MATTER OF ALEO In Visa Petition Proceedings A-13912092 Decided by Board December 1, 1965 Petition by a U. S. citizen to accord nonquota status as a stepchild to the alleged illegitimate child of her husband by another woman to whom he was never married, and who has not otherwise been legitimated, is denied since, other than the statement of petitioner's husband that he is the father of the child, there is no evidence to support such claim; and the evidence fails to establish the existence of a family unit, the beneficiary, following the death of her mother, having been cared for by her maternal grandmother. Cf. Matter of The, Int. Dec. No. 1541. The case comes forward on appeal from the order of the District Director, New York District, dated September 2, 1965 denying the visa petition for the reason that the petitioner's husband was never married to the beneficiary's mother and she has not otherwise been legitimated; therefore, the beneficiary cannot derive a benefit through the petitioner and it is concluded that the beneficiary is not a child as defined in section 101(b) of the Act. The petitioner, a native-born citizen of the United States, seeks nonquota status on behalf of the beneficiary as her stepdaughter. The beneficiary is a native and citizen of Italy, born December 7, 1950. The petitioner was married on October 1, 1955 to Angelo Reina and the beneficiary is alleged to be his natural daughter. In a supporting affidavit the petitioner's husband states that he became acquainted and intimate with Elena Vaiana in 1948; that the relationship continued until early in 1950; that Elena Vaiana was married and her husband had abandoned her; that in May 1950 he left Castelvetrano and at that time Elena Vaiana told him that she was pregnant and he knew that she was to have his child; that he learned that she gave birth to a baby girl whom she named Carmela, after his mother. There have been submitted a birth certificate relating to the beneficiary showing her birth as December 7, 1950 at Castelvetrano, Trapani, Italy, the daughter of Filippo and Elena Vaiana. There has also been submitted a certificate of the death of the beneficiary's natural mother, Elena Vaiana, the daughter of Lorenzo and Francesca Guarino, on June 9, 1952 at Castelvetrano, Italy. There has also been submitted a Confession or Declaration of Accountability by Notarial Act executed by Francesca Guarino stating that from 1952, after the death of the mother, Carméla Aleo, 14 years old, has been provided sufficiently and under her firm control, under her normal income without benefit of any additional funds because Carmela Aleo is her grandchild. The petitioner, by virtue of her marriage to her husband on October 1, 1955, claims thereby to have become the stepmother of the beneficiary, his alleged illegitimate child. However, other than the affidavit of the husband, there is no evidence to support this claim. The birth certificate of the beneficiary discloses that her father is Filippo Aleo and her mother is Elena Vaiana. No reference is made in this birth certificate to the petitioner's husband, Angelo Reina. The "Declaration of Accountability" shows that the maternal grandmother, Francesca Guarino, has had the care of the beneficiary since 1952 after the death of her mother, under normal income without benefit of any additional funds because the beneficiary is her grandchild. Even if the statement by the petitioner's husband that he was the father of the child were accepted, despite the very strong presumption of legitimacy attaching to a birth occurring during wedlock, it would appear that the child, under Italian law, would be an adulterine child according to Article 252 of the Italian Civil Code of 1942.1 The petitioner's counsel has cited the case of Nation v. Esperdy, 239 F. Supp. 531. (S.D. N.Y., March 1965), as supporting his position. One of the most persuasive factors in the Nation case was the existence of a family unit. The facts in the instant case clearly do not bring it within the scope of the holding in the Nation case. The petition will be denied for the reason that the evidence fails to establish a stepmother-stepchild relationship between the petitioner and the beneficiary. The appeal will be dismissed. ORDER: It is ordered that the appeal be and the same is hereby dismissed. 1 Article 252 provides that adulterine children, to wit, those who are produced by an unlawful connection between two persons who at the time the child was begotten were either of them or both married to another person, may be acknowledged at any time by the parent who was not married when the child was begotten and by the other parent only after his marriage is dissolved by the death of the other spouse. There is no documentary evidence of acknowledgment of paternity by the putative father for support. MATTER OF QUADARA In Deportation Proceedings A-11593423 Decided by Board January 11, 1966 (1) Conviction of assault, second degree, with intent to commit the crime of robbery is conviction of a crime involving moral turpitude. (2) Where an alien, following conviction in New York of a crime involving moral turpitude committed within 5 years after entry, was sentenced to not less than one year nor more than two years in the State prison, a final judgment of conviction exists on which to predicate a ground of deportation under section 241 (a) (4), Immigration and Nationality Act, notwithstanding execution of sentence was suspended and he was placed on probation on condition of restitution. CHARGE: Order: Act of 1952-Section 241(a) (4) [8 U.S.C. 1251(a)(4)]—Convicted of a crime involving moral turpitude committed within five years of entry and sentenced to a year or more, to wit, assault, second degree. The case comes forward on appeal from the order of the special inquiry officer dated June 14, 1965 finding the respondent deportable on the charge stated in the order to show cause and ordering that hé be deported to Italy. The record relates to a native and citizen of Italy, 21 years old, male, who last entered the United States at the port of New York on April 29, 1959. He was