P

MATTER OF P

In DEPORTATION Proceedings
A-8421656
Decided bu Board June 21, 1960

Recommendation against deportation—Ineffective when made at time of resen-
tencing—Notice from court not required v.tere attorney had notified Service
recommendation would be requested.
(1) Court's recommendation against deportation not timely when made upon
resentencing on October 2, 1959, following retrial as result of coram nobis
proceedings alleging respondent did not comprehend the nature of the com-
plaint when he originally pleaded guilty to disorderly conduct on March 19,
1959. Respondent again pleaded guilty at new trial ; hence, sole purpose
was to obtain recommendation against deportation not previously made.
(2) "Notice" requirement in section 241(b) (2) of the 1952 act is satisfied when
respondent's counsel has furnished Service with notice of intention to move
the court for a recommendation against deportation.

CHARGE :

Order : Act of 1952—Section 241(a) (4) [8 U.S.C. 1251(a) (4) ]—Convicted
of two crimes involving moral turpitude, to wit, disorderly conduct,
in violation of section 722, subdivision 8, of the New York Penal
Law, on two occasions.

BEFORE THE BOARD

Discussion: The case comes forward to this Board pursuant to
certification by the special inquiry officer of his order dated Decem-
ber 8, 1959, terminating the deportation proceedings.
The record relates to a native of Germany, a citizen of Israel and
Germany, 38 years old, male, who was last admitted to the United
States on June 25, 1958, as a returning resident. He had originally
been admitted for permanent residence on December 25, 1952. There-
after, he was temporarily absent from the United States from Sep-
tember 1955 to March 20, 1956, May 1957 to September 1957, March
1958 to June 25, 1958. He was readmitted upon each occasion as a
returning resident.
Deportation proceedings were instituted by service of an order to
show cause and notice of hearing upon the respondent on June 18,
1959. At the hearing, it was established that the respondent was
first. convicted on September 30, 1954, in the City Magistrates Court

689
of the City of New York of the offense of disorderly conduct in
violation of section 722(B) of the Penal Law of the State of New
York, committed September 30, 1954. He was next convicted on
March 17, 1959, in the same court of the same offense committed
March 16, 1959. On each occasion the respondent pleaded guilty
and was fined the sum of $25. It is not controverted that these
offenses involve moral turpitude Platter of G , 7 I. & N. Dec.
520).
The case was previously before us on appeal from the decision
entered by the special inquiry officer on July 10, 1959, directing the
respondent's deportation on the charge contained in the order to
show cause. In view of representations that the disorderly conduct
conviction of September 14th had been vacated pursuant to a writ
of coram nobis and a new trial had been scheduled in the Magis-
trates Court, we ordered the proceedings to be reopened.
At the reopened hearing it was established that the motion to va-
cate the judgment of conviction of March 17, 1959, was granted on
September 11, 1959, and the City Magistrates Court directed that
the case be retried on September 25, 1959. On September 14, 1959,
the respondent's counsel notified the District Attorney of New York
County, the District Director of the Immigration and Naturaliza-
tion Service at New York, and the Attorney General at Washing-
ton, D.C., of the action taken by the City Magistrates Court, in-
cluding in such notification the advice that pursuant to the provisions
of section 241(b) of the Immigration and Nationality Act,' in the
event of a judgment of conviction against the respondent, an ap-
plication would then and there be made to the court for recom-
mendation to the Attorney General that the alien not be deported.
The new trial in the City Magistrates Court was adjourned un-
til October 2, 1959, appropriate notice being given to the Service
by counsel, and at the trial on October 2, 1959, the respondent
pleaded guilty to the charge, was fined $25 or 5 days, execution of
the sentence was suspended and after imposition of sentence the
City Magistrates Court expressly recommended that the respond-
ent not be deported as a result of such conviction.
There is no dispute as to the facts. The legal issue, to be deter-
1 The pertinent portion of section 241(b) of the Immigration and Nationality
Act (8 U.S.C. 1251(b)) provides that the provisions of subsection (a) (4) of
this section "respecting the deportation of an alien convicted of a crime or
crimes shall not apply * * (2) if the court sentencing such alien for such
crime shall make, at the time of first imposing judgment or passing sentence,
or within thirty days thereafter, a recommendation to the Attorney General
that such alien not be deported, due notice having heen given prior to making
such recommendation to representatives of the interested State, the Service,
and prosecution authorities, who shall be granted an opportunity to make
representations in the matter."

