MATTER OF P

In DEPORTATION Proceedings

A-10952893

Decided by Board June 5, 1958

Suspension of deportation-Alien deportable under section 241(a)(2) of 1952 act as "remained longer"-Eligibility for suspension must be established under section 244(a)(5) of act.

Alien deportable under section 241 (a) (2) of the act as "remained longer" is within terms of paragraph (5) of section 244 (a) of the act and, hence, is ineligible for suspension of deportation under paragraph (3) of section 244 (a).

CHARGE:

Order: Act of 1952-Section 241 (a) (2) [8 U.S.C. 1251(a) (2)]—Remained longer than the permitted time after admission as a nonimmigrant seaman [section 3, Act of 1924; 8 U.S.C. 203, 1940 ed.]

BEFORE THE BOARD

Discussion: On March 11, 1958, this Board dismissed respondent's appeal from the special inquiry officer's decision of November 14, 1957, denying his application for suspension of deportation, but authorizing his voluntary departure and providing for his deportation on the charge contained in the order to show cause in the event of his failure to so depart. The case is again before us on the motion for reopening of the proceedings for reconsideration of the respondent's eligibility for suspension of deportation. The motion will be denied.

The respondent is a 28-year-old native and citizen of Greece who last entered the United States on January 26, 1951, at Newport News, Virginia, as a seaman. Since he has remained in the United States longer than the permitted period, his deportability on the above-stated charge, which is uncontested here, is established.

The only issue now before us is whether the respondent's application for suspension of deportation should be treated as falling under section 244 (a)(3) of the Immigration and Nationality Act under which he could qualify for discretionary relief by the Attorney General, or under section 244 (a) (5) of the same act under which he cannot qualify because he does not fulfill the 10 years' residence requirement of subsection (5).

562713-61

The special inquiry officer originally held, and we previously agreed, that a prior precedent decision of this Board (Matter of B- A-10474501, 7 I. & N. Dec. 400) was dispositive of the issues in this case. In that case, we held that an alien admitted as a crewman is statutorily ineligible for suspension of deportation under section 244(a)(3) of the Immigration and Nationality Act if he is deportable, as is this respondent, under the provisions of section 241(a)(2) of that act as a "remained longer," and that in such a situation his eligibility for suspension of deportation can be established only under section 244 (a) (5) of the act. It is set forth in the present motion, however, that the decision of the Supreme Court of the United States in the case of Dessalernos v. Savoretti rendered on April 14, 1958 (356 U.S. 269), calls for a contrary conclusion. The Dessalernos case, supra, involved an alien who was deportable on one of the grounds specified in section 244(a) (5) of the Immigration and Nationality Act (8 U.S.C. 1254), but who sought suspension of deportation under section 244 (a) (1) of the Immigration and Nationality Act, and was not one of the classes expressly excluded from consideration thereunder because not one of the classes specified in section 19 (d) of the 1917 act (former 8 U.S.C. 155). Here, however, the section involved is 244 (a) (3) of the 1952 act which specifically provides that suspension of deportation is available thereunder only to an alien who "*** is not within the provisions of paragraph (4) or (5) of this subsection ***." This language is not contained in section 244 (a)(1).

We hold that the foregoing language of subsection (3) is a clear mandate from the Congress that it and subsection (5) be considered mutually exclusive. Therefore, and in view of the difference in language between 244 (a) (1) and (3), we conclude that the Dessalernos case (supra) has no application to the present situation. Accordingly, we will deny the present motion.

Order: It is ordered that the motion be and the same is hereby denied.

Editor's Note: On April 27, 1959, the United States District Court, District of New Jersey, in Patinakis v. Bouchard, Civil Action #289-59, upheld the action of the Board in the subject case and denied application for a preliminary injunction.

MATTER OF CR

In DEPORTATION Proceedings

A-5751606

Decided by Board June 25, 1958

Conviction of crime-Conviction in civil proceedings for theft under city ordinance is conviction of crime within section 241(a)(4)—Pardon by mayor of first-class city in Nebraska is effective pardon within section 241(b) when conviction was under city ordinance.

(1) Conviction in Police Court under Scottsbluff [Nebraska] City Ordinance for theft under $35 is a conviction for "crime" within meaning of section 241(a)(4) of the 1952 act notwithstanding that Nebraska courts view prosecution for violation of city ordinance as a civil proceeding.

(2) Full and unconditional pardon granted respondent by Mayor of Scottsbluff for above offense is an effective pardon within meaning of section 241(b) of the act since Nebraska law designates mayor of first-class city as supreme pardoning authority in regard to conviction under city ordinance.

ter of D—, A-7940390, 7 I. & N. Dec. 476.)

CHARGES:

(Cf. Mat

Order: Act of 1952-Section 241 (a) (4) (8 U.S.C. 1251(a) (4))—Convicted for two crimes involving moral turpitude.

Lodged:

Act of 1952-Section 241 (a) (1) (8 U.S.C. 1251(a) (1))—No visa or passport-Sections 13 (a), Act of May 26, 1924 (8 U.S.C. 213(a), 1946 ed.).

BEFORE THE BOARD

Discussion: An order entered by the special inquiry officer on December 3, 1957, suspends the deportation of the respondent herein under the provisions of section 244 (a) (1) of the Immigration and Nationality Act (8 U.S.C. 1254 (a) (1)). The Acting Regional Commissioner for the Northwest Region has certified the case to this Board for a review of the finding that the respondent is not deportable as a criminal alien under section 241(a) (4) of the Immigration and Nationality Act (8 U.S.C. 1251(a)(4)), as well as the finding that the exercise of discretion is warranted under the circumstances. He seeks a remand of the case for proper development of the record. A memorandum of law and argument has been submitted by the examining officer.

