Interim Decision #1332 

MATTER OF ORNHAIIIFER 

In DEPORTATION Proceedings 

A-13669381 

Decided by Board Apra 20,1964 

Since an indeterminate sentence is a sentence for the maximum term, respondent's indeterminate sentence to imprisonment in the California Institution for Women for an offense punishable under applicable California statute 

by imprisonment from 6 months to 14 years, is a sentence to confinement for 

a year or more within the meaning of section 241(a) (4), Immigration and 

Nationality Act.. 

CHARGES : 

Order : Act of 1952—Section 241(a) (4) [8 U.S.C. 1251(a) (4))—Convicted of 

crime involving moral turpitude, committed within 5 years after 

entry, and sentenced to confinement for a year or more, to wit: Usu. 

ing check without sufficient funds (1908). 

Lodged: Act of 1952—Section 241(a) (2) (8 1251(a) (2))--Nonimrai. 

grant (temporary visitor for pleasure)—Remained longer. 

The special inquiry officer, in a decision dated December 10, 1963, 

directed that the respondent be deported to Canada, alternatively to 

England, on the lodged charge only. The trial attorney 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 female alien, a native of England and subject of Great Britain, who has been admitted to Canada as a "landed 

immigrant." She last entered the United States from Canada on or 

about November 15, 1962. She was then admitted as a nonimmigrant 

temporary visitor for pleasure, for a period not to exceed six months. 

She has remained. here since May 15, 1963, without authority. 

The foregoing establishes respondent's deportability on the charge 

lodged at the hearing. This has been conceded and is unchallenged 

here. The point needs no further discussion. 

Deportability on the charge contained in the order to show cause 

is predicated on respondent's September 16, 1903, conviction, in the 

Superior Court of California for the County of San Diego, on her 

plea of guilty, of the crime of "issuing check without sufficient funds," 

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in violation of section 476a, of the California Penal Code. In substance, said section makes it a crime to willfully issue cheeks without 

sufficient funds, with intent to defraud. 

The foregoing crime involves moral turpitude because one of its 

essential elements is intent to defraud (People v. Pitts,196 CA 2d 841; 

Jordan v. DeGeorge, 341 U.S. 223; Park& v. Day, 16 F. 2c1 38). It 

was committed in 1963, which is within 5 years of respondent's last 

entry in 1962. She has been confined since her conviction, but the 

period thereof does not yet amount to one year. 

Accordingly, the only issue before us is whether respondent's 

sentence "to imprisonment in the California, Institution for Women 

for the term prescribed by kw" (emphasis supplied) is a commitment 

"for a, year or more." This judgment was in conformity 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, a new trial granted, or the imposing of sentence suspended, 

be sentenced to detention at the California Institution for Women, but the court 

in imposing the sentence shall 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 

de,fendant is committed, and nothing more (People v 22" ondosa, 1'78 C. 

509, 1'73 P. 998). However, the failure of the judgment here to have 

included the phrase "for the term prescribed by law" would not have 

rendered the order of commitment invalid (People v. Y melons, 96 CA 

2d 562,215 P. 2d 745). 

The limits of "the term prescribed by law" as applied to this case 

are determined by sections 476a and 18b of the California Penal Code. 

The former, which makes it a crime to issue checks without sufficient 

funds, provides for imprisonment in the county jail for not more than 

1 year, or in the state prison for not more than 14 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 6 

months (see /are Humphrey, 64 CA 572,222 P.366) . 

The crux of this case, therefore, is whether, under California law, 

the minimum or maximum limit of an "indeterminate sentence" of 

from 6 months to 14 years is determinative. On the strength 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 such as the one we are confronted with here is in legal 

effect a sentence for the maximum term (People v. Donbley, 68 P. 2d 

354). In so doing, they have pointed out that the statutes dealing 

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with the Indeterminate Sentence Law do not infringe the right to due 

process of law because a judgment pursuant thereto is in legal effect 

a sentence for the maximum term and is, therefore, c4rtain and definite 

(In re Bandonann, 51 C. 2d 388, 333 P. 2d 339) rather than being 

unconstitutional as "void for vagueness" (People v. Lava, 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 any given crime shall bear (In re Larsen, 

283 P. 2d 1043). 

The foregoing is consistent with Federal court rulings (see U.S. ew. 

rel. Paladin v. Commissioner, 43 F. 2c1 821) to the effect that indeterminate sentences have long been held to be sentences for the maximum terms for which the defendant might be imprisoned. In so 

ruling, those courts have pointed out that this is the construction not 

only placed upon sentences where a maximum and a minimum period 

of imprisonment appears in the sentence, but also upon sentences where 

no term is mentioned and the statute sets the maximum. They have 

further pointed out that such sentences would afford 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. Finally, they have pointed out as their 

reason the fact that in all such cases the defendant can be brought 

back and required to serve the remainder (maximum) of the 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—,11. & 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"; and the statute 

provided for imprisonment not to exceed 5 years, or by fine not to 

exceed $1,000, or by both—and apparently with no minimum being set. 

Another (Matter of R—, 1 I. & N. Dec. 540) concerned an alien convicted, inter die, 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 the term of imprisonment not to exceed 3 years. 

The same reason has been cited in upholding the deportation, under the 

present law, of an alien given an indeterminate sentence (Colorado) of up to 

10 years, but who only served 7 months and 5 days—Petsche v. Clkwan, 273 F. 2d 

688. 

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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 ease here. 

Support for our conclusion in this case, if such is necessary, is found 

in the procedural provisions of the California Penal Code controlling 

the sentencing of female offenders, and the judicial decisions clarifying 

them. Thus, section 3325 of the California Penal Code imposes the 

duty of fixing the terms of imprisonment for female convicts, within 

the foregoing minimum and maximum limits, on 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 California Penal Code, that board determines and 

redetermines, after the expiration of 6 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 considered (In re 

Quiff" 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, ie.—increased (in re Costello, 262 F. 2d 214). Also, the 

subsequent fixing of the actual term of imprisonment by the duly 

designated administrative officials is merely a limitation of the term 

and not a setting thereof (In re Daniels,106 CA 43, 288 P. 1109) , otherwise the statute would be unconstitutional as conferring judicial 

powers on a nonjudicial body (see People v. I I ostal, 159 CA. 2d 444, 323 

P. 2d 1020). 

Respondent's only contention throughout, has been that she should 

not be deported because her crime was not serious. The answer to 

this argument, however, is that if the judge had not found her crime 

serious he had the alternative under the statute of placing her on 

probation instead of sentencing her to confinement, which would have 

been an act of clemency rather than punishment (see 18 Stan. LR 252 

and 340), but he did not so exercise his discretion. In any event, this 

Board is bound by the record of the respondent's conviction, as hereinbefore discussed. 

Finally, under the foregoing circumstances the respondent just is not 

eligible for discretionary relief in any form. Deportation, therefore, 

is required. 

ORDER! It is ordered that the Service appeal be and the same is 

hereby sustained. 

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It is ivirth,er ordered that the alien be deported from the United 

States to Canada, alternatively to England, on the charge stated in the 

order to show cause as well as on the charge lodged at the hearing. 

505