MATTER OF T--
In EXCLUSION Proceedings
A-102UCSlW
Decided by Board September 2/. 1956
Petty offense—Gmeietion In Italy of aggravated theft—Punishment not "actually imposed" when court on same date as sentencing grants pardon of one-year prison sentence.
Punishment has not been "actually imposed" within the meaning of section 4,
RI,. 770, when the Italian Court which convicted applicant of aggravated
theft of property (valued at less than $50) has on the date of imposing sentence granted applicant a "pardon" of a one-year prison term and fine,
ATPLICAlIPN : Admission for permanent residence.
BEFORE THE BOARD
Discussion: The special inquiry officer upon conclusion of it
hearing conducted at New York, New York, on June 15, 1956, for
the purpose of determining the appellant's admissibility to the
United States under the Immigration and Nationality Act, foundthat the appellant was not inadmissible thereto under any of the
paragraphs of section 212(a) of the Immigration and Nationality
Art. (s, IT.S.C. 1192(a)) and no in eonocquenec thereof he entered
an order directing that the alien be admitted to the United States
for permanent residence. The District Director of Immigration
and Naturalization at New York, on ,Tune 22. 1956, noted an appeal
from the aforementioned decision of the special inquiry officer. He
specifically excepted to the conclusions of law rendered by the special inquiry officer in his decision of June 15, 1956.
The appellant, a 62-year-old male, native and citizen of Italy,
arrived in the United States at New York, New York, on June 9,
1956, at which time he had in his possession and presented for inspection preference q uota immigrant visa NO. 2920, issued in his
name by the United States Vice Consul at, Naples, Italy, on May 2,
1956. At the time of his arrival in the United States, the appellant
was destined to a son living in New York, New York. The record
reflects that the appellant was convicted on October 6, 1943, in Italy
of the crime of aggravated theft of 2500 pounds of lumber in violation of article 624-625, paragraph 7, of the Penal Code of Italy.
Thereafter, he was convicted on March 21, 1946, and sentenced to
imprisonment for one year and to pay a fine. of 3000 lire. On the
same date, the Tribunal of S. Maria CA'. declared the appellant
pardoned entirely in accordance with article 5, Royal Decree of
April 5, 1911, No. 26 of the Law. The remaining facts in this case
have been heretofore fully covered by the special inquiry officer in
his decision of June 15, 1956, and need no further discussion herein.
The question for this Board to resolve is whether the appellant is
precluded from obtaining the benefits of Public Law 770 by reason of
his having been sentenced to imprisonment for a period of one year.
In determining whether an offense committed in a foreign country
shall be considered a misdemeanor classifiable as a petty offense
under section 4 of the Act of September 3, 1954, United States
standards are to be applied. Hence, recourse is had to the equivalent
offense under United States law, that is, Title 18 of the United States
Code, or, if the equivalent offense is not found therein, Title 22
of the District of Columbia Code. After the equivalent offense under
United States law has been identified for the purpose of determining
whether an offense committed abroad shall be considered a misdemeanor classifiable as a petty offense under section 4 of the Act
of September 3, 1014, the definitions in 15 U.S.C. 1 (3) are to be
applied. The special inquiry dicer has properly concluded that
the appellant's conviction in Italy in March 1946 is a misdemeanor
classifiable n.s a petty offense (Title 22. section 2202, District of
Columbia Code).
Section 4 of the Act of September 3. 1954 (Public Law 770)
provides that :
Any alien who is 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 Cede, by reason of the imashm ,,, t actually imposed, or who is
exdadabls who admits the oomwieeionof snob Teieeleeneonor, ,nay hereafter be granted a visa and admitted to the United States, if otherwise admissible: Provided, That the alien has committed only one such offense. (Emphasis
supplied.)
Section 1(3) of Title 18, United States Code, provides that:
Notwithstanding any act of Congress to the contrary : *
(3) Any misdemeanor, the penalty for which does not exceed imprisonment
for a period of six months or a fine of not more than 8500, or both, is a petty
offense.
On examination of the record, it is our considered opinion that
the pardon granted to the appellant at the time of his conviction
on March 21, 1946, is not a pardon of his conviction of the crime
of aggravated theft, but a pardon of the sentence imposed; in other
words, he was granted a suspended sentence. The Chancellor of the
Tribunal of S. Maria C.T. certified on August 29, 1953, that the
appellant must no longer serve the penalty of one-year imprisonment
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and pay the fine of 3000 lire inflicted upon him by that Tribunal by
sentence of March 21, 1946, because a period of five years had passed,
to which the pardon of said penalty was subordinate, and which was
conceited him with said sentence, without having committed any
other crime. This certification was made at S. Maria C.V. on August
29, 1953.
In view of the foregoing, it appears that the appellant, following
his conviction of the crime of aggravated theft in Italy on March 21,
1946, received a suspended sentence. The United States courts have
consistently held that there has been no sentence to imprisonment
if the imposition or execution of a sentence was wholly suspended or
conditionally suspended by granting probation as an alternative
(United States ex rel. Robinson v. Dag, 5 F.2d 1022). Accordingly,
it must be held that the appellant was not punished even though
sentenced to imprisonment for one year, inasmuch as the execution
of the sentence has been wholly suspended. Section 4 of the Act
of September 3, 1954 provides that any alien who is excludable because of a 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 plini:chnmm.t actually imposed … 0 , may hereafter
be granted a visa and admitted to the United States, *5 5. Section
1(3) of Title 18, United States Code, provides that notwithstanding
any act of Congress to the contrary, any misdemeanor, the penalty
for which does not exceed imprisonment for a period of six months
…. Public Law 770 refers to punishment "actually imposed"
and section 1(3) of Title 18, United States Code, uses the term
"penalty." The term "sentence" is not used in either section 4 of
Public Law 770 or in section 1(3) of Title 18, United States Code.
A careful analysis of the record shows that the appellant was
given what in effect must bo considered a suspended .sentence follow
ing his conviction in March 1946. It appears that if he was not convicted of any crime within five years, he would be absolved from
serving the sentence imposed on March 21, 1946. A "sentence" to a
term of imprisonment is the final determination of the trial in a
criminal cause, and it. is the order of the court made in the presence
of the defendant and/or his counsel, pronouncing the judgment and
ordering the same to be carried into execution in the manner prescribed by law after judgment on the verdict. "Punishment" is pain,
suffering, loss, confinement, or other penalty inflicted on a person for
a crime or offense by the authority to which the offender is subject; it is a penalty imposed in the enforcement or applicaiton of law.
The words "penalty," "liability," and "forfeiture" are frequently
treated as synonymous with the word "punishment" in connection
with crimes of the highest grade. The word "punishment" ordinarily implies some punishment of a temporary character. It must be
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given its ordinary meaning and implies continued jurisdiction over a
person. In the case at bar, sentence of one year was imposed on the
appellant following his conviction in Italy on March 21, 1916. However, no punishment was actually imposed upon the appellant, inasmuch as he received what may be considered a suspended sentence
after the aforementioned conviction. Hence, the appellant is eligible
for the benefits provided in Public Law 770 by reason of the fact that
he was not penalized and no punishment was actually imposed. The
appellant was at no time subjected to confinement for the offense
committed by him in October 1943.
After carefully considering all the evidence of record together
with counsel's representations in oral argument on appeal, the findings of fact, conclusions of law, and the order of the special inquiry officer are hereby approved. Accordingly, the following order
will be entered.
Order: It is ordered that the decision of the special inquiry
officer dated June 15, 1956, authorizing the appellant's admission to
the United States for permanent residence, be and the same is hereby
approved.
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