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the report of the probation officer, ordered that imposition of sentence be suspended for a period of five years, the court to retain jurisdiction until that time, and that defendant be released from custody.

The main force of counsel's argument is that the action of the court in suspending the imposition of sentence for five years and placing respondent upon probation did not result in such a finality of conviction as would sustain the order of deportation, citing Pino v. Landon, 349 U.S. 901 (1955), as well as certain other Colorado cases. At the outset it may be noted that the order to show cause is predicated upon the second section of section 241 (a) (4) which renders deportable an alien who at any time after entry is convicted of two crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial. It may be noted that the statute, 39-16-6 Colorado Revised Statutes of 1953, empowers the court to grant probation and provides that the period of probation together with any extension thereof shall not exceed five years.

The deportation statute does not make confinement the test of deportability but concerns itself with conviction solely. In one of the cases cited by counsel 5 it was held that in a criminal case the sentence is the judgment and that a judgment need not be entered upon a verdict.

The matter involved in the hearing has been the subject of previous adjudication. In the latest case of Murillo Gutierrez v. Immigration and Naturalization Service, No. 18565 (9th Cir., October 11, 1963), there was involved an alien who was convicted in California on a narcotic charge, was found guilty by the court which ordered a probation report and continued proceedings; thereafter the court suspended proceedings and placed the petitioner on probation. On review the petitioner contended that the Immigration Service erred in determining that the appellant had been convicted of a crime which subjected him to deportation and erred in finding that the proceedings upon which the appellant was found guilty had reached such finality that an order of deportation could be predicated thereon. The court noted that the statute required only a conviction and not a judgment of conviction and that under California law the word "convicted” signified the status of a person after entry of a plea of guilty to a criminal charge or against whom a verdict of guilty of a criminal charge has been returned by a jury; and the phrase "a judgment of conviction" means the imposition of a sentence upon a person who has been convicted of a criminal charge after a plea of guilty or the rendition of a guilty verdict. The court also shared the views expressed in ArrellanoFlores v. Hoy, 262 F. 2d 667 (9th Cir., 1958), cert. den. 362 U.S. 921, that it was inclined to believe that perhaps here Congress intended to do its own defining rather than leave the matter to the variable state statutes. Credence for this view can be found in the fact that the present statute reads "convicted” while its predecessor read "convicted and sentenced.” It would appear that federal courts have generally taken the view that a plea of guilty or finding of guilty, which is in repose and remains undisturbed amounts to a conviction. The court went on to distinguish the case of Pino v. Landon, 349 U.S. 901, which involved a Massachusetts procedure within which the petitioner had the right to a trial de novo in the superior court if he took an appeal from the District Court, the District Court suspended the imposition for one year and placed the sentence on file with the crucial difference that if the court ever removed the case from file to require the petitioner to serve the sentence, he would then he entitled to a de novo review on appeal. The court held that under these circumstances, especially the availability of the de novo review, there was no adjudication which could be recognized as final in Massachusetts that the petitioner had committed any crime.

* Loos v. People, 268 P. 536.

In the instant case there was a conviction pursuant to the respondent's plea of guilty which was appealable. It was not necessary that a judgment of conviction be entered upon the verdict of guilty. The difference from the situation existing in the case of Pino v. Landon, supra, is obvious.

The administrative decision cited by counsel, Matter of 1–71. & N. Dec. 580, concerned a case in Florida in which the court had postponed imposition of sentence. The decision noted that unlike the cases which suspended imposition of sentence which have been held to constitute a final conviction, this postponement of imposition of sentence did not support a finding of deportability.

Later administrative decisions have recognized that for deportation purposes a conviction exists where the following elements are present: (1) if there has been a judicial finding of guilt, (2) the court takes action which brings the case in the category of those which are pending for consideration by the court—the court orders that the defendant be fined or incarcerated or the court suspends the imposition of sentence, and (3) the action of the court is considered a conviction by the state court for at least some purpose. It is concluded that in the instant

Citing Adams v. United States, 299 F. 2d 327 (9th Cir., 1962); HernandezValensuelos v. Rosenberg, 304 F. 2d 639 (9th Cir., 1962); Zabanazad v. Rosenberg, 306 F. 2d 861 (9th Cir., 1962).

? Matter of 1-R-, 8 1. & N. Dec. 269; Matter of MD—, 91. & N. Dec. 172; Matter of R-R-,71. & N. Dec. 478.

7

case the conviction for simple robbery in Colorado meets this test of finality of conviction. The second conviction, of statutory rape in Connecticut, clearly involves moral turpitude also. It is concluded that the charge contained in the order to show cause is sustained.

