In this appeal we are asked to determine whether the Immigration and Naturalization Service (hereinafter the “Service”) is empowered to order the deportation of Mr. Velez, a Colombian *1306citizen, for engaging in the act of consensual sodomy. This determination can only be made upon a finding of whether Velez has been convicted of a crime of moral turpitude and whether he has been sentenced to a term of confinement. A subsidiary issue presented for our consideration is what effect, if any, should be given to a nunc pro tune suggestion made by the trial judge which recommended against deportation. After considering the argument and submissions of counsel and examining the pertinent authorities we conclude that the deportation order of the Board of Immigration Appeals must be affirmed.
Jairo Velez-Lozano is a citizen of Colombia which is the nation of his birth. He was admitted to the United States at Miami, Florida, as a permanent resident on March 20, 1964. In an indictment filed with the Circuit Court of Arlington County, Virginia, Velez was charged with committing sodomy by force on October 19, 1968. The indictment was amended on June 25, 1969, and petitioner pleaded guilty to the offense of consensual sodomy. The circuit court judge sentenced Velez on August 8, 1969, after reviewing the presentence report, to a term of three years imprisonment. The judge then suspended the sentence and placed Velez on probation without supervision on the condition that he remain on good behavior for the three year period. On December 11, 1969, an Order to Show Cause and Notice of Hearing were served on Velez by the Immigration and Naturalization Service. The Service charged that petitioner was deportable under Section 241(a) (4) of the Immigration and Nationality Act, 8 U. S.C. 1251(a) (4) (1964), since he had been convicted of a crime involving moral turpitude and sentenced to a term of confinement within five years of his entry into the United States.
At a hearing held on December 22, 1969, Velez admitted the allegations of fact contained in the Order to Show Cause. Petitioner advised the Special Inquiry Officer that he did not know that his conviction would render him subject to deportation. Similarly, petitioner informed the Special Inquiry Officer that he was unaware that the sentencing judge would have to recommend against deportation at the time of imposing sentence. Petitioner was then informed by the Special Inquiry Officer that any recommendation against deportation by the sentencing judge would have to be received within 30 days of sentencing and that no such recommendation had been received.
After earlier admitting his deportability Velez chose to now challenge this status alleging that his sodomy conviction was based on an unconstitutional state statute. He was advised by the Special Inquiry Officer that the immigration hearing was not the proper forum for constitutional challenges to state statutes. The Special Inquiry Officer then handed down an oral opinion finding that Velez was deportable as charged under Section 241(a) (4) of the Immigration and Nationality Act. Petitioner was further informed that he would not be eligible for any statutory relief from deportation, but that after deportation he might be able to reenter this country if found eligible for a waiver of excludability in accordance with Section 212(h) of the Act, 8 U.S.C. 1182(h).
On January 2, 1970, petitioner appealed the decision of the Special Inquiry Officer to the Board of Immigration Appeals. Before hearing by the Board, Charles S. Russell, Circuit Judge for Arlington County, Virginia, sent a letter to the Attorney General recommending, nunc pro tunc, against deportation. In his letter dated January 28, 1970, Judge Russell wrote that he would have been glad to write to the Attorney General recommending against deportation within 30 days had he known of the statutory requirement at the time of sentencing. He concluded his letter by writing : “Under these circumstances, this letter may be considered a recommendation against deportation, nunc pro tunc, if Federal law will so permit.” (R. 18.) Following a hearing the Board dismissed *1307petitioner’s appeal, whereupon this petition for review was filed.
The first contention raised by petitioner is that the act of which he was convicted is not a crime of moral turpitude within the scope of the immigration laws. In the instant case petitioner pleaded guilty to an indictment which charged him with committing anal sodomy with consent. The complainant, Gladys Villarreal, was a friend of Velez’s wife, and both she and petitioner are heterosexual adults. Miss Villarreal was not charged with any crime. Section 241(a) (4) provides for the deportation of an alien who “is convicted of a crime involving moral turpitude committed within five years after entry [to the United States] and either sentenced to confinement or confined therefor in a prison or corrective institution, for a year or more . . . . ”
Despite petitioner’s lengthy argument that consensual sodomy is not a crime involving moral turpitude we are unable to agree with him. Sodomy is a crime of moral turpitude in Virginia, Code of Virginia, § 18.1-212, and is still considered a felony in the District of Columbia, 22 D.C.Code 3502. Similarly, the Board has held the crime of solicitation to commit sodomy was a crime involving moral turpitude as early as 1949. In the Matter of K_, 3 I & N Dee. 575 (BIA 1949). The argument advanced by petitioner that the Virginia sodomy statute is unconstitutional is also without merit. See Towler v. Peyton, 303 F.Supp. 581 (W.D.Va.1969).
