MATTER or M 

In DEPORTATION Proceedings 

A-7898650 

Decided by Board September 24. 1959 

Crime involving moral turpitude—Conviction by foreign military court is conviction within immigration laws—Exemption as to petty offense not applicable 

when punishment actually imposed exceeded six months. 

(1) Conviction by Italian Military Court (Tribunal of War) in Somaliland 

is s "conviction" within the meaning of the immigration lawe. 

(2) Conviction by foreign military court of aggravated theft (in the amount 

of 300 Eras or $15.78), although equivalent to petit larceny under United 

States standards, is not a "petty offense" within section 4 of the Act of 

September 3, 1954, when the punishment actually imposed was Imprisonment for more than six months. 

CHARGE: 

Order : Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2))—Remained 

longer than the permitted period after admission as a nonimmigrant 

under the 9th proviso to section 3 of the Act of 1917 (8 U.S.C. 136, 

1940 ed.). 

BEFORE THE BOARD 

Discussion : This case is before us on appeal from a decision 

of the special inquiry officer, dated August 13, 1959, holding the 

alien deportable, granting voluntary departure, but refusing deferral 

of proceedings pending consideration of the section 245 application. 

Respondent, a 45-year-old native and citizen of Italy, last entered 

the United States at New York on November 13, 1950, under the 

9th proviso to section 3 of the- of 1917. The original period of 

admission was to February 16, 1951_ Thereafter, respondent applied 

for adjustment of the record of entry to that of permanent residence 

under section 2 of the Act of March 28, 1951 [Public Law 82-14]. 

Although in 1950 respondent was originally in possession of a quota 

immigrant visa, issued at the American Consulate at Marseille, 

France, he was admitted temporarily because of his service in the 

armed forces of Italy during World War II. 

In connection with the application for adjustment., it was learned 

that respondent. had been convicted on October 2, 1937, by the 

Tribunal of War in Somaliland of aggravated theft. For this 

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offense he was sentenced to imprisonment for three years (to be 

converted to military confinement) and fined 2,000 liras plus costs_ 

Having later been granted an amnesty and a certificate of rehabilitation, he is regarded as having no criminal record under Italian 

law although the foreign amnesty was unavailing for immigration 

purposes. However, on March 15, 1954, the Immigration Service 

determined that respondent was nevertheless inadmissible to the 

United States under section 3 of the Act of 1917 as an alien convicted of a crime involving moral turpitude (theft). Hence, it was 

held that respondent was ineligible for adjustment of record under 

section 2 of the Act of March 28, 1951, and the request was denied. 

During the deportation hearing, counsel requested termination for 

vIrposes of having the question of respondent's admissibility for 

permanent residence tested in exclusion proceedings. The special 

inquiry officer overruled this suggestion, determining that the alien 

is properly subject to action in cleporlatiun rather than exclusion 

proceedings. Counsel request that the deportation proceedings be 

held in abeyance pending action on the section 245 application was 

denied by the special inquiry officer on the ground that the two 

proceedings were now independent. 

On appeal, counsel contends tl,at respondent's case should be considered in relation to section 4 of the Act of September 3, 1954 

[Public Law 83-770]. The record reveals that respondent may be 

eligible under section 4, for he has been convicted of only one crime. 

Matter of H , 6 I. & N. Dec. 614 (B.I.A., 1955) ; Matter of 

H—, 6 I. & N. Dec. 435 (B.I.A., 1954) ; Matter of M—, 7 I. & N. 

Dec. 147 (B.I.A., 1956) ; Matter of S—R—, 7 I. & N. Dec. 495 

(B.I.A., 1957). 

Section 4 provides that a crime is considered a petty offense if 

the "punishment actually imposed" does not exceed six months' imprisonment or a $500 fine, or both. 18 U.S.C. 1(3). Because the 

crime under discussion was committed in a foreign country, the 

criminal penalty involved must be judged on the basis of United 

States' standards as found in the District of Columbia Code. Matter 

of T---, 0 I. & N. Dec. 506 (Atty. Gen., 1955). 

According to section 22-2202 of the District of Columbia Code, 

larceny of property valued at less than $50 is petit larceny. Here, 

the property involved (gold earrings) was vaincil at, 300 liras or 

$15.78. 1This amount was equivalent to petit larceny in the District 

of Columbia, which was punishable by a maximum fine of $200 and 

a maximum imprisonment of one year However, the sentence 

actually imposed on respondent by the Tribunal of War in Somali1 August 24, 1937, the date the offense was committed, the- lira was valued 

at $.0526. Banking and Monetary Statistics, Fed. Res. S'ystem, 1943, at p. 073. 

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land was three years' military confinement and a fine of 2,000 liras 

or $105.20. 

Hence, the punishment actually imposed exceeds the test set out 

in 18 U.S.C. 1(3) and respondent's crime may not be considered a 

petty offense under section 4 of Public Law 83-770. Matter of 

G A—, 7 I. & N. Dec. 274 (B.I.A., 1956) ; Matter of T— , 

Int. Dec. No. 997 (E.T.A., 1956) ; Man-iga v. Shaughn(88y, unreported, S.D.N.Y., 1956, Civ. No. 109-226; Ganduire y Marino v. 

, unreported, S.D.N.Y., 1959, Civ. No. 135-100. 

Counsel further contends that the 1954 denial of adjustment of 

the record of entry was erroneous, for respondent's conviction by 

the Italian Military Court was not a conviction within the meaning 

of the immigration laws, citing Matter of P 1 I. & N. Dec. 

33, 34. 

It is well settled that foreign pardons are ineffective to erase a 

foreign criminal conviction for immigration purposes, because of 

the many differences incidental to their grant and effect. Mercer 

v. Lence, 96 F.2d 122 (C.A. 10, 1938), cert. den. 305 U.S. 611; 

Weedin, v. Hempel, 28 F.2d 603 (C.A. 9, 1928) ; United States en rel. 

Palermo v. Smith, 17 F.2d 534 (C.A. 2, 1927). By analogy, we feel 

that we must take foreign convictions (military or otherwise) as 

we find them. It would be unfortunate (and the problems unlimited), if we were to draw comparisons between United States legal 

procedures and those of other countries operating under quite different legal systems. 

Hence, the cited case no longer represents the prevailing view and 

counsel's contention must be overruled. 

Counsel suggested below that exclusion, rather than deportation, 

is the proper forum for a determination of respondent's right to 

remain in this country. However, since respondent was actually 

admitted to the United States in 1950, although in a temporary 

status, the present deportation proceeding is entirely appropriate. 

Consequently, the request for termination of the proceedings must 

be overruled and the appeal dismissed. 

Order: It is hereby directed that the appeal be dismissed. 

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