CHEN

Interim Decision #1377

MAWER OF CHEN

Li DEPORTATION Proceedings

A-13699390

Decided by Board Apra 10, 1094
Since an indeterminate sentence is a sentence for the maximum term, respondent's
sentence under section 1168a, California Penal Code, to imprisonment for an
offense punishable under applicable California statute by imprisonment from
6 months to 10 years, is a sentence to confinement for a year or more within
the meaning of section 241(a) (4), Immigration and Nationality Act.
CHABGES :
Order: Act of 1952—Section 241(a) (4) [8 U.S.C. 12513—Convicted of crime
involving moral turpitude, committed within Ave years of entry, and
sentenced to imprisonment for year or more, to wit : Grand theft (1903).
Lodged: Act of 1952—Section 241(a) (9) [8 U.S.O. 1251]—Nonimmigrant (tem-
porary visitor )—Pailed to comply with conditions of status.

The special inquiry officer, in a decision dated December 10,,1983,
directed that the respondent be deported from the United States to
Hong Kong on the lodged charge only. The trial attorney has ap-
pealed to this Board from that decision, urging that the charge stated
in the order to show cause should also have been sustained.
The record relates to a married female alien, a native of Hong Kong,
British Crown Colony, and a subject of Great Britain. She entered
the United States for the first, last and only time on or about March 9,
1963. She was then admitted as a nonimmigrant temporary visitor
for a period until September 8, 1963. However, on or about July 6,
1963, she was arrested at San Francisco, California, and charged with
violations of sections 182 and 487 of the Penal Code of the State of
California. She was subsequently convicted, on October 11, 1963, in
the Superior Court of the State of California, in and for the City and
County of San Francisco, of the offense of grand theft, in violation of
section 487 of the Penal Code of California, the crime having been
committed on or about May 28, 1963.
The special inquiry officer has sustained the charge of deportability
lodged at the hearing on the basis of a prior precedent decision of this

