### Interim Decision *1543

MaTTER or QUADAnk: In Deportation Proceedings • , A-11593423
• Decided by Board January 11, 1966

(1) conviction of assault, second degree, with intent to commit the crime of robbery is conviction of a crime involving moral turpitude. (2) Where an alien, following conviction in New York of a crime involving moral turpitude committed within 5 years after entry, was sentenced to notless than one year nor more than two years in the State pilson, a final judgknent of conviction exists on which to predicate a ground of deportation under section 241(a) (4), Immigration and•Nationality Act, notwithstanding execution of sentence was suspended and be was placed on probation on condition of restitution.
Ozzazot: Order:. Act of 1952—Section 241(a) (4) i8 U.S.C. 1251(a) (4)1—Convicted

of a crime involving 'Moral turpitude committed within five years of entry and sentenced to a .year or more, to wit, assault, second degree.

The case comes forward on appeal from the order- of the special inquiry officer dated June 14, 1965 finding the respondent deportable on the charge stated in the order to show cause and ordering that he be deported to Italy. The record relates to a native and citizen of Italy, 21 years old, male, who last entered the United States at the port of New York on April 29, 1959. He was admitted for permanent residence as a nonquota immigrant, the. unmarried minor son of a citizen of the United. States. The respondent's mother was a native-born citizen of the United States by birth on March 27, 1915 in this country. She left the United States at. the age of.eeven and did not return to this country until 1958; again left in 1959 and returned to the United States in April 1964. She is presently a resident of this United States. The respondent's father was born in Italy and is not a United States citizen. He came to the United States on April 29, 1959, stayed for

457Interim Decision #1543

only four or five months and returned to Italy. The respondent testified that his parents were married but he does not know the date. It is concluded that the respondent did not acquire UnitedStates citizenship at birth because his mother did not have the requisite residence in the United States prior to such birth as set forth in section 301(a) (7) of the Immigration and Nationality Act or by virtue of any prior statute. On April 30, 1964 the respondent was charged with committing a .crime on April 17, 1984, which was a period within five years of his last entry. He was indicted on seven counts and during his trial on November 30, 1964 he pleaded -guilty to the crime of assault sec

and degree under count three of the indictment. The third count of the indictment alleged that the respondent was guilty of the crime of assault in the second degree committed as follows:

The said defendant, in the County of Now Tot44'on or about odd Aladi 17, 1964 with intent to commit the crime or robbery, alionited said Merino Tones. Inasmuch as the intent to commit robbery wilhtwhich the crime was committed obviously involves moral turpitude, the conviction of assault in the second degree with intent to commit robbery likewise involves moral turpitude. The respondent was sentenced to not leathan one year and not more than two years in the State Prison, execution of the sentence was suspended and the respondent was placed on probation on condition of restitution of $2000 at a rate of $50 per month to be .paid to the probation department. At oral argument counsel filed a brief arguing that the respondent is not deportable on the basis of the suspended sentence, setting out portions of theNew York Code of Criminal Procedure. 'Although this belated service of brief was contrary to regulations, we shall dispose of the issue
raised. Counsel contends that the sentence to a. term,of not less than one year and no more than two years, execution of sentence suspended, probation, does not constitute a ground of deportation under the first clause of section 241(a) (4) of the Immigration and Nationality Act which provides for deportation of an alien who is convicted of a crime involving moral turpitude committed within five years after entry and sentenced to confinement or confined therefor in a prisonor corrective institution for a year or more. In support of this contention he relies principally upon sections 470-a and 483 of the New York Code of Criminal Procedure which allegedly has the net effect that no definite period of confinement has resulted Counsel also relies upon the case of Holzapfel v:TVyrach, 259 F.2d 890 (3rd Cir., 1958). This case involved an -alien who was convicted of the offense of open lewdness and pursu

- ant to the New Jersey Sex

458Interim Decision #154
Offenders Act was committed to a diagnostic center for a -complete :physical and mental examination. -,The county Court, 

### after consid- eration the report and, reCommenclation of the diagnostic. 

### center, ordered:and adjudged that the Alien be confined in the, New Jersey, , 

### State Reformatory,, sentence he suspended, and defeidant placed in, the custody of the,Probatjun Officer for a period of three years, oneof the conditions of-probation being that:the defendant takes psychiatric treatment. > The,, court; commented ;egaxding the New Jersey Sex Offenders Act, that it appears clear that this Act is directed primarily .at rehabilitation and cure of persons 'found to :require med- • teal treatment; its penal asp9cts are decidedly secondary. The appellee had to be given a suspended sentence in order for the court to be able to enforce its probationary order that he undergo psychiatric treatment. Although the sentence was penal in form, in substance it merely•provided for a series of psychiatric treatments. The coercive 