The second issue for us to consider is whether petitioner’s sentence is one of confinement within the meaning of Section 241(a) (4) of the Act. Mr. Velez contends that since his sentence was suspended in whole, and since he was placed on probation without any supervision he was not sentenced to a term of confinement. It has been held that the conviction of an alien which was followed by a suspended sentence and probation is still considered a “conviction” whether there was actual confinement or not. Wood v. Hoy, 266 F.2d 825 (9th Cir. 1959). In the case of United States ex rel. Fells v. Garfinkel, 158 F.Supp. 524 (W.D.Pa.1957), affirmed, 251 F.2d 846 (3rd Cir. 1958), the district court, in comparing Section 241(a) (4) with comparable provisions of the Immigration Act of 1917, stated:
In enacting the Immigration and Nationality Act in 1952, Congress changed the language of this section. [Section 19 of the 1917 Act] As quoted above, Section 241 of the Act provides for the deportation of an alien who has been “either sentenced to confinement or confined therefore” for a year or more. The quoted language of Section 241 by including the term “confined" in the disjunctive indicates an intention to differentiate and further specify the meaning of the term “sentenced to confinement” so as to include those sentences under which there is no actual imprisonment. (Emphasis supplied.)
Id. at 525.
Thus, in the ease at bar it is clear that while Velez was never imprisoned in durance vile he was sentenced to a term of confinement. The essential element with reference to the Act is the imposition of sentence rather than the actual serving of sentence. Petitioner’s reliance on Holzapfel v. Wyrsch, 157 F.Supp. 43 (D.N.J.1957), is illfounded. Holzapfel involves an alien sentenced under the New Jersey Sex Offenders Act for treatment for behavior which was both compulsive and repetitive in connection with sexual offenses. The court held that this was not a sentence to confinement but to treatment. We are at a loss in determining the relevance of Holzapfel to Mr. Velez’s case and find it inapplicable.
Finally we must determine what weight, if any, is to be given to the trial judge’s nunc pro tunc recommendation to the Attorney General against deportation. Under the terms of Section 241(b) (2) of the Act, 8 U.S.C. 1251(b) (2) a recommendation against deporta*1308tion must be sent to the Attorney General within 30 days of sentencing. Such a recommendation, if timely issued, is absolutely binding on the Attorney General and leaves him with no discretionary authority. Haller v. Esperdy, 397 F.2d 211, 213 (2nd Cir. 1968) ; United States ex rel. Santarelli v. Hughes, 116 F.2d 613, 616 (3rd Cir. 1940). However, the cases are equally clear that recommendations issued after the 30-day cut-off period cannot be given nunc pro tunc effect. United States ex rel. Piperkoff v. Esperdy, 267 F.2d 72, 74 (2nd Cir. 1959); United States ex rel. Klonis v. Davis, 13 F.2d 630 (2nd Cir. 1926). In our instant case the trial judge, petitioner’s trial counsel, and, indeed petitioner himself were all ignorant as to the 30-day recommendation requirement and it is on the basis of this ignorance that petitioner seeks an exception from what are now well-established principles of law. This was precisely the fact pattern before the Ninth Circuit last year in Marin v. Immigration and Naturalization Service, 438 F.2d 932, 933 (9th Cir. 1971). In that case the court held that even in light of these seemingly mitigating circumstances the deportation order had to stand.
We reach our decision in this case reluctantly. While we are without doubt as to the law in this case, we are troubled by a deportation that will now occur because of failings in the trial judge and petitioner’s trial counsel. Petitioner was bound to these men for justice in a country where he was a stranger. Every law student is impressed early in his legal education with the maxim that “every man is presumed to know all the law,” however, that axiomatic platitude cannot now serve as a justification for the actions of the Service or this court. In a brief opinion in 1926 Judge Learned Hand stated that he was powerless to accept a nunc pro tunc recommendation against deportation; yet he went on to deplore the potential deportation of the alien in that case. He referred to the impending act of deportation as “. . .a cruel and barbarous result [which] would be a national reproach.” United States ex rel. Klonis v. Davis, supra, 13 F.2d at 631. We are of the same feeling in the Velez case. Deportation here would be harsh and unjustifiable. While the Service has the legal power and authority this court hopes that they take a moment to examine the equities of this case before proceeding further. Affirmed.