Due notice of the diversion of the flight was given the Service. Immediately upon the plane's landing, all the crewmembers and passengers were escorted to the area of the airport administration building designated and set aside for Government inspection, Public Health, Immigration and Customs. The captain of the aircraft remained with the members of his crew and the passengers continuously during the inspection period in order to insure that all persons subject to inspection were in fact inspected. The record indicates that the subject alien received Public Health and Customs inspection and clearance. Also, according to the record, once the subject had received Public Health inspection and clearance he could not have received Customs inspection and clearance without having passed through the Immigration inspection area where three officers were on duty. In this connection, section 235 (a) of the Immigration and Nationality Act imposes a duty on the Service to conduct the inspection of an alien applicant for admission presented for inspection, as this alien was, according to the record. The record is clear that the alien did not intentionally and deliberately evade inspection. In this connection, counsel asserts that the passenger was probably overlooked because of his short stature and the height of the counter in the inspection area from behind which the officers apparently conducted their inspection.

The carrier chartered buses to carry the passengers from Philadelphia to New York, the flight's scheduled termination point. Following inspection by the three Government services mentioned above, the captain assigned a member of his crew to board each bus to escort the passengers to New York. In order to assure that all Government requirements concerning Immigration and Customs inspection has been complied with fully, the captain personally inquired of the Immigration and Customs officials then on duty and in charge whether all passengers and crewmembers had been duly inspected and cleared for entry into the United States. These officials answered the captain's question in the affirmative and on the basis of such assurances, and not until their receipt, the captain permitted the chartered buses to leave the Philadelphia airport for the trip to New York. The subject alien was among the passengers who boarded one of the buses at Philadelphia, and he continued to New York on the bus in the custody of the carrier's stewardess. In other words, the carrier did not permit the subject to leave the Philadelphia airport until the Service had assured it that his inspection had been made. As we see it, such assurance should have been given by the Service only after the manifest and immigration documents had been checked off against one another. However, according to the record, such a check was not made until after the buses had departed from the Philadelphia airport.

When the fact that the subject alien had not been inspected was discovered, the matter was brought to the attention of the carrier. Through its excellent cooperation, the subject alien's inspection was completed immediately upon his arrival at New York. At all times until said inspection was completed and the alien admitted to the United States, he was in the custody of the carrier.

The foregoing facts are established by the affidavits of the alien passenger involved and five of the carrier's employees, together with a floor plan of the airport facilities set aside for the Government inspection by the Public Health, Immigration and Customs services. None of the facts stated above are denied or controverted in the decision of the district director, except that said official has apparently discounted the carrier's contention that it was impossible for the passenger to enter the Customs inspection area without passing through the Immigration inspection area.

On the basis of the foregoing, we find that a violation of section 271 of the Immigration and Nationality Act has not been established in these premises. The reasons are that the alien entered the inspection area; the Service first reported to the carrier's representative that all passengers had been inspected; and the carrier has met the burden of showing compliance with the statute. Therefore, we conclude that the appeal must be sustained and no fine imposed. We will now so order.

Order: It is ordered that the appeal be and the same is hereby sustained and that fine be not imposed.

MATTER OF T

In EXCLUSION Proceedings

A-10268939

Decided by Board September 21, 1956

Petty offense-Conviction in Italy of aggravated theft-Punishment not "actually imposed" when court on same date as sentencing grants pardon of oneyear prison sentence.

Punishment has not been "actually imposed" within the meaning of section 4, P.L. 770, when the Italian Court which convicted applicant of aggravated theft of property (valued at less than $50) has on the date of imposing sentence granted applicant a "pardon" of a one-year prison term and fine.

APPLICATION: Admission for permanent residence.

BEFORE THE BOARD

Discussion: The special inquiry officer upon conclusion of a hearing conducted at New York, New York, on June 15, 1956, for the purpose of determining the appellant's admissibility to the United States under the Immigration and Nationality Act, found that the appellant was not inadmissible thereto under any of the paragraphs of section 212 (a) of the Immigration and Nationality Act (8 U.S.C. 1182(a)) and as a consequence thereof he entered an order directing that the alien be admitted to the United States for permanent residence. The District Director of Immigration and Naturalization at New York, on June 22, 1956, noted an appeal from the aforementioned decision of the special inquiry officer. He specifically excepted to the conclusions of law rendered by the special inquiry officer in his decision of June 15, 1956.

The appellant, a 62-year-old male, native and citizen of Italy, arrived in the United States at New York, New York, on June 9, 1956, at which time he had in his possession and presented for inspection preference quota immigrant visa No. 2920, issued in his name by the United States Vice Consul at Naples, Italy, on May 2, 1956. At the time of his arrival in the United States, the appellant was destined to a son living in New York, New York. The record reflects that the appellant was convicted on October 6, 1943, in Italy of the crime of aggravated theft of 2500 pounds of lumber in violation of article 624-625, paragraph 7, of the Penal Code of Italy.

