M

                               MATTER 00' M

                    In DEPORTATION Proceedings

                                   A-8478783
                      Decided by Board February 12, 1959

Deportabil y—Section 241(a)(4) of 1952 act—Sentence to confinement—Commitment to State institution under New Jersey Sex Offenders Act.
Commitment to State hospital under New Jersey Sex Offenders Act (N.J.S.A.
 2A:164-6), is not a sentence to confinement in a prison or corrective institution within the meaning of the first part of section 241(a) (4) of the 1552
 act. (Holzapfel v. Wyrsch, 

).

CHARGE :
  Order: Aet of 1952—Seetlea 241 (a ) (4) [8 U.S.C. 1251 (a) (1)1—Convicted
           of crime involving moral turpitude within five years after entry and
           sentenced to confinement or confined for a year or more—carnal
           abuse and impairing morals.

                             BEFORE THE BOARD

   Discussion: This case is before us by certification. The special
inquiry officer has ordered the respondent's deportation -upon the
ground efolorl oboe, The proceeding° will be terminated.
  Respondent, a 37-year-old single male, a native and national of
Canada, was admitted to the United States for permanent residence.
Ile last entered the United States on May 9, 1953. On March 29,
1957, he was convicted in the County Court at New Brunswick, New
Jersey, of the crime of carnal abuse, and the crime of impairing
morals of a minor. On June 7, 1957, he was ordered confined in the
State Hospital at Marlboro, New Jersey, under the New Jersey Sex
Offenders Act which does not permit. the court to specify a minimum
period of detention. He was committed to the hospital on June 7,
1057, and as of the date of the hearing on September 10, 1956, was
still an inmate of the hospital.
   Respondent's deportation is sought under the first part of section
241(a) (4) of the Immigration and Nationality Act of 1952 (8 U.S.C.
1251(a) (4)) which makes deportable an alien who—
   [Part    is convicted of a crime involving moral turpitude committed within
five years after entry and either sentenced to confinement or confined therefor
in a prison or corrective institution,   tar a year or more, or [Part IT] who at

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any time after entry IS convicted of 1,0 crimes involving moral turpitude, not
arising out of a single scheme of criminal misconduct, regardless of whether
confined therefor and regardless of whether the convictions were in a single
trial Of n tier in brackets added.)
  We shall confine ourselves solely to the issue as to whether respondent's conviction and detention make him one who has been "confined
   … in a prison or corrective institution, for a year or more."
These phrases, viewed in the light of their history, were meant to
state simply that the alien described in Part I was deportable if
sentenced to confinement for a year or more, whether Coe not the sentence was suspended (Matter of 0 — , 7 1. & N. Dec. 539; Matter
of J , 

, 568). The question is, therefore,
whether respondent has been sentenced to confinement for a year or
more.    Holzapfel v. TV ,grech„ 230 F.52,1 300, C.A. 3, October 0, 1053,
decided after the date of the special inquiry officer's order, answers
the question in the negative. Holzapfel, an alien, last entered the
United States in 1953. In 1957, lie was convicted of a sex offense
in a county court in the State of New Jersey. He was ordered confined to a reformatory under the New Jersey Sex Offenders Act.'
Sentence was suspended and the defendant was placed in custody of
a probation officer for a period of three years. One of the conditions
of probation was that the defendant was to take psychiatric treatment. Holzapfel's deportation was ordered by administrative authoritiee under the same portion of the immigration laws on which
respondent's deportation is sought. The court reviewing the order
of deportation pointed out that the case of a sex offender could be
handled either by the imposition of a "sentence" under N.J.S.A.
2A :164 - 9 or as was Holzapfel's case, by a "disposition" under
N.J.S.A. 2A:164-6, 3 for the rehabilitation and cure of persons requirN.J.S.A. 2A : 184-3 et seq.
  2 2A:164-3.  Sentence unposed, when.
   If it shall appear from the report of such examination made of such person that the offender's conduct was not characterized by a pattern of repetitive, compulsive behavior and neither violence nor age disparity was indicated,
as provided for in section 2A:164-5 of this title, the court shall impose sentence on such person in the manner provided by law.
   .2A:164-6. Disposition of sex offenders upon request and recommendation of
diagnostic center.
   The disposition to be made by the court of such person, upon written report
and recommendation of the diagnostic center, shall include 1 or more of the
following measures:
   a. The court may place such person on probation with the requirement, as
   condition of said probation, that he receive out-patient psychiatric treatment
in the manner to be prescribed in each individual case.
   b. Such person may be committed to an institution to be designated by the
commissioner of institutions and agencies for treatment, and upon release
shall be subject to parole supervision.
   In the event that the court shall order a commitment of the person as provided in this section, such order of commitment shall not specify a minimum
period of detention, but in no event shall the person be confined or subject to
parole supervision for a period of time greater than that provided by law for
the crime of which such person was convicted.

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ing medical treatment. The court concluded that Holzapfel had not
been sentenced to confinement for a year or more.
   He.upondent was not, sentenced under N.J.S.A. 2A:164-9. Like
Holzapfel's, his case was disposed of under N.J.S.A. 9A,-te-L--5, so
that he could be given medical treatment. 4 Congress makes no distinction between a suspended sentence and one which has not been
suspended. Since the disposition in Holvzpfel did not constitute a
"sentence," the disposition here is not a "sentence." On the authority
of Holzapfel, we must hold that respondent has not been sentenced
to confinement in a prison or corrective MititUti0/1 for a year or
more. Proceedings will be terminated.
   Order : It is ordered that the proceedings be and the same are
hereby terminated.

  'Holzapfel was sentenced under paragraph Is   of .N.J.S.A. 2A:184-6 and
respondent was sentenced under paragraph (b). However, we can see no
reason for drawing a distinction between the two for the purposes of the
immigration laws.




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