IN THE MATTER OF F—— In DEPORTATION Proceedings A-6776210 Decided by Board January 9, 1953 Sentenced: One year or more, court martial abroad as being convicted in this country-Convicted: by court martial-Crimes involving moral turpitude, Federal: Article of War, 93d. Conviction in United States court martial proceedings held in Germany deemed to be conviction in the United States so as to make alien deportable as one sentenced to imprisonment for a term of one year or more, because of conviction in this country of a crime involving moral turpitude, committed within 5 years after entry. (Matter of J——————, A-6972834, 3, I. & N. Dec. 536, overruled to extent inconsistent with this decision). CHARGE: Warrant: Act of 1917-Crime within 5 years-Violation of the 93d Article of War-Theft of 73,296.50 marks, value United States currency about $17,451.55 BEFORE THE BOARD Discussion: This case is before us on appeal from a decision of the Acting Assistant Commissioner dated May 23, 1952, directing the respondent's deportation from the United States, pursuant to law, on the charge stated in the warrant of arrest. This record relates to a 21-year-old single male alien, a native of Germany and citizen of Palestine. He was lawfully admitted to the United States for permanent residence at New York on September 23, 1947. He enlisted in the United States Army in 1948 and after about 3 months' training was sent to Germany with the United States Armed Forces. On January 30, 1950, at Bremerhaven, Germany, he was convicted by a court-martial of violation of the 93d Article of War (10 U. S. C. 1565), theft of Deutschmarks to the value, in American dollars, of about $17,451.55. He was sentenced to be dishonorably discharged from the service and to 8 years' confinement at hard labor. He is presently serving his sentence at the Industrial Reformatory in Chillicothe, Ohio, having been brought to this country on a United States Army transport in military custody on May 7, 1950. The hearing officer concluded that the alien is deportable on the charge stated in the warrant of arrest, viz-that portion of section 19 (a) of the Immigration Act of 1917, as amended, which provides for the deportation of: "Any alien who is hereafter sentenced to imprisonment for a term of one year or more because of conviction in this country of a crime involving moral turpitude, committed within five years after the entry of the alien to the United States." The Acting Assist ant Commissioner adopted the findings of the hearing officer relating to deportability. We concur with those officials that the subject is deportable as found by them, but in view of the fact that the case appears to present a unique and novel issue we will hereinafter point up the factors and considerations which led us to such agreement. It is readily apparent that the alien has been sentenced to imprisonment for a term of 1 year or more, that the crime of which he was convicted involves moral turpitude, and that the crime of which he was convicted was committed within 5 years after his entry into the United States. Thus, the only problem presented is whether the conviction of this subject was a conviction in this country, within the purview of the statute here under consideration. In the first place, while courts-martial have no part of the jurisdiction set apart under the article of the Constitution which relates to the judicial power of the United States, they have an equally certain constitutional source. They are established under the constitutional powers of Congress to make rules for the government and regulation of the land forces of the United States, and are recognized in the provisions of the fifth amendment, expressly exempting "cases arising in the land and naval forces" from the requirement as to the presentment and indictment by grand jury. Secondly, it has been judicially recognized that courts-martial are lawful tribunals, with authority to finally determine any case over which they have jurisdiction; 1 that a trial by court-martial constitutes due process of law and does not infringe constitutional guarantees; 2 and that where a person has been convicted of an attempt to commit burglary, he was properly sentenced as a second offender, based on a prior conviction by a court-martial of the United States Army. Thirdly, it has long been the position of this Board that a conviction by a court-martial is such within the meaning of that term as used in the Immigration Act of 1917, as amended. Finally, analysis of the foregoing demonstrates that the jurisdiction of a court-martial, i. e., its power to try and determine a case, and hence the validity of each of its judgments, is conditioned upon these indispensable requisites: That the court was appointed by an official empowered to appoint him; that the membership of the court was in accordance with law with respect to number and competency to sit on the court; and that the court thus constituted was invested by act of Congress with power to try the person and the offense charged. In this connection, examination of the record shows that all of the requirements have been met herein. Accordingly, we conclude, 1 Grafton v. U. S., 206 U. S. 333. 'Kahn v. Anderson, 255 U. S. 1; Reaves v. Ainsworth, 219 U. S. 296; Terry v. U. S., 2 F. Supp. 962. 3 People ex rel Stewart v. Wilson, 13 N. Y. S. (2d) 749; 257 App. Div. 555. 'Matter of W—, 56079/473, 1, I. & N. Dec. 485. without any hesitancy or doubt that there has been a "conviction" within the meaning of the terms as used in the statute under consideration. However, the question as to whether it was a "conviction" in this country still remains to be answered. 