before two witnesses in a ceremony performed by a priest at St. Teresa's Church, Kowloon, Hong Kong. A marriage certificate issued by the church is contained in the record. The petitioner has stated that no marriage license was obtained for that marriage, and that the marriage was not registered with the civil authorities in Hong Kong. The district director held that the failure to obtain a marriage license resulted in a void marriage under section 28 of the Hong Kong Marriage Ordinance, Chapter 181 of the Laws of Hong Kong, Revised Edition, 1950. Upon appeal, we held that the beneficiary had acquired the status of "principal wife" under Chinese law and custom in Hong Kong by virtue of the death of the petitioner's original wife and the divorce obtained by his first concubine. We also held that the Hong Kong Marriage Ordinance was inapplicable because of the exception for marriages in accordance with Chinese law and custom. We found it unnecessary to pass on the validity of the 1956 church marriage because of our conclusion that the parties were already married under Chinese law and custom. The Service has requested that we reconsider our conclusions regarding Chinese law and custom in Hong Kong. However, recent developments in the law of Hong Kong have mooted the issue raised by the Service in this motion. Since the time of our original decision in this case, the Hong Kong Government has enacted the Hong Kong Marriage Reform Ordinance, Chapter 178 of the Laws of Hong Kong, Revised Edition, 1971. Section 8 of the Marriage Reform Ordinance states: Subject to section 14,1 every marriage celebrated in Hong Kong before the appointed day [October 7, 1971] as a modern marriage by a man and a woman each of whom, at the time of the marriage, was not less than sixteen years of age and was not married to any other person shall be a valid marriage, and shall be deemed to have been valid since the time of celebration, notwithstanding— (a) that the proper personal law and religion of the parties, or one of them, was Chinese law and custom, and the marriage was prohibited by or failed to comply with the requirements of Chinese law and custom; or (b) that the marriage was not under and in accordance with the Marriage Ordinance. (Emphasis supplied.) Section 2 of the Marriage Reform Ordinance defines the term "modern marriage" as "a marriage celebrated in Hong Kong before the appointed day [October 7, 1971] by open ceremony as a modern marriage and in the presence of two or more witnesses." Section 2 also defines a "validated marriage" as "a modern marriage made valid by section 8." The petitioner's 1956 marriage to the beneficiary was celebrated by an open ceremony before two witnesses prior to the "appointed day." Both parties were free to marry and were over the minimum age for marriage. 1 Section 14 deals with dissolution of marriages. The petitioner's 1956 marriage to the beneficiary qualifies as a "validated marriage," made valid by section 8 of the Hong Kong Marriage Reform Ordinance. Consequently, the issue as to whether the petitioner and the beneficiary had a valid marriage under Chinese law and custom in Hong Kong prior to 1956 has become moot in the context of this case. The issue of the effect on the 1956 marriage of the failure to comply with the prior Marriage Ordinance has also become moot. Regardless of the correctness of our discussion of Hong Kong law in our earlier decision, our order sustaining the appeal from the district director's denial, and our order approving the visa petition are clearly proper at this point in time. Consequently, the Service motion for reconsideration will be denied. ORDER: The Service motion is denied, and our order staying the execution of our November 21, 1969 order is vacated; however, our November 21, 1969 order is corrected by the deletion of the words "for immediate relative status." Louis P. Maniatis, Board Member, dissents, without opinion. Irving A. Appleman, Board Member, abstained from consideration of this case. MATTER OF PATEL In Deportation Proceedings A-20316944 Decided by Board March 20, 1975 An alien seeking voluntary departure under section 244(e) of the Immigration and Nationality Act must establish that he has been a person of good moral character as defined in section 101(f)(3) of the Act, for at least five years prior to the application for voluntary departure. Conviction of a crime involving moral turpitude as contemplated in section 212(a)(9) of the Act within the statutory period precludes a finding of good moral character unless the conviction was for a petty offense as measured by the sentence imposed. Where respondent was convicted of the crime of receiving stolen property and sentenced to imprisonment in the state prison, the offense is a felony involving moral turpitude and the respondent is not eligible for voluntary departure, notwithstanding the sentence was suspended and respondent was placed on probation. CHARGE: Order: Act of 1952-Section 241(a)(2) [8 U.S.C. 1251(a)(2)-Nonimmigrant-remained longer. ON BEHALF OF RESPONDENT: Milton T. Simmons, Esquire 517 Washington Street This is an appeal from an order of an immigration judge finding the respondent deportable and denying his application for voluntary depature. The appeal will be dismissed. The record relates to a single male alien, 26 years of age, a native and citizen of India, who entered the United States on September 5, 1970 as a nonimmigrant student. The respondent was authorized to remain until September 4, 1973. He has remained thereafter without authority. Deportability is conceded. We find that deportability has been established by clear, convincing