P

                             MATTER OF P

                   In DEPORTATION Proceedings
                                 A-8378327
                       Decider! by Board January 8, 1960

Conviction—Which results in commitment under Federal Youth Corrections
 Act sustains deportability under second part of section 241(a)(4) of 1952 act.
Conviction which results  in commitment under the Federal Youth Corrections
  Act possesses sufficient finality to sustain deportation charge under the second part of section 241(a) (4) which provides for the deportation of twice
  convicted aliens without regard to the sentence imposed. (Cf. Matter of
  V—, A-8583853, Int. Dec. No. 1005.)
CHARGE:

  Order: Act of 1952—Section 241(a) (4) (8 U.S.C. 1251(a) (4) ]—Couvicted
            of two crimes (petty larceny ; transporting stolen automobile).

                            BEFORE THE BOARD

   Discussion : On Juno 1:Ls, 1958, a special inquiry officer directed
the respondent's deportation and this order became final, no appeal
having been taken. The special inquiry officer reconsidered his order
in the light of a subsequent decision of this Board in another case,
but again directed deportation on November 6, 1959, and certified the
case to us for final decision.
   The respondent is a 21-year-old unmarried male: native of Russia
and citizen of Belgium, who last entered the United States on
October 2, 1952. Apparently he was ,admitted for permanent residence at that time and had not previously resided in this country.
On April 7, 1957, he was convicted of petty larceny and on August
93, 1957, he was convicted of transporting a motor vehicle, in interstate commerce with knowledge that it had been stolen. In connection
with the latter conviction, the respondent was committed under the
Federal Youth Corrections Act in accordance with 18 U.S.C. 5010(b).
The sole issue to be determined is whether this latter conviction
possesses the degree of finality Which is necessary to support, the
deportation charge.
   The special inquiry officer's reconsideration of the respondent's
case arose from our decision in M atier of V , A - 8583853, Int.
Dec. No. 1005, decided June 1, 1959, in which there had also been
   conlinitment under the. Federal Youth Corrections Act. That case.
 in volved the first clause of S 1251(a) (4) relating to a single
   conviction. One of its requirements is it sentence to confinement
   (or eon inem en ) in a prison cu. corrective institution for one year.
   On the other hand, this respondent's case is within the purview of
  the second clause of that statutory provision, and here'there is no
  requirement for any sentence to confinement but only that the alien
  must have been "convicted of two crimes involving moral turpitude,
   not arising out of a. single scheme of criminal misconduct."
     In 21/a 7t• of V , .orpra, we reserved decision on the question
  of whether there was the required degree of finality of conviction in
  cases disposed of pursuant to the Federal Youth Corrections Act,
  l•tt we held that the alien was not deportable under the feast clause
  of S U.S.C. 1251(a) (4) because a sentence imposed under the Federal Youth Corrections Act, by the terms of the statute, is expressly
  stated to be for treatment and supervision and in lieu of the penalty
  of imprisonment. Since this respondent's ease comes within the
  second clause of 8 U.S.C. 1251(a) (4), the nature and effect of the
  sentence is not material and the only question is whether his conviction has the degree of finality necessary to support deportation..
  The distinction between the first. and second clauses of 8 U.S.C. 1251
  (a) (4) is illustrated by our decision in Matter of T7        7 I. 8: N.
 Dec. 577 (1957), in which we held that suspension of imposition of
  sentence does not render an alien deportable under the first clause,
 and our d e cision in Iri7tt:5;), t C       7 1. Sc.T. Dec. 53f) (1957),
  where, we reached a contrary conclusion in a case involving the
 second clause of this statutory provision.
    In Matter of 0         , supra, we discussed the various categories of
 convictions and concluded that under the second clause of 8 U.S.C.
 1251(a) (4) a conviction is "final" if it resulted in suspension of the
 execution of sentence or in suspension of the imposition of sentence
 but not where it resulted in postponement of sentence for further
 consideration. In the latter, the matter is still pending actually or
 theoretically for the imposition of a sentence. The respondent's
case is not one in which there was a postponement of sentence. Or
the contrary, sentence was imposed on August 23, 1957, and the
respondent was committed to the custody of the Attorney Genera
or his authorized representative until discharged by the Youth Cot
rection Division. Hence, it is clear that in this respect the respond
ends case differs from one in which a conviction was not final 13(
cause of contemplated further action of the court. Here, the cow
imposed sentence on the respondent; there, was no further action fc
the court to take in the future; and the question of the respondent
confinement., treatment, and discharge were entirely matters for tl
Youth Correction Division.
                                   518
   We consider it appropriate to state also that a. basic distinction
exists between the procedure concerning juvenile delinquency (chapter 403, Title-18, 1J.S.C.) and the procedure under the Federal Youth
Corrections Act (chapter ,102). In the former, there is no trial by
jury, no criminal prosecution can be instituted for the a Ile -re,(1 violation of law (18 U.S.C. 50321, and the court does not lied the juvenile
guilty of the offense but only of being a delinquent. Where the
offender is over 18, the trial proceeds in the regular manner. When
there has been a judgment. on a verdict or finding of guilty, the
provisions of the Federal Youth Corrections Act may be invoked if
the offender was under the age of 22 years at the time- of conviction. Hence, there is an actual conviction for the offense and not
merely a finding of delinquency.
   In view of the foregoing, we hold that this respondent is deportable on the 'basis of the two convictions mentioned above. For the
reasons stated by the special inquiry officer, we agree that the respondent is not statutorily eligible for voluntary departure. Accordingly, the special inquiry officer's action is approved.
   Order: It is ordered that the special inquiry officer's order directing deportation be. and the same is hereby approVed.