Interim Decision #2929

Interim Decision #2929

MATTER OF VALDOVINOS

In Deportation Proceedings

A-21630640

'

Decided by Board November 41982

(I) Pre-sentence confinement is credited in determining the date of release from custody

under section 2900.5 of the California Penal Code and such pre-sentence confinement

is counted in determining whether a respondent is a person of good moral character

under section 101(0(1) of the Immigration and Nationality Al, 8 U.S.C. 1101(0(7).

(2) Where a respondent's confinement for 59 days for his first conviction is added to his

incarceration for 132 days in a California minimum security penal institution as a result

of his, second conviction, he Ia precluded from eatabliohing good moral character, and

thus is statutorily ineligible for voluntary departure under section 244(e) of the Act,

8 U.S.C. 1254(e).

(3) Deportation from the United States is not considered punishment or a criminal process

and, therefore, the constitutional protection against doable jeopardy which is applicable

in criminal proceedings is not applicable in deportation proceedings.

CHARGE:

Order. Act of 1952—Sec. 241(a)(2) [8 U.S.C. 1251(a)(2)]—Entry without inspection

ON BEHALF OF SERVICE:

ON BEHALF OF RESPONDENT:

Elizabeth Williams, Esquire

San Francisco Neighborhood Legal

Annintnnes Foundation

250 Columbus Avenue, Suite 200

San Francisco, California 94133

Ronald E. LeFevre

General Attorney

Br =Italian, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members

. In a decision dated May 29, 1981, the immigration judge found the

respondent deportable as charged and ordered him deported from the

United States. The appeal will be dismissed.

The respondent is a native and citizen of Mexico, who admitted hayindlast entered the United States in September of 1980 without inspection neat- San Ysidro, California (Tr. p. 3). Consequently, deportability

under section 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C.

1251(a)(2), has been established by clear, convincing, and unequivocal

evidence as required by Woodby v. INS, 385 U.S. 276 (1966), and 8

C.F.R. 242.14(a). The only issue on appeal is the immigration judge's

denial of the respondent's application for voluntary departure in lieu of

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deportation pursuant to section 244(e) of the Act, 8 U.S.C. 1254(e).

Section 244(e) requires that an applicant for voluntary departure establish that he has been a person of good moral character for at least 5

years immediately preceding the voluntary departure application. The

immigration judge, concluded that the respondent was precluded from

establishing the requisite 5 years of good moral character by section

10107) of the Act, 8 U.S.C. 1101(0(7), which states;

(f) For the purposes of this Aet—No person shall be regarded as, or found to be, a

person of good moral character who, during the period for which good moral character is

required to be established, is, or was—

(7) one who during such period has been confined, as a result of conviction, to a penal

institution for an aggregate period of 180 days or more, regardless of whether the

offense, or offenses, for which he has been confined were committed within or without

such period. (Emphasis supplied.)

It is undisputed that the respondent has two felony convictions for

burglary in violation of section 459 of the California Penal Code, during

the 5-year period immediately preceding the application for voluntary

departure (Ex. 2, 3, 4). It is also undisputed that the second conviction

on November 12, 1980, resulted in his being incarcerated for 132 days

(Resp. brief pp. 4-5). The respondent also admits that he was arrested on

May 22, 1980, when he was charged with his first violation of section 459

of the California Penal Code (Rev. brief p. 4). On June 12, 1980, he was

convicted and. on July 1, 1980, he was sentenced to one year in the

county jail with all but 90 days suspended (Ex. 2). He was given credit

for time already served since his arrest and was released from custody

on July 18, 1980 (Resp. brief p. 4). Thus, the time of incarceration easily

exceeds 180 days. He spent 59 days incarcerated for the first offense

and 132 days incarcerated for the second offense.

However, the respondent contends that the 41 days he spent incarcerated prior to his first conviction sholild not count in estimating the

amount of time he spent incarcerated for purposes of the section 101(0(7)

preclusion of good moral character. He asserts that since a criminal

defendant is presumed innocent until proven guilty, the time spent

incarcerated prior to his conviction should not count as confinement "as

a result of a conviction," under section 101(0(7) of the Act (Brief p. 10).

We disagree with the respondent's contention. He was convicted pursuant to the California Penal Code. Section 2900.5(a) of the California

Penal Code (Appendix A) specifies that a criminal defendant is given

credit for pre-conviction confinement when determining the date of his

release from custody. See People v. Helton, 91 Cal. App. 3d 987,154 Cal.

Rptr, 482 (1979). Consequently, the time the respondent spent incarcerated prior to his July 1, 1980, conviction is considered time served as a

result of his subsequent conviction tinder California law In fact, pursuant to section 2900.5 the trial judge is prohibited from adjusting the

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sentence upward to cancel out the credit for pre-sentence confinement.

In re Chamberlain, 78 Cal. App. 3d '712, 144 Cal. Rptr. 326 (1978).

Moreover, such pre-sentence confinement also results in the accruing of

good behavior credit for early release from incarceration. See People v.

