1950, and the criminal ground of deportability, discretionary relief does not appear available.
Order: It is ordered that the appeal be and the same is hereby dismissed.
SCHEDULE A
PARDON AND SUSPENDED SENTENCE UNDER ITALIAN LAW
I. GENERAL SURVEY
In March 1945 [the date of the alien's conviction], criminal law and criminal procedure in Italy were regulated by the Criminal Code and the Code of Criminal Procedure, both of October 19, 1930, and in effect since July 1, 1931. These two codes are still in force. Both codes contain provisions regulating pardon and suspension of sentence separately and they are placed under different headings. Pardon (sec. 174 of the Criminal Code) is placed under the heading "Causes which extinguish the Punishment." Section 174 reads:
174. Indult or pardon condones wholly or in part the punishment inflicted, or commutes it to another kind of punishment fixed by law. It does not extinguish the accessory punishment except when the decree provides otherwise, or other penal effects of the sentence. * * *
Suspension of sentence is placed under another heading, viz, "Causes which Extinguish the Offense Itself." Suspension of sentence is regulated in sections 132, 133, 163-168, 170, 175, 182, 183, and 198 of the Criminal Code, and in sections 487, 506, 590, 608, and 609 of the Code of Criminal Procedure. The salient provisions of all these sections are translated in chapter II.
The essential characteristic of the effect of the suspension of a sentence is contained in the following section 167 of the Criminal Code:
167. Extinction of the offense. — If the convicted person does not commit another crime or misdemeanor of the same kind (sec. 101) within the fixed period of time, and does perform the duties imposed upon him, the offense shall be extinguished.
Consequently the effect of suspension of the sentence or, to be sure, the expiration of probation, is the extinction not only of the penalty but also of the offense. In contrast to this, pardon precludes only the execution of punishment. Therefore not only the statutory provisions but also the courts and legal writers treated pardon and suspension of sentence as separate institutions and considered suspension of sentence to be more favorable to the convicted person than pardon. If the probation period in case of suspension of sentence expired and the convicted person fulfilled all duties imposed upon him and had not committed another offense, this original offense was "extinguished." Only such legel effects thereof remain as are indicated in sections 196, 197, and 198 of the Criminal Code (see II, 1). In granting the suspension of sentence the judge may order that the suspended sentence shall not be mentioned in the certificate regarding the criminal records. This is an additional benefit which the judge may but does not have to grant to the convicted person. If granted, it means that the judge specially considered the granting of such benefit and found the convicted person worthy of it. See sections 487 and 608 of the Code of Criminal Procedure, infra II, 2.
Digests of court decisions relating to the subject of this paper are translated infra under III and opinions of Italian legal writers under IV. The writers are unanimous on some points and differ on others. One line of thought is represented by Girolamo Penso and the court decisions quoted under II. Somewhat different opinions are expressed by Vincenzo Manzini, Silvio Ramieri, and Carlo Saltelli.
II. TRANSLATION OF STATUTORY PROVISIONS
1. Criminal Code of 1930
Chapter V. Modification, Application, and Execution of the Punishment
Part I. Modification and application of the punishment
Sec. 132. Discretional powers of the judge in inflicting the punishments; limits. — Within the limit fixed by the law, the judge shall apply the punishment at his discretion; he must state the grounds which justify the use of such discretional power.
In increasing or reducing the punishment, the limits established for each kind of punishment may not be exceeded, except in the cases expressly fixed by the law.
SEC. 133. Gravity of the offense: Valuation for the purposes of punishment. — In the exercise of the discretional powers specified in the preceding section, the judge must take into account the gravity of the offense, as inferred from —
(1) The nature, character, means, object, time, place, and any other circumstances of the act;
(2) The gravity of the injury or of the danger caused to the person injured by the offense;
(3) The intensity of criminal intent or the degree of culpable negligence.
The judge must likewise take into account the offender's inclination to commit offenses, as inferred from —
(1) The motives for committing an offense and the character of the offender;
(2) The criminal and judicial antecedents and, in general, the conduct and life of the offender prior to the offense;
(3) The conduct contemporary with or subsequent to the offense;
(4) The individual, domestic, and social conditions of life of the offender.
SEC. 163. Suspension of sentence. — In convicting by a sentence to confinement at hard labor for a term, or arrest not to exceed 1 year, or to a fine which alone or as additional punishment to a punishment of confinement and commuted according to law (sec. 136) would deprive [the convicted person] of his personal liberty for a period of time not to exceed in total 1 year, the judge may order that the execution of the punishment be suspended for a period of time of 5 years, if the sentence involves a crime, and of 2 years, if the sentence involves a misdemeanor.
(Par. 2 deals with minors and is omitted.)
SEC. 164. Limits within which the suspension of sentence is allowed. — Suspension of sentence shall be allowed only if, taking into consideration the circumstances indicated in sec. 133, the judge expects that the guilty person will refrain from commission of further offenses.
