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Order: It is ordered that the petition of B- H—— for issuance of immigration visas to his wife and child be denied.

BEFORE THE BOARD

(March 12, 1952)

Upon consideration of the entire record, it is ordered that the appeal from the decision of the Commissioner be and the same is hereby dismissed.

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IN THE MATTER OF S

In DEPORTATION Proceedings

A-5733329

Decided by Central Office November 9, 1951

"Sentenced to imprisonment"-Confinement to New York State Vocational Institution-Section 19, Immigration Act of February 5, 1917.

Confinement of subject to the New York State Vocational Institution at West Coxsackie, N. Y., by order of the court convicting him for petit larceny committed when over 16 but less than 18 years of age, was not a "sentence to imprisonment" within the meaning of the immigration laws, the confinement therein being considered "corrective" rather than "penal." (See 4, I. & N. Dec. 136.)

CHARGES:

Warrant: Act of 1917-Sentenced more than once for crimes, to wit: Petit larceny and theft in violation of the 93d Article of War.

Lodged: Act of 1917-Crime within five years, to wit: Petit larceny.

BEFORE THE CENTRAL OFFICE

Discussion: The record related to a 29-year-old married male, native of Scotland and citizen of Great Britain, whose last entry into the United States within the meaning of the immigration laws occurred at Buffalo, N. Y., during June or July 1938.

The record discloses that respondent was arraigned in the city court at Buffalo, N. Y., on September 28, 1938, charged with the crime of grand larceny, second degree, committed on September 26, 1938, that he pleaded guilty to the offense of petit larceny and was sentenced to Coxsackie (New York State Vocational Institution, West Coxsackie, N. Y.). This offense forms the basis of the lodged charge and also is one of the crimes which form the basis of the charge stated in the warrant of arrest. To establish respondent's deportability on either one of the charges, it must be shown that he was sentenced to imprisonment for this offense for a term of a year or more. The question presented in this case is, therefore, whether the sentence to Coxsackie was a sentence to imprisonment within the meaning of the immigration laws.

At the time the offense was committed by respondent he was 16 years and 10 months of age. The offense of petit larceny in the State of New York is a misdemeanor. New York penal law, section 1299. Under the provisions of the New York penal law, the offense was punishable by imprisonment in a penitentiary, or county jail, for not more than 1 year, or by a fine of not more than $500, or by both. New York penal law, section 1937. However, under the provisions of section 2184-a of the New York penal law, in view of respondent's age, the trial court could direct him to be confined in the New York State Vocational Institution and he was so ordered confined. It has been held that confinement in a reformatory is a sentence to imprisonment within the meaning of the Immigration Act, unless the local statutes under which such confinement was ordered indicate that the primary purpose of such confinement was corrective rather than penal. Matter of CR, A-7828860, C. O. 1950, 4, I. & N. Dec. 136.

Prior to the enactment of legislation creating the State Vocational Institution, section 2184 of the penal law provided in part as follows:

Where a male person of the age of 16 years and under the age of 18 years has been adjudicated to be a juvenile delinquent, or found to be a disorderly person or a wayward minor or a vagrant or found guilty of any offense other than a misdemeanor or a felony, or convicted of a crime not punishable by death or life imprisonment, the trial court may, instead of sentencing him to imprisonment in a state prison or in a penitentiary, direct him to be confined in a house of refuge established by the managers of the society for the reformation of juvenile delinquents in the city of New York; under the provisions of the statute relating thereto.

The vocational institution at West Coxsackie is a State institution created to take over the activities of the house of refuge which was local in character and is the successor body in law to the house of refuge. Article 13-A of the Correction Law of New York (L. 1932, Ch. 582) provided in part as follows:

SEC. 331. New York State Vocation Institution created. There shall be in the department of correction a state reformatory institution for the care, supervision, and training of persons legally committed thereto, to be known as the New York State Vocational Institution.

