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 (temporary 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 appealed 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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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 defendant 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 unconstitutional as "void for vagueness" (People v. Leiva, 285 P.2d 46). 

They have also pointed out that the pronouncing of sentence thereunder is a judicial act; that the punishment which the sentence pronounces 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 indeterminate 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 imprisonment 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 subsequently 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 provided for imprisonment not to exceed five years, or by fine not to exceed $1,000, or by both; with no minimum apparently being set therein. 

Another (Matter of B—,1 I. & N. Dec. 540) concerned an alien con673 

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

fixing the terms of imprisonment for female convicts, within the foregoing 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 sentence 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 fixing of the actual term of imprisonmnet by the duly designated administrative 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 nonjudicial 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 circumstances herein before outlined the respondent is not presently eligible for any form of discretionary relief. ' Her deportation, therefore, 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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