Suspension of sentence may not be granted in the following instances:
(1) To anyone who was convicted of a crime though his rehabilitation took place (sec. 178), to habitual offenders (sec. 102), or those who committed offenses as a business (sec. 105) or to an offender by personal inclination;
(2) If an additional security measure (sec. 199) is to be added to the imposed punishment because the offender is presumed under the law to be dangerous to society.
The suspension of sentence precludes the application of the security measure [stated in the sentence] except confiscation.
The suspension of punishment may not be granted more than once.
SEC. 165. Duties of the convicted person. — Suspension of the punishment may be subordinated to the fulfillment of the duties to make restitution, to the payment of the sum assessed by way of compensation for damage or provisionally allowed on the amount thereof, and to the publication of the sentence (sec. 36) by way of reparation for the injury.
The judge, in passing sentence, shall fix the time within which the duties must be fulfilled.
SEC. 166. Effects of suspension. — The suspension of the punishment shall not apply to additional punishments (sec. 19) and to other penal effects of the sentence, nor to obligations regulated by civil law but arising from the offense.
SEC. 167. Extinction of the offense. — If the convicted person does not commit another crime or misdemeanor of the same kind (sec. 101) within the fixed period of time, and does perform the duties imposed upon him, the offense is extinguished.
In that case, the execution of the punishment shall not take place and the execution of additional punishment shall be precluded.
SEC. 175. Omission of mention of conviction in certificate regarding criminal records issued by judicial offices. — If by a first conviction a fine was imposed not to exceed 20,000 liras, or a confinement not to exceed 2 years, alone or together with a fine not to exceed the above amount, the judge, taking into consideration the circumstances indicated in section 133, may order in the sentence that there should be no mention of the punishment in the certificates regarding criminal records issued by judicial offices upon request of private persons for purposes other than those of the electoral law (Code of Criminal Procedure, sec. 487, par. 1).
If the convicted person subsequently commits a crime, then the order of the sentence that the punishment should not be mentioned in the certificates regarding criminal records shall be revoked (Code of Criminal Procedure, sec. 590).
The provisions of the present section shall not apply where additional punishments are also in the sentence.
SEC. 198. Effects of the extinction of the offense or the punishment on obligations regulated by civil law. — The extinction of the offense or the punishment does not effect the extinction of obligations regulated by civil law but arising from the offense, provided the obligations refer to those specified in the two preceding sections.
Comment: Section 196 deals with obligations for damages to dependents of the persons injured and section 197 with obligations of corporations as regards payment of fines.
2. Code of Criminal Procedure of 1930.
SEC. 487. Provisions concerning suspension of sentence and omission of mention of conviction in certificates regarding criminal records. — Whenever the law allows the benefit of suspension of sentence and the judge wants to grant it, he shall make such provisions in the convicting sentence, according to Sections 163, 164, and 165 of the Criminal Code.
Whenever the judge, in cases specified in section 175 of the Criminal Code, wants to order that the conviction should not be mentioned in the certificate regarding criminal records issued upon request of private persons, he shall make such provision in the sentence, in accordance with the same section.
SEC. 608. Entries which need not be mentioned in the certificate regarding criminal records upon request of public persons. — In certificates issued upon request of private persons, except instances specified in the subsequent section [609] no mention shall be made of the following:
[Subsections 1, 2, 3, omitted.]
(4) If a conviction for an offense which has been extinguished in fulfillment of the condition specified in paragraph 1, section 167 of the Criminal Code.
SEC. 609. Certificates regarding criminal records issued for purposes of electoral law. — In the certificates issued for purposes of electoral law no mention shall be made concerning convictions and other rulings (of the court) which do not interfere with the electoral law.
III. COURT DECISIONS
1. "The established principle of legal interpretation is that the most favorable measure shall apply to the accused person; therefore, in instances where pardon is subject to some condition, it must be considered that suspension of sentence should apply because it does extinguish the offense and the additional punishment, while the legal effect of pardon is limited to the execution of the punishment. T. Lecce, November 25, 1936, Comi, Foro salentino, 1936, 14, in Foro Italiano, Roma, vol. 61 (1936), p. 46-N.
2. Pardon cannot apply to a suspended sentence because it is beyond any doubt that the suspension of sentence constitutes a greater benefit, which extinguishes the offense itself, in accordance with section 157 of the Criminal Code, and not only the punishment, as is the effect of pardon. (Supreme Court, Criminal Division III, June 10, 1948, n. 776. Giurisprudenza Completa Della Corte Suprema di Cassazione, I Semestre, Series II, vol. XXIX, 1948, p. 545, 1857.)
3. In fact, the institution of suspended sentence is enumerated among the causes which extinguish the offense, and as such operates from the moment in which it occurs (sec. 183 of the Penal Code), viz, from the date of the sentence which grants the suspension. Thus its legal effect begins ex tunc (from the time it occurred), like a condition subsequent. (Supreme Court, Criminal Division, June 1, 1945, No. 1630. Giurisprudenza Completa Della Corte Supreme di Cassazione, Roma, vol. XIX, 1945, p. 240, No. 205.)