The respondent, a native and national of Mexico, male, married, 43 years of age, last entered the United States through the port of

Laredo, Texas, during the year 1933. The respondent originally entered the United States when he was less than one year of age (1915). When he was approximately 15 years of age his parents took him to Mexico where he resided until his last entry in 1933. The evidence of record affirmatively establishes deportability on the documentary charge lodged under section 241(a)(1) of the Immigration and Nationality Act (8 U.S.C. 1251(a) (1)) and no exceptions have been taken thereto.

The order to show cause charges that the respondent is subject to deportation under section 241 (a) (4) of the Immigration and Nationality Act in that after entry he has been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct. The respondent admits that he was convicted in the United States District Court for the Western District of Missouri on May 6, 1939, for violation of section 3 of the National Motor Vehicle Theft Act, transporting a stolen automobile in interstate commerce. It is well established that section 3 of the National Motor Vehicle Theft Act defines a crime involving moral turpitude.1 The respondent also admits that he was convicted in the Police Court of the City of Scottsbluff, Nebraska, on June 24, 1956, for theft of property valued at less than $35.00 contrary to an ordinance of that city.2

The special inquiry officer finds that in the State of Nebraska an offense prosecuted in a police court under a municipal ordinance does not amount to a conviction of a crime within the meaning of section 241(a) (4) of the Immigration and Nationality Act. His finding is supported by two cases in which the Supreme Court of Nebraska

1 Matter of B

55856/94, B.I.A., Dec. 31, 1943; Matter of G- 56158/89, B.I.A., Mar. 24, 1944; Matter of S- A-2033407, B.I.A., July 8, 1949; Matter

of A, A-3027293, B.I.A., July 13, 1946 (unreported cases).

2 Ordinance No. 458 of the City of Scottsbluff, Nebraska, sections 63 and 69 provide as follows:

Section 63. It is hereby declared unlawful for any person within the corporate limits of this City to steal any money, goods or chattels of any kind whatever, and any person who shall within the said City steal property of any kind whatever, whether the same be wholly in money or wholly in property of some other character, or partly in money and partly in other property, of the value of less than thirty-five dollars ($35.00), shall be deemed and considered a thief, and guilty of a misdemeanor.

Section 69. Any person, persons, firm, company or corporation, who shall be convicted of violating any of the provisions of the thirteen preceding Sections of this Chapter, for which penalty is not therein provided, shall, upon conviction thereof, be fined in any sum not less than One ($1.00) Dollar nor more than One Hundred ($100.00) Dollars, and, in default of payment thereof shall be adjudged to stand committed to the City Jail until said fine and costs of prosecution are paid, secured or otherwise discharged according to law.

3 State v. Neimer, 147 Neb. 284, 23 N.W. 2d 81 (1946); State v. Hauser, 137 Neb. 138, 288 N.W. 518 (1939).

held that a prosecution for violation of a city ordinance, while in the form of a criminal prosecution, is, in fact, a civil proceeding to recover a penalty and a preponderance of the evidence is all that is required to sustain a conviction. He concludes that the criminal charge laid under section 241 (a) (4) is not sustained as a matter of law.

We do not concur. Here we are concerned with interpreting a Federal statute in which Congress has expressed its disapproval of the type of behavior for which the respondent was convicted under a city ordinance in the State of Nebraska. The fact that the misconduct is considered a civil proceeding by the courts of that state does not control when interpreting the immigration laws. An act of Congress is not circumscribed by restrictive holdings of state courts defining the jurisdictional and procedural limits of inferior courts of criminal jurisdiction. United States v. Flores-Rodriguez, 237 F.2d 405, 409, and cases cited at page 410 (C.A. 2, 1956).

Since the respondent has been convicted of two crimes involving moral turpitude, we must decide whether a pardon granted by the Mayor of Scottsbluff, Nebraska, meets the requirement of section 241(b) of the Immigration and Nationality Act (8 U.S.C. 1251(b)) that it be granted by a governor of a state. The pardon entered as exhibit 6 is full and unconditional and was executed on June 18, 1957. Section 13 of Article IV of the State Constitution of Nebraska vests the power to pardon "after conviction*** for any offenses committed against the criminal laws of this state, except treason and cases of impeachment * * *” in the Governor, the Attorney General and the Secretary of State, to be known as the "Board of Pardons," with the Governor as chairman. The corporate and general powers delegated to first-class cities 5 by the Legislature is set forth in Chapter 16, Article II, of the Revised Statutes of Nebraska, 1943. Section 316 thereof reads as follows:

The mayor shall have power after conviction to remit fines and forfeitures, and to grant reprieves and pardons for all offenses arising under the ordinances of the city.

That portion of section 241 (b) of the Immigration and Nationality Act limiting the grant of an effective pardon to the President of the United States or the governor of a state has been interpreted to include a pardon granted by a state which has statutory provision for executive pardons to be issued by other than the governor of

It is urged by the Immigration Service that this rule applies only where the city ordinance does not embrace a violation of a criminal statute of the state. It is noted, however, that in both the Neimer and Hauser cases (supra, footnote 3) the offenses in question were criminal under the laws of the state. 5 Scottsbluff, Nebraska, is a first-class city under the laws of the State of Nebraska.