offender to a state prison (People v. Scherbing, 209 P.2d 796; sections 1753, 1755.5, California Welfare and Institutions Code); however, such confinement is not considered imprisonment pursuant to a sentence of imprisonment (Opinion No. 50-202, January 23, 1951, Atty. Gen., California).

If the Authority finds that a person in its custody is incapable of reformation, the Authority may return him to the committing court, and the court may commit the person to a state prison or county jail as provided by law for the punishment of the offense for which the person was convicted (section 1737.1, California Welfare and Institutions Code).

The Youth Authority may retain custody for a period longer than the period of imprisonment that may be prescribed for the offense (In re Herrera, 143 P.2d 345); however, a person convicted of a misdemeanor must be discharged upon the expiration of a two-year period of control or when he reaches his 23rd birthday, whichever occurs later; and a person convicted of a felony must be discharged when he reaches his 25th birthday (section 1771, California Welfare and Institutions Code) unless the committing court acting upon a petition filed by the Authority commits the offender to the state prison. If a person is so committed, the maximum term of imprisonment is the maximum term prescribed by law for the offense of which he was convicted less the period during which he was under the control of the Authority (section 1782, California Welfare and Institutions Code).

The Service position is that the respondent has been sentenced to confinement and that the period of confinement should be considered a term of not more than 20 years. The respondent denies that the commitment to the Youth Authority is a sentence to confinement. The special inquiry officer in a well-reasoned opinion held that the sentence to the Youth Authority was not a sentence to confinement since the Youth Authority did not have to confine a person committed to its custody.

From the review of the law relating to the Youth Authority it is clear that a person placed in the custody of the Youth Authority has been committed for training and treatment rather than sentenced to imprisonment. There is a sentence to the control of the Youth Authority but no sentence to confinement. Moreover, bearing in mind that deportation statutes must be strictly construed (Fong Haw Tan v. Phelan, 333 U.S. 6, 10), and that a person sentenced to the custody of the Youth Authority need not be confined at all, we must conclude that the respondent may not be considered as having been sentenced to confinement under the immigration laws. It is the disposition made by the court, not that made by some other source, which must control. Although a commitment to the Youth Author

ity is a conviction under the immigration laws, it does not meet the necessity of the law requiring that there be a sentence to confinement.

The Service representative points out that the respondent here was actually confined, once while in the custody of the sheriff awaiting transfer to the Youth Authority, and then again at the Deuel Vocational Institution. The fact that the respondent was held in custody by the Youth Authority is immaterial if the custody was not under a sentence to confinement. As we have shown, a sentence to confinement was absent in this case. (The confinement in the custody of the sheriff, the agent of the Youth Authority, could, of course, have no greater effect than the custody by the Authority itself.)

United States ex rel. Paladino v. Commissioner, 43 F.2d 821 (C.A. 2, 1930), relied upon by the Service representative is not apposite. Paladino held that one sentenced under an indeterminate sentence has been sentenced to the maximum possible term. We are not concerned with the duration of the sentence but with whether there has been a sentence to confinement.

The Service representative believes that a federal standard should be applied to determine whether there has been a sentence to confinement. We understand this to be a reference to the rule in Paladino relating to indeterminate sentences. However, if a federal standard is to be applied, there is a precedent which has a more direct bearing upon the problem before us than Paladino does. In Matter of V, A-8583853, Int. Dec. No. 1005, we held that there had been no sentence to confinement where a person had been committed to the Attorney General of the United States for an indefinite term under the Federal Youth Corrections Act relating to the convictions of persons under the age of 22 when convicted. The factors which impelled us to this conclusion in Matter of V-, supra, are present in the instant case. Both youth corrections acts are based upon the model Youth Correction Authority Act drafted by the American Law Institute; in fact, the federal law "also borrows from Youth Authority statutes in California" (Cunningham v. United States, 256 F.2d 467, C.A. 5, p. 471; Pathways of Delinquency, supra, p. 21); in both cases a sentence to the Youth Authority is in the discretion of the court which could have sentenced the convicted person to imprisonment instead; in both cases prisoners are treated differently than wards of the Youth Authority; in both cases the youthful offender is considered as being treated rather than punished; in both cases there are provisions to expunge the convictions; and most important of all, in both cases an adult offender given a sentence of less than a year would not be deportable but a youthful offender convicted of the same crime and committed to the Youth

Authority which could hold him for at least two years would be deportable.2

We find there has been no sentence to commitment and will affirm the action of the special inquiry officer in terminating proceedings. Order: It is ordered that no change be made in the order of the special inquiry officer.

