Aquino-Encarnacion v. Immigration & Naturalization Service

United States Court of Appeals
For the First Circuit

No. 02-1362

FRANCISCO ANTONIO AQUINO-ENCARNACION,

Petitioner,

v.

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

APPEAL FROM THE BOARD

OF IMMIGRATION APPEALS

Before

Boudin, Chief Judge,
Torruella and Howard, Circuit Judges.

Vincent J. Cammarano and Cammarano & Associates on Response to
Show Cause Order for appellant.

July 23, 2002
 Per Curiam. Mr. Aquino-Encarnacion is a native and

citizen of the Dominican Republic. Prior to initiation of

deportation proceedings, his immigration status was that of a

lawful permanent resident. In 1998, Aquino was convicted in

the trial court of the Commonwealth of Massachusetts of

receiving stolen property worth over $250 and of receiving a

stolen motor vehicle, in violation of Mass. Gen. Laws ch. 266

§§ 60 and 28 (2001). The Immigration and Naturalization Service

charged that Aquino is subject to removal under 8 U.S.C. §

1227(a)(2)(A)(i), as an alien convicted of a crime of moral
turpitude, committed within five years of the date of

admission, for which a sentence of one year or longer may be
imposed. The Immigration Judge entered an order of
deportation, which was upheld on appeal by the Board of

Immigration Appeals. Aquino is scheduled to be deported in the
near future.
Aquino has petitioned for review of that decision

and has requested a stay of deportation pending review. He
challenges the decision of the BIA on the ground that the Board
misinterpreted 8 U.S.C. § 1227(a)(2)(A)(i) in determining that

he is deportable. That provision states:
Any alien who -
(I) is convicted of a crime involving
moral turpitude committed within five
years ... after the date of admission [to
this country], and
(II) is convicted of a crime for which a
sentence of one year of longer may be
imposed,
is deportable.

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Aquino concedes that he was initially sentenced to probation

for one year for each offense, the terms to run concurrently.

However, in July, 2000, his sentence was reduced to 11 months'
probation for each offense, to run concurrently, deemed served.

He argues that as a result of this reduction, the deportation

provision does not encompass his case because subclause (II)
refers to the sentence that has actually been imposed upon

conviction of a crime of moral turpitude. However, this

interpretation must be rejected.

The language at issue was inserted into the immigration

statutes by § 435(a) of the Antiterrorism and Effective Death

Penalty Act of 1996. Prior to this amendment, subclause II

read:
either is sentenced to confinement or is
confined therefor in a prison or
correctional institution for one year or
longer.
If Congress intended deportability resting on the commission of

a crime of moral turpitude to turn on the sentence imposed or

served, rather than the sentence to which commission of the
offense exposed a violator, there would have been no reason to

replace the earlier language with the new subclause II:

is convicted of a crime for which a
sentence of one year or longer may be
imposed....

Accord, United States v. Qadeer, 953 F.Supp. 1570, 1580
(S.D.Ga. 1997).

The decision of the Board of Immigration Appeals is
affirmed.

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