CHEN

Interim Decision #1377

MAWER OF CHEN

Li DEPORTATION Proceedings

A-13699390

Decided by Board Apra 10, 1094

Since an indeterminate sentence is a sentence for the maximum term, respondent's

sentence under section 1168a, California Penal Code, to imprisonment for an

offense punishable under applicable California statute by imprisonment from

6 months to 10 years, is a sentence to confinement for a year or more within

the meaning of section 241(a) (4), Immigration and Nationality Act.

CHABGES :

Order: Act of 1952—Section 241(a) (4) [8 U.S.C. 12513—Convicted of crime

involving moral turpitude, committed within Ave years of entry, and

sentenced to imprisonment for year or more, to wit : Grand theft (1903).

Lodged: Act of 1952—Section 241(a) (9) [8 U.S.O. 1251]—Nonimmigrant (tem-

porary visitor )—Pailed to comply with conditions of status.

The special inquiry officer, in a decision dated December 10,,1983,

directed that the respondent be deported from the United States to

Hong Kong on the lodged charge only. The trial attorney has ap-

pealed 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 married female alien, a native of Hong Kong,

British Crown Colony, and a subject of Great Britain. She entered

the United States for the first, last and only time on or about March 9,

1963. She was then admitted as a nonimmigrant temporary visitor

for a period until September 8, 1963. However, on or about July 6,

1963, she was arrested at San Francisco, California, and charged with

violations of sections 182 and 487 of the Penal Code of the State of

California. She was subsequently convicted, on October 11, 1963, in

the Superior Court of the State of California, in and for the City and

County of San Francisco, of the offense of grand theft, in violation of

section 487 of the Penal Code of California, the crime having been

committed on or about May 28, 1963.

The special inquiry officer has sustained the charge of deportability

lodged at the hearing on the basis of a prior precedent decision of this

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interim Decision #1377

Board (Matter of A—, 6 L & N. Dec. 762). We therein held that an

alien in the United States as a temporary visitor for pleasure who was

convicted of an offense and sentenced to confinement as a result thereof

was no longer pursuing the purpose for which he was admitted and

was, therefore, out of status within the purview of section 241(a) (9)

of the Immigration and Nationality Act, ante. The foregoing facts

of record bring this case clearly within the scope of that decision. In

the light thereof, we agree with the special inquiry officer that the

charge lodged at the hearing is sustained.

The crime of grand theft of which the respondent stands convicted,

ante, involves moral turpitude (Matter of V–T--, 2 I. & N. Dec. 213 at

214). Her crime was committed on or about May 28, 1963, which is

within five years of her last entry on or about March 9, 1963. She has

been confined since her conviction, but the period thereof does not yet

amount to one year. The only issue before us, therefore, is whether

the respondent has been sentenced to confinement "for a year or more."

Upon her foregoing conviction, the respondent was sentenced to

imprisonment in the California dtate Prison, for the term provided

by law, and was thereafter ordered delivered to the superintendent of

the California Institution for Women at Corona, California. This

action was in accord with section 1168a of the California Penal Code,

which reads:

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, s. new trial granted, or the imposing of sentence suspended,

be sentenced to detention at the California Institution for Women, but the court

fn imposing the sentence .0.411 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 defend-

ant is committed, and nothing more (People v. 111 endow, 178 C. 590,

173 P. 998). Thus, the failure of the judgment to have included the

phrase "as provided by law" would not have rendered the order of

commitment invalid (Piople v. louden, 96 C.A. 2d 562, 215 P. 2d

743).

The extent of "the term provided by law" as applied to this case is

determined by sections 489 and 18b of the California Penal Code.

The former makes grand theft punishable by imprisonment in the

county jail for not more than one year or in the State prison for not

more than ten years. The latter, a minimum term statute of general

application, provides that the duration of the respondent's period of

detention may be as short as six months (see In re Humphrey, 64 C.A.

572, 22 P. 366).

