MATTER OF P——— In DEPORTATION Proceedings A-8378327 Decided by Board January 8, 1960 Conviction-Which results in commitment under Federal Youth Corrections Order: Act of 1952-Section 241(a) (4) [8 U.S.C. 1251(a) (4)]-Convicted of two crimes (petty larceny; transporting stolen automobile). BEFORE THE BOARD Discussion: On June 18, 1958, a special inquiry officer directed the respondent's deportation and this order became final, no appeal having been taken. The special inquiry officer reconsidered his order in the light of a subsequent decision of this Board in another case, but again directed deportation on November 6, 1959, and certified the case to us for final decision. The respondent is a 21-year-old unmarried male, native of Russia and citizen of Belgium, who last entered the United States on October 2, 1952. Apparently he was admitted for permanent residence at that time and had not previously resided in this country. On April 7, 1957, he was convicted of petty larceny and on August 23, 1957, he was convicted of transporting a motor vehicle in interstate commerce with knowledge that it had been stolen. In connection with the latter conviction, the respondent was committed under the Federal Youth Corrections Act in accordance with 18 U.S.C. 5010(b). The sole issue to be determined is whether this latter conviction possesses the degree of finality which is necessary to support the deportation charge. The special inquiry officer's reconsideration of the respondent's case arose from our decision in Matter of V, A-8583853, Int. Dec. No. 1005, decided June 1, 1959, in which there had also been a commitment under the Federal Youth Corrections Act. That case involved the first clause of 8 U.S.C. 1251(a) (4) relating to a single conviction. One of its requirements is a sentence to confinement (or confinement) in a prison or corrective institution for one year. On the other hand, this respondent's case is within the purview of the second clause of that statutory provision, and here there is no requirement for any sentence to confinement but only that the alien. must have been "convicted of two crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct." In Matter of V, supra, we reserved decision on the question of whether there was the required degree of finality of conviction in cases disposed of pursuant to the Federal Youth Corrections Act, but we held that the alien was not deportable under the first clause of 8 U.S.C. 1251(a)(4) because a sentence imposed under the Federal Youth Corrections Act, by the terms of the statute, is expressly stated to be for treatment and supervision and in lieu of the penalty of imprisonment. Since this respondent's case comes within the second clause of 8 U.S.C. 1251(a) (4), the nature and effect of the sentence is not material and the only question is whether his conviction has the degree of finality necessary to support deportation. The distinction between the first and second clauses of 8 U.S.C. 1251 (a) (4) is illustrated by our decision in Matter of V, 7 I. & N. Dec. 577 (1957), in which we held that suspension of imposition of sentence does not render an alien deportable under the first clause, and our decision in Matter of 0, 7 I. & N. Dec. 539 (1957), where we reached a contrary conclusion in a case involving the second clause of this statutory provision. In Matter of O, supra, we discussed the various categories of convictions and concluded that under the second clause of 8 U.S.C. 1251 (a) (4) a conviction is "final" if it resulted in suspension of the execution of sentence or in suspension of the imposition of sentence but not where it resulted in postponement of sentence for further consideration. In the latter, the matter is still pending actually or theoretically for the imposition of a sentence. The respondent's case is not one in which there was a postponement of sentence. On the contrary, sentence was imposed on August 23, 1957, and the respondent was committed to the custody of the Attorney General or his authorized representative until discharged by the Youth Correction Division. Hence, it is clear that in this respect the respondent's case differs from one in which a conviction was not final because of contemplated further action of the court. Here, the court imposed sentence on the respondent; there was no further action for the court to take in the future; and the question of the respondent's confinement, treatment, and discharge were entirely matters for the Youth Correction Division. We consider it appropriate to state also that a basic distinction exists between the procedure concerning juvenile delinquency (chapter 403, Title 18, U.S.C.) and the procedure under the Federal Youth Corrections Act (chapter 402). In the former, there is no trial by jury, no criminal prosecution can be instituted for the alleged violation of law (18 U.S.C. 5032), and the court does not find the juvenile guilty of the offense but only of being a delinquent. Where the offender is over 18, the trial proceeds in the regular manner. When there has been a judgment on a verdict or finding of guilty, the provisions of the Federal Youth Corrections Act may be invoked if the offender was under the age of 22 years at the time of conviction. Hence, there is an actual conviction for the offense and not merely a finding of delinquency. In view of the foregoing, we hold that this respondent is deportable on the