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By the above-quoted provision of the Selective Training and Service Act, aliens who elected to claim the benefits thereunder were required to assume the burdens and responsibilities thereof. Mr. C elected to claim the benefits; namely, exemption from military service. His wish was respected and he was, in fact, accorded the exemption provided in such cases. By his own testimony on two separate occasions it is abundantly clear that in claiming exemption from military service C did so with full knowledge of the attendant consequences of his act; namely, that he would thereafter be debarred from becoming a citizen of the United States. The language of the statute seems plain and I think that Congress intended that an alien who elected to claim exemption from United States military service with full knowledge of the consequences of his act should be bound by his election. To hold otherwise would require reading into the act provisions which do not exist.

On the basis of the above facts, the applicable provision of the Selective Training and Service Act (supra), and the applicable provision of the Immigration Act of May 26, 1924, as amended (supra), it is my conclusion that the alien is not eligible to United States citizenship. Being ineligible to citizenship the alien is thereby ineligible for suspension of deportation under section 19 (c) of the Immigration Act of February 5, 1917 (8 U. S. C. 155 (c) (2)). Therefore, the question before me; namely, can the above-named alien legally adjust his immigration status, must be answered in the negative. The petition of the alien is hereby denied and the order and decision of the Board of Immigration Appeals, dated September 26, 1950, are hereby approved.

BEFORE THE BOARD

(February 1, 1951)

Discussion: This case is before us on motion requesting reconsideration of the order for the alien's deportation on the charge that he is in the United States in violation of the act of 1924 in that he was not in possession of a valid immigration visa at the time of entry. The alien, a native and citizen of Portugal, about 42 years of age, entered the United States on October 29, 1938, as a stowaway. On May 6, 1942, he signed a DSS Form 301 requesting exemption from military service under the Selective Training and Service Act of 1940 as a national of a neutral country. During April 1944 he sought to withdraw the claim for exemption and volunteered for military service; however, he was rejected for service following a physical examination.

The alien is married to a United States citizen. Discretionary relief looking toward adjustment of his immigration status in this

country has been denied him as he is ineligible for naturalization because of seeking relief from military service in the armed forces.

Counsel seeks reconsideration of the case on the basis of the decision of the United States Supreme Court in J. Howard McGrath v. Peder Kristian Kristensen, decided December 11, 1950. Counsel in his motion fails to point out any similarity between the instant case and the Kristensen case. The Kristensen case was concerned with a neutral alien who had been admitted to the United States temporarily. The issue in that case was whether Kristensen was residing in the United States. In the instant case, the subject alien entered this country as a stowaway with the intent of remaining permanently in the United States. The issue in the Kristensen case is not present in the instant case. In addition, this case was exhaustively reviewed by the Acting Attorney General, and on December 20, 1950, he affirmed an order of this Board denying the request for further consideration. This decision was made after the decision of the Supreme Court in the Kristensen case.

In view of the foregoing factors, the request for stay of deportation, and for further consideration, and for oral argument will be denied. Order: It is ordered that the motion requesting further consideration and oral argument be and the same is hereby denied.

It is further ordered, That a stay of deportation be denied.

IN THE MATTER OF CR

In DEPORTATION Proceedings

A-7828860

Decided by Central Office October 2, 1950

Sentenced to imprisonment-Section 19, Immigration Act of February 5, 1917— Commitment to Youth Authority and subsequent incarceration in Vocational Institution (California).

An alien was convicted in the Superior Court at Los Angeles, Calif., on December 30, 1949, for the commission of the crime of burglary, second degree, on or about October 16, 1949. This court found him to have been over 19 but under 21 years of age when apprehended, and ordered him to be committed to the Youth Authority of the State of California for the time prescribed by law. He was incarcerated in the California Vocational Institution at Lancaster, Calif., for a term of a year or more. Such alien was sentenced to imprisonment within the meaning of the immigration laws.

CHARGES:

Warrant: Act of 1924-No immigration visa.

Lodged: Act of 1917-Crime within 5 years-Burglary in the second degree.

BEFORE THE CENTRAL OFFICE

Discussion: The respondent, a native and citizen of Mexico, last entered the United States at Del Rio, Tex., about January 23, 1947. He secured entry by presenting a fraudulent certificate indicating that he had been born in the United States. At the time of entry it was his intention to seek employment. He was not then in possession of an immigration visa and had never been lawfully admitted to the United States for permanent residence. The warrant charge is, therefore, sustained.

With respect to the lodged charge, exhibit 4 shows that the respondent was convicted of the crime of burglary, second degree, a felony, on December 30, 1949, in the superior court at Los Angeles, Calif., the crime having been committed on or about October 16, 1949, within 5 years of his entry. The information charged that the respondent entered a building with the intention of committing theft. It is clear, therefore, that the crime involved moral turpitude. Matter of VT, 2, I. & N. Dec. 213.

