Matter of De La Nues
| Decision Date | 05 October 1981 |
| Docket Number | A-23224173,Interim Decision Number 2885 |
| Citation | 18 I&N Dec. 140 |
| Parties | MATTER OF DE LA NUES In Exclusion Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
(2) Applying the Federal Juvenile Delinquency Act (FJDA) as the benchmark of United States standards, an act which would be a crime if committed by an adult is an act of juvenile delinquency where perpetrated by a youth between 16 and 18 years of age unless the act complained of, if committed by an adult, would be a felony punishable by a maximum penalty of 10 years imprisonment or more, life imprisonment, or death; under those circumstances, the Attorney General may move to transfer the case for criminal prosecution. 18 U.S.C. 5032. Matter of A-, 5 I&N Dec. 639 (BIA 1954), modified.
(3) In determining whether a foreign offense would make a juvenile liable to possible criminal prosecution under United States standards by virtue of the penalty involved, the offense is examined in light of the maximum punishment imposable for an equivalent crime described in the United States Code or, if an equivalent crime is not found there, in the District of Columbia Code.
(4) Inasmuch as each crime equivalent to the applicant's offenses (see sections 22-1801(b) and 22-2205, District of Columbia Code, defining second degree burglary and receipt of stolen goods respectively) carries a maximum penalty of 10 years imprisonment or longer, it may not be said that one charged with the commission of either offense while over the age of 16 years is entitled as a matter of law to treatment as a juvenile delinquent and therefore it is incumbent upon the applicant, who committed his offenses at 16 and 17 years of age, to establish that he was in fact dealt with as a juvenile delinquent in Cuba under a system of treatment substantially similar to the FJDA.
(5) The applicant was given a determinate prison sentence in Cuba extending beyond his minority and therefore has not established that he was treated as a juvenile delinquent under a system comparable to our own and must be considered to have been convicted of a crime. Compare 18 U.S.C. 5037(b).
(6) The applicant's burglary offense is a crime involving moral turpitude notwithstanding the fact that the offense may have been motivated by economic hardship.
(7) The juvenile offender exception to section 212(a)(9), available to a qualifying youthful offender even though he is deemed to have been convicted of a crime involving moral
turpitude rather than adjudicated a juvenile delinquent under United States standards, does not apply to the applicant as fewer than 5 years have elapsed since his release from confinement.
The applicant has appealed from a decision of an immigration judge dated November 14, 1980, which found him excludable, denied him asylum and relief under section 243(h) of the Immigration and Nationality Act, 8 U.S.C. 1253(h), and ordered him excluded and deported from the United States. The appeal will be dismissed.
The applicant, a 21-year-old native and citizen of Cuba, arrived in the United States at Key West, Florida, on June 6, 1980, as part of the recent exodus from Cuba. On June 21, 1980, the applicant executed a sworn statement and an application for asylum in which he admitted to having been convicted in Cuba on two occasions. According to those documents, in 1976 when he was 16 years of age, the applicant purchased a stolen motorcycle from a friend for 1,500 pesos. He was convicted of possession of stolen property and sentenced to a 1-year term of imprisonment.1 In May 1977, at the age of 17 years, the applicant and a friend broke into a government-owned store at night and stole a quantity of clothing and other goods valued in excess of 8,000 pesos. The applicant was arrested shortly after the break-in and incarcerated without trial until February 1979, when he was tried, convicted of breaking and entering theft, and sentenced to 8 years imprisonment.2 He was serving that sentence when taken to a boat bound for the United States.
The applicant further stated that he had not been issued a visa or any other document entitling him to enter the United States. These exclusion proceedings were thereupon instituted to determine whether the applicant is excludable under section 212(a)(9) of the Act, 8 U.S.C. 1182(a)(9), as an alien who has been convicted of a crime involving moral turpitude, or under section 212(a)(20) of the Act, 8 U.S.C. 1182(a)(20), as an immigrant without a valid immigrant visa.
