N

                            MATTER OF N—

                   In DEPORTATION Proceedings
                                A-867601'2
                       Decided by Board May 26, 1960

Del.m-tability—Section 241(a)(4) of 1952 act—Commitment to California Youth
 Authority not "sentence to confinement."
Alien convicted in California for attempted robbery (maximum punishment,
 20 years' imprisonment) who was ordered "committed to the Youth Authority of the State of California for the term prescribed by law" has not been
 sentenced to confinement within meaning of section 241(a) (4) of the act.
  (Overrules Matter of C—R—, 

.)

CHARGE •
  Order: Act of 1952—Section 241 ( a) (4 ) [8 U.S.C. 1251(a) (4) ]—Convicted
           of crime committed within five years after entry any' sentenced to
           confinement for a year or more: Attempted robbery.

                          BEFORE THE BOARD
  Discussion: The case is before us by certification. The special
inquiry officer ordered proceedings terminated and certified the case
to this board for final decision. The examining officer and Service
representative urge that the decision of the special inquiry officer
be reversed. The action of the special inquiry officer will be approved.
  The respondent, a 21-year-old male, a native and citizen of
Mexico, last entered the United States on May 17, 1954. On February 16, 1959, he was convicted in the Superior Court, County of Los
Angeles, California, for the crime of attempted robbery committed
on or about October 7, 1958, in violation of sections 211 and 664 of
the California Penal Code. The crime is punishable by imprisonment in a state prison for not more than 20 years. The court
ordered the respondent "committed to the Youth Authority of the
State of California for the term prescribed by law" and provided
that the respondent be held in custody of the sheriff subject to any
ortlere 'tho Authority might isouo. On March 6, 1959, the respondent was confined at Deuel Vocational Institution. He was released
on parole on December 23, 1959. Parole will continue for about
2 years.

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    Deportation is sought under that portion of section 241(a) (4)
 of the Immigration and Nationality Act which provides for the
 deportation of an 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 … (Emphasis supplied.)
    The issue, as we see it, is whether the respondent has been sentenced to confinement.
    The Youth Authority was created "to protect society more effectively by substituting for retributive punishment methods of traVn
 ing and treatment directed toward the correction and rehabilitation
 of young persons found guilty of public offenses" (section 1700,
 California Welfare and Institutions Code; emphasis added). The
 purpose of the act is "training and treatment rather than punishment" and "A commitment for training and treatment" is not the
 same as a sentence of imprisonment (Opinion of the Attorney General, State of California, No. 50-202, January 23, 1951).
    A court may sentence a youth to imprisonment in the state or
 county prison or, in its discretion, it may commit to the Youth
 Authority a convicted person who has not been granted probation
 and who was less than 21 years of age when apprehended, if his
sentence was other than to death, imprisonment for life, imprisonment for 90 days or less, or the payment of a fine 1 (section 1732,
California Welfare and Institutions Code).
   A person committed to the Authority may be set free under supervision, ordered confined, or ordered discharged (section 1766, California Welfare and Institutions Code). Confinement may be in
places of confinement, in correctional schools, or medical or educational institutions, whether public or private; and wards of the
Authority may be placed in facilities for training even though they
are not in confinement (sections 1725, 1753, 1760; California Welfare and Institutions Code). In 1956, the Authority used seven training schools, two reception centers, the Deuel Vocational Institution,
and 20 forestry camps (Pathways of Delinquency, 31 Journal of the
State Bar of California, pp. 18, 21).
 The Deuel Vocational Institution is one for the confinement of
males. It is an intermediate security type institution whose primary
purpose is to provide custody, care, training, guidance and reformatory help for young men too mature to be benefited by programs of
correctional schools for juveniles and too immature in crime for
confinement in prisons (sections 2033-2042, Deerings Penal Code of
California). The Youth Authority may also commit a youthful
   We are not dealing with a situation where prior to commitment to the
Youth Authority the court sentenced the person to confinement for a year or
more.

