and of purpose did bite off and disable a member of Nancy Santoro, to wit, the nose of the said Nancy Santoro." Title 11, Chapter 29, Section 1 of the General Laws of Rhode Island defines the crime of mayhem as follows:

11-29-1. Penalty for mutilation or disabling.-Every person who shall voluntarily, maliciously or of purpose put out an eye, slit the nose, ear or lip, or cut off or bite off or disable any limb or member of another, shall be imprisoned not exceeding ten (10) years nor less than one (1) year.

It is clear that an accidental or even a negligent mutilation or disabling would not constitute the offense of mayhem. The statute specifically requires that the act be done "voluntarily, maliciously or of purpose". In view of the evil intent required to constitute mayhem and the serious nature of the crime, we conclude that the crime of which the respondent was convicted involves moral turpitude.

In connection with counsel's second contention, Exhibit 4 is a letter from the Rhode Island Bureau of Probation and Parole indicating that the respondent has complied with the conditions of his probation; that he "would be considered a model probationer"; and that the crime was brought about by a domestic situation that had mitigating circumstances. Nancy Santoro, who was the victim of the crime, was and is the respondent's wife. She had corresponded with the respondent and then went to Italy to marry him. Thereafter, she filed a visa petition and he secured nonquota status. The respondent testified that, although he had repeatedly sought to have sexual intercourse with his wife, she had continued to refuse, and that it was this factor which finally led to his commission of the offense. It is unnecessary for us to decide to what extent his wife's action may have been a mitigating circumstance since it has long been settled judicially that the immigration authorities may not go behind the record of conviction to examine the circumstances under which the crime was committed, and the determination of whether the crime involves moral turpitude must be made on the basis of the statutory definition of the crime and the record of conviction. United States ex rel. Zaffarano v. Corsi, 63 F.2d 757 (2d Cir., 1933); United States ex rel. Meyer v. Day, 54 F.2d 336, 337 (2d Cir., 1931); United States ex rel. Robinson v. Day, 51 F.2d 1022 (2d Cir., 1931). Accordingly, counsel's second contention is dismissed.

Counsel's third contention is that the respondent has not been actually sentenced to imprisonment for one year because a lesser sentence might be imposed in the future. This contention is based on Title 12, Chapter 19, Section 14 of the General Laws of Rhode Island which provides, in effect, that where there has been suspen

sion of execution of sentence and violation of probation, the court may continue the suspension or may revoke the suspension and order the defendant committed on the sentence previously imposed or any lesser sentence. As we have previously indicated, the sentence imposed was confinement for five years with execution of the sentence suspended and probation for eight years. If the respondent violated his probation, it appears highly conjectural that the court would then impose a sentence of less than one year. In any event, we must dispose of the appeal on the basis of the present record and not on the basis of some future contingency which may or may not occur. Accordingly, we reject this contention of counsel.

An additional matter, which was not specifically urged on appeal, is that the respondent was not actually imprisoned under the conviction since execution of the sentence was suspended. As the special inquiry officer pointed out, we have held that an alien who was sentenced to imprisonment for over one year but whose sentence was wholly suspended was, nevertheless, deportable under 8 U.S.C. 1251(a)(4). Matter of M—, 6 I. & N. Dec. 346 (1954). The special inquiry officer has also discussed his reasons for concluding that no discretionary relief from deportation is available to the respondent, and we concur in his conclusion. In view of the foregoing, the appeal will be dismissed.

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

and of purpose did bite off and disable a member of Nancy Santoro, to wit, the nose of the said Nancy Santoro." Title 11, Chapter 29, Section 1 of the General Laws of Rhode Island defines the crime of mayhem as follows:

11-29-1. Penalty for mutilation or disabling.-Every person who shall voluntarily, maliciously or of purpose put out an eye, slit the nose, ear or lip, or cut off or bite off or disable any limb or member of another, shall be imprisoned not exceeding ten (10) years nor less than one (1) year.

It is clear that an accidental or even a negligent mutilation or disabling would not constitute the offense of mayhem. The statute specifically requires that the act be done "voluntarily, maliciously or of purpose". In view of the evil intent required to constitute mayhem and the serious nature of the crime, we conclude that the crime of which the respondent was convicted involves moral turpitude.

