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Case Information
*1 MATTER OF T-- In EXCLUSION Proceedings A-102UCSlW Decided by Board September 2/. 1956 Petty offense—Gmeietion In Italy of aggravated theft—Punishment not "ac- tually 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 sen- tence granted applicant a "pardon" of a one-year prison term and fine, ATPLICAlIPN : Admission for permanent residence. *2 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, found- that 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 spe- cial 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 in- spection 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 vio-
lation 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 mis-
demeanor 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 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 here-
after be granted a visa and admitted to the United States, if otherwise admis-
sible:
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
*3
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,
with crimes of the highest grade. The word "punishment" ordi- narily implies some punishment of a temporary character. It must be 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. How- ever, no punishment was actually imposed upon the appellant, inas- much 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 find- *4 ings of fact, conclusions of law, and the order of the special in- quiry 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.