admitted for permanent residence as a nonquota immigrant, the unmarried minor son of a citizen of the United States. The respondent's mother was a native-born citizen of the United States by birth on March 27, 1915 in this country. She left the United States at the age of seven and did not return to this country until 1958, again left in 1959 and returned to the United States in April 1964. She is presently a resident of the United States. The respondent's father was born in Italy and is not a United States citizen. He came to the United States on April 29, 1959, stayed for only four or five months and returned to Italy. The respondent testified that his parents were married but he does not know the date. It is concluded that the respondent did not acquire United States citizenship at birth because his mother did not have the requisite residence in the United States prior to such birth as set forth in section 301(a)(7) of the Immigration and Nationality Act or by virtue of any prior statute. On April 30, 1964 the respondent was charged with committing a crime on April 17, 1964, which was a period within five years of his last entry. He was indicted on seven counts and during his trial on November 30, 1964 he pleaded guilty to the crime of assault second degree under count three of the indictment. The third count of the indictment alleged that the respondent was guilty of the crime of assault in the second degree committed as follows: The said defendant, in the County of New York, on or about said April 17, 1964 with intent to commit the crime of robbery, assaulted said Merilio Torres. Inasmuch as the intent to commit robbery with which the crime was committed obviously involves moral turpitude, the conviction of assault in the second degree with intent to commit robbery likewise involves moral turpitude. The respondent was sentenced to not less than one year and not more than two years in the State Prison, execution of the sentence was suspended and the respondent was placed on probation on condition of restitution of $2000 at a rate of $50 per month to be paid to the probation department. At oral argument counsel filed a brief arguing that the respondent is not deportable on the basis of the suspended sentence, setting out portions of the New York Code of Criminal Procedure. Although this belated service of brief was contrary to regulations, we shall dispose of the issue raised. Counsel contends that the sentence to a term of not less than one year and no more than two years, execution of sentence suspended, probation, does not constitute a ground of deportation under the first clause of section 241 (a) (4) of the Immigration and Nationality Act which provides for deportation of an alien who is convicted of a crime involving moral turpitude committed within five years after entry and sentenced to confinement or confined therefor in a prison or corrective institution for a year or more. In support of this contention he relies principally upon sections 470-a and 483 of the New York Code of Criminal Procedure which allegedly has the net effect that no definite period of confinement has resulted. Counsel also relies upon the case of Holzapfel v. Wyrach, 259 F.2d 890 (3rd Cir., 1958). This case involved an alien who was convicted of the offense of open lewdness and pursuant to the New Jersey Sex Offenders Act was committed to a diagnostic center for a complete physical and mental examination. The County Court, after consideration of the report and recommendation of the diagnostic center, ordered and adjudged that the alien be confined in the New Jersey State Reformatory, sentence be suspended, and defendant placed in the custody of the Probation Officer for a period of three years, one of the conditions of probation being that the defendant takes psychiatric treatment. The court commented regarding the New Jersey. Sex Offenders Act, that it appears clear that this Act is directed primarily at rehabilitation and cure of persons found to require medical treatment; its penal aspects are decidedly secondary. The appellee had to be given a suspended sentence in order for the court to be able to enforce its probationary order that he undergo psychiatric treatment. "Although the sentence was penal in form, in substance it merely provided for a series of psychiatric treatments. The coercive effect of the suspended sentence was intended to insure the participation of the appellee in the out-patient medical care. The penal element in this legislation was so unquestionably secondary that the humanitarian nature of the Act should not be subverted by any formalistic interpretation of its provisions. The court concluded that the suspended sentence was merely a technical means of enforcing the probation order and therefore was not within the purview of section 241(a) (4) of the Immigration and Nationality Act of 1952 authorizing deportation. The facts of the Holzapfel case are clearly inapposite to the present case. The sections referred to by counsel in the New York Code of Criminal Procedure were considered in People v. Weinberger, 251 N.Y.S.2d 790 (S.C.N.Y., A.D., 1964). The court there stated that the term "convicted" or "conviction" is of equivocal meaning. It may mean verdict. The use of the term may vary with the particular statute involved and its meaning presents a question of legislative intent. The court then pointed out that in civil matters, under certain laws, a plea or verdict of guilty followed by suspension of sentence is a conviction while under other laws, it is not. It stated however that in criminal cases the sentence is the judgment, and there can be no judgment until sentence has been imposed. Thus, a plea of guilty followed by suspension of sentence is not a conviction for fourth offender purposes under section 1942 of the Penal Law. Although suspension of sentence is not a rendition of judgment, section 470-b of the Code of Criminal Procedure specifically provides that a plea or verdict of guilty and suspension of sentence or suspension of execution of the whole or a part of the judgment shall be regarded 245 235-67- -31 |