The crux of this case, therefore, is whether under California law ,

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the minimum or maximum limit of an "indeterminate sentence" of

from six months to ten years is determinative. In the light 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 under section 1168 of the California Penal Code is in legal

effect a sentence for the maximum term (People v. Lumbley, 68 P.2d

354) . In so doing, they have pointed out that the statutes dealing

with the Indeterminate Sentence Law do not infringe the right of due

process of law because the judgment pursuant thereto is in legal effect

a sentence for the maximum term and is, therefore, certain and definite

(la re Bandamann, 51 C.2d 388, 333 P.2d 339) rather than being un-

constitutional as "void for vagueness" (People v. Leiva, 285 P.2d 46).

They have also pointed out that the pronouncing of sentence there-

under is a judicial act; that the punishment which the sentence pro-

nounces comes from the law itself, and is established or provided for

by the legislature; and that the act does not confer upon the Board

of Trustees of the California Institution for Women (post) the right

to determine the punishment that any given crime shall bear (In re

Larsen, 283 P.M 1043).

The foregoing is consistent with federal court rulings (see U.S. ex

rel. Paladin v. Commissioner, 43 F. 2d 821) to the effect that indeter-

minate sentences have long been held to be sentences for the maximum

term for which the defendant might be imprisoned. In so ruling,

the courts have pointed out that this is the construction not only placed

upon sentences where a maximum and minimum period of imprison-

ment appears in the sentence, but also upon sentences where no term

is mentioned and the statute sets the maximum. The said courts have

also pointed out that such sentences afforded a basis for deportation

under section 19 of the Act of February 5, 1917 (former 8 .U.S.C. 155)

even though a duly designated administrative authority might subse-

quently greatly diminish, indeed almost totally abate, the period of

imprisonment. They have given as the reason for their decisions the

fact that in all such cases the defendant could be brought back and

required to serve the remainder (maximum) of his sentence.

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

R—, 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;" the statute pro-

vided for imprisonment not to exceed five years, or by fine not to ex-

ceed $1,000, or by both; with no minimum apparently being set therein.

Another (Matter of B—,1 I. & N. Dec. 540) concerned an alien con-

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Interim Decision #1371

victed, inter olio, 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 pre-

scribed a term of imprisonment not to exceed three years.

It is not inconsistent with the prior precedent decision of this

Board (Matter of V—, 7 I. & N. Dec. 577), relied on by the special

inquiry officer. In that case, the court, instead of imposing sentence

and suspending its execution, suspended the imposition of the sentence.

This was not the case hem

Support for .our conclusion, if such is necessary, is found in the

procedural provisions of the Cal ifornia Penal Code pertinent to the

sentencing of this female offender, and the judicial decisions clarify-

ing same. Thus, section 3325 of the Penal Code imposes the duty of

fixing the terms of imprisonment for female convicts, within the fore-

going minimum and maximum limits, by the Board of Trustees of the

California Institution for - Women. As is the case with the Adult

Authority, which is responsible .for adult male convicts under section

3020 of the Penal Code, that board determines and redetermines, after '

the expiration of six months from and after the actual commencement

of imprisonment, what length of time the convict shall be imprisoned.

However, there is no time prescribed within which the prisoner's sen-

tence must be fixed. or even snusidered (hz. re Quinn, 25 C.2d 799,154

P.2d 875), so that if no such action is taken the term is the maximum.

If, on the other hand, such action is taken and the term set at less than

the maximum , it is only tentative and may be changed, i.e.—increased

(In re Costello

, 262 F.2d 214). In. this connection, the subsequent fix-

ing of the actual term of imprisonmnet by the duly designated admin-

istrative authority is merely a limitation of the term and not a setting

thereof (In re Daniels, 106 C.A. 43, 288 P.1109), otherwise the statute

would be unconstitutional as conferring judicial powers on. a non-

judicial body (see People v. Kostal, 159 C.A.2d 444, 323 P.2d 1020).

Finally, as pointed out by the special inquiry officer, under the cir-

cumstances herein before outlined the respondent is not presently elig-

ible for any form of discretionary relief. ' Her deportation, there-

fore, is required.

ORDER: It is Ordered that the Service appeal be and the same is

hereby sustained.

It is fv/rtlber ordered that the respondent be deported from the

United States to Hong Kong on the charge contained in the order to

show cause as well as on the lodged charge.

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