### effect of the suspended sentence was intended to insure the participation of the

- appellee in the out-patient medical care. The penal element in this legislation was so unquestionably secondary that thehumanitarian:nature of the Act should not be subverted by any formalistic interpretation of its provisions. The court concluded that the suspended sentence was merely a technical means of enforcingthe prbb4tion order and therefore was-not within the purview of section 241(a)(4) of the Immignition and Nationality Act of 1952 authoriiing depoitition. The facts of the Holzapfel case are clearly inapposite-to the present case. The sections referred to by counsel in the New York Code of Criminal Procedure: Were' considered in People Weinberger, 251 N.Y.S.2d 790 A.D.; 1964). • The court there stated that the term "convicted" or "conviction" is of equivocal meaning. It may mean verdict. The use of the term may vary with the particular statute involved and' ita .mewning presents a question of legislativeintent. The court then pointed out that in civil matters, under certain laws, a plea or verdict of guilty followed by 'suspension of sentence 

### is a conviction while under other laws, it is not. It stated however that in criminal cases the sentence is the judgment, and there can be no judgment until sentence has been imposed. Thus, a plea of guilty 

### followed by. suspension of sentence is not a conviction for fourth' offender purposes under section 1942 of the Pehal Law. Although Su.tension of sentence is not a rendition of judgment, section 

### 4704) of the Code of Criminal Procedure specifically provides that a Plea or :verdict of guilty and suspension of sentence or suspension of

execution of the whole or a part of the judgment shall be regarded

459Interim Decision #1548
as a conviction for second offender purposes. The court concluded 

### that it viewed this section as a clear expression of legislative intent that "a plea of guilty, standing alone and not followed by suspension of sentence or by imposition of sentence and suspension of its execution does not constitute a conviction within the meaning of section 1941 of the Penal Law as applied. to a second offender." By clear implication, 

### a plea of guilty, followed by suspension of sentence orby imposition of sentence.and suspension of its execution, does constitute a 

### conviction. 1

- 

### • The 1952 Immigration and. Nationality Act made a change in
prior language and- under section 241(a) (4) made subject to deportation an alien who was convicted of a. crime involving moralturpitude committed within five years after entry and either sentenced to 

### confinemen't or 

### confined therefoi in a prison for a year or more. This change eliminated the necessity for actual confinement or imprisonment and made sentences to a, year or more which were suspended a ground, for deportation. 2We conclude that the record
of conviction and sentence to two years suspended„ constitutes afinal judgment of conviction and sentence and establishes deportability.Counsel alternitively requests that the case be remanded for consideration of an application for adjustinent of status inasmuch as it is now alleged that the respondent has since June 27, .1965 been married to a lawful permanent resident of the United States who is now pregnant and a visa petition submitted by the wife on his
behalf was approved on

- September 20, 1965. However adjustment of status pursuant to section'245 is a matter of discretion. 

### In view

1See also People ez rei Troiani v. Pap, 201 N.Y.S. 2d 394 (8.0t., Al). 19014 cert. den. 368 .U.S. 1003, where it was held that for certain purposes, a sus-. waded sentence is not valid or the equivalent of a judgment of conviction for other purposes, the imposition of a suspended sentence is valid and the .equivalent of a judgment of conviction (see, e.g., Penal Law, •Sec. 2188; Code Crim. Proc., Secs. 700, 470:a, 470-b). • Matter of M—, 6 1. & N. Dec. 346; Burr v. Immigration and Naturalization Service, 350 F.2d 87 (9th Cir. 1965) ; reaffirming Burr v. Edgar, 292 FM 593 (9th,Cir. 19ti1); Kelly v. Immigration and Naturalization Service, 349 F24 473 (9th Olt, 1965) ; Arreliano-Flores v. 

### isto, 262 P.24 637 (9th Cir., 1958), cert. den..382 U.S. 921; Garcia-Gonzalest v. Immigration and NaturaSzalion Service, 244 P.24 804 (9th On, 1985), eert. den. 34 14.3d. 319; Gutierrez v. • Immigration and Naturalization Service, 323 Fad 593 (902 Cir. 1903), cert. den. 12 (L.Ed. 179; Zabanazad v. Rosenberg, 306 F.26 861 (9th Cir., 1962); Adams v.

-United States, 299 F.2d 327 (9th Cir., 1962) ; Wood v. Hem 266 F. 2d 825 (9th Cir., 1959) ; United States ex rei Pella v. Garfinkel, 158 F. Sapp. 524 (W.D. Pa., 1937), air& 251 P.25 846 (8rd ay., 1958).

460Interim Decision #1543
of the recency of the respondent's conviction and inasmuch as it appears that the respondent is still on probation and is still making restitution under the terms of the court order, it does not appear that discretionary relief is warranted. The appeal will be dismissed. ORDER: It is ordered that

- the appeal be and the same is hereby 

### „civatiea.

•••

461