SEC. 332. Transfer of New York house of refuge to jurisdiction of State department of correction:

1. Until the acquisition of a site therefor and until the buildings of the New York State Vocational Institution are completed and ready for occupancy, the New York house of refuge at Randall's Island, established by the managers of the society for the reformation of juvenile delinquents in the city of New York, shall be deemed to be an institution under the jurisdiction of the state department of correction and shall be used for the care, treatment, training, and education of male persons 16 years of age or over, but less than 19 years of age, who have been adjudicated to be juvenile delinquents, or found to be a disorderly person, or a wayward minor, or a vagrant, or found guilty of any other offense, or of a misdemeanor, or a felony, except crimes punishable by death or life imprisonment. With respect to all appropriations now made for personal serv

ice for the New York house of refuge in force when this act takes effect, said appropriations shall be considered a lump sum appropriation for personal service and the commissioner of correction is given power by this act to make such redistribution in positions and fix salaries as he may deem advisable.

2. When the commissioner of correction shall certify to the board of managers of the society for the reformation of juvenile delinquents in the city of New York that the New York State vocational institution is ready to receive delinquents, deliquents confined in the said house of refuge shall be transferred to the New York State vocational institution, which shall be the successor body in law to the New York house of refuge, and shall thereafter be confined in such institution and shall serve the unexpired balance of their respective terms in accordance with the provisions of this article in the same manner as if such person had been originally committed to such institution.

Former section 2184 of the New York penal law was amended by L. 1932, chapter 414 by eliminating all reference to the house of refuge and adding section 2184-a which provides as follows:

Where a male person, 16 years of age or over, but less than 19 years of age, has been adjudicated to be a juvenile delinquent, or found to be a disorderly person, or a wayward minor, or a vagrant, or found guilty of any offense or of a misdemeanor, or of a felony, except crimes punishable by death or life imprisonment, the trial court may, instead of sentencing him to imprisonment in a State prison or in a penitentiary, direct him to be confined in the New York house of refuge established by the society for the reformation of juvenile delinquents in the city of New York, or its successor body in law, the New York State vocational institution, under the provisions of the statutes relating thereto.

The term of any person so convicted and sentenced for a felony shall not exceed the maximum term, provided by law for the crime for which the person so convicted and sentenced and in the case of any person convicted and sentenced for any other offense or for a misdemeanor, the term of imprisonment shall be for a period not exceeding 3 years.

In connection with the conviction on May 27, 1930, of a 17-year-old male at Rochester, N. Y., the circuit court of appeals held that a sentence to the New York house of refuge on Randall's Island was not a sentence to imprisonment within the meaning of section 19 of the Immigration Act of 1917, since the prime object of that institution was reformation rather than punishment, (U. S. ex rel. Cerami v. Uhl, 78 F. (2d) 698 (C. C. A. 2, 1935)). Section 331 of the correction law previously quoted designates the New York State Vocational Institution as one for the "care, treatment, training, and education" of male persons between 16 and 19 years of age. The reasoning of the court in the cited case of Cerami v. Uhl would appear to be equally applicable to the successor body to the house of refuge. It should also be noted that section 2184-a of the New York penal code in referring to the sentencing to the New York State Vocational Institution contains language to the effect that "the trial court may, instead of sentencing him to imprisonment in a State prison or penitentiary, direct him to be confined." [Italics supplied.] In other words the provisions of section 2184-a, in referring to a sentence to the New York State Voca

tional Institution refers to a confinement rather than to a sentence to imprisonment. It should also be noted that, although respondent was not tried as a juvenile delinquent, the court under the New York penal code could have sentenced him to the penitentiary or county jail. However, the court deemed it advisable that he be sent to the New York State Vocational Institution. In view of the foregoing, it is concluded that the local statutes under which respondent's confinement was ordered indicated that the primary purpose of such confinement was corrective rather than penal. Consequently respondent was not sentenced to imprisonment within the meaning of the immigration laws, in respect to the offense of petit larceny committed by him.

It is therefore concluded that neither the charge stated in the warrant of arrest nor the lodged charge can be sustained. Since from the record, it does not appear that respondent is deportable on any charge, the proceedings will be terminated.

Order: It is ordered that the proceedings be terminated.

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