and unequivocal evidence. The respondent seeks the relief of voluntary departure, pursuant to section 244(e) of the Immigration and Nationality Act. That section. requires a finding that the person has been a good moral character for at least five years immediately preceding his application for voluntary departure. The Act, in its definition section, provides that: "No person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be established, is, or was ... (3) a member of one or more of the classes of persons, whether excludable or not, described in paragraphs . . . (9) . . . of section 212(a), if the offense described therein, for which such person was convicted . . . was committed during such period...” section 101(f). Section 212(a)(9) describes aliens who have been convicted of a crime involving moral turpitude, with an exception for “. . . [a]ny alien who would be excludable because of the conviction of a misdemeanor classifiable as a petty offense under the provisions of section 1(3) of title 18, United States Code, by reason of the punishment actually imposed, . . . ." The respondent was convicted in the California Superior Court for the City and County of San Francisco of the crime of receiving stolen property (two counts) in violation of section 496. 1 of the California Penal Code. The offense occurred during August or September of 1973. The crime of receiving stolen property involves moral turpitude, if knowledge that the goods were stolen is an element of the offense, Matter of R—, 6 I. & N. Dec. 772 (BIA 1955); Matter of Z—, 7 I. & N. Dec. 253 (BIA 1956). The California statute involved here requires knowledge that the goods were stolen; therefore, it involves moral turpitude. The respondent contends that by reason of the punishment actually imposed, his conviction is within the exception of section 212(a)(9) above. California has a system whereby alternative punishment is provided for many offenses. Determination of whether such an offense is a felony or a misdemeanor depends upon the punishment imposed. “(a) A felony is a crime which is punishable with death or by imprisonment in the state prison.... (b) When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances: (1) After a judgment imposing a punishment other than imprisonment in the state prison." Section 17 of the California Penal Code. The offense of which the respondent was convicted provides for alternative sentences of imprisonment either in the state prison or in the county jail, California Penal Code, section 296.1. The respondent contends that although he was sentenced to imprisonment in the state prison, the judge suspended that sentence and imposed another punishment, making the offense a misdemeanor, pursuant to section 17(b)(1) above. The order of the judge sentencing the respondent reads as follows: "It is therefore ordered, adjudged and decreed that he be punished by imprisonment in the State Prison for the term provided by law. It is further ordered that execution of said sentence be suspended and: It is ordered that he be placed on Probation for a period of THREE (3) YEARS AND, as a condition of Probation, that he be confinefin the County Jail of the City and County of San Francisco, State of California, for the term of SIX MONTHS. . . ." Counsel's contention that the punishment is distinguishable from the sentence is without merit. "As to a crime which may be either a misdemeanor or a felony, depending upon the punishment imposed therefor (Penal Code, §17), it is the punishment specified by the sentence which determines the character of the crime for all purposes' (§17) . . . . People v. Hamilton, 33 Cal.2d 45, 198 P.2d 873 (1948). Suspending the execution of the sentence and granting probation do not nullify the fact that the punishment actually imposed by the sentence was imprisonment in the state prison. "It is also clear that when a crime is punishable by imprisonment in the state prison, or in the discretion of the court by imprisonment in the county jail, the actual punishment ordered is the test. . . . Thus no problem is presented when sentence is actually imposed, even though the defendant is granted probation." Meyer v. Superior Court, In and For County of Sacramento, 55 Cal. Rptr. 350, 247 C.A.2d 133 (Ct. of App., 5th Dist. 1966). (Emphasis supplied.) Granting probation to a person sentenced to imprisonment in the state prison does not affect that person's legal status as a person who has been convicted of a felony, People v. Brasley, 115 Cal. Rptr. 910, 912, 41 Cal. App. 3d 311 (Ct. of App. 1st Dist., Div. 1, 1974). By granting probation and withholding commitment the court retains jurisdiction over the defendant under the probation procedures, People v. Brasley, supra. California law permits imprisonment in the county jail as a condition of probation, section 1203.1, California Penal Code. The provision in the judge's order requiring the respondent to spend six months in the county jail was a condition of probation, and not the punishment actually imposed. Accordingly, we agree with the immigration judge's decision to deny voluntary departure. The respondent is statutorily ineligible for it under section 101(f)(3), as a person excludable under section 212(a)(9). We reject the contention that the respondent was convicted of a misdemeanor. He was sentenced to the state prison. Under California law, a sentence to the state prison operates to classify an offense as a felony. Accordingly, the respondent has not established that he has been a person of good moral character during the five years which precede his application for voluntary departure. ORDER: The appeal is dismissed. |