CASTRO

Interim. Decision #3073




                            MATTER OF CASTRO

                         In Deportation Proceedings

                                   A-26378614

                      Decided by Board August 1, 1988

(1) In determining whether a conviction comes within the "petty offense" exception
  of section 212(aX9) of the Immigration and Nationality Act, 

(aX9)
  (Supp. IV 1986), as amended by the Comprehensive Crime Control Act of October
  12, 1984, 

 Stat. 1837 (effective Nov. 1, 1987), the focus must
  be on the actual sentence imposed and not on what punishment an alien could
  have received under the applicable criminal statute.
(2) Where a criminal court suspends imposition of sentence, no sentence has been
  "actually imposed" for purposes of the exception in section 212(aX9) of the Act.
(3) Where the criminal court convicted the respondent of a crime involving moral
  turpitude and sentenced him to 2 years' imprisonment but suspended execution of
  the sentence, the "sentence actually imposed" was 2 years' imprisonment and the
  respondent does not qualify for relief under the exception of section 212(aX9) of
  the Act. Matter of Patel, 

 BIA 1975); Matter of .Piraino, 12 I&N
  Dec. 51I8 (BIA 1967); and Matter of T-, 

 (BIA 1956), distinguished.
CHARGE:
 Order: Act of 1952—Sec. 241(aX2) [

(aX2)]—Entered without inspection
ON BEHALF OF RESPONDENT:                           ON BEHALF OF SERVICE:
 Miguel D. Gadda, Esquire                           Beverley M. Phillips
 5258 Mission Street                                General Attorney
 San Francisco, California 94112

BY: Millollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members


  In a decision dated June 12, 1985, an immigration judge found
the respondent deportable as charged, denied his applications for
suspension of deportation and voluntary departure, and ordered
him deported to Mexico. The respondent has appealed from that
decision. The appeal will be dismissed.
  The respondent is a 38-year-old married male, a native and citizen of Mexico, who entered the United States without inspection.
He conceded deportability at his hearing. We are satisfied that de-
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portability has been established by clear, unequivocal, and convincing evidence as required by 

(a) (1988) and Woodby
v. INS, 

 (1966). The only issues on appeal concern his
eligibility for suspension of deportation and -voluntary departure.
   At the hearing, the respondent denied. that he entered the
United States on or about February 1, 1979, as alleged in the Order
to Show- Cause, Notice of Hearing, and Warrant for Arrest of Alien
(Form I-221S). He claimed that he last entered the United States
in January 1978 and thus was eligible for suspension of deportation. A Judgment and Probation/Commitment Order entered into
evidence disclosed that the respondent was convicted on April 9,
1984, of transfer and delivery of counterfeit obligations of the
United States in violation of 

 (1982). The court imposed on the respondent a sentence of imprisonment for a period of
2 years, suspended execution of the sentence of imprisonment, and
placed the respondent on probation for a period of 3 years. The respondent admitted that he was convicted for "selling counterfeit
money. - He testified that he spent 23 days in prison.
   The immigration judge found that, the respondent last entered
the United States on or about February 1, 1979, and that he had
not met the continuous physical presence requirement for suspension of deportation. The immigration judge further determined that
the respondent's conviction was for a crime involving moral turpitude, that he was not eligible for petty offense relief, and that he
had not met the good moral character requirement for suspension
of deportation and voluntary departure.
   The respondent contends on appeal that the immigration judge
erred in denying his applications for suspension of deportation and
voluntary departure. He asserts that he now meets the 7 years continuous physical presence requirement. He further argues that, because this was his first criminal conviction, he should be treated
similarly to someone convicted under a first offender statute.
  In order to establish eligibility for suspension of deportation, an
alien must prove that he has been physically present in the United
States for a continuous period of not less than 7 years, that he has
been a person of good moral character for the same period, and
that his deportation would result in extreme hardship to himself,
or to his United States citizen or permanent resident spouse, child,
or parent. Section 244(a)(1) of the Immigration and Nationality Act,

(a)(1) (1982).
   Even if the respondent did not meet the continuous physical
presence requirement at the time of the hearing, he has now accumulated additional time in the United States. Since his appeal is
not frivolous, that additional time in the United States means that
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Interim Decision #3073

he has now acquired the requisite 7 years. We next address whether the respondent meets the good moral character requirement.
  An alien fails to establish good moral character if he has been
convicted of a crime involving moral turpitude during the statutory
7-year period. Sections 101(f)(3) and 212(a)(9) of the Act, 

(f)(3) (1982) and 1182(a)(9) (Supp. IV 1986).
  The respondent's conviction was for transfer and delivery of
counterfeit obligations of the United States in violation of 

 (1982). Both the United States Court of Appeals for the Ninth
Circuit (where the present case arises) and the Board have held
that this crime involves moral turpitude. Winestock v. INS, 

