V

                             MATTER OF `T

                  In DEPORTATION Proceedings
                                A-8583853
                       Decided by Board June 1, 1959

Deportabiiity--Section 21100(4) of 1952 act—Commitment under Federal
 Youth Corrections Act not "sentence to cunfinement_"
Commitment for an indefinite term for treatment and supervision under the
 Pederel Vonth Corrections Act of September 30, 1950, as amended (18 U.S.C.,
 chapter 402, sections 5005-*020), is not A "sentence to confinement" within
 the meaning of section 241(a) (4) of the 1952 act. (Cf. Manor of L
 R     , A-6881251, Int. Dec. No. 985; Matter of P—, A-8378327, Int. Dec.
 No. 1043.)

CHARGE:
  Order; Act of 1952 Section 241(a) (4) (8 U.S.C. 1251(a) (4)]
                       —                                            —   Crime
          within i1 e ,rears—Embezzlement.

                           BEFORE THE BOARD

   Discussion: This case is before us an appeal from a decision of a
special inquiry officer directing the respondent's deportation.
   The respondent is a 21-year-old unmarried male whose date of
birth appears to be January 23, 1938. He is a native of Czechoslovakia and is either a citizen of that country or of Israel. He
last entered the United States on December 9, 1953. Apparently
he was lawfully admitted for permanent residence at that time and
had not previously resided in this country. On June 2, 1958, the
respondent was convicted of having embezzled funds on April 15,
1958, from a Federal savings and loan association in violation of
18 U.S.C. 657, and the court committed him to the custody of the
Attorney General for an indefinite term for treatment and supervision pursuant to the Federal Youth Corrections Act (18 U.S.C.
5010(h)) until diocharged as provided by 18 U.S.C. 5017(c). The
latter provision requires that such a person shall be relelised conditionally under supervision on or before the expiration of four years
from the date of conviction and shall be discharged unconditionally
on or before six years from the date of conviction. The issue to be
determined is whether the respondent is deportable under 8 U.S.C.
1251(a)(4).
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    Counsel contends that there were certain extenuating circumstances in connection with the commission of the offense. He stated
 that the respondent came to the United States with his parents,
 his brother and his sister in 1953; that during the period when
 he was attending high school in this country he fell in love with
 another student; that she returned to Puerto Rico; and that he followed her there in December 1957. Up to that time, he had lived
 with his parents in New York City. In April 1958 he was employed
 as a teller at a Federal savings and loan association in Miami
 Beach, Florida, and reported a shortage in his cash account of
 $420. Subsequently, he admitted that he had taken the money and
 he returned $410 of the sum. When he was arrested, he was ashamed
 to tell his parents in New York City and was represented by a
 court-appointed attorney. Apparently the respondent has not been
 arrested on any other occasion. During the oral argument, counsel slated that. the respondent's father was naturalized as a United
 States citizen on March 0, 1959. None of this information appears
 in the record itself, and we must determine the issue of deportability on the basis of the statutory provisions and without regard
 to whether there were mitigating circumstances. For the reasons
 hereinafter stated, we conclude that the respondent is not deportable
 and other contentions of counsel need not be discussed.
    8 U.S.C. 1951(a) (4) requires the deportation of any alien who
 "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, for a year or
 more …." The respondent was committed under the Federal
 Youth Corrections Act of September 30, 1950, as amended (18
U.S.C., chapter 402, sections 5005-5026). The question here is
whether this respondent's commitment is within the purview of the
language of S U.S.C. 1251(a) (4).
   The word "convicted" in 8 U.S.C. 1251(a) (4) has been construed
to require finality of conviction (Matter of L R , 

 (Atty. Gen., 1957) ; Matter of 0—, 

 (1957)). In the first case, the Attorney General ruled that the
"conviction" did not satisfy the requirement of the deportation
statute because the sentence had been entered under a provision of
the law of Texas that "neither the verdict of conviction nor the
judgment entered thereon shall become final," except upon final
conviction for another felony. There is also a otatutoey provision
in California which permits a defendant, after completion of probation, to withdraw a plea of guilty or have a verdict of guilty set
aside, after which the court is required to dismiss the accusations or
information against the defendant. Thereafter, the expunged conviction is not a basis for deportation (Al-cater of 0—T------, 

 (1951)).
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   The Federal Youth Corrections Act contains the following provisions (18 U.S.C. 5021) : "Upon the unconditional discharge by the
Division of a committed youth offender before the expiration of the
maximum sentence imposed upon him, the conviction shall be automatically set aside and the Division shall issue to the youth offender
a certificate to that effect." Hence, if the respondent is - granted an
unconditional discharge before the expiration of the maximum sentence, his conviction will be automatically set aside. Under these
circumstances, there is considerable doubt whether his conviction
may properly be regarded as a conviction with the degree of finality
justifying deportation under 8 U.S.C. 1251(a) (4).
   Although some question may exist as to the finality of the respondent's conviction, we do not base our decision on that ground but
rather on the basic similarities between the Federal Youth Corrections Act and the Federal statutory provisions pertaining to
juvenile delinquency. It is well settled that one who has been confined as a juvenile delinquent is not subject to deportation or exclusion because of the offense which was committed (Matter of F