In connection with counsel's second contention, Exhibit 4 is a letter from the Rhode Island Bureau of Probation and Parole indicating that the respondent has complied with the conditions of his probation; that he "would be considered a model probationer"; and that the crime was brought about by a domestic situation that had mitigating circumstances. Nancy Santoro, who was the victim of the crime, was and is the respondent's wife. She had corresponded with the respondent and then went to Italy to marry him. Thereafter, she filed a visa petition and he secured nonquota status. The respondent testified that, although he had repeatedly sought to have sexual intercourse with his wife, she had continued to refuse, and that it was this factor which finally led to his commission of the offense. It is unnecessary for us to decide to what extent his wife's action may have been a mitigating circumstance since it has long been settled judicially that the immigration authorities may not go behind the record of conviction to examine the circumstances under which the crime was committed, and the determination of whether the crime involves moral turpitude must be made on the basis of the statutory definition of the crime and the record of conviction. United States ex rel. Zaffarano v. Corsi, 63 F.2d 757 (2d Cir., 1933); United States ex rel. Meyer v. Day, 54 F.2d 336, 337 (2d Cir., 1931); United States ex rel. Robinson v. Day, 51 F.2d 1022 (2d Cir., 1931). Accordingly, counsel's second contention is dismissed.

Counsel's third contention is that the respondent has not been actually sentenced to imprisonment for one year because a lesser sentence might be imposed in the future. This contention is based on Title 12, Chapter 19, Section 14 of the General Laws of Rhode Island which provides, in effect, that where there has been suspen

sion of execution of sentence and violation of probation, the court may continue the suspension or may revoke the suspension and order the defendant committed on the sentence previously imposed or any lesser sentence. As we have previously indicated, the sentence imposed was confinement for five years with execution of the sentence suspended and probation for eight years. If the respondent violated his probation, it appears highly conjectural that the court would then impose a sentence of less than one year. In any event, we must dispose of the appeal on the basis of the present record and not on the basis of some future contingency which may or may not occur. Accordingly, we reject this contention of counsel.

An additional matter, which was not specifically urged on appeal, is that the respondent was not actually imprisoned under the conviction since execution of the sentence was suspended. As the special inquiry officer pointed out, we have held that an alien who was sentenced to imprisonment for over one year but whose sentence was wholly suspended was, nevertheless, deportable under 8 U.S.C. 1251(a)(4). Matter of M-, 6 I. & N. Dec. 346 (1954). The special inquiry officer has also discussed his reasons for concluding that no discretionary relief from deportation is available to the respondent, and we concur in his conclusion. In view of the foregoing, the appeal will be dismissed.

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

(1) Since the term "business" as used in section 101(a)(15) (B) of the Immigration and Nationality Act does not include local employment or labor for hire, a nonimmigrant visitor for business who secured a social security number and unauthorized employment on a 40-hour per week basis as a construction worker, which employment is not of a temporary nature, is deportable under section 241(a)(9) of the Act for failure to comply with the conditions of his status.

(2) Where respondent's section 245 adjustment of status, granted in 1960 upon approval of his first United States citizen wife's visa petition to accord him nonquota status, was rescinded in 1965 under section 246 of the Act because the marriage was not bona fide, having been entered into solely to obtain nonquota status, he comes within the provisions of section 204(c) of the Act, as amended by section 4(c) of P.L. 89-236, and is thereby precluded from establishing eligibility for immediate relative status on the basis of his present marriage to a United States citizen. CHARGE:

Order: Act of 1952-Section 241(a)(9) [8 U.S.C. 1251(a)(9)]—Nonimmigrant, failed to comply with conditions of status.

The

This case comes forward on appeal from an order entered by the special inquiry officer on January 3, 1966 granting the respondent's request that he be permitted to depart voluntarily from the United States, in lieu of deportation, and directing that if he fails to depart when and as required he be deported to Spain, the country of his nativity, on the charge set forth in the order to show cause. respondent, a 29-year-old married male, native and citizen of Spain, has resided continuously in the United States since his admission at New York, New York on or about February 9, 1960 as a nonimmigrant visitor for business for a period of six months (p. 25). Deportation proceedings were instituted against the respondent on September 7, 1965. Several hearings in deportation proceedings were held