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Board (Matter of A—, 6 L & N. Dec. 762). We therein held that an
alien in the United States as a temporary visitor for pleasure who was
convicted of an offense and sentenced to confinement as a result thereof
was no longer pursuing the purpose for which he was admitted and
was, therefore, out of status within the purview of section 241(a) (9)
of the Immigration and Nationality Act, ante. The foregoing facts
of record bring this case clearly within the scope of that decision. In
the light thereof, we agree with the special inquiry officer that the
charge lodged at the hearing is sustained.
The crime of grand theft of which the respondent stands convicted,
ante, involves moral turpitude (Matter of V–T--, 2 I. & N. Dec. 213 at
214). Her crime was committed on or about May 28, 1963, which is
within five years of her last entry on or about March 9, 1963. She has
been confined since her conviction, but the period thereof does not yet
amount to one year. The only issue before us, therefore, is whether
the respondent has been sentenced to confinement "for a year or more."
Upon her foregoing conviction, the respondent was sentenced to
imprisonment in the California dtate Prison, for the term provided
by law, and was thereafter ordered delivered to the superintendent of
the California Institution for Women at Corona, California. This
action was in accord with section 1168a of the California Penal Code,
which reads:
Every female convicted of a public offense, for which imprisonment in any
State prison is now prescribed by law shall, unless such - convicted female is
placed on probation, s. new trial granted, or the imposing of sentence suspended,
be sentenced to detention at the California Institution for Women, but the court
fn imposing the sentence .0.411 not fix the term or duration of the period of
detention.
Under such a statute, the judgment of the court properly consists of
a recital of the offense, a designation of the prison to which the defend-
ant is committed, and nothing more (People v. 111 endow, 178 C. 590,
173 P. 998). Thus, the failure of the judgment to have included the
phrase "as provided by law" would not have rendered the order of
commitment invalid (Piople v. louden, 96 C.A. 2d 562, 215 P. 2d
743).
The extent of "the term provided by law" as applied to this case is
determined by sections 489 and 18b of the California Penal Code.
The former makes grand theft punishable by imprisonment in the
county jail for not more than one year or in the State prison for not
more than ten years. The latter, a minimum term statute of general
application, provides that the duration of the respondent's period of
detention may be as short as six months (see In re Humphrey, 64 C.A.
572, 22 P. 366).
The crux of this case, therefore, is whether under California law ,
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the minimum or maximum limit of an "indeterminate sentence" of
from six months to ten years is determinative. In the light of the
following authorities, we hold that it is a sentence for the maximum
term.
The courts of California have uniformly held that an indeterminate
sentence under section 1168 of the California Penal Code is in legal
effect a sentence for the maximum term (People v. Lumbley, 68 P.2d
354) . In so doing, they have pointed out that the statutes dealing
with the Indeterminate Sentence Law do not infringe the right of due
process of law because the judgment pursuant thereto is in legal effect
a sentence for the maximum term and is, therefore, certain and definite
(la re Bandamann, 51 C.2d 388, 333 P.2d 339) rather than being un-
constitutional as "void for vagueness" (People v. Leiva, 285 P.2d 46).
They have also pointed out that the pronouncing of sentence there-
under is a judicial act; that the punishment which the sentence pro-
nounces comes from the law itself, and is established or provided for
by the legislature; and that the act does not confer upon the Board
of Trustees of the California Institution for Women (post) the right
to determine the punishment that any given crime shall bear (In re
Larsen, 283 P.M 1043).
The foregoing is consistent with federal court rulings (see U.S. ex
rel. Paladin v. Commissioner, 43 F. 2d 821) to the effect that indeter-
minate sentences have long been held to be sentences for the maximum
term for which the defendant might be imprisoned. In so ruling,
the courts have pointed out that this is the construction not only placed
upon sentences where a maximum and minimum period of imprison-
ment appears in the sentence, but also upon sentences where no term
is mentioned and the statute sets the maximum. The said courts have
also pointed out that such sentences afforded a basis for deportation
under section 19 of the Act of February 5, 1917 (former 8 .U.S.C. 155)
even though a duly designated administrative authority might subse-
quently greatly diminish, indeed almost totally abate, the period of
imprisonment. They have given as the reason for their decisions the
fact that in all such cases the defendant could be brought back and
required to serve the remainder (maximum) of his sentence.
It is also consistent with the following precedent decisions of this
Board to the effect that an. indeterminate sentence is measured by the
possible maximum term of imprisonment. One of these (Matter of
R—, 1 I. & N. Dec. 209) involved an alien convicted of assault with
a deadly weapon under the law of Utah; the sentence imposed was
"for the indeterminate term. as prescribed by law;" the statute pro-
vided for imprisonment not to exceed five years, or by fine not to ex-
ceed $1,000, or by both; with no minimum apparently being set therein.
Another (Matter of B—,1 I. & N. Dec. 540) concerned an alien con-
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Interim Decision #1371
victed, inter olio, of petty larceny; he was sentenced to imprisonment
in the penitentiary of the County of New York, there to be dealt with
according to law; and the statute under which he was convicted pre-
scribed a term of imprisonment not to exceed three years.
It is not inconsistent with the prior precedent decision of this
Board (Matter of V—, 7 I. & N. Dec. 577), relied on by the special
inquiry officer. In that case, the court, instead of imposing sentence
and suspending its execution, suspended the imposition of the sentence.
This was not the case hem
Support for .our conclusion, if such is necessary, is found in the
procedural provisions of the Cal ifornia Penal Code pertinent to the
sentencing of this female offender, and the judicial decisions clarify-
ing same. Thus, section 3325 of the Penal Code imposes the duty of
fixing the terms of imprisonment for female convicts, within the fore-
going minimum and maximum limits, by the Board of Trustees of the
California Institution for - Women. As is the case with the Adult
Authority, which is responsible .for adult male convicts under section
3020 of the Penal Code, that board determines and redetermines, after '
the expiration of six months from and after the actual commencement
of imprisonment, what length of time the convict shall be imprisoned.
However, there is no time prescribed within which the prisoner's sen-
tence must be fixed. or even snusidered (hz. re Quinn, 25 C.2d 799,154
P.2d 875), so that if no such action is taken the term is the maximum.
If, on the other hand, such action is taken and the term set at less than
the maximum , it is only tentative and may be changed, i.e.—increased
(In re Costello
, 262 F.2d 214). In. this connection, the subsequent fix-
ing of the actual term of imprisonmnet by the duly designated admin-
istrative authority is merely a limitation of the term and not a setting
thereof (In re Daniels, 106 C.A. 43, 288 P.1109), otherwise the statute
would be unconstitutional as conferring judicial powers on. a non-
judicial body (see People v. Kostal, 159 C.A.2d 444, 323 P.2d 1020).
Finally, as pointed out by the special inquiry officer, under the cir-
cumstances herein before outlined the respondent is not presently elig-
ible for any form of discretionary relief. ' Her deportation, there-
fore, is required.
ORDER: It is Ordered that the Service appeal be and the same is
hereby sustained.
It is fv/rtlber ordered that the respondent be deported from the
United States to Hong Kong on the charge contained in the order to
show cause as well as on the lodged charge.

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