Introduction: Matter of S-, 3 I&N Dec. 460 (BIA 1948)

On December 28, 1948, the Board of Immigration Appeals published a precedent decision in Matter of S-, 3 I&N Dec. 460 (BIA 1948) [PDF version]. The case involved an alien who had pled guilty to three separate counts of a federal indictment and was given a general sentence of 15 months of imprisonment and a fine of $1. For immigration purposes, the question was whether he was given a sentence of one year of imprisonment or more for his conviction on one of the three counts. The Matter of S- Board concluded that the alien’s 15-month sentence was applicable to each of the three counts individually, and thus that the alien was deportable for his sentence of one year or more on the third count. The Board’s reasoning on this point drew heavily from the precedent decision of the United States Court of Appeals for the Ninth Circuit in Martinez v. Nagle, 53 F.2d 195 (9th Cir. 1931) [PDF version].

Matter of S- was a relatively obscure decision until it was cited by the Board again in a precedent decision over 65 years later. In Matter of Chavez-Alvarez, 26 I&N Dec. 274, 282 (BIA 2014) [PDF version], the Board cited to Matter of S- in support of its conclusion that a general sentence of 18 months for three articles in military proceedings constituted a sentence of at least one year for one of the three articles. Matter of S- came up again on appeal from Matter of Chavez-Alvarez in Chavez-Alvarez v. Attorney General U.S., 783 F.3d 478, 482-83 (3d Cir. 2015) [PDF version], wherein the Third Circuit distinguished its holding from the issue in Chavez-Alvarez in reversing the Board’s decision on the point. However, Matter of Chavez-Alvarez remains binding on immigration judges outside the jurisdiction of the Third Circuit [see article].

In this article, we will examine the decisions in Matter of S- and Martinez in detail and explain how they remain relevant to Matter of Chavez-Alvarez. Furthermore, we will also discuss briefly why the Third Circuit disagreed with the Board’s conclusion in Matter of Chavez-Alvarez. For further discussion of the BIA and Third Circuit decisions, please see our full article [see article] and specific section links later in this article.

Relevant Factual and Procedural History in Matter of S-

The respondent in Matter of S- was indicted in the United States District Court at El Paso, Texas, in 1925, on three separate counts. 3 I&N Dec. at 461. The respondent pled guilty to all three counts. Id. The counts were described by the Board as follows:

Unlawful possession of cocaine in violation of the Act of December 17, 1914;
Unlawful purchase of 15 grains of cocaine in violation of the Act of December 17, 1914 (commonly known as the Harrison Narcotic Act); and
Unlawful importation of 15 grains of cocaine in violation of the Narcotic Drugs Import and Export Act. Id.

Before continuing, it is important to note that the criminal statutes that we are discussing and the immigration statutes that we will discuss have been rewritten since the publication of Matter of S-.

After pleading guilty to all three counts, the respondent was given a general sentence of 15 months of imprisonment and a fine of $1. Id.

The Board explained that, while the respondent’s violations of the Harrison Narcotic Law did not constitute grounds for deportation under the immigration laws in effect at the time of his conviction, the respondent’s conviction for violating the Narcotic Drugs Import and Export Act did render him deportable under the Act of 1909. Id. However, that immigration provision had been amended in 1922 such that in order for the respondent to be deportable, he would need to have been sentenced to a term of one year or more of imprisonment specifically for his violation of the Narcotic Drugs Import and Export Act. Id.

Thus, the respondent pled guilty to three counts of the indictment, but two of the counts would not have rendered the respondent deportable. The third count would have rendered the respondent deportable but only if he received a sentence of one year or more of imprisonment for that count. The respondent received a general sentence of 15 months for all three convictions. Thus, “the question which must be disposed of is whether the present record establishes that the respondent has been sentenced to a term of imprisonment [for one] year or more for his violation of the Narcotic Drugs Import and Export Act.” Id.

Board Discusses and Follows Ninth Circuit in Martinez v. Nagle

The Board in Matter of S- looked to the Ninth Circuit’s 1931 decision in Martinez v. Nagle to analyze the issue before it. It stated that in Martinez, “the [C]ourt was presented with an issue on all fours with the instant case.” Id.

In Martinez, an individual pled guilty to two counts of an indictment. Id. The first count was under the Harrison Narcotic Act whereas the second count was under the Act of 1909 (Jones-Miller Act). Id. Martinez was given a general sentence of one year and one month and a fine of $1 for his convictions. Id.

A conviction under the Harrison Narcotic Act, regardless of the term of imprisonment, would not have rendered Martinez deportable. However, a conviction in violation of the Jones-Miller Act would have rendered Martinez deportable, provided that he was sentenced to a term of imprisonment of one year or more for the conviction. 53 F.2d at 196. Thus, the Ninth Circuit wrote that “the sole question before this court is whether or not [Martinez] has been sentenced to imprisonment for a year and a day for violation of the Jones-Miller Act.”