2 Matter of CR

4 I. & N. Dec. 136, a Service decision dealing with

a commitment to the California Youth Authority is overruled insofar as it is in conflict with the view stated here.

MATTER OF C

In DEPORTATION Proceedings

A-11659714

Decided by Board May 31, 1960

Discretionary relief-Section 211 (c) and (d)—Not granted where alien on notice that marriage would invalidate preference visa.

Section 211 (c) and (d) waiver will not be exercised in favor of 20-year-old Italian girl who was married a few days before departing for United States after having signed statement in Italian and English (attached to her third preference quota visa) placing her on notice that marriage prior to entering the United States would invalidate the visa.

CHARGE:

Order: Act of 1952-Section 241(a)(1) [8 U.S.C. 1251(a) (1)]—Excludable at entry as not of proper status under quota specified in immigrant visa under section 211 (a) (4).

BEFORE THE BOARD

Discussion: Respondent is 20 years old, married, female, a native and citizen of Italy. Her only entry into the United States was at New York on April 20, 1959, at which time she was admitted for permanent residence upon presentation of a third preference quota immigrant visa issued to her by the United States Consulate, Naples, Italy, as the unmarried minor child of a permanent resident alien. The special inquiry officer found respondent to be deportable on the charge stated in the order to show cause and granted her voluntary departure with an automatic order of deportation in the event she fails to depart. Respondent appeals to this Board.

The record shows that at the time respondent filed her application for an immigrant visa at the American Consulate, and at the time it was issued to her on February 5, 1959, she was the unmarried daughter of a legally resident alien. At that time she was entitled to a third preference visa under section 203 (a) (3) of the Immigration and Nationality Act.1 On April 9, 1959, a few days before her 1 Section 203(a)(3), Immigration and Nationality Act: "The remaining 20 percentum of the quota for each quota are for such year, plus any portion of such quota not required for the issuance of immigrant visas to the classes specified in paragraphs (1) and (2), shall be made available for the issuance of immigrant visas to qualified quota immigrants who are the spouses or the children of aliens lawfully admitted for permanent residence." (On September 22, 1959, 73 Stat. 644, the word children, was changed to read "unmarried sons or daughters.")

departure from Italy, respondent was married by civil and church ceremony. At the time she entered the United States she did not disclose the fact of her marriage to any immigrant inspector, and she entered under her maiden name. She is still married, and her husband, a native and citizen of Italy, still resides in that country. There are two issues in this case: (1) Is respondent deportable on the charge stated? (2) Is respondent eligible for the discretionary relief provided in section 211(c) and (d) of the act? We find, first, that respondent is deportable on the charge stated in the order to show cause.

The definition section of the Immigration and Nationality Act of 1952, section 101(b) (1), provides, "The term 'child' means an unmarried person under 21 years of age who is—(A) a legitimate child * * *” Therefore, the change in the term, “children of aliens" in the quota section, 203 (a) (3), on September 22, 1959 (see footnote one) constituted no change in the law. The amendment evidently was to make doubly clear the intention of Congress that only an unmarried child qualifies for a third preference visa under section 203 (a) (3).

Counsel contends that there is no provision in section 241 for deporting an alien in respondent's position. Section 241(a)(1) declares, "Any alien in the United States *** shall, upon order of the Attorney General, be deported who-(1) at the time of entry was within one or more of the classes of aliens excludable by the law existing at the time of such entry." Chapter 2, Documentary Requirements, section 211(a) states, "No immigrant shall be admitted into the United States unless at the time of application for admission he *** (4) is of the proper status under the quota specified in the immigrant visa." It is not sufficient that she be an unmarried minor child when the visa is issued to her. She must be of the proper status under the quota specified in her visa at the time she enters the United States. She was not of the specified status, and she is, therefore, deportable under section 241 (a) as a person "excludable by the law existing at the time of such entry."

The briefs of counsel have gone extensively into the matter of respondent's good faith, whether or not the marriage was consummated, and whether or not the record establishes that respondent was on notice that marriage prior to entry would disqualify her from using her third preference visa. The Board has taken the view consistently in these cases that even if the holder of such a visa does not know that marriage invalidates his visa, and practices no fraud or concealment, he is deportable. He is not of the "proper status under the quota specified in the immigrant visa," as required by section 211(a).

The only reported decision of this Board concerning a marriage

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