690
mined is whether the court's recommendation against deportation
was made at the time of first imposing judgment or passing sen-
tence or within 30 days thereafter as required by section 241(b) of
the act, 8 U.S.C. 1251(b). 2 A corollary issue is whether the notice
furnished by counsel constitutes compliance with the provisions of
section 241(b).
It is believed that a careful examination of the various steps in
the coram nobis proceedings is appropriate at this point. The peti-
tion in the coram nobis proceedings sets forth that at the time of
pleading guilty on March 17, 1959, the petitioner was not repre-
sented by counsel but was so represented at the time of sentencing;
that counsel arrived after the petitioner had been arraigned and
pleaded guilty and was present at the time of sentencing; that the
petitioner did not understand the complaint when it was read to
him in court and he asked it be translated into German which was
not done; that the petitioner was too embarrassed and ashamed to
say that he did not read English well enough to understand the
complaint and to repeat his request that it be translated into Ger-
man; that the petitioner pleaded guilty without comprehending the
charge against him; that the petitioner's counsel at the criminal
proceeding did not discover what had occurred until the minutes
were transcribed at the request of the petitioner's counsel in the
present deportation proceedings; that the petitioner has been or-
dered deported; wherefore the petitioner prayed that a writ of
error coram nobis be granted, vacating the plea of guilty, the con-
viction and sentence and that the petitioner be rearraigned. The
motion to vacate the judgment was granted on September 11, 1959,
and a new trial date set. The minutes of the court hearing which
led to the order vacating the judgment indicate that counsel en-
tered a plea of "not guilty." However, when the respondent was
again before the court on October 2, 1959, for rearraignment coun-
sel had the respondent plead guilty and the court sentenced him to
$25 or 5 days, execution of sentence suspended; then, after hearing
counsel's representations that the respondent would be deported
under the McCarran Act unless a recommendation against depor-
tation be made, the court so recommended.
It is believed that the situation regarding corm, nobis cases in
New York and its application to 8 U.S.C. 1251(h) is governed by
the decision of the Second Circuit in the case of United States ex rel.
Piperkoff v. Esperdy, 267 F.2d 72 (May 18, 1959). That case like-
wise involved coram nobis proceedings. The court there held:
We hold that §1251(b) announces a federal standard for the determination
of what constitutes the first entry of judgment or the passing of sentence.
While we may assume that in many or even most cases that standard incur-

2 See footnote 1, supra.

691
porates and adopts the relevant state law, we hold that it does not do so
where the sole basis for the vacation and reentry of judgment is to repair the
omission to make the statutory recommendation against deportation permitted
by § 1251(b). To hold otherwise would be to defeat the plain command of
the statute, which strictly, and for a good purpose, limits the time within
which the extraordinary power vested in the trial court must be exercised.'

An examination of the various steps in the corm nobis proceed-
ings, particularly the reference to deportation and the plea of guilty
upon rearraignment, leads to the inescapable conclusion that the
vacation and reentry of the judgment was for the sole purpose of
petitioning the court to make the statutory recommendation against
deportation permitted by 8 U.S.C. 1251(b). Such recommendation
was not timely and was ineffectual. It is concluded the respondent
is :Abject to deportation on the charge stated in the order to show
cause. In view of his criminal record, discretionary relief is not
warranted.
Although not necessary to the disposition of the case in view of
the decision we have already reached as to deportability, we be-
lieve that appropriate comment should be made regarding the con-
tention of the sufficiency of the notice by counsel in accordance with
the provisions of section 241(b), 8 1251(b). It is undis-
puted that subsequent to the granting of the motion to vacate the
judgment of conviction, the respondent's counsel on September 14,
1959, notified the District Attorney of New York County, the Dis-
trict Director of the Service at New York, and the Attorney Gen-
eral at Washington, D.C., of the action taken by the City Magistrates
Court and gave notice of his intention to move the court for a rec-
ommendation that the alien be not deported. The examining offi-
cer conceded that such notice was received. The statute, 8
1251(h) (2), in appropriate part reads:
* * * due notice having been given prior to making such recommendation to
representatives of the interested State, the Service, and prosecution authori-
ties, who shall be granted an opportunity to make representations in the matter.
It is noted that the portion quoted above does not specify who
shall give the required notice prior to the making of the recom-
mendation. The purpose of. this provision, as plainly stated therein,
is to afford the Government an opportunity to present argument in
opposition to such application for recommendation against depor-
tation, if it so desires. The Government admittedly has received

3 Cf. Matter of B , 7 I. & N. Dec. 227; Matter of M C , 5 I. & N.
Dec. 531; also see United States CT rel. Kionis v. Davis, 13 F.2d 630, which
dealt with a recommendation against deportation under the 1917 act. The
lower court in the Piperlcoff cage, 104 P. Rupp 59R, rillprvprl that the present
statute is more stringent than the 1917 act since 8 U.S.C. 1251(b) requires the
recommendation to be made "at the time of first imposing judgment or passing
sentence. -

692
adequate notice, but chose not to appear in opposition. It does not
appear to be important whether such notice be given by the court
or by counsel for the alien, in the absence of specific statutory pro-
vision, since the purpose of such notice has been satisfied. Indeed,
the court's sole interest would appear to lie in hearing arguments
on both sides concerning the application for the recommendation
against deportation. It is believed that in the absence of any spe-
cific limitation in the statute, the notice herein constituted compli-
ance with the provisions of the law.
Order: It is ordered that the alien be deported pursuant to law
on the charge contained in the order to show cause.

693