Thereafter, he was convicted on March 21, 1946, and sentenced to imprisonment for one year and to pay a fine of 3000 lire. On the same date, the Tribunal of S. Maria C.V. declared the appellant pardoned entirely in accordance with article 5, Royal Decree of April 5, 1944, No. 96 of the Law. The remaining facts in this case have been heretofore fully covered by the special inquiry officer in his decision of June 15, 1956, and need no further discussion herein. The question for this Board to resolve is whether the appellant is precluded from obtaining the benefits of Public Law 770 by reason of his having been sentenced to imprisonment for a period of one year. In determining whether an offense committed in a foreign country shall be considered a misdemeanor classifiable as a petty offense under section 4 of the Act of September 3, 1954, United States standards are to be applied. Hence, recourse is had to the equivalent offense under United States law, that is, Title 18 of the United States Code, or, if the equivalent offense is not found therein, Title 22 of the District of Columbia Code. After the equivalent offense under United States law has been identified for the purpose of determining whether an offense committed abroad shall be considered a misdemeanor classifiable as a petty offense under section 4 of the Act of September 3, 1954, the definitions in 18 U.S.C. 1 (3) are to be applied. The special inquiry officer has properly concluded that the appellant's conviction in Italy in March 1946 is a misdemeanor classifiable as a petty offense (Title 22, section 2202, District of Columbia Code).

Section 4 of the Act of September 3, 1954 (Public Law 770) provides that:

Any alien who is 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, or who is excludable as one who admits the commission of such misdemeanor, may hereafter be granted a visa and admitted to the United States, if otherwise admissible: Provided, That the alien has committed only one such offense. (Emphasis

supplied.)

Section 1(3) of Title 18, United States Code, provides that:

Notwithstanding any act of Congress to the contrary:

(3) Any misdemeanor, the penalty for which does not exceed imprisonment for a period of six months or a fine of not more than $500, or both, is a petty offense.

On examination of the record, it is our considered opinion that the pardon granted to the appellant at the time of his conviction on March 21, 1946, is not a pardon of his conviction of the crime of aggravated theft, but a pardon of the sentence imposed; in other words, he was granted a suspended sentence. The Chancellor of the Tribunal of S. Maria C.V. certified on August 29, 1953, that the appellant must no longer serve the penalty of one-year imprisonment

and pay the fine of 3000 lire inflicted upon him by that Tribunal by sentence of March 21, 1946, because a period of five years had passed, to which the pardon of said penalty was subordinate, and which was consented him with said sentence, without having committed any other crime. This certification was made at S. Maria C.V. on August 29, 1953.

In view of the foregoing, it appears that the appellant, following his conviction of the crime of aggravated theft in Italy on March 21, 1946, received a suspended sentence. The United States courts have consistently held that there has been no sentence to imprisonment if the imposition or execution of a sentence was wholly suspended or conditionally suspended by granting probation as an alternative (United States ex rel. Robinson v. Day, 5 F.2d 1022). Accordingly, it must be held that the appellant was not punished even though sentenced to imprisonment for one year, inasmuch as the execution of the sentence has been wholly suspended. Section 4 of the Act of September 3, 1954 provides that any alien who is excludable because of a 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 * * *, , may hereafter be granted a visa and admitted to the United States, ***. Section 1(3) of Title 18, United States Code, provides that notwithstanding any act of Congress to the contrary, any misdemeanor, the penalty for which does not exceed imprisonment for a period of six months *** * Public Law 770 refers to punishment "actually imposed" and section 1(3) of Title 18, United States Code, uses the term "penalty." The term "sentence" is not used in either section 4 of Public Law 770 or in section 1(3) of Title 18, United States Code. A careful analysis of the record shows that the appellant was given what in effect must be considered a suspended sentence following his conviction in March 1946. It appears that if he was not convicted of any crime within five years, he would be absolved from serving the sentence imposed on March 21, 1946. A "sentence" to a term of imprisonment is the final determination of the trial in a criminal cause, and it is the order of the court made in the presence. of the defendant and/or his counsel, pronouncing the judgment and ordering the same to be carried into execution in the manner prescribed by law after judgment on the verdict. "Punishment" is pain, suffering, loss, confinement, or other penalty inflicted on a person for a crime or offense by the authority to which the offender is subject; it is a penalty imposed in the enforcement or applicaiton of law. The words "penalty," "liability," and "forfeiture" are frequently treated as synonymous with the word "punishment" in connection with crimes of the highest grade. The word "punishment" ordinarily implies some punishment of a temporary character. It must be