MATTER OF OHNHAUSER
A-13669381
Decided by Board April 10, 1964
Interim Decision #1332
In DEPORTATION Proceedings
CHARGES:
Order: Act of 1952—Section 241(a)(4) [8 U.S.C. 1251(a)(4)]—Convicted of crime involving moral turpitude, committed within 5 years after entry, and sentenced to confinement for a year or more, to wit: issuing check without sufficient funds (1963).
Lodged: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant (temporary visitor for pleasure)—Remained longer.
The special inquiry officer, in a decision dated December 10, 1963, directed that the respondent be deported to Canada, alternatively to England, on the lodged charge only. The trial attorney appealed to this Board from that decision, urging that the charge stated in the order to show cause should also have been sustained.
The record relates to a female alien, a native of England and subject of Great Britain, who has been admitted to Canada as a “landed immigrant.” She last entered the United States from Canada on or about November 15, 1962. She was then admitted as a nonimmigrant temporary visitor for pleasure, for a period not to exceed six months. She has remained here since May 15, 1963, without authority.
The foregoing establishes respondent‘s deportability on the charge lodged at the hearing. This has been conceded and is unchallenged here. The point needs no further discussion.
Deportability on the charge contained in the order to show cause is predicated on respondent‘s September 16, 1963, conviction, in the Superior Court of California for the County of San Diego, on her plea of guilty, of the crime of “issuing check without sufficient funds,”
The foregoing crime involves moral turpitude because one of its essential elements is intent to defraud (People v. Pitts, 196 CA 2d 841; Jordan v. DeGeorge, 341 U.S. 223; Portada v. Day, 16 F. 2d 33). It was committed in 1963, which is within 5 years of respondent‘s last entry in 1962. She has been confined since her conviction, but the period thereof does not yet amount to one year.
Accordingly, the only issue before us is whether respondent‘s sentence “to imprisonment in the California Institution for Women for the term prescribed by law” (emphasis supplied) is a commitment “for a year or more.” This judgment was in conformity with section 1168a of the
Every female convicted of a public offense, for which imprisonment in any State prison is now prescribed by law shall, unless such convicted female is placed on probation, a new trial granted, or the imposing of sentence suspended, be sentenced to detention at the California Institution for Women, but the court in imposing the sentence shall not fix the term or duration of the period of detention.
Under such a statute, the judgment of the court properly consists of a recital of the offense, a designation of the prison to which the defendant is committed, and nothing more (People v. Mendoza, 178 C. 509, 173 P. 998). However, the failure of the judge here to have included the phrase “for the term prescribed by law” would not have rendered the order of commitment invalid (People v. Youders, 96 CA 2d 562, 215 P. 2d 743).
The limits of “the term prescribed by law” as applied to this case are determined by sections 476a and 18b of the
The crux of this case, therefore, is whether, under California law, the minimum or maximum limit of an “indeterminate sentence” of from 6 months to 14 years is determinative. On the strength of the following authorities, we hold that it is a sentence for the maximum term.
The courts of California have uniformly held that an indeterminate sentence such as the one we are confronted with here is in legal effect a sentence for the maximum term (People v. Lumbley, 8 P. 2d 354). In so doing, they have pointed out that the statutes dealing
The foregoing is consistent with Federal court rulings (see U.S. ex rel. Paladino v. Commissioner, 43 F. 2d 821) to the effect that indeterminate sentences have long been held to be sentences for the maximum terms for which the defendant might be imprisoned. In so ruling, those courts have pointed out that this is the construction not only placed upon sentences where a maximum and a minimum period of imprisonment appears in the sentence, but also upon sentences where no term is mentioned and the statute sets the maximum. They have further pointed out that such sentences would afford a basis for deportation under section 19 of the Act of February 5, 1917 (former
It is also consistent with the following precedent decisions of this Board to the effect that an indeterminate sentence is measured by the possible maximum term of imprisonment. One of these (Matter of B-, 1 I. & N. Dec. 209) involved an alien convicted of assault with a deadly weapon under the law of Utah; the sentence imposed was “for the indeterminate term as prescribed by law“; and the statute provided for imprisonment not to exceed 5 years, or by fine not to exceed $1,000, or by both—and apparently with no minimum being set. Another (Matter of R-, 1 I. & N. Dec. 540) concerned an alien convicted, inter alia, of petty larceny; he was sentenced to imprisonment in the penitentiary of the County of New York, there to be dealt with according to law; and the statute under which he was convicted prescribed the term of imprisonment not to exceed 3 years.
Support for our conclusion in this case, if such is necessary, is found in the procedural provisions of the
Respondent‘s only contention throughout has been that she should not be deported because her crime was not serious. The answer to this argument, however, is that if the judge had not found her crime serious he had the alternative under the statute of placing her on probation instead of sentencing her to confinement, which would have been an act of clemency rather than punishment (see 13 Stan. LR 252 and 340), but he did not so exercise his discretion. In any event, this Board is bound by the record of the respondent‘s conviction, as hereinbefore discussed.
Finally, under the foregoing circumstances the respondent just is not eligible for discretionary relief in any form. Deportation, therefore, is required.
ORDER: It is ordered that the Service appeal be and the same is hereby sustained.