M

                              MATTER or M

                    In DEPORTATION Proceedings
                                  A-7898650
                     Decided by Board September 24. 1959
Crime involving moral turpitude—Conviction by foreign military court is conviction within immigration laws Exemption as to petty offense not applicable
                                  —


  when punishment actually imposed exceeded six months.
(1) Conviction by Italian Military Court (Tribunal of War) in Somaliland
  is s "conviction" within the meaning of the immigration lawe.
(2) Conviction by foreign military court of aggravated theft (in the amount
  of 300 Eras or $15.78), although equivalent to petit larceny under United
  States standards, is not a "petty offense" within section 4 of the Act of
  September 3, 1954, when the punishment actually imposed was Imprisonment for more than six months.

CHARGE:

  Order : Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2))—Remained
            longer than the permitted period after admission as a nonimmigrant
            under the 9th proviso to section 3 of the Act of 1917 (8 U.S.C. 136,
            1940 ed.).

                           BEFORE THE BOARD

    Discussion : This case is before us on appeal from a decision
of the special inquiry officer, dated August 13, 1959, holding the
 alien deportable, granting voluntary departure, but refusing deferral
of proceedings pending consideration of the section 245 application.
   Respondent, a 45-year-old native and citizen of Italy, last entered
the United States at New York on November 13, 1950, under the
 9th proviso to section 3 of the- of 1917. The original period of
admission was to February 16, 1951_ Thereafter, respondent applied
for adjustment of the record of entry to that of permanent residence
under section 2 of the Act of March 28, 1951 [

].
Although in 1950 respondent was originally in possession of a quota
immigrant visa, issued at the American Consulate at Marseille,
France, he was admitted temporarily because of his service in the
armed forces of Italy during World War II.
   In connection with the application for adjustment., it was learned
that respondent. had been convicted on October 2, 1937, by the
Tribunal of War in Somaliland of aggravated theft. For this
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 offense he was sentenced to imprisonment for three years (to be
 converted to military confinement) and fined 2,000 liras plus costs_
 Having later been granted an amnesty and a certificate of rehabilitation, he is regarded as having no criminal record under Italian
 law although the foreign amnesty was unavailing for immigration
 purposes. However, on March 15, 1954, the Immigration Service
 determined that respondent was nevertheless inadmissible to the
 United States under section 3 of the Act of 1917 as an alien convicted of a crime involving moral turpitude (theft). Hence, it was
 held that respondent was ineligible for adjustment of record under
 section 2 of the Act of March 28, 1951, and the request was denied.
    During the deportation hearing, counsel requested termination for
 vIrposes of having the question of respondent's admissibility for
 permanent residence tested in exclusion proceedings. The special
 inquiry officer overruled this suggestion, determining that the alien
 is properly subject to action in cleporlatiun rather than exclusion
 proceedings. Counsel request that the deportation proceedings be
held in abeyance pending action on the section 245 application was
 denied by the special inquiry officer on the ground that the two
proceedings were now independent.
    On appeal, counsel contends tl,at respondent's case should be considered in relation to section 4 of the Act of September 3, 1954
 [

]. The record reveals that respondent may be
eligible under section 4, for he has been convicted of only one crime.
Matter of H , 

 (B.I.A., 1955) ; Matter of
H—, 

 (B.I.A., 1954) ; Matter of M—, 

 (B.I.A., 1956) ; Matter of S—R—, 

 (B.I.A., 1957).
   Section 4 provides that a crime is considered a petty offense if
the "punishment actually imposed" does not exceed six months' imprisonment or a $500 fine, or both. 18 U.S.C. 1(3). Because the
crime under discussion was committed in a foreign country, the
criminal penalty involved must be judged on the basis of United
Stat e s' standards as found in the District of Columbia Code. Matter
of T---, 

 (Atty. Gen., 1955).
  According to section 22-2202 of the District of Columbia Code,
larceny of property valued at less than $50 is petit larceny. Here,
the property involved (gold earrings) was vaincil at, 300 liras or
$15.78. 1 This amount was equivalent to petit larceny in the District
of Columbia, which was punishable by a maximum fine of $200 and
a maximum imprisonment of one year           However, the sentence
actually imposed on respondent by the Tribunal of War in Somali-
  1    August 24, 1937, the date the offense was committed, the- lira was valued
at $.0526.   Banking and Monetary Statistics, Fed. Res. S'ystem, 1943, at p. 073.

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land was three years' military confinement and a fine of 2,000 liras
or $105.20.
   Hence, the punishment actually imposed exceeds the test set out
in 18 U.S.C. 1(3) and respondent's crime may not be considered a
petty offense under section 4 of 

Matter of
G       A—, 

 (B.I.A., 1956) ; Matter of T      —   ,
Int. Dec. No. 997 (E.T.A., 1956) ; Man-iga v. Shaughn(88y, unreported, S.D.N.Y., 1956, Civ. No. 109-226; Ganduire y Marino v.
       , unreported, S.D.N.Y., 1959, Civ. No. 135-100.
   Counsel further contends that the 1954 denial of adjustment of
the record of entry was erroneous, for respondent's conviction by
the Italian Military Court was not a conviction within the meaning
of the immigration laws, citing Matter of P 

, 34.
   It is well settled that foreign pardons are ineffective to erase a
foreign criminal conviction for immigration purposes, because of
the many differences incidental to their grant and effect. Mercer
v. Lence, 

 (C.A. 10, 1938), cert. den. 

;
Weedin, v. Hempel, 

 (C.A. 9, 1928) ; United States en rel.
Palermo v. Smith, 

 (C.A. 2, 1927). By analogy, we feel
that we must take foreign convictions (military or otherwise) as
we find them. It would be unfortunate (and the problems unlimited), if we were to draw comparisons between United States legal
procedures and those of other countries operating under quite different legal systems.
   Hence, the cited case no longer represents the prevailing view and
counsel's contention must be overruled.
   Counsel suggested below that exclusion, rather than deportation,
is the proper forum for a determination of respondent's right to
remain in this country. However, since respondent was actually
admitted to the United States in 1950, although in a temporary
status, the present deportation proceeding is entirely appropriate.
Consequently, the request for termination of the proceedings must
be overruled and the appeal dismissed.
   Order: It is hereby directed that the appeal be dismissed.




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