6 The term "conviction" is defined, as follows:-"In ordinary phrase, the meaning of the word 'conviction' is the finding *** of a verdict that the accused is guilty. But, in legal parlance, it often denotes the final judgment of the court. *** The ordinary legal meaning of 'conviction,' when used to designate a particular stage of a criminal prosecution * * *, is the confession of the accused in open court or the verdict returned against him***, which ascertains and publishes the fact of his guilt; ***." Now, we invite attention to the procedural aspects of courts-martial in effect during the period with which we are here concerned. Article of War 35 (10 U. S. C. 1506) required that the complete record of the proceedings relating to this subject (the court-martial proceedings) be transmitted to the Judge Advocate General of the Army. Article of War 50 (10 U. S. C. 1521) provided for the constitution of a Board of Review in the Office of the Judge Advocate General. Section (e) thereof precluded execution of sentence unless and until the record of the proceedings was completed, and subsection (1) thereof provided that the holding of the general courtmartial became final and conclusive only when the Board of Review had held the record of the trial legally sufficient to support the findings of guilty and the sentence. In view of the foregoing, we find that there was no final judgment of the court in this case until requirements of A. W. 50 (e) (1) had been met, which event occurred within the physical boundaries of the United States. Exhibit 2 in the evidence of record shows conclusively that, in the instant case, compliance was had with those requirements. Accordingly, we conclude that this subject was convicted in this country within the purview of section 19 (a) of the Immigration Act of 1917, as amended. Hence, he is deportable under the charge stated in the warrant of arrest. Further in support of our position, we note that Congress has provided that service abroad in the Armed Forces of the United States by alien members thereof may be substituted for or serve in lieu of residence in the United States for naturalization purposes. We feel that it would be unreasonable to hold that Congress intended that aliens should not be subject to any and all concomitant detrimental consequences arising from or flowing out of military service which might otherwise have worked to their advantage in acquiring United States citizenship. In other words, we feel that it would be a mere technicality to hold that this respondent was 5 Black's Law Dictionary, 3rd Ed., pp. 432–433. *10 U. S. C. A. 50 [see chapter 22 of Title 50, War and National Defense]; Manual for Courts-Martial, U. S. Army (1949). 'Sec. 324A of the Nationality Act of 1940 and Public Law 597, 81st Cong. (act of June 30, 1950). in the United States for purposes of the naturalization laws, but was not in this country so as to be subject to the provisions of the immigration laws. Moreover, this subject has testified that he enlisted in the Armed Forces of the United States. Therefore, he voluntarily placed himself in a position where it was reasonably foreseeable that, following such conduct as he engaged in, he would be subject to court-martial proceedings and any and all of the consequences thereof, including deportation from the United States. On the basis of the foregoing factors, we do not feel that the respondent has been made the unwitting victim of a legal technicality. Counsel urges that it is not the policy of this Government to deport aliens who have peformed military service in the Armed Forces of this country and have been convicted of crimes involving moral turpitude. This Board is aware of no such policy. Counsel also urges that the alien's family will apply for a Presidential pardon. In this connection, we wish to point out that under current regulations the question of granting a stay of deportation is properly one for the consideration of the Commissioner of Immigration and Naturalization. In view of the foregoing, the appeal must be dismissed. We will now so order. Order: It is ordered that the appeal be and the same is hereby dismissed. IN THE MATTER OF S In DEPORTATION Proceedings A-5529102 Decided by Board January 13, 1953 Hearing officer: Authority to issue subpoena-Subpoena: Issuance of to compel production of Service records-Evidence-Cross-examination as to collateral matters relating to credibility of witness. (1) A hearing officer has no authority to issue a subpoena requiring the production of information from the records of the Service, such information consisting of testimony of a witness in unrelated proceedings. (2) The extent of cross-examination permitted of a Government witness as to his participation and testimony in other deportation cases is a matter within the discretion of the officer conducting the hearing and only a clear abuse of discretion by the hearing officer in limiting cross-examination would be considered prejudicial error. CHARGE: Warrant: Act of October 16, 1918, as amended-After entry alien who was member of Communist Party of the United States. BEFORE THE BOARD Discussion: This is an appeal from an order dated June 16, 1952, by the hearing officer requiring the alien's deportation on the ground stated above. The respondent is a 58-year-old married male, a native and citizen of Russia whose only entry occurred in 1913 when he entered the United States for permanent residence. The entry was not verified. Deportation is sought on the ground that the alien was a member of the Communist Party of the United States. Respondent claimed the privilege against self-incrimination and did not testify at the hearing. Evidence of record as to the alien's membership in the Communist Party, consists of the testimony of Government witness K——. K —, while a police officer, infiltrated the Communist Party in 1928 and remained a member until his true identity was discovered in 1939. During the period of his membership, he was an officer in the Communist Party in various positions and from 1936 to 1939 was in charge of Communist Party membership records in a county wide area. The witness testified that from 1928 to 1930 he attended about 25 to 30 closed meetings of the Communist Party at which the respondent was present. K testified about two specific meetings at which he was in attendance with the respondent and stated that while he, the |