L-R

                           MATTER or L         R—

                    In DEPORTATION Proceedings
                                  A-6881251
                      Decided by Board February 20, 1959

Narcotic Violation—Finality of conviction—Commitment to California Youth
  ,Authority.
Alien found guilty by California court of narcotic violation and ordered com-
  mitted to the California Youth Authority has been "convicted" within mean-
  ing of section 241(a) (11) of the 1952 act.
CHARGE -

  Order : Act of 1952—Section 241(a) (11) IS II.S.C. 1251(a) UM—Narcotic
            conviction: Possession of heroin, in violation of section 11500 of the
            California Health and Safety Code.

                            BEFORE Itik, BOARD
   Discussion: Respondent, a 20-year-old married male, a native and
national of Mexico, last entered the United States in 1948 when he
was admitted for permanent residence. On March 17, 1958, he was
convicted in the Superior Court at Los Angeles, California, for
possession of heroin in violation of section 11500, Health and Safety
Code of the State of California. The respondent was found guilty.
A probation report was ordered and the proceedings were continued.
On May 6, 1958, the respondent appeared for sentencing. Probation
was denied. Respondent was committed to the Youth Authority of
the State of California for the term prescribed by law and was
ordered held in the custody of the sheriff in the county jail subject
to any orders the Authority might issue.
   The special inquiry officer found that respondent had been con-
victed of a narcotic violation and he ordered the respondent's de-
portation. Respondent appealed stating that he did not believe that
he was subject to deportation. On August 22, 1950, we remanded
the case to have the record show what disposition the Youth Author-
ity had made of the respondent. The Acting Regional Commissioner,
Southwest Regional Office, filed this motion asking for reconsidera-
tion of our decision. His position is that whatever action the Youth
Authority will take can have no bearing on the alien's liability to

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 deportation since the only question to be resolved is whether the
respondent has been convicted of a narcotic violation and this fact
is already established by the record. At oral argument, the Service
 representative pressed the same view. (We have now been supplied
 with information that the respondent was transferred from the
county jail to a vocational institution at Tracy, California, and that
from there he has been transferred to the Director of Corrections
at Soledad, California.)
   The issue is whether the respondent has been "convicted" as that
term is understood in the immigration laws. For deportation pur-
poses, a conviction exists where the following elements are all pres-
ent: (1) there has been a judicial finding of guilt, (2) the court
takes action which removes the case from the category of those
which are (actually, or in theory) pending for consideration by the
court—the court orders the defendant fined, or incarcerated or the
court suspends sentence, or the court suspends the imposition of sen-
tence, (3) the action of the court is considered a conviction by the
State for at least some purpose (Hatter of 0 , 7 I. Sc N. Dec.
539; Matter of .1       , 7 I. Sr N. Doc. 530; Matter of D        , Int. Doe.
 No. 965). 1
   How does the action of the court here meet the tests? The record
 reveals that there has been a judicial declaration of guilt. This
judicial finding of guilt was followed by an order committing re-
spondent. The court has acted and there is nothing left for the
court to do. After the order of commitment was entered the court,
without more, had no jurisdiction over the respondent (People v.
Rick, 112 C.A. 2d 410, 

246 P. 2d 691

). The action of the court is as
final as if the court had given respondent a suspended sentence, or
had suspended the imposition of sentence, or had placed respondent
on probation rather than ordering him confined (see Arrellano-Flores
v. Hoy, 

262 F.2d 667

, C.C.A. 9, 1958). The last test, which required
that the State consider the proceeding as one resulting in a convic-
tion, is also satisfied here. The law provides that a person who has
been "convicted of a public offense" can be committed to the Youth
Authority (section 1731.5, Welfare and Institutions Code; see also
section 1771); and the courts of the State in speaking of a person
committed to the Youth Authority in a proceeding such as this, con-
sider him as having been "convicted of crime." A commitment to
the Youth Authority is a judicial determination of the fact of de-
fendant's conviction and pronouncement of sentence for the offense

  lit is to be noted that we are not concerned with whether an alien has
been sentenced to confinement for a year or more, but merely with whether
he has been convicted. There is no requirement in the Immigration laws that
conviction of a narcotic violation be followed by a particular type of punish-
ment, in order to make the alien deportable.

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 (see, People v. Lockwood, 146 C.A. 2d 189, 

303 P. 2d 621

; In re
Herrera, 23 C. 2d 206, 

113 P. 2d 345

; People v. Rick, 112 C.A. 2d
410, 

246 P. 2d 691

). The court took the action which is normally
taken to inflict some obligation upon a convicted person. This action
meets all the tests we have set forth. A conviction exists for immi-
gration purposes. We shall, therefore, withdraw our order of August
22, 1958, and dismiss the appeal.
   Order: It is ordered that the Board's order of August 22, 1958,
be and the same is hereby withdrawn.
  It Is fstrth.ss. tyrtissmi that. the appeal he and the same is hereby
dismissed.




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