to section 244(a)(1) of the Immigration and Nationality Act, as amended. The evidence establishes that the respondent merits the discretionary relief of suspension of deportation except for the provisions of section 244 (f) of the Immigration and Nationality Act which prohibit the application of section 244 (a) "to an alien who *** (3) is a native of any country contiguous to the United States". However, section 244(f) will not prevent the grant of suspension of deportation if the respondent can establish that he comes within the proviso thereto which reads that the Attorney General may in his discretion agree to the granting of suspension of deportation to an alien specified in clause (3) of this subsection if such alien establishes to the satisfaction of the Attorney General that he is ineligible to obtain a nonquota immigrant visa.

The question of the ineligibility of the respondent to obtain a nonquota immigrant visa rests upon whether he is excludable under section 212(a) (9) of the Immigration and Nationality Act because of conviction of a crime involving moral turpitude; and, if excludable, whether such excludability is forgiven under the petty offense provision of section 212(a) (9), as amended by section 13 of the Act of September 26, 1961, if such offense is classifiable as a misdemeanor under the provisions of section 1(3) of Title 18, U.S.C., by reason of the punishment actually imposed.

The respondent was convicted in the Municipal Court of Chicago, Illinois on August 28, 1957 of the offense of receiving stolen property and was placed on one year's probation. The information states that on August 2, 1957 the respondent did unlawfully and willfully buy in order to prevent the owner from again possessing her property, knowing the same to have been stolen, said property being of the value of $49 in violation of paragraph 492, Chapter 38, Illinois Revised Statutes of 1945. The Illinois Revised Statutes of 1945 read as follows:

Every person, who for his own gain, or to prevent the owner from again possessing his property, shall buy, receive or aid in concealing stolen goods, or any thing, the stealing of which is declared to be larceny, or property, obtained by robbery or burglary, knowing the same to have been so obtained, shall be imprisoned in the penitentiary not less than one or more than ten years, or if such goods or other property or thing does not exceed the value of $15.00, shall be fined not exceeding $1,000 and confined in the county jail not exceeding one year.

However, the latter part of paragraph 492, Chapter 38, Illinois Revised Statutes was amended on July 5, 1957 to provide that if such goods or other property or thing does not exceed the value of

$50.00, he shall be fined not exceeding $1,000 and confined in the county jail not exceeding one year.

Section 1, Title 18, U.S.C.A., classifies offenses in three categories:

(1) any offense punishable by death or imprisonment for a term exceeding one year is a felony.

(2) any other offenses a misdemeanor.

(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.

Inasmuch as at the time of the commission of the offense on August 2, 1957 as well as at the time of the conviction on August 28, 1957, the amendment of July 5, 1957 to paragraph 492, Chapter 38, Illinois Revised Statutes was in effect, the respondent could have been convicted only under the amendatory Act of July 5, 1957, since the prior act was no longer in existence. Section 1(2) of Title 18, U.S.C.A., makes the offense for which respondent was convicted a misdemeanor, and as a result of the penalty actually imposed, the conviction is a petty offense as classified in 18 U.S.C.A. 1(3). The test of a petty offense under the amendatory provisions of section 13 of the Act of September 26, 1961 (75 Stat. 655) as well as the like predecessor statute, the Act of September 3, 1954 (Public Law 83770), is that the statutory penalty must not exceed one year and that the actual punishment meted out by the court shall not be more than six months' imprisonment or $500 fine. The exculpatory benefit of the petty offense provision of section 13 of the Act of September 26, 1961 is mandatory and automatic, not discretionary.2

The respondent is a native of Mexico but is not ineligible to receive a nonquota immigrant visa because he is a beneficiary of the petty offense provision of section 212 (a) (9) of the Immigration and Nationality Act. He, therefore, cannot be granted suspension of deportation because of the bar of section 244 (f) of the Immigration and Nationality Act. The respondent has been granted the privilege of voluntary departure in lieu of deportation. He should have no difficulty in obtaining the issuance of a visa inasmuch as his 1957 conviction is a conviction for a petty offense. The appeal will be dismissed.

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

1 Matter of C—0—, 8 I. & N. Dec. 488; Matter of H—, 6 I. & N. Dec. 614; Matter of T-, 6 I. & N. Dec. 508 (A.G., 1955).

'Matter of H-, 6 I. & N. Dec. 738.