The respondent is not eligible for adjustment of status pursuant to section 245 of the Immigration and Nationality Act because he was originally lawfully admitted for permanent residence and subsequently became deportable, a fact which does not vitiate his prior lawful entry. He is ineligible for voluntary departure because the crime of rape was committed in January 1960, within the five-year period for which good moral character must be established."

The respondent has a citizen wife and two citizen minor children. However, he has been separated from his wife for two years. The separation was caused by respondent's drinking and gambling and his wife did not know of his arrest for statutory rape. However, she indicates a willingness to give him another chance, even though the respondent has contributed but little to her support. However, as has already been pointed out, the respondent is not eligible for discretionary relief. The appeal will be dismissed.

ORDER: It is ordered that the appeal be and the same is hereby dismissed.

8 Matter of Da Silva, Int. Dec. No. 1268.

Section 101(f) (3) of the Immigration and Nationality Act (8 U.S.C. 1101 (f) (3)).

MATTER OF MARTINEZ-LOPEZ

In DEPORTATION Proceedings

A-12650171

Decided by Board August 7, 1962
Reconsidered by Board December 20, 1962
Decided by Attorney General January 6, 1964

As inquiry would not have resulted in a proper determination of inadmissibility,

respondent's willful presentation of a spurious offer of employment in connection with his application for an immigrant visa, even though such misrepresentation resulted in his conviction of conspiracy to violate 18 U.S.C. 1001, is not a material misrepresentation under section 212(a) (19), Immigration and Nationality Act, and, consequently, does not vitiate the visa for the purposes of section 212(a) (20).

CHARGES :

Order: Act of 1952-Section 241 (a) (1) 18 U.S.C. 1251 (a) (1)]-Excludable at

time of entry-procured visa by fraud or by willfully misrepresent

ing material fact (section 212(a) (19) of the Act). Act of 1952—Section 241 (a)(1) [8 U.S.C. 1251 (a) (1)]—Excludable at

time of entry-immigrant, no valid visa (section 212(a) (20) of the Act).

BEFORE THE BOARD

This is an appeal by the examining officer from the order of the special inquiry officer terminating proceedings. The appeal will be dismissed.

The respondent, a 23-year-old single male, a native and citizen of Mexico, was admitted for permanent residence on May 1, 1961, upon surrender of an immigrant visa. The Service claims that this visa was invalid since it was obtained by wilful misrepresentation concerning an offer of employment.

When the respondent applied for a visa, he was told to furnish an affidavit of support and an offer of employment. He obtained the affidavit of support from his brother, a legal resident of the United States, and through correspondence with relatives in the United States, obtained a letter offering him employment as a farm hand. However, respondent was told by his relatives that the letter for which he had agreed to pay $350 was one for the record only and that no actual employment should be expected. The letter was in fact a forgery. The respondent states he knew he could not expect employment from the writer of the letter, but did not know it was a forgery. He thought the writer had given the letter as a favor. Respondent was convicted on January 10, 1962, in the United States District Court at Sacramento, California, for conspiracy to violate 18 U.S.C. 1001, by making false statements or knowingly using false writings. (He was sentenced to five years' imprisonment with all but 30 days of the sentence suspended.)

The special inquiry officer sustained neither charge; he ruled that although the forged offer of employment cut off inquiry, it did not relate to a material matter because inquiry would not have resulted in a proper determination that the alien was one likely to become a public charge. The Service Representative contends that since materiality was an element of the crime for which the respondent was convicted, the Board should hold that the misrepresentation was material in the obtaining of the visa. The contention must be dismissed. The Board is not bound by the decision in the criminal case, for there are different tests for materiality in the criminal case and the immigration case. In the immigration case the test of materiality is whether the matter concealed concerned a ground of inadmissibility or a probable inadmissibility (Matter of S- and B-C-, Int. Dec. No. 1168). In the criminal case (in those jurisdictions where materiality is required) the test is merely whether the false statement "could affect or influence the exercise of a Governmental function” (United States v. Allen, 193 F. Supp. 954 (S.D. Cal., 1961)).

An analogous situation exists in regard to false statements amounting to perjury in visa and immigration matters. A person could be convicted for perjury for making a material false statement under oath although the same false statement would not necessarily constitute a material misrepresentation in determining whether a visa had been obtained by fraud (Matter of SC—, 7 I. & N. Dec. 76, 90). Since the standards of materiality in criminal and civil immigration matters differ, the existence of the conviction here does not preclude the Board from making its own determination as to the materiality of the misrepresentation. (Neither does the letter of the Consul stating that the Vice Consul would testify that the misrepresentation was material preclude the Board from making its own conclusions in the matter. See In re Field's Petition, 159 F. Supp. 144, 146 (S.D.N.Y., 1958).)

Would the inquiry which was cut off by the submission of the offer of employment have resulted in a proper determination that the alien

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