The remaining question is whether the respondent has been sentenced to imprisonment for a term of 1 year or more. Under section 461 of the Penal Code of California, burglary in the second degree is punishable by imprisonment in the county jail for not exceeding 1 year or in the State prison for not less than 1 year or more than 15 years. The commitment in the case sets forth that on March 1, 1950, the court found that the respondent was under 21 years of age and over 19 years of age at the time of his apprehension, and the court ordered that he "be committed to the Youth Authority of the State of California for the time prescribed by law." It is stated in exhibit 3, which is a letter from the California Vocational Institution, Lancaster, Calif., that the respondent was received at that institution on April 7, 1950, under a commitment dated March 1, 1950, from the superior court of Los Angeles County. The respondent is still incarcerated in that institution.

The hearing examiner made a finding in this case that the respondent was sentenced to imprisonment for a term of 1 year or more. An official of the California Vocational Institution, who appeared at the hearing as a Government witness, testified that the respondent's confinement in that institution was an imprisonment, and he answered in the affirmative when asked whether the respondent's imprisonment was for a term of 1 year or more. Since this testimony represents merely the opinion of the witness in the nature of a legal conclusion, it is not of assistance in reaching a determination. It does not appear that this Service has previously considered the question of whether a commitment to the Youth Authority of California and subsequent confinement in an institution constitute a sentence of imprisonment within the meaning of the immigration laws.

In Matter of C—, 55829/975 (1936 C. O.), the following rule* was adopted on March 13, 1936, with respect to sentences to reformatories:

*Editor's note.-The Solicitor of Labor's view was followed; also see U. S. ex rel. Cerami v. Uhl, 78 F. (2d) 698 (C. C. A. 2), as to commitment of a minor to the New York House of Refuge and also see U. S. ex rel. Popoff v. Reimer, 79 F. (2d) 513 (C. C. A. 2), re commitment of a 17-year-old to the New York State Reformatory, which was held to be a sentence to imprisonment; the commitment to the New York House of Refuge was held not to be a sentence to imprisonment. In the unreported Matter of P, 56074/609, now A-3417212, B. I. A., September 17, 1943, a violation of 18 U. S. C. 502 (new 2275) and 371 was involved, the unlawful acts being committed when this alien was 17, and on conviction on March 29, 1941, this alien was committed to the Attorney General for imprisonment in an institution of a reformatory type and he was committed to the Federal Reformatory at El Reno, Okla. This reformatory was regarded in the same light as the Federal Industrial Reformatory at Chillicothe, Ohio, commitments to which were treated as sentences to imprisonment.

Confinement in a reformatory is a sentence to imprisonment within the meaning of the Immigration Act, unless the local statutes under which such confinement was ordered indicate that the primary purpose of such confinement was corrective rather than penal. Such confinement may be taken to be corrective when it appears that the person was committed as a minor and

(a) Under local statutory provisions is a juvenile delinquent required to be confined principally for corrective and educational treatment in a penal institution, or

(b) If not brought before a court exercising juvenile jurisdiction, that his minority was the determining factor in the designation of the place of confinement or the length of the term.

It should be noted, first, that the respondent does not come within subdivision (a) of the rule in the C case. Under section 700 of the Welfare and Institutions Code of California, the jurisdiction of juvenile courts extends to persons under 21 years of age who come within certain specified classifications, one of which relates to persons who have violated any law of the State and, under section 740 of that code, a person adjudged to be a ward of the juvenile court may be committed to certain associations or institutions, one of which is the Youth Authority. With respect to persons over 18 and under 21 years of age, however, section 833.5 of that code provides that any criminal court may certify the case to the juvenile court, but the criminal court is not required to do so. Since the record of commitment shows that the respondent was convicted in the Superior Court and that the proceedings were not in a juvenile court, it is clear that he was not treated as a juvenile; that he was not committed to the Youth Authority as a ward of the juvenile court; and that he was tried under the general provisions of the penal code.

The next matter to be considered is whether the respondent comes within subdivision (b) of the rule in the C― case (supra), insofar as it refers to minority as the determining factor in the designation of the place of confinement. It appears that the commitment to the Youth Authority was because the respondent was under 21 years of age since section 1731.5 of the Welfare and Institutions Code (as last amended in 1949) specifies the conditions under which a criminal court may refer to the Youth Authority a person convicted of a public offense, one of these conditions being that the individual must have been less than 21 years of age at the time of apprehension. As stated in the C case, the fact that minority was a determining factor in the designation of the place of confinement may be taken to indicate that the confinement was corrective, but the important consideration is whether the primary purpose of the confinement was corrective or penal.

Chapter 1 of Division 2.5 of the Welfare and Institutions Code, which relates to the Youth Authority Act of 1941 as amended in 1943 provides, in section 1700, that the purpose of this chapter is to pro

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