, 518 (1946)). However, in a decision of the
Central Office of the Service in 1950, it was held that a commitment
to the California Youth Authority was a sentence to imprisonment
(Matter of C.      R     , 4 I_ & N_ Dee_ 136).      During the oral
argument, Matter of L         R      , A-6881251, Int. Dec. No. 985
 (Feb. 20, 1959), was cited on behalf of the Service. There we held
that an alien committed to the California Youth Authority was deportable under 8 U.S.C. 1251(a) (11) as one convicted of a narcotic
violation. That case is not entirely pertinent because. 8 U.S.C.
1251(a) (11) requires only a conviction, whereas the statutory provision involved in this respondent's case requires both conviction and
a sentence to confinement for one year or more.
   On the other hand, it has been held that minors who were not
tried as juvenile delinquents but who were convicted of crimes and
committed to the New York House of Refuge and the New York
State Vocational Institution had not been sentenced to imprisonment, within the meaning of the 1917 act nor convicted of a crime
involving moral turpitude within the purview of 8 U.S.C. 1251
(a)(4) (United States ex rel. Cerami v. Uhl, 

 (C.C.A.
2, 1935); Tutrone v. Sh,aughness-y, 160 F. fin pp. 433 (S.D.N.Y.,
1958); Matter of S , 

 (1951) ). In another case
in which a minor was not treated as a juvenile delinquent but was
convicted in criminal proceedings, it was held that he was admissible
notwithstanding the conviction (Matter of O'N—, 

 (1945)). Where an alien pleaded guilty in the Superior Court
of California to a charge of arson and was then turned over to the
Juvenile Court which ordered commitment to a State school, we

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 held that these factor3 indicated that ho had been made a ward of
 the  Juvenile Court and that his plea of guilty in the Superior
 Court was not a conviction for the crime of arson (Matter of 7'—,
 6 T. & N. Dec. 835 (1955)). These decisions are based on the statutory provisions of the particular jurisdiction, and the respondent's
 case must, of course, be decided on the basis of the pertinent
 federal provisions.
    When Title 18 of the United States Code was enacted into positive
 law on June 25, 1948 (

, 856-858), Part IV was desig-•
 nated "Correction of Youthful Offenders" and it was divided into
 Chapter 401—General provisions, and Chapter 403—Juvenile delinquency. Chapter 403 was based on the Act of June 16. 1958.
 Section 2 of the Act of September 30, 1950 (