4. "Suspension of sentence prevails [in case of choice] over pardon, because suspension of sentence extinguishes the offense upon the lapse of time provided for by law, while the only legal effect of pardon is that the punishment of the convicted person shall not be executed under certain conditions." (Supreme Court, Criminal Division II, February 16, 1951, No. 206. Giurisprudenza Completa Della Corte Suprema di Cassazione, vol. XXXII, 1951, Roma p. 307, No. 927.)
5. The suspension of sentence as a cause which extinguishes the offense is prevailing [in case of choice] over pardon, which only extinguishes the punishment. (Supreme Court, Criminal Division I, November 16, 1945, N. 822. Giurisprudenza Completa Della Corte Suprema di Cassazione, Roma, vol. XX, 1945, p. 341, No. 114.)
6. The institution of suspension of sentence and that of not mentioning the sentence in the penal certificate are two distinct and separate benefits, so that the grant of one of these does not necessarily affect the other. (Supreme Court, January 28, 1947, N. 467. Foro Italiano, Roma, 1947, p. 335-E.)
IV. LEGAL WRITERS
A. The extinguishing causes are divided into causes extinguishing the offense and causes extinguishing the punishment, as we already pointed out.
The causes which extinguish the offense annul the legal nature of the offense as an act in general declared punishable by statute, so that this (the act) remains licit with regard to punishment, viz, it does produce legal penal effects, at least from the general point of view, but by way of exception some effect of the conviction may remain in force, so long as it had occurred. (Girolamo Penso, " Estinzione del Reato e della pena" [Extinction of the Offense and the Punishment] in Nuovo Digesto Italiano, Torino 1936, vol. VI, p. 677.)
B. Vincenzo Manzini, Trattato di Diritto Penale Italiano, Torino, 1948, Volume Terzo.
Page 647. Pardon is always less favorable than suspension of sentence.
Section 167 of the Penal Code uses the terminology "extinction of the offense," but from the same section it is obvious that it deals not with the extinction of the offense but with extinction of the principal and additional punishments, because the sentence remains in force without change for any other penal effect. Therefore, as a sentence cannot exist without an offense, then if the sentence remains in force for the penal effects different from the above-mentioned punishments, it is obvious that we cannot say that the offense is extinguished.
According to the nature of the institution and the interest of the individual, the legal effect of the sentence consists in that the power of the State to execute the principal and additional punishments is waived and that the convicted person accordingly acquires the right to be free from imposition of these punishments.
Other penal effects of the sentence do not cease, and therefore the sentence does remain as a valid cause, if the convicted person commits another offense. In this point the institution differs from the provisions contained in the repealed Code on Criminal Procedure of 1913.
C. Silvio Ranieri: Diritto Penale, Parte Generale, Milano, 1945.
Page 157. Suspended sentence does not apply either to additional punishments or to other penal effects of the sentence, or to obligations regulated by civil law arising from the offense (sec. 166). While the condition is pending, the mere execution of the principal punishment is suspended, so that the sentence must be executed in all other penal effects except the payment of the cost of proceedings. On the contrary, the act shall not be punishable if the convicted person within the terms established does not commit a crime or a misdemeanor of the same kind, and he performs the duties imposed upon him. In that case the principal punishment shall not be executed, and the execution of additional punishments shall cease. However, penal effects other than additional punishments continue.
D. Carlo Saltelli: Enrico Romano Di Falco, Communo Teorica-Pratico Del Nuovo Codice Penale, Torino, 1931.
Page 677. The formula "extinction of the offense and the punishment" is not precise enough, because whenever we say extinction of the offense, we have in mind the extinction of the punishment in the abstract sense. Since the punishment is extinguished in the abstract sense, and since the act is no longer punishable, it ceases to be illicit. But the offense is not extinct as a factual event but as a fact relevant for penal law. When we say extinction of the punishment we mean the punishment is extinguished in a given case (sentence).
Page 737. The institution of suspension of sentence was included between causes which extinguish the offense because suspension of sentence functions as a condition subsequent, viz, after beneficial lapse of the period of suspension, the principal punishment and additional punishments are extinguished ex tunc [from the time they occurred]. Therefore, the right of punishment is extinguished.
Page 743. According to section 167 the offense is extinguished and the principal and additional punishment shall not be executed if within the terms established the convict does not commit another offense or another petty offense of the same kind, and fulfills all obligations imposed upon him. In any event, the penal effects of the sentence other than those of additional punishments are excepted. For instance, in spite of the extinction of the offense, the fact that the sentence was rendered precludes suspension of sentence in the future, and constitutes an element for the characterization of the habitual criminal.
Prepared by Dr. Vladimir Gsovski, Chief, and Dr. Fran Gjupanovich, Foreign Law Section, Law Library, Library of Congress, October 20, 1952.