Martinez argued that the presumption of judicial regularity necessitated the conclusion that he had been sentenced to a term of imprisonment of one year and one day for his violation of the Harrison Narcotic Act and that he had been assessed a fine in the amount of $1 for his violation of the Jones-Miller Act. Id. However, the Ninth Circuit held that Martinez’s own logic would cut the other way, noting that “[t]he Harrison Narcotic Act provides for imprisonment or fine or both; the Jones-Miller Act provides for imprisonment and fine.” (Emphasis added.) Id. Thus, the Ninth Circuit reasoned that since the Jones-Miller Act mandated a term of imprisonment and fine, “the very doctrine of judicial regularity invoked by [Martinez] must lead to the conclusion that if the fine was assessed on the second count, as [Martinez] concedes, then the term of imprisonment must have been on the same count.” Id. The Ninth Circuit stated that it “must assume that the trial court meant to and did carry out the law…” Id. at 497.

The Board in Matter of S-, at 3 I&N Dec. at 462, quoted the following passages from Martinez in their entirety:

Likewise, we must conclude that the sentence on the second count was meant to run concurrently with that on the first count. The indictments charged separate offenses under two separate statutes, to each of which the appellant pleaded guilty, and we cannot presume that no sentence at all was imposed on a count to which appellant had pleaded guilty. 53 F.2d at 197.

The court might have sentenced the defendant on each count or it might impose one sentence upon both counts either upon a plea or verdict of guilty, and unless it specifically appears that the sentence was imposed upon one count only, the presumption obtains that it was a sentence upon both counts. (Internal citation and quotes omitted.) Id.

In short, the Ninth Circuit in Martinez took the position that where a defendant pled guilty to two counts, and was given a general sentence encompassing both counts, the Court on review could not presume that he or she was given no sentence for one of the counts. Instead, unless there was reason in the record to believe that the sentence was imposed on one count only, the Ninth Circuit presumed that the general sentence applied to each count individually. Thus, unless the record stipulated either that the general sentence applied to one count at the exclusion of other count(s) or that it stipulated that distinct sentences meant to run consecutively applied to each count, the Court would presume that the general sentence applied to each count and that the sentences ran concurrently.

The Matter of S- Board agreed with the Ninth Circuit’s conclusions and applied its reasoning to the instant case, holding that “we think that the sentence was on both counts” and that the sentences for each count “run concurrently.” 3 I&N Dec. at 462. The Board stated in more detail: “Relying on the reasoning and authority contained in Martinez v. Nagle, it is concluded that the general sentence to imprisonment for a period of 15 months, which followed the respondent’s conviction on a plea of guilty to all three counts of the indictment, was applicable to his conviction on the third count of said indictment … Hence, the respondent is deportable on the lodged charge.” Id.

Discussion in the Chavez-Alvarez Cases

This section will presume that you are familiar with the background in Matter of Chavez-Alvarez, 26 I&N Dec. 274, 282 (BIA 2014) and in Chavez-Alvarez v. Attorney General U.S., 783 F.3d 478, 482-83 (3d Cir. 2015). We discuss these decisions in full in a separate article [see article].

In Matter of Chavez-Alvarez, 26 I&N Dec. at 282, the BIA noted that the Immigration Judge had considered himself bound by Matter of S- in holding that a general sentence on multiple articles of conviction in military proceedings applied in full to each article [see section]. The Board also referenced the Ninth Circuit decision in Martinez. However, the Board did not provide any further analysis on this point besides noting its agreement with the Immigration Judge.

The Third Circuit, however, discussed Matter of S- and Martinez extensively and found both cases distinguishable from the issue in Chavez-Alvarez. The Third Circuit stated that “[t]he Ninth Circuit’s 1931 decision in Martinez says nothing about general sentencing in the military and is based on concurrent sentencing in federal court.” 783 F.3d at 484. It noted that Martinez had been cited most recently in 1982 (notably, prior to the enactment of the Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1987 (1984)) in United States v. Rodriguez, 682 F.2d 827, 829 (9th Cir. 1982) [PDF version], wherein the Ninth Circuit described the Martinez rule as “a long-standing presumption, when the record is silent, in favor of concurrent sentences when the defendant has been found guilty on two counts and has been sentenced to imprisonment on one count and probation on the other.” 783 F.3d at. 484. Again, the Third Circuit concluded that “Martinez says nothing about general sentences in the military or how such sentences should be interpreted for removal purposes under the INA.” Id. For this reason, it found that “[t]he Ninth Circuit’s presumption is simply inapplicable to the sentencing scheme at issue in this case.”

Notably, the Third Circuit later noted that the Government had “concede[d] that Matter of S- has limited applicability,” and sought to defend the Board’s conclusion in Matter of Chavez-Alvarez on other grounds. Id. at 485.

Conclusion

In Matter of S-, the Board followed a Ninth Circuit precedent on assuming that federal general sentences for multiple counts apply in full to each individual count, absent specific evidence in the sentence indicating otherwise. The Board concluded in Matter of S- that this presumption applied in the context of determining whether a criminal sentence in federal court rendered an alien deportable. In Matter of Chavez-Alvarez, the Board applied the same presumption to a military sentence. However, the Third Circuit distinguished the military sentencing provisions from criminal sentencing, finding that neither Matter of S- nor Martinez were applicable.

The issue is live, with only the Third Circuit having specifically repudiated Matter of Chavez-Alvarez. We will update the site with more information on the issue as it becomes available. When facing removal proceedings, it is always important to consult with an experienced immigration attorney. An attorney will be able to assess a client’s case and determine which avenues for challenging the removal charges or seeking relief or protection from removal may be available under the relevant laws. Please see our website’s full sections to learn more about criminal aliens [see category] and removal and deportation defense [see category].