Interim Decision #2709
MATTER OF ROBINSON
In Deportation Proceedings
A-2..9393943
Decided by Board June 13, 1979
(1) Although there is no "judgment of conviction" under the laws of California when the
sentence is suspended and probation imposed, an adjudication of guilt followed by a
suspended sentence and probationary period is sufficient to subje eta person to deportation on the basis that he has been convicted. Gutierrez v. INS, 323 F.2d 593 (9 Cir.
1963).
(2) Willful misapplication of funds of a savings and loan association in violation of 18 U.S.C.
667 Includes the clement of intent to defimul and therefore involves moral turpitude
despite omission of the element of intent to defraud from the statute. Matter of Batten,
11 L & N. Dec. 271 (BIA 1965), followed.
CHARGE:
Order. Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant visitor—
remained longer than permitted
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Jose Angel Rodriguez, Esquire Thomas Y.E. Fong
Gomez, Paz, Rodriguez & Senora Trial Attorney
304 S. Broadway, Suite 532
Los Angeles, California 90013
WY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members
The respondent has appealed from a decision of the immigration judg e
dated October 31, 1977, in which he found the respondent deportable
illoon her own admission under section 241(a)(2) of the Immigration and
Nationality Act, 8 U.S.C. 1251(9X2), as a nonimmigrant who remained
it the United States longer than permitted. He also denied her applications for suspension of deportation under section 244(a)(1) of the Act,
U.S.C. 1254(a)(1), and for voluntary departure. The respondent has
appealed only from the immigration judge's denial of discretionary relief. The appeal will be dismissed.
The respondent is a 34-year-old native and citizen of Panama who
entered the United States on. March 20, 1970, as a nonimmigrant visitor_
©n December 14, 1976, she pled guilty in the United States District
Court of the Central District of California to a charge of misapplication
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of funds of a savings and loan association in violation of 18 U. S. C. 657.
The respondent was adjudged to be guilty as charged and convicted, but
imposition of sentence was suspended. She was required to be on probation for a period of two years and to make restitution of the misapplied
funds.
The immigration judge denied both of the respondent's applications
for discretionary relief on the ground that her conviction of a crime of
moral turpitude within the last five years precluded a finding of good
moral character.
On appeal, the respondent contends that she was not, in fact, convicted of a crime since imposition of sentence was suspended, and that
the crime with which she was charged was not one involving moral
turpitude, since the indictment contained no allegation of fraud.
The respondent cites our decision in Matter of Amesquita, Interim
Decision 2608 (BIA 1977), in which we recognized that there is no
"judgment of conviction" under the laws of California when a court
chooses to "suspend, or refrain from, the pronouncement of judgment,
subject to the administration of the probation laws." However, in that
case, we also stated that such a dispositional order following an ascertainment of guilt would clearly support a finding of deportability. As
authority for that proposition, we cited Gutierrez v. INS, 323 F.2d 593
(9 Cir. 1963), in which the terms "convicted" and "judgment of conviction," as applied under California law, were distinguished. It was determined in that case that a person was "convicted" after entry of a plea
of guilty or a verdict of guilty by a jury, but that there was no "judgment of conviction" until a sentence was imposed. The court thereupon
held that an adjudication of guilt followed by suspension of sentence and
imposition of probation was sufficient to subject a person to deportation
on the basis that he had been convicted.
In Matter of Varagianis, Interim Decision 2537 (BIA 1976), we held
that a conviction exists for immigration purposes when (1) there has
been a judicial finding of guilt, (2) the court takes action which removes
the case from the category of those which are (actually or in theory)
pending for consideration by the court—the court orders the defendant
fined, or incarcerated or the court suspends sentence, (3) the action of
the court is considered a conviction by the state for at least some
purpose. See also Matter of Pikkarainen,
10 I. & N. Dec. 401 (BIA_
1963); Matter of L--R ,
8 I. & N. Dec. 269 (BIA 1959).
—
Since in the respondent's case there was an adjudication of guilt and
the sentence was suspended, which under the laws of California constitutes a conviction, we conclude that the respondent has been convicted
for purposes of the immigration laws.
The respondent also argues that the crime of misapplication of funds
is not one involving moral turpitude because the statute upon which the
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indictment is based fails to include the element of fraud. In Matter of
Batten, 11 I. & N. Dec. 271 (BIA 1965), we specifically held that a crime
charging the defendant with misapplication of funds includes the element of intent to defraud and, therefore, involves moral turpitude
despite omission of the element of intent from the statute. Although the
respondent was convicted under 18 U.S.C. 657 for willful misapplication
of funds from a savings and loan association, we find that the statute
involved in the Rattan decision, 18 U.S.C. 656, dealing with embezzlement from banks, is so similar as to render that ruling applicable to the
instant case. Therefore, we conclude that the crime of which the respondent was convicted is one involving moral turpitude, and we agree
with the determination of the immigration judge that the respondent
cannot be considered to be a person of good moral character. See section
101(f)(3) of the Act, 8 U.S.C. 1101(f)(3).
Accordingly, the appeal will be dismissed.
ORDER: The appeal is dismissed.
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