3iAtILR OF C—M-- 

In DEPORTATION Proceedings 

A-12637405 

Decided by Board September 28, 1961 

Conviction—Juvenile offender under California law. 

Under California law there is no mandatory requirement that a minor under 

18 years of age shall be tried in a juvenile court. Where the record establishes that in 1960 respondent was tried and convicted in the Superior 

enTirt of California for the offense of kidnaming. committed prior to his 

18th birthday, his "conviction" precludes his establishing good moral character under section 101(f) (3) of the Act. 

Csesaz: 

Order : Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)]—Excludable 

at time of entry, no immigration visa. 

BEFORE THE BOARD 

DISCUSSION: The respondent appeals from an order entered by 

the special inquiry officer July 12, 1961, directing his deportation 

as an alien excludable at the time of entry in that he did not possess 

an immigration visa (8 U.S.C. 1251(a) (1) ; section 13(a) of the 

Act of May 26, 1924). Deportahility on the stated charge is conceded. Exceptions have been taken to the finding that the respondent is statutorily ineligible for discretionary relief in that 

he is precluded from establishing his good moral character under 

the provisions of section 101(f) (3) of the Immigration and Nationality Act (8 U.S.C. 1101(f) (3) ). 

The record relates to a national and native of Mexico, male, unmarried, 18 years of age, who last entered the United States through 

the port of San Ysidro, California, on July 28, 1947. He was 4 

years of age and accompanied his citizen mother. The citizen 

mother testified that 3 of her minor alien children were permitted 

to enter without documents with the understanding that their immigration status would be adjusted at a later date. The evidence 

of record affirmatively establishes the respondent's deportability on 

the charge stated in the order to show cause. 

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The respondent has applied for voluntary departure in lieu of 

deportation. The special inquiry officer has denied the respondent's 

application on the ground that he is precluded from establishing 

good moral character under the provisions of section 101(f) (3) 

of the Immigration and Nationality Act in that he _was convicted 

of a crime involving moral turpitude on November 25, 1960, to wit, 

kidnapping. The record establishes that the respondent, born on 

November 7, 1942, was 17 years of age at the time the offense was 

committed on August 20, 1960.He was committed to the California Youth Authority and was released on parole on March 29, 

1961. 

Counsel takes no issue with the finding that the offense of kidnapping, as defined by the California Penal Code, involves moral 

turpitude. He does take issue with the finding that under the law 

of California the respondent has been convicted of a criminal 

offense. Counsel urges that since the respondent was under the age 

of 18 years at the lime the uffeiise euninillted lie was subject to 

sections 825, 826 and 833 1of the Welfare and Institutions Code 

of the State of California, and that proceedings under these sections 

are not criminal. 

We agree with the special inquiry officer that "the case is an appealing one for the grant of the discretion requested." We find no 

authority, however, for counsel's claim that the respondent was convicted in the instant case as a juvenile offender. The record establishes that the respondent was convicted in the Superior Court of 

the State of California in and for the County of Santa Clara. The 

judgment of conviction states, inter alia, that the respondent was 

18 years of age when apprehended on November 21, 1960. 

The California statutes here under consideration (see Appendix) 

are not mandatory since they provide, in substance, that a defendant under the age of 18 years at the time the offense is committed 

may be tried by a Superior Court, unless his age "is suggested or 

appears to the judge" to be under 18 years. The California courts 

have held that it is not a jurisdictional requirement of the statutes 

that a minor under 18 years of age shall be tried in a juvenile court. 

People v. Luzovich, 16 P.2d 144, 145; 127 Cal. 465, Nov. 14, 1932. 

We find no merit to counsel's argument that the proceedings against 

the respondent in the Superior Court of California should be regarded as one of a. noncriminal nature. The appeal will be dismissed 

ORDER: It is directed that the appeal be and the same is hereby 

dismissed. 

Sections 825, 820 and 833 of the Welfare and Institutions Code or the 

State of California are set forth in the Appendix, attached to this opinion. 

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APPENDIX 

The Welfare and Institutions Code of the State of California : 

Section 825. No court shall have jurisdiction to try the case of any person under the age of 18 years at the time of the alleged commission of a 

public offense or crime unless the matter has first been submitted to the 

juvenile court by petition as provided in Article 7 of this chapter, or by 

certificate of any other court as provided in this Article, and said juvenile 

court has made an order therein directing that such person be prosecuted 

under the general law. 

Section 826. Whenever a deposition, complaint, indictment or information 

is filed in any court charging a person with a crime, and it is suggested or 

appears to the judge, justice or recorder before whom such person la brought 

that the person charged was, at the date the offense is charged to have been 

committed, under the age of 18 years, such judge, justice or recorder shall 

immediately suspend all proceedings against such person on said charge. He 

shall examine into the age of such person, and if, from such examination, it 

appears to his satisfaction that such person was at the date the offense was 

alleged to have been comtidtted under the age of 18 years he shall forthwith 

certify it to the juvenile court of the county • * S. 

Section 838. Whenever a person is accused of crime in the Superior Court 

by indictment or information, and it is suggested or appears to tee court mat 

the person was under the age of 18 years at the time the offense is alleged to 

have been committed, the Court shall suspend the proceedings on the charge 

and shall recess as a criminal court and reconvene as a juvenile court. If 

there are two or more judges in the same Superior Court, and the action is 

brought before a judge other than a juvenile court judge, the case shall be 

transferred from the department in which it is to the department of a juvenile 

court judge. The juvenile court shall hear and dispose of the case In the 

same manner and with the saint powers as if the case had been transferred 

thereto from a court other flan the Superior Court. 

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