MENDOZA

11 I. & N. Dec. 239

• Court: Board of Immigration Appeals
• Decided: July 1, 1965
• Docket: 1484
• Status: Published

Opinion

Interim Decision *1484

MASTER or MENDOZA.

In Deportation: PrOceedings A-10852584

Decided by Board Ante ER, 1986 Since respondent, a native and citizen of Eferico, is not ineligible for a MOD • quota immigrant visa because of his conviction of receiving stolen property (of the value of $49) in violation of paragraph 492, Chapter 38, Illinois Re- vised Statutes of 1945, as amended Inly 5, 1937, _which , is classifiable as a petty offense within the purview of section 212(a) (9), Immigration and Na- tionality Act, as mewed by section 13, Act of September 20, 1801, be is barred by the provisions of section 244(f) (8) of the Act from the discre- tionary relief of suspension of deportation. Queers: Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2)7—Entered without inspection (withdrawn). Lodged: Act of 1952—Section 241(a) (1) [8 1251(a) (1)1—Excludable no visa.

The ease comes forward on appeal from the order of the special inquiry officer entered April 5, 1965 debving the respondent's appli- cation. for suspension of deportation under the provisions of section 244(a) (1) as amended, granting voluntary departure in lieu of de- portation and further ordering that if the respondent failed to depart when and as required,. he be deported to Mexico solely on the lodged charge. The record relates to a native and citizen of Mexico, 39 years old, male, married, who last entered the United States on or about July 1949 for the purpose of working and residing in the United States - although not then in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card or ()flier valid entry. document. The trial attorney did not"press the charge' stated in the order to show cause.. Deportability solely on the lodged charge is established. • The.. respondent hai applied• for suspension. of deportation pursuant

239 Interim Decision #1484 to section 244(a) (1) of the Immigration and Nationality Act, as amended. The evidence establishes that the respondent merits the discretionary relief of suspension of deportation except for the pro- visions of section 244(f) of the Immigration and Nationdlity Act which prohibit the application of section. 244(a) "to an alien who * * * (3) is . a native of any country contiguous to the United States". However, section 244(f) will• not prevent the grant of suspension of deportation -if the respondent can establish that he comes within the proviso thereto which readi that the Attorney General may in his discretion agree to the granting of suspension of deportation to an alien specified in clause (3) of this subsection if such alien establishes to the satisfaction of- the Attorney- -General that he is ineligible to obtain a nonquota immigrant visa. The question of the ineligibility of the respondent to obtain a nonquota immigrant visa rests upon whether he is excludable under 'section 212(a) (9) of the Tinmigration and Nationality Act because of conviction of a crime involving moral turpitude; and, if exclud- able, whether such well dability is forgiven under the petty offense provision of section 242(a) (8), as amended by section 13 of the Act of September'26, 1961,V, such offense is classifiable as-a misdemeanor under the provisions reftection 1(3) of Title 18, U.S.C., by reason of the punishment actually imposed. The,respondent was convicted in the Municipal Court of Chicago, Illinois on August 28, 195'7 of the offense of receiving stolen prop- erty and was placed on one year's probation. The information states that on August 2, 1957 the respondent did unlawfully and will- fully buy in order to prevent, the owner from again possessing her property, knowing the same to have been stolen, said property 'being -of the value of $49 in violation of paragraph 492, Chapter 38, Illinois Revised Statutes of 1945. The Illinois Revised Statutes of 1945 read as follows: Every person, who for .his own gain, or to prevent the owner from again possessing his property, shall buy, receive or aid in concealing stolen goods, or any thing, the stealing of which is declared to be larceny, or. property, ob- tained by robbery or burglary, knowing the same to have been so obtained, shall be imprisoned in the penitentiary not less than one or more than ten gears, or if such goods or other property or thing does not exceed the value of $15.00, shall be 'fined not exceeding $1,000 and confined In the county jail not exceeding one year. However, the latter' part of paragraph 492, Chapter 38, Illinois Revised Statutes was amended on July 5, 1957 to provide that if such goods or other property or thing does not exceed the value of 240 Interim Decision #1461 $50.00, he shall be fined not exceeding $1,000 and confined in the county jail not exceeding one year. Section 1, Title 18, U.S.C.A., classifies offenses in three categories: (1) any offense punishable by death or imprisonment for a term exceeding one year is a felony. (2) any other offenses a misdemeanor. (3) any misdemeanor, the penalty for which does not exceed imprisonment for a period of six months or a fine of not more than MO, or both, is a petty offense. • Inasmuch as at the time of the commission of the offense on August 2, 1957 as well as at the time of the conviction on August 28, 1957, the amendment of July 5, 1957 to paragraph 492, Chapter 38, Illinois Revised Statutes was in effect, the respondent could have been convicted only under the amendatory Act of July 5, 1957, since the prior act was no longer in existence. Seddon 1(2) of Title 18, U.S.C.A., makes the offense for which respondent was convicted a misdemeanor, and as a result of the penalty actually imposed,, the conviction is a petty offense as classified in 18 U.S.C.A. 1(3). The test of a petty offense under the amendatory provisions of section 13 . of the Act of September 26, 1961 (75 Stet. 655) 'as well as the like predecessor statute, the Act of September 3, 1954 (Public Law 83— 770), is that the statutory penalty must not exceed one year and that the actual punishment meted out by the court shall not be more than six Months' imprisonment or $500 fine? The exculpatory bene- fit of the petty offense provision of section 13 of the Act of Septem- ber 26, 1961 is mandatory and automatic, not discretionary? The respondent is a native of. Mexico but is not ineligible to receive a nongunta immigrant visa because he is a beneficiary of the petty offense provision of section 212(a) (9) of the Immigration and Nationality Act. He, therefore, cannot be granted suspension of deportation because of the bar of section 244(f) of the Immigration and Nationality Ad. The respondent has been granted the privilege of voluntary departure in lieu of deportation. He should have no difficulty in obtaining the issuance of a visa inasmuch as his 1957 conviction is a conviction for a petty offense. The appeal will be dismissed. ORDER: It is ordered that the appeal be and the same is hereby dismissed. ' Natter of 0-0—, L & N. Dec. 488; Matter of If—, 6 L & N. Dee. 614; Matter of T—,, 0 L & N. Dec. 508 (A.G., 1955). ' ' 'Matter of L & N. Dee. 738.