McMillan, 110 Cal. App. 3d 682,167 Cal. Rptr. 924 (1980). The record

further indicates that this respondent was given such credit for time

served and good behavior/work time accumulated prior to his July 1,

1980, sentencing (Ex. 3). Therefore, we find without merit his contention that the time he spent incarcerated prior to his July 1, 1980, sentencing should not be counted in determining the time he was incarcerated

as a result of his first conviction.

The respondent also contends that the time he spent incarcerated

after his second conviction should not count as time incarcerated in a

penal institution because he was placed in the Men's correctional Facility at La Honda, California, which is a minimum security area with a

work furlough facility. This contention is clearly, without merit since

such a prison facility is clearly a 'penal institution. We also note that

section Z900.5 of the California Penal Code does not draw any such

distinctions when it lists such work camps among the penal institutions

covered by that section.

Finally, the respondent challenges the constitutionality of the section

101(f)(7) preclusion of good moral character on two constitutional grounds.

First, he claims that its effect constitutes double jeopardy since it imposes

double punishment for the same offenses. That argument has been consistently rejected by the courts.' See Le Tourneur v. INS, 538 F.2d

1368 (9 Cir. 1976); Oliver v. United States Dept. of Justiee, 517 17.2d 426

(2 Cir. 1975). Deportation from the United States has never been

regarded as criminal punishment. Bscgajeuiitz v. Adams, 228 U.S. 585

(1913); Mahler v. Eby, 204 U.S. 32 (1924). It is civil in nature and

therefore the procedural safeguards prescribed for criminal cases are

not applicable. Carlson v. Landon, 342 U.S. 524 (1952); Bilokumsky v.

Tax 263 U.S. 149 (1923); Chavez Rays v. INS, 519 F.2d 397 (7 Cir.

19'15).

Moreover, as the relporident concedes, claims as to the unconstitutionality of the statutes and regulations administered by this Board are

outside the scope of our jurisdiction. See section 103 of the Act, 8 V. S.C.

1103; 8 C.F.R. 3.1; Matter of Bogart, 15 I&.N Dec. 552 (BIA 1975, 1976;

A.G. 1976); Matter of Chery and Hasan, 15 I&N Dec. 380 (BIA 1975);

Matter of Santana, 13 I&N Dec. 362 (BLA. 1969); Matter of L-, 4 I&N

-

According to the respondent's_ position, all grounds of deportability for criminal aliens

would entail double jeopardy since they would mete out double punishment for the same

offenses. See sections 241(a)(4), (11), (14), (15), (16), (1?), and (18), 8 U.S.C. 1251(ax4),

(11), (14), (15), (16), (17), and (18).

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Dec. 556 (BIA 1951). Consequently, his last contention, that section

101(0(7) is unconstitutionally overbroad, is outside of our jurisdiction to

determine. The appeal will be dismissed.

ORDER The appeal is dismissed.

APPENDIX A

California Penal Code

§2900.5 (1981)

• Credit for time in custody prior to commencement of sentence

(a) In all felony and misderheanor convictions, either 'by plea or by

verdict, when the defendant has been in custody, including but not

limited to any time spent in a jail, camp, work furlough facility, halfway

house, rehabilitation facility, hospital, prison, juvenile detention facility,

or similar residential institution, all days of custody of the defendant,

including days served as a condition of probation in compliance with a

court order, and including days credited to the period of confinement

pursuant to Section 4019, shall be credited upon his term of imprisonment,

or credited to any fine which may be imposed, at the rate of, ot less than

thirty dollars ($80) per day, or more, in the discretion of the court

imposing the sentence. If the total number of days in custody exceeds

the number of days of the term of imprisonment to be imposed, the

entire term of imprisonment shall be deemed to have been served. In

any case where the court has imposed both a prison - or jail term of

imprisonment and a fine, any days to be credited to the defendant shall

first be applied to the term of imprisonment imposed, and thereafter

such remaining days, if any, shall be applied to the fme..

(b) For the purposes of this section, credit shall be given only where

the custody to be credited is attributable to proceedings related to the

same conduct for which the defendant has been ennvietctd. Credit shall

be given only once for a single period of custody attributable to multiple

offenses for which a consecutive sentence is imposed.

(c) For the purposes'

urposes nf this section, "term of imprisonment" includes

any period of imprisonment imposed as a condition of probatio • or other-

wise ordered by a court in imposing or suspending the imposition of any

sentence, and also includes any term of imprisonment, including any

period of imprisonment prior to release on parole and any period of

imprisonment and parole, prior to discharge, whether established or

fixedby statute, by any court, or by any duly authorized administrative

agency.

(d) It shall be the duty of the court imposing the sentence to determine the date or dates of any admission to * * * and release from cus846

Interim Decision #2929

tody prior to sentencing, and the total number of days to be credited

pursuant to the provisions of this section. The total number of days to be

credited shall be contained in the abstract of judgment provided for in

Section 1213.

(e) It shall be the duty of any agency to which a person is committed

to apply the credit provided for in this section for the period between the

date of sentencing and the date the person is delivered to such agency.

(Added by Stats.1971, c. 1732, p. 3686, § 2. AMended by Stats. 1976,

c. 1045, p. 4665, § 2; Stats.1978, c. 304, p. 632, § 1, urgency, eff. June 28,

1978; Stats.1980, c. 297, p.

1, urgency, eff. July 1, 1980.).

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