MENDOZA

                                                   Interim Decision *1484




                           MASTER or MENDOZA.

                       In Deportation: PrOceedings
                                 A-10852584

                     Decided by Board Ante ER, 1986
Since respondent, a native and citizen of Eferico, is not ineligible for a MOD •
  quota immigrant visa because of his conviction of receiving stolen property
   (of the value of $49) in violation of paragraph 492, Chapter 38, Illinois Revised Statutes of 1945, as amended Inly 5, 1937, _which , is classifiable as a
  petty offense within the purview of section 212(a) (9), Immigration and Nationality Act, as mewed by section 13, Act of September 20, 1801, be is
  barred by the provisions of section 244(f) (8) of the Act from the discretionary relief of suspension of deportation.
Queers:
  Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2)7—Entered
                            without inspection (withdrawn).
  Lodged: Act of 1952—Section 241(a) (1) [8           1251(a) (1)1—Excludable
                            no visa.

  The ease comes forward on appeal from the order of the special
inquiry officer entered April 5, 1965 debving the respondent's application. for suspension of deportation under the provisions of section
244(a) (1) as amended, granting voluntary departure in lieu of deportation and further ordering that if the respondent failed to
depart when and as required,. he be deported to Mexico solely on
the lodged charge.
  The record relates to a native and citizen of Mexico, 39 years old,
male, married, who last entered the United States on or about July
1949 for the purpose of working and residing in the United States -
although not then in possession of a valid unexpired immigrant
visa, reentry permit, border crossing identification card or ()flier
valid entry. document. The trial attorney did not"press the charge'
stated in the order to show cause.. Deportability solely on the lodged
charge is established. •
  The.. respondent hai applied• for suspension. of deportation pursuant

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Interim Decision #1484
 to section 244(a) (1) of the Immigration and Nationality Act, as
 amended. The evidence establishes that the respondent merits the
 discretionary relief of suspension of deportation except for the provisions of section 244(f) of the Immigration and Nationdlity Act
 which prohibit the application of section. 244(a) "to an alien who
 … (3) is . a native of any country contiguous to the United States".
 However, section 244(f) will• not prevent the grant of suspension
 of deportation -if the respondent can establish that he comes within
 the proviso thereto which readi that the Attorney General may in
 his discretion agree to the granting of suspension of deportation to
 an alien specified in clause (3) of this subsection if such alien
 establishes to the satisfaction of- the Attorney- -General that he is
 ineligible to obtain a nonquota immigrant visa.
   The question of the ineligibility of the respondent to obtain a
 nonquota immigrant visa rests upon whether he is excludable under
'section 212(a) (9) of the Tinmigration and Nationality Act because
 of conviction of a crime involving moral turpitude; and, if excludable, whether such well dability is forgiven under the petty offense
 provision of section 242(a) (8), as amended by section 13 of the Act
 of September'26, 1961,V, such offense is classifiable as-a misdemeanor
 under the provisions reftection 1(3) of Title 18, U.S.C., by reason
 of the punishment actually imposed.
   The,respondent was convicted in the Municipal Court of Chicago,
Illinois on August 28, 195'7 of the offense of receiving stolen property and was placed on one year's probation. The information
states that on August 2, 1957 the respondent did unlawfully and willfully buy in order to prevent, the owner from again possessing her
property, knowing the same to have been stolen, said property 'being
-of the value of $49 in violation of paragraph 492, Chapter 38,
Illinois Revised Statutes of 1945. The Illinois Revised Statutes of
1945 read as follows:
  Every person, who for .his own gain, or to prevent the owner from again
possessing his property, shall buy, receive or aid in concealing stolen goods, or
any thing, the stealing of which is declared to be larceny, or. property, obtained by robbery or burglary, knowing the same to have been so obtained,
shall be imprisoned in the penitentiary not less than one or more than ten
gears, or if such goods or other property or thing does not exceed the value of
$15.00, shall be 'fined not exceeding $1,000 and confined In the county jail not
exceeding one year.
However, the latter' part of paragraph 492, Chapter 38, Illinois
Revised Statutes was amended on July 5, 1957 to provide that if
such goods or other property or thing does not exceed the value of
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     $50.00, he shall be fined not exceeding $1,000 and confined in the
     county jail not exceeding one year.
       Section 1, Title 18, U.S.C.A., classifies offenses in three categories:
         (1) any offense punishable by death or imprisonment for a term exceeding
             one year is a felony.
         (2) any other offenses a misdemeanor.
         (3) any misdemeanor, the penalty for which does not exceed imprisonment
            for a period of six months or a fine of not more than MO, or both, is
             a petty offense.                                                     •
      Inasmuch as at the time of the commission of the offense on
     August 2, 1957 as well as at the time of the conviction on August 28,
     1957, the amendment of July 5, 1957 to paragraph 492, Chapter 38,
     Illinois Revised Statutes was in effect, the respondent could have
     been convicted only under the amendatory Act of July 5, 1957, since
     the prior act was no longer in existence. Seddon 1(2) of Title 18,
     U.S.C.A., makes the offense for which respondent was convicted a
     misdemeanor, and as a result of the penalty actually imposed,, the
     conviction is a petty offense as classified in 18 U.S.C.A. 1(3). The
     test of a petty offense under the amendatory provisions of section 13 .
    of the Act of September 26, 1961 (75 Stet. 655) 'as well as the like
    predecessor statute, the Act of September 3, 1954 (Public Law 83—
    770), is that the statutory penalty must not exceed one year and
    that the actual punishment meted out by the court shall not be more
    than six Months' imprisonment or $500 fine? The exculpatory benefit of the petty offense provision of section 13 of the Act of September 26, 1961 is mandatory and automatic, not discretionary?
       The respondent is a native of. Mexico but is not ineligible to
    receive a nongunta immigrant visa because he is a beneficiary of
    the petty offense provision of section 212(a) (9) of the Immigration
    and Nationality Act. He, therefore, cannot be granted suspension of
    deportation because of the bar of section 244(f) of the Immigration
    and Nationality Ad. The respondent has been granted the privilege
    of voluntary departure in lieu of deportation. He should have no
    difficulty in obtaining the issuance of a visa inasmuch as his 1957
    conviction is a conviction for a petty offense. The appeal will be
    dismissed.
       ORDER: It is ordered that the appeal be and the same is hereby
    dismissed.
     ' Natter of 0-0—, L & N. Dec. 488; Matter of If—, 6 L & N. Dee. 614;
    Matter of T—,, 0 L & N. Dec. 508 (A.G., 1955). '
'    'Matter of         L & N. Dee. 738.



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