A-6458222
Decided by Board March 23, 1956
Petty offense — Section 4, P.L. 770 — Admission of essential elements which, under state law, could constitute either misdemeanor or felony may be considered within provisions of that statute.
(1) Under California law, statutory rape is punishable either by imprisonment in the county jail for not more than one year (misdemeanor) or in the State prison for not more than 50 years (felony).
(2) When no conviction is involved, an admission of a crime under a statute which permits punishment of the offense either as a misdemeanor or a felony will be treated as an admission of a misdemeanor. Hence, the benefits of section 4 of P.L. 770 may be accorded an alien in that situation.
EXCLUDABLE:
Act of 1952 — Section 212 (a) (9) — Admits commission of elements of crime, statutory rape.
BEFORE THE BOARD
Discussion: The case comes forward on appeal from the order of the special inquiry officer dated February 13, 1956, ordering the appellant excluded from the United States on the ground stated above.
The record relates to a native and citizen of Mexico, 39 years old, male, who seeks admission for permanent residence. He is in possession of the required documents.
On November 15, 1946, the appellant was arrested and charged with statutory rape in violation of section 261 of the California Penal Code which provides: "Rape is an act of sexual intercourse accomplished with a female not the wife of the perpetrator under either of the following circumstances: 1. Where the female is under the age of 18 years." The appellant was released with no charges filed. However, the ground of inadmissibility is predicated upon an alleged admission of this crime after the definition of statutory rape had been read to him. The appellant refused to admit the commission of the crime of rape and it is not believed that he has made a valid admission of the elements of that crime in view of the absence of any admission as to the age of the girl involved.
Assuming arguendo that there was a valid admission of the commission of the crime of rape, consideration must be given to the possible application of section 4 of Public Law 770 (Act approved September 3, 1954). This law provides that any alien who is excludable because of the conviction of a misdemeanor classifiable as a petty offense under the provisions of section 1 (3) of Title 18, United States Code, by reason of the punishment actually imposed, or who is excludable as one who admits the commission of such misdemeanor may hereafter be granted a visa and admitted to the United States, if otherwise admissible; provided that the alien has committed only one such offense. Section 1 (3) of Title 18, United States Code, provides any offense punishable by death or imprisonment for a term exceeding one year is a felony; any other offense is a misdemeanor; 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. Under section 17 of the California Penal Code a felony is a crime which is punishable by death or by imprisonment in a State prison and every other crime is a misdemeanor. Section 264 provides that statutory rape is punishable either by imprisonment in the county jail for not more than one year (a misdemeanor) or in the State prison for not more than 50 years (a felony).
The appellant disclosed his arrest for statutory rape to the American consul when applying for a visa. Consideration was given to the problem in a Department of State memorandum dated August 1, 1955, in which it was stated: "However, since the classification of the crime is divisible by reason of the degree of punishment imposed, the fact that Mr. E---- was not convicted of the offense of which he was charged would, in the Department's view, render him eligible to the benefits of section 4 of Public Law 770 as one who has admitted the commission of a single misdemeanor committed in the United States, punishable by imprisonment not to exceed one year."
The special inquiry officer has refused to concur in the opinion of the Department of State. He argues that it is immaterial whether a conviction would have resulted in classifying the crime as a felony or a misdemeanor; that it is possible that conviction would have resulted in the crime being classified as a petty offense as defined in Title 18, United States Code, section 1 (3), but that a conviction could as well have resulted in a sentence to imprisonment of more than six months or to a fine of more than $500 which would have removed the offense from the classification of petty offense and yet have been a misdemeanor within the meaning of section 17 of the Penal Code of the State of California. He concludes that inasmuch as no conviction occurred and there is involved only an admission of the elements of the crime it cannot be held that section 4 of Public Law 770 is applicable.
We are unable to follow the reasoning of the special inquiry officer and we concur in the view adopted by the Department of State. Public Law 770 makes specific reference to one who is excludable as one "who admits the commission of such misdemeanor." Statutory rape is punishable either as a misdemeanor or as a felony. The punishment is divisible and since there was no conviction involved there appears to be no valid reason to speculate that appellant may have been sentenced for a felony rather than for a misdemeanor. Since there was no conviction and no punishment, we find the appellant under the divisible statute here involved to be guilty only of a misdemeanor. In cases involving admissions, having once determined a misdemeanor has been committed, the possible punishment which might have been inflicted had a conviction occurred need not be considered for the reason that so serious a consequence as exclusion or deportation should not rest upon speculation or conjecture as to possible sentence where not even a conviction is involved. Accordingly, we find the appellant, assuming a valid admission of the commission of the elements of a crime, entitled to the benefits of Public Law 770 and admissible to the United States.
Order: It is ordered that the appeal be sustained and the appellant be admitted for permanent residence.