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 offender to a state prison (People v. Seherbing, 

; sections 1753, 1755.5, California Welfare and Institutions Code) ; however, such confinement is not considered imprisonment pursuant to
 a sentence of imprisonment (Opinion No. 50-202, January 23, 1951,
Atty. Gen., California).
    If the Authority finds that a person in its custody is incapable of
reformation, the Authority may return him to the committing court,
and the court may commit the person to a state prison or county
jail as provided by law for the punishment of the offense for which
the person was convicted (section 1737.1, California Welfare and
InstitutionS Code).
   The Youth Authority may retain custody for a period longer than
the period of imprisonment that may be prescribed for the offense
 (In re Herrera, 

) ; however, a person convicted of a
misdemeanor must be discharged upon the expiration of a two-year
period of control or when he reaches his 23rd birthday, whichever
occurs later; and a person convicted of a felony must be discharged
when he reaches his 25th birthday. (section 1771, California Welfare
and Institutions Code) unless the committing court acting upon a
petition filed by the Authority commits the offender to the state
prison. If a person is so committed, the maximum term of imprisonment is the maximum term prescribed by law for the offense
of which he was convicted less the period during which he was
under the control of the Authority (section 1782, California Welfare
and Institutions Code).
   The Service position is that the respondent has been sentenced to
confinement and that the period of confinement should be considered
a teem of not more than 20 years. The respondent denies that the
commitment to the Youth Authority is a sentence to confinement.
The special inquiry officer in a well-reasoned opinion held that the
sentence to the Youth Authority was not a sentence to confinement
since the Youth Authority did not have to confine a person committed to its custody.
   From the review of the law relating to the Youth Authority it is
clear that a person placed in the custody of the Youth Authority
has been committed for training and treatment rather than sentenced to imprisonment. There is a sentence to the control of the
Youth Authority but no sentence to confinement. Moreover, bearing
in mind that deportation statutes must be strictly construed (Fong
Haw Tan v. Phelan, 333 -U.S. 6, 10), and that a person sentenced tt
the custody of the Youth Authority need not be confined at all, Nevi
must. conclude that the respondent may not be considered as having
been sentenced to confinement under the immigration laws. It is th
 disposition made by the court, not that made, by some other source
 which must control. Although a commitment to the Youth Author

                                  662
ity is a conviction under the immigration laws, it does not meet the
necessity of the law requiring that there be a sentence to confinement.
    The Service 'representative points out that the respondent here
was actually confined, once while in the custody of the sheriff awaiting transfer to the Youth Authority, and then again at the Deuel
Vocational Institution. The fact that the respondent was held in
custody by the ,Youth Authority is immaterial if the custody was
not under a sentence to confinement. As we have shown, a sentence
to confinement was absent in this case. (The confinement in the
custody of the sheriff, the agent of the Youth Authority, could, of
course, have no greater effect than the custody by the Authority
itself.)
    United States ex rel. Paladino v. Commissioner, 

 (C.A.
2, 1930), relied upon by the Service representative is not apposite.
Paladino held that one sentenced under an indeterminate sentence
has been sentenced to the maximum possible term. We are not con-
_,Trned with the duration of the sentence but with whether there has
-


>eon a sentence to confinement.
   The Service representative believes that a federal standard should
 e applied to determine whether there has been a sentence to con-
    ,


 nement. We understand this to be a reference to the rule in Paladin
 elating to indeterminate sentences. However, if a federal standard
  ; to be applied, there is a precedent which has a more direct bearLg upon the problem before us than Paladino does. In Matter of
           A-8583853, Int. Dec. No. 1005, we held that there had been
     sentence to confinement where a person had been committed to
   e Attorney General of the United States for an indefinite term
    der the Federal Youth Corrections Act relating to the convictions
    persons under the age of 22 when convicted. The factors which
    pelled us to this conclusion in Matter of V—, supra, are present
    the instant case. Both youth corrections acts are based upon the
    del Youth Correction Authority Act drafted by the American
    a" Institute; in fact, the federal law "also borrows from Youth
    thority statutes in California" (Cunningham v. United States,
      F.2d 467, C.A. 5, p. 471; Pathways of Delinquency, supra, p.
     ; in both cases a sentence to the Youth Authority is in the dieion of the court which could have sentenced the convicted person
     nprisonment instead; in both cases prisoners are treated differv than wards of the Youth Authority; in both cases the youthful
       der is considered as being treated rather than punished; in
        cases there are provisions to expunge the convictions; and
        important of all, in both cases an adult offender given a nenof less than a year would not be deportable but a youthful
       ier convicted of the same crime and committed to the Youth
                                662
Authority which could hold him for at least two years would be
deportable?
  We find there has been no sentence to commitment and will affirm
the action of the special inquiry officer in terminating proceedings.
  Order: It is ordered that no change be made in the order of
the special inquiry officer.
  I Matter of C—R---, 

, a Service decision dealing with
a commitment to the California Youth Authority is overruled insofar as it is
in conflict with the view stated here.




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