basis of the two convictions mentioned above. For the reasons stated by the special inquiry officer, we agree that the respondent is not statutorily eligible for voluntary departure. Accordingly, the special inquiry officer's action is approved. Order: It is ordered that the special inquiry officer's order directing deportation be and the same is hereby approved. MATTER OF M In SECTION 316(b) Proceedings A-8768702 Decided by Acting Regional Commissioner January 14, 1960 Approved by Assistant Commissioner January 22, 1960 Residence for naturalization-Study abroad under fellowship maintained by Public Health Service qualifies applicant for section 316(b) of 1952 act. An alien who will study abroad under a Special Research Fellowship Award established and maintained by the Public Health Service is eligible to preserve residence for naturalization under section 316(b) of the 1952 act as a person employed by or under contract with the Government of the United States. BEFORE THE REGIONAL COMMISSIONER Discussion: The alien has filed an application for the benefits of section 316(b) of the Immigration and Nationality Act, to cover his absence from the United States from March 5, 1959, to March 5, 1961, while studying at the Lister Institute, London, England, and at the University of Cambridge, Cambridge, England. The district director has granted the application upon the ground that the applicant may properly be held to be employed by or under contract with the Government of the United States within the meaning of section 316(b), and has certified the case to this office. The applicant was lawfully admitted to the United States for permanent residence on October 26, 1954. Since that date he has been absent from the United States on only one occasion, namely, from December 30, 1954, to October 28, 1957, on which latter date he was readmitted to the United States as a returning legal resident. He has the uninterrupted period of at least one year of physical presence and residence in the United States, pursuant to his lawful admission, which is required by the section of law under which his application has been submitted. While abroad the applicant will be studying under a Special Research Fellowship Award established and maintained by the Public Health Service, Department of Health, Education and Welfare, United States Government, the establishment and maintenance of such fellowships being provided for by Public Law 655, 80th Congress. One of the avowed purposes of this law is to provide fellowships for and to use qualified persons, with a background such as that possessed by the applicant, in the conduct of further research and investigation for the improvement of the health of the people of the United States. The Special Research Fellowship Award granted the applicant was bestowed upon him following his application therefor and following the approval of his application by the Surgeon General, Department of Health, Education and Welfare. The record establishes that such scholarships are awarded to qualified research scientists who have demonstrated research accomplishment or research potential beyond the postdoctoral level and who desire specialized training for a specific problem. The applicant will receive a stipend of $5,500 annually, which amount is considered by the Department of Health, Education and Welfare to be a salary. He will receive a further sum of $422 in the form of a travel allowance. In passing upon the question of whether the applicant will be considered an employee or a student, the Department of Health, Education and Welfare has indicated the applicant must more appropriately be considered a student, since he will be receiving advanced cardiovascular research training, although, because of his already high degree of training, he will probably occasionally assist in teaching. However, the award letter supplement furnished the applicant incident to the award granted him described his fellowship in terms of being "official work" and mentions his entering "on duty." That letter further advises that "official work must begin within the inclusive dates stated in the award letter" and directs that "90% of a fellow's time must be spent in research and/or academic work"; that "they must not devote more than 10% of the working time available during the fellowship term to teaching and lecturing." The award letter referred to still further sets forth the procedure to be followed by a fellow desiring to change his sponsoring institution. Likewise mentioned therein is the fact that the vacation period is "not to exceed one month." A report on work accomplished during the fellowship is set forth as a requisite and advance notice is required of the fellow who desires to resign before the completion of the fellowship. The sole issue involved in this case is the matter of whether the applicant may be considered to be employed by or under contract with the Government of the United States. Webster's New International unabridged dictionary defines "employment" as "that which engages or occupies; that which consumes time or attention; also, an occupation, profession, or trade; service; as agricultural employments." Black's Law Dictionary defines "employment" in the following terms: "The act of hiring, implying a request and a contract for compensation * * *" In Matter of R, 4 I. & N. Dec. 196, 203, it was determined that 562713-61- -35 |