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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