 (9th Cir. 1978); Matter of Martinez, 

 (BIA
1977).
  Section 212(a)(9) of the Act now provides the following exception
for petty offenses:
  An alien who would be excludable because of the conviction of an offense for
  which the sentence actually imposed did not exceed a term of imprisonment in
  excess of six months . . . may be granted a visa and admitted to the United
  States . . .
  Before amendment of the statute, the "petty offense" provision
read as follows:
  Any alien who would be excludable because of the conviction of a misdemeanor
  classifiable as a petty offense under the provisions of section 1(3) of title 18,
  United States Code, by. reason of the punishment actually imposed . . _ may be
  granted a visa and admitted to the United States . . .
  The issue we now face is whether the respondent's conviction fits
within the "petty offense" exception of section 212(a)(9) of the Act.
In amending the statute, Congress has simplified the "petty offense" exception. Reference to 

(3) has been eliminated.
The focus is now on what sentence was imposed, and not what punishment an alien could have received under the applicable criminal
statute.
  Under the United States criminal law system, courts may either
impose a sentence or suspend imposition of the sentence. If the
court imposes a sentence, it may then suspend execution a that
sentence. It is this Board's position that when imposition of the
sentence is suspended, no sentence has been actually imposed.
When a criminal court issues such an order, the defendant is generally placed on probation. In this situation an alien has not had a
sentence imposed on him in excess of 6 months for purposes of the
"petty offense" exception in section 212(a)(9) of the Act.

    This portion of section 212(aX9) of the Act was amended to its present form by
the Comprehensive Crime Control Act of October 12, 1984, 

Stat. 1837. The amendment became effective November 1, 1987.

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  In a case where the execution of the sentence is suspended, a
sentence has actually been imposed, even though probation may
also be granted. In this situation, the sentence that was suspended
would have to be for 6 months or less for the alien to qualify for
the "petty offense" relief.
  In INS v. Phinpathytt, 

 (1984), the Supreme
Court reaffirmed its long-held view that, in all cases involving statutory construction, the starting point must be the language employed by Congress, and that the legislative purpose is expressed by
the ordinary meaning of the words used. This Board finds that the
phrase, "sentence actually imposed did not exceed a term of 'imprisonment in excess of six months," means that the sentence imposed
by the criminal court must be for a term of imprisonment of 6
months or less. The respondent contends that the statute refers to
the actual time an alien spends in prison. We reject the respondent's contention for two reasons. First, section 212(a)(9) of the Act
specifically refers to the "sentence actually imposed." We would
have to ignore the plain meaning of section 212(a)(9) of the Act to
find that the "petty offense" exception refers to actual time served
in prison of 6 months or less. We decline to do so.
   Second, in cases interpreting the statute prior to its amendment,
the Board held that "sentence imposed" was not the same as "punishment imposed," and that "punishment" must be given its ordinary meaning. Where execution of the sentence had been suspended, the Board held that there was no "punishment actually imposed," and that the conviction came within the "petty offense" exception. Matter of Piraino, 

 (BIA 1967); Matter
of T , 

 (BIA 1956). Contra Matter of Patel,
    -                                                   

 (BIA 1975) (in interpreting section 17 of the California Penal
Code, the Board found no distinction between punishment and sentence). Congress is presumed to know the prior construction of a
statute. IA N. Singer, Sutherland Statutory Construction §§ 22.33,
22.35 (4th ed. 1985). By changing the statutory language from "punishment actually imposed" to "sentence actnAlly imposed," Congress must have intended a different result.
  The respondent's reliance on Matter of Garcia, 

(BIA 1985), and Matter of Seda, 

 (BIA 1980), is misplaced. Those cases deal with the issue of whether an alien is to be
considered convicted for immigration purposes.
  Applying the above analysis to the present case, we find that the
respondent does not qualify for the petty offense relief. The sentence actually imposed in his case was 2 years of imprisonment. It
does not matter for purposes of section 212(aX9) that execution of
the sentence was suspended and that he was placed on probation.
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Interim Decision #3073

Nor does it matter that he spent only 28 days in jail. The sentence
actually imposed by the criminal court judge in the respondent's
case was 2 years. This fact determines that the respondent cannot
qualify for the petty offense relief. He falls within the purview of
section 212(a)(9) of the Act and is precluded by section 101(0(3) of
the Act from establishing good moral character. Therefore, he is
statutorily ineligible for suspension of deportation.
  Because we hold the respondent statutorily ineligible for suspension of deportation for failure to establish good moral character, we
need not address his contention that he merits relief in the exercise of discretion.
  Since the respondent's conviction is within the last 5 years, he is
also statutorily ineligible for voluntary departure. Section 244(e) of
the Act.
  Accordingly, the appeal will be dismissed.
   ORDER: The appeal is dismissed.




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