At the second in a series of exclusion hearings conducted between August 13, 1980, and November 14, 1980, the applicant testified that he intends to remain permanently in the United States but conceded that he lacks the requisite documentation. He also acknowledged his two convictions. Midway through the third and final hearing, however, the applicant belatedly stated that he thought an appeal had been taken from his second conviction and his sentence reduced to 4 years as a consequence. He testified that he stole out of necessity.
The immigration judge found the applicant excludable under both section 212(a)(9) and section 212(a)(20). He further found the applicant ineligible for asylum or section 243(h) relief.3
In Matter of Ramirez-Rivero, 18 I&N Dec. 135 (BIA 1981), decided today, we held that conduct underlying a foreign conviction which constitutes an act of juvenile delinquency under United States standards, however treated by the foreign court, is not a crime for purposes of our immigration laws and, accordingly, may not serve as the basis of a finding of excludability. Applying the Federal Juvenile Delinquency Act (hereinafter, the FJDA)4 as the benchmark of United States standards, we found that an act which would be a crime if committed by an adult is an act of juvenile delinquency where perpetrated by a youth under the age of 16 years or by a youth between 16 and 18 years of age unless, in the latter case, the act complained of, if committed by an adult, would be a felony punishable by a maximum penalty of 10 years imprisonment or more, life imprisonment, or death.5 Under those circumstances, the Attorney General may move to transfer the case for criminal prosecution. Section 5032 of the FJDA, 18 U.S.C. 5032; Matter of Ramirez-Rivero, id.
Neither of the applicant's offenses was committed while he was under 16 years of age. It is therefore necessary to look to the nature of his offenses, committed when he was 16 and 17 years of age, in order to determine whether either or both shall, by reason of the maximum punishment imposable, be considered an act of juvenile delinquency rather than a crime under United States standards.6
It is settled that United States standards govern in determining whether an offense committed in a foreign country is a felony or a misdemeanor within the meaning of section 212(a)(9) of the Act. See Soetarto v. INS, 516 F.2d 778 (7 Cir. 1975); Giammario v. Hurney, 311 F.2d 285 (3 Cir. 1962); Matter of Scarpulla, 15 I&N Dec. 139 (BIA 1974), and the cases cited therein. The offense is examined in light of the maximum punishment imposable for an equivalent crime described in the United States Code or, if an equivalent crime is not found there, in the District of Columbia Code. A felony is any offense punishable by death or imprisonment for a term exceeding 1 year; any other offense is a misdemeanor. 18 U.S.C. 1(1)(2). The foregoing analysis is appropriate not only in determining whether a given foreign offense would be considered a felony by United States standards if committed by an adult but whether the offense, by virtue of being a felony punishable by a maximum penalty of death, life imprisonment, or a prison term of 10 years or more, exposes a juvenile to possible criminal prosecution pursuant to the transfer provisions of section 5032 of the FJDA.
The acts for which the applicant was convicted in Cuba most closely resemble offenses defined by Congress in Title 22 of the District of Columbia Code, , sections 22-1801(b) and 22-2205, dealing with second degree burglary and the receipt of stolen goods respectively.7 Inasmuch as burglary in the second degree carries a maximum penalty of 10 years imprisonment or longer, as does receiving stolen goods valued at $100 or more, it may not be said that one charged with the commission of either offense is entitled, as a matter of law, to treatment as a juvenile delinquent under United States standards.
Under the circumstances, we believe it is incumbent upon the applicant to show that he was in fact dealt with as a juvenile delinquent in Cuba, and not as an adult criminal, under a system of treatment comparable to that established by Congress with the enactment of the FJDA. See generally Matter of Ramirez-Rivero, supra. We note with approval an excerpt from the immigration judge's opinion:
This court rules that where a country adopts a procedure inherently like the adult procedure in the United States (especially including an adjudicated determination of guilt and a determinate sentence extending into one's adult life) that that treatment, even though designated by some name which refers to youth...
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