), amended
 Part IV of Title 18 of the United States Code by inserting "Chapter 402—Federal Youth Corrections Act" immediately after Chapter 401. Hence, the context in which the Federal Youth Corrections Act, is found indicates that its provisions and the provisions
 concerning juvenile delinquency comprise an integrated plan for
 the correction of youthful offenders as shown by the title itself of
Part IV. Under the Federal Youth Corrections Act, a Youth Correction Division was created within the Board of Parole (18 U.S.C.
 5005). The Board of Parole and the Bureau of Prisons were separately established agencies within the Department of Justice (18
U.S.C. 4042 and 4201).
   18 U.S.C. 5031 provides that a "juvenile" is one who has not
attained his 18th birthday and 18 U.S.C. 5006(e) defines a "youth
offender" as a person under the age of 22 at the time of conviction.
It is significant, however, that throughout the Federal Youth Corrections Act, there is no indication that the commitment is for the
purpose of punishment. On the contrary, there are repeated references to "treatment," which is defined in 18 U.S.C. 5006(g) as
meaning "corrective and preventive guidance and training designed
to protect the public by correcting the antisocial tendencies of youth
offenders."
   18 U.S.C. 5006(f) defines "committed youth offender" as one
committed for treatment to the custody of the Attorney General.
18 U.S.C. 5011 is entitled "Treatment" and in, in part, as follows;
  Committed youth offenders … shall undergo treatment in institutions …
and other agencies that will provide the essential varieties of treatment. …
Insofar as practical, such institutions and agencies shall be used only for treatment of committed youth offenders, and such youth offenders shall be segregated from other offenders, and classes of committed youth offenders shall be
segregated according to their needs for treatment.
   18 U.S.C. 5014 provides that every committed youth offender shall
first be sent to a classification center which "shall make a complete
study of each committed youth offender, including a mental and
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 physical examination, to ascertain his personal traits, his capabilities,
 pertinent circumstances of his school, family life, any previous delinquency or criminal experience, and any mental or physical defect
 or other factor contributing to his delinquency. … "" (Emphasis
 supplied.)
    18         5010 is entitled "Sentence" and subEieetion . (h), tinder
 which the respondent was committed, is as follows:
   (b) If the court shall find that a convicted person is a youth offender, and
the offense is punishable by imprisonment under applicable provisions of law
other than this subsection, the court may, in lieu of the penalty of imprisonment otherwise provided by law, sentence the youth offender to the custody
of the Attorney General for treatment and supervision pursuant to this chapter until discharged by the Division as provided in section 5017(c) of this
chapter ; …. (Emphasis supplied.)
  From the language of 18 U.S.C. 5010(b), two things are evident.
First, the sentence imposed thereunder is in lieu of the penalty of
imprisonment. Secondly, the court is not required to sentence a
youth offender for treatment and supervision because the statute
states only that he may do so, and 18 IT.S.C. 5010(d) specifically
provides that if the court finds that the youth offender will not derive benefit from treatment under subsection (b) or (c), the court
may sentence the youth offender under any other applicable penalty
provision.   Tn other words, in more flagrant eases, the court could
 direct imprisonment of the offender in the usual manner rather
 than committing the youth for treatment and supervision.
    There is another respect in which commitments of youth offenders
 differ from the commitments under the general provisions of the
 criminal laws. 18 U.S.C. 4161 provides, in part "Each Prisoner
 convicted of an offense against the United States and confined in a
penal or correctional institution, for a definite term other than for
 life, whose record of conduct shows that he has faithfully observed all the rules and has not been subjected to punishment, shall
be entitled to a deduction from the term of his sentence …."
Although each prisoner confined to a penal or correctional institution for a definite term who has met the behavior requirements
is entitled to a deduction from his sentence, the following specific
statement appears at page 40 of the Rules of the United States
Board of Parole, effective January 1, 1958: "Good time credits are
not earned in the case of those committed under the Youth Corrections Act."
   In view of the provisions of the Federal Youth Corrections Act,
prescribing treatment rather than punishment, the situation in the
respondent's case is analogous to that in Holzaptel v. Wyrsch, :

 (CA. 3, 1958). There an alien was sentenced to confinement in the state reformatory, sentence was suspended, and he was
placed in the custody of the probation officer for 3 years, one of

                                     364
the conditions of probation being that he tahe psychiatric treatment. The sentence was imposed pursuant to the New Jersey Sex
Offenders Act. The court pointed out that such persons are not sentenced as criminals but are given special beneficial treatment, and
it was held that this alien was not deportable under the first clause
of 8 U.S.C. 1251(a) (4).
   In Ounninghirm v. United States, 

 (C.A.
5, 1958), the defendant had pleaded guilty to a misdemeanor for
which the maximum sentence was one year. He was committed to
the custody of the Attorney General under the Federal Youth Corrections Act for from 4 to 6 years. At the expiration of one year
from the commencement of his sentence, the defendant instituted
proceedings to obtain his release. He contended that the sentence
was unlawful. The Court of Appeals sustained the validity of the
sentence, stating that this statutory provision is designed to provide
correctional treatment instead of punishment and permits youthful
ulTeuders to escape the ohocko of an ordinary penal sentence_ We
think it is clear from this case that a sentence imposed under the
Federal Youth Corrections Act is not punishment for a crime as
contemplated by the first clause of 8 U.S.C. 1251(a) (4). because if it
were punishment the court would have had to sustain the defendant's
position that the sentence was unlawful. This case also illustrates
the if we were to hold that a sentence under the Federal Youth
    rections Act was within the purview of the first clause of 8
T.:..S'.C. 1251(a) (4), the result would be that an adult offender convicted of a crime for which the prescribed penalty or the penalty
imposed, was less than one year would not be deportable whereas
a youthful offender convicted of the same crime and committed to
the custody of the Attorney General under 18 U.S.C. 5010(b) for
an indefinite term (requiring conditional release on or hefore 4
years) would be deportable.
   The Supreme Court has said that deportation statutes should be
strictly construed (Barber v. Gonzales, 

 (1954);
Fong Haw Tan v. Fitelan, 

 (1948)). On the basis
of the judicial decisions cited and the language of the statutory
provisions involved, it is our considered opinion that the commitment of the respondent to the Attorney General for treatment under
the Federal Youth Corrections Act is not within the purview of the
first clause of S U.S.C. 1251(a) (4) and that he is not deportable
thereunder. Accordingly, the proceedings will be terminated.
   Order: It is ordered that the appeal be sustained; that the order
of deportation be withdrawn ; and that the proceedings be terminated.




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