NAGY
CHARGE:
Order: Act of 1952—Section 241(a)(4) [8 U.S.C. 1251(a)(4)]—After entry convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct, to wit, intent to commit larceny in bank (
The respondent, a native and citizen of Hungary, has been found deportаble as an alien who after entry has been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct, to wit, intent to commit larceny in a bank and transporting a stolen motor vehicle in foreign commerсe in violation of
The respondent, an unmarried male alien, 30 years of age, last entered the United States through the port of Newark, New Jersey on or about March 18, 1957. He was granted the status of a lawful permanent resident alien as of March 18, 1957 at Newark, New Jersey pursuant to the Act of July 25, 1958. He was convicted on March 14, 1960 in the United States District Court at Los Angeles, California of the
The respondent moves for a termination of the proceeding on the ground that his conviction for transporting a stolen motor vehicle in foreign commerce has been set aside pursuant to section 5021 of Title 18, U.S.C. Respondent takes the position that he no longer stands convicted after entry of two crimes involving moral turpitude.
The respondent, when convicted on June 20, 1960 for violation of
The issue before us is whether the certificate granted the respondent by the Youth Correction Division setting aside his conviction pursuant to section 5021 of Title 18, U.S.C.2 amounts to an expungement thereby eliminating the basis for his deportability under section 241(a)(4) of the Immigration and Nationality Act (8 U.S.C. 1251(a)(4)). The trial attorney maintains that a certificate issued under section 5021 of the Federal Youth Corrections Act is ineffective to prevent deportation because it amounts to a nonexecutivе pardon.
The respondent‘s conviction was set aside pursuant to section 5021(a) of 18 U.S.C. (supra). This provision was enacted by the 81st Congress on September 30, 1950 as a part of Public Law 865 known as thе Federal Youth Corrections Act. According to the legislative history and court decisions the purpose of Congress in passing the Act was to make available for the discretionary use of federal judges a system for the sentencing and treatment of youth offenders by permitting the substitution of correctional rehabilitation rather than retributive punishment in a penitentiary. See United States Code Congressional and Administrative News, 81st Cong., 2d Sess. 3983, 3992. Also Briscoe v. United States, 246 F. Supp. 818 (D.C. Del., 1965); Rawls v. United States, 331 F. 2d 21 (C.A. 8, 1964).
The Deputy Attorney General, in his letter of June 21, 1950 to the Congress recоmmending passage of the Federal Youth Corrections Act noted the fact that if the offender had “responded to treatment” and the Youth Division determined that “rehabilitation has been accomplished” the offender could be ”discharged unconditionally before the full mаximum term has expired, in which event the conviction shall be automatically set aside” and the youth offender issued a “certificate” to that effect. See United States Code Congressional Service, 81st Cong., 2d Sess., pp. 3391-92. (Emphasis supplied.)
The court in Rogers v. United States, 326 F. 2d 56 (C.A. 10, December 24, 1963) said:
The Act embodies the modern concept of the treatmеnt of young violators of the criminal laws. In place of punishment as the purpose of the pronouncement of criminal sentences, rehabilitation through treatment or “corrective and preventive guidance” is the end sought.
Since the resрondent‘s conviction for transporting an automobile in foreign commerce has been “set aside” pursuant to the Federal Youth Corrections Act, does he now stand convicted after entry of two crimes involving moral turpitude? The special inquiry оfficer concludes “that the certificate issued to the respondent under
The court in the Tatum case (supra) had before it the question of whether the District Court could vacate an original sentence entered under the Federal Youth Corrections Act and impose a new sentence under the Indeterminate Sentence Law rather than under the Youth Corrections Act. The court held:
We are satisfied that the prospect of having the conviction “automatically” set aside under
18 U.S.C. § 5021 (1958) is a difference so important as to outweigh the possibility of longer confinement and to warrant the conclusion that the second sentence was morе severe than the first and could not be imposed after appellant had commenced serving the sentence first imposed. The second sentence imposed will be set aside and the appellant will be resentenced under the Youth Corrections Act . . .
The court in a footnote stated:
The provisions of the Federal Youth Corrections Act,
18 U.S.C. § 5021 (1958) appear to provide greater relief than would a presidential pardon of the same offense. The former acts to expunge the conviction and the record while the latter “releases the offender from all disabilities imposed by the offense, and restores to him all of his civil rights.” Citing Knote v. United States, 95 U.S. 149, 153, 24 L.Ed. 442 (1877). (Emphasis supplied.)
The court stated the most important feature of the Youth Corrections Act (section 5021) was that a person sentenced thereunder “can, by virtue of his own good conduct, be spared the lifelong burden of a criminal record . . . (and) it can, by the choice and conduct of the individual, become a noncriminal episode so far as the public records are concerned.” (Emphasis supplied.)
The appellate trial attorney in his memorandum of June 28, 1966 takes the position that
The case of Tanzer v. United States (278 F. 2d 137, cert. den. 364 U.S. 863) is also a narcotic conviction. The court had before it the issue of whether Tanzer was to be regarded as a second offender. There is nothing in the opinion which would indicate that Tanzer was convicted as a young adult or youth offender. Furthermore, Tanzer relied upon
It is clear from the legislative history of the Federal Youth Corrections Act (Public Law 865, 81st Cong.) that Congress intended that a “youth offender” would not have a continuing criminal record if his conviction was set aside pursuant to section 5021 of the Act. Furthermore, the Court of Appeals for the District of Columbia in Tatum v. United States (supra) has held that a certificate setting aside a conviction issued pursuant to
Our ruling with regard to the respondent‘s deportability renders moot his application for relief under section 243(h) of the Immigration and Nationality Act. An appropriate order will be entered.
ORDER: The order of deportation entered by the speсial inquiry officer on October 13, 1967 is hereby withdrawn and the proceedings pursuant to the order to show cause issued on August 17, 1960 are hereby terminated.