MATTER OF GIAN

In Deportation Proceedings

A-11569685

Decided by Board July 2, 1965

Respondent's conviction by a French criminal court while serving overseas as a member of the United States Army may not serve as a basis for his deportation under section 241(a)(4), Immigration and Nationality Act, since the French court lacks authority to make a binding recommendation against deportation pursuant to section 241(b) of the Act, as amended. [Matter of N—, 7 I. & N. Dec. 356, overruled, insofar as it rules that a criminal conviction need not be in the United States to sustain an order of deportation under section 241(a) (4) of the Act.] CHARGE:

Order: Act of 1952-Section 241(a) (4) [8 U.S.C. 1251(a)(4)]-Convicted of a crime committed within 5 years after entry and confined for 1 year or more (theft, in violation of the French Penal Code).

The respondent, a native of Egypt, a citizen of France, has been found deportable as one convicted of a crime involving moral turpi tude committed within five years after his entry and sentenced to confinement for a year or more, to wit, theft committed on or about October 9, 1960 in violation of the French Penal Code (8 U.S.C. 1251 (a) (4)). The case has been certified to the Board of Immigration Appeals for final decision on an issue of law.

The respondent, an unmarried male alien, 23 years of age concedes that he entered the United States through the port of New York on or about December 10, 1958; that he was admitted as an immigrant at that time; that he was convicted in France by a French Court on or about December 22, 1960 for the offense of theft, committed on or about October 9, 1960, and that he was sentenced to 13 months imprisonment by a French court. The respondent, however, denies deportability on the charge stated in the order to show

cause.

The case has been certified for final decision because of apparent conflict between this Board's ruling in Matter of N, 7 I. & N. Dec. 356 (BIA, November 23, 1956), and an unreported decision 1 in which we followed a ruling by the Court of Appeals for the Ninth Circuit 2 which holds that a foreign conviction of an alien serving in the United States Army could not serve as a basis for deportation under section 241 (a) (4) of the Immigration and Nationality Act.

Our decision in Matter of N-, (supra), concerned an alien who after admission for permanent residence was sent overseas as a member of the Armed Forces of the United States. He was convicted of the crime of theft by a military court-martial in Germany and was sentenced to be dishonorably discharged, to forfeit all pay and allowances, and to be confined at hard labor for one year in a disciplinary barracks located in Pennsylvania. One of the arguments advanced by counsel was that the conviction to constitute a ground of deportation, must have taken place in the United States. We held that the statute did not require the conviction to be in the United States in order to sustain a charge of deportability under section 241 (a) (4) of the Immigration and Nationality Act.

The case of Gubbels v. Hoy (supra, footnote 2), also involved the court-martial conviction of an alien serving in the United States Army. The Court of Appeals for the Ninth Circuit held that the conviction could not serve as a basis for deportation under section 241 (a) (4) of the Act because the court-martial did not have the power to make the recommendation against deportation as provided in section 241 (b) of the said Act. The court held that the recommendation against deportation was a part of the legislative scheme in relation to a charge under section 241 (a) (4) of the Immigration and Nationality Act.

The alien in the Leyva-Ochoa case (supra, footnote 1) was convicted by a Mexican court of the crime of rape committed within five years of the alien's entry for permanent residence on September 18, 1956. Following Gubbels v. Hoy (supra, footnote 2) we held that the charge laid under section 241 (a) (4) could not be sustained because such a charge envisions only convictions occurring in the United States. We said "since the Mexican tribunal is not authorized to make a binding recommendation (against deportation), we must conclude that its judgment may not be used as the basis for

1

1 Matter of Leyva-Ochoa, A-10705756, December 12, 1963.

2 Gubbels v. Hoy, 261 F.2d 952 (C.A. 9, November 14, 1958).

deportation under section 241 (a) (4).” (Cf. Matter of B—, 7 I. & N. Dec. 166.)

The respondent in the instant case was convicted by a French criminal court while serving overseas as a member of the United States Army. The French court is not authorized to make a binding recommendation against deportation pursuant to section 241(b) of the Immigration and Nationality Act. We conclude, therefore, that a judgment of conviction entered by a French court may not be used as the basis for deportation under section 241 (a) (4) of the Immigration and Nationality Act. That portion of our decision in Matter of N—, 7 I. & N. Dec. 356, which rules that the criminal conviction need not be in the United States to sustain an order of deportation under section 241 (a) (4) of the Immigration and Nationality Act is hereby expressly overruled. An appropriate order

terminating the proceedings will be entered. ORDER: The order of deportation entered by the special inquiry officer on March 17, 1965 is hereby withdrawn.

It is further ordered that the proceedings under the order to show cause dated December 22, 1964 be and the same is hereby terminated.

T