concurring in part, dissenting as to affirmance :
I concur in the court’s position that the act of which appellant was convicted is a crime of moral turpitude within the scope of the immigration laws. My dissent from affirmance of the deportation order is based on the view that the recommendation of the sentencing court, though made more than 30 days after sentencing, should be given effect in a manner to be described. In such a ease as this it is provided by 8 U.S.C. § 1251(b)(2), that deportation shall not be ordered,
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 been 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.
I interpret the time provision as directory rather than mandatory, and I also conclude that the court’s recommendation satisfies the notice requirement under the reasoning of the Second Circuit in Haller v. Esperdy, 397 F.2d 211 (1968).
I
First, the relevant factual background. Upon receipt of the guilty plea the state court judge, on August 8, 1969, sen*1309tenced appellant to three years imprisonment, but suspended the sentence and placed him on probation without supervision. The report of the pre-sentence investigation of the same date, which is before us, is comprehensive. It includes the result of discussions between the officer and appellant, with the latter’s wife acting as interpreter. The report is most favorable to appellant. It indicates the investigating officer’s confidence in appellant’s future. It explains the mitigating circumstances which led to the offense, prior to which appellant had no arrest record either as a juvenile or adult. The report concludes:
It is respectfully recommended that the Court consider a general suspended sentence conditioned on his uniform good behavior, without supervision, because, as indicated above, his greatest hurdle will be with the immigration authorities who will have to make the final decision whether he stays in this country or not.
The officer thus mistakenly advised the court that the immigration authorities “have to make the final decision whether he stays in this country or not,” which is inconsistent with Section 1251(b) (2). The mistake was later corrected, and promptly thereafter in a letter to the Attorney General of the United States, dated January 28, 1970, the sentencing judge recommended against deportation as follows:
Counsel for Jairo Velez have informed me by letter dated January 21, 1970 that he is presently involved in deportation proceedings pursuant to 8 U.S.C. sec. 1251(a)(4) by reason of a sentence imposed in this court on August 8, 1969 in the case of Commonwealth of Virginia v. Jairo Velez, C-6297.
I am further informed that 8 U.S.C. sec. 1251(b) provides an exception to the statutory deportation requirement where the sentencing judge makes a recommendation against deportation to the Attorney General of the United States within 30 days after the imposition of sentence.
At the time of sentencing I was satisfied, from the report of the probation officer, that the defendant’s violation of the law was an unfortunate response to an exceptional situation rather than evidence of an antisocial pattern of behavior. For this reason the execution of sentence was suspended entirely, without any requirement of probation supervision. This procedure is invoked only in those rather rare cases in which the court is of the opinion that the defendant is remorseful, understands his situation, is determined to refrain from future violations and is capable of rehabilitating himself as a useful citizen without the help of probation.
Had the statutory requirement been called to my attention at the time of sentencing, I would have been glad to have written to you recommending against deportation, within 30 days.
I have had no report from the Virginia authorities concerning any violation, by the defendant, of the conditions of his suspended execution of sentence, and assume that his conduct has been entirely satisfactory to them since August 8, 1969. Under these circumstances this letter may be considered a recommendation against deportation, nunc pro tunc, if Federal law will so permit.
The letter verifies that had the judge known when appellant’s case was before him that he possessed the authority to prevent deportation, he would have written the Attorney General within the time specified. Moreover, the delay which occurred beyond the thirty days was only four and a half months. No intervening harm to the public, or otherwise, had occurred, although the proceedings before the Service resulting in the order of deportation under review had taken place.
Two questions arise: one, whether the lack of the notice referred to in Section 1251(b) (2) prior to the recommenda*1310tion, rendered it ineffective, and, two, whether the thirty days provision was directory or mandatory.
II
As to the first of these questions, in the well reasoned opinion in Haller v. Esperdy, swpra,, where, however, the recommendation was made within the 30 days, the court held that the judge’s recommendation itself was sufficient notice. The court stated:
We must decide whether the procedural defect necessarily deprived the judge’s recommendation of all effect. We state the issue that way because there can be no question about where the equities lie. The sentencing judge, who observed petitioner and was obviously familiar with the nature of his crime, did not think that Haller’s conduct merited deportation. Moreover, the court assumed the responsibility of giving notice to the immigration authorities; thus, petitioner cannot fairly be charged with that default. And finally, deportation itself is a drastic measure; as Learned Hand once put it, deportation is to many “exile, a dreadful punishment, abandoned by the common consent of all civilized peoples.” United States ex rel. Klonis v. Davis, 13 F.2d 630 (2d Cir. 1926). But that observation was made in a case in which Judge Hand also concluded that the sentencing court was powerless to grant the relief requested; i. e., to make a “nunc pro tunc” amendment of a sentence and recommend against deportation sixteen months late. This serves to emphasize that we are called upon not to determine equities but to construe a statute, processes which unfortunately do not necessarily lead to the same result.
397 F.2d at 213. The court concluded:
[T]he statute may fairly be interpreted to give the timely recommendation on the bad cheek charge the following limited effect: It will prevent use of that conviction as a basis for deportation until such time as the Service presents its views in opposition, if any, to the sentencing court, and that court acts upon them.
397 F.2d at 215.
The court distinguished United States ex rel. Piperkoff v. Esperdy, 267 F.2d 72 (2d Cir. 1959); United States ex rel. Klonis v. Davis, 13 F.2d 630 (2d Cir. 1926), and Ex parte Eng, 77 F.Supp. 74 (N.D.Cal.1948), cases involving tardy recommendations — Piperkoff, three years after sentencing, Davis, sixteen months, and Eng, about four years. Moreover, the Haller court seemed to approve the disposition by the Third Circuit of Sawkow v. INS, 314 F.2d 34 (1963), even though the period between the first sentence and ultimate recommendation there was about one year. The court in Haller pointed out that in Sawkow the court relied on the fact that the first sentence had been vacated six months after imposition of the sentence, followed by a new accusation and the dismissal of the original indictment. A new sentence was imposed, followed by a recommendation of the judge within 30 days and after proper notice.
I would hold, upon the basis of Haller as well as under the principles of statutory construction hereinafter to be discussed, that the notice contained in the judge’s recommendation should be given effect, subject, as in Haller, to opportunity to the Service to urge the judge to reconsider his recommendation.
Ill
This brings me to the second question, whether the recommendation, not having been made until four and one-half months after the expiration of 30 days from the date of sentencing, may nevertheless be considered.
As Haller points out, the statute contemplates obtaining the sentencing court's disposition at a time substantially contemporaneous with the sentencing. In our case, there can be no question as to the judge’s disposition at that time. It is clear that he would have recom*1311mended against deportation had he known of his authority to do so. His unwitting failure to communicate his views within 30 days of sentencing should not defeat the primary purpose of Section 1251(b) (2) to prohibit the Attorney General from deporting an alien the judge feels should not be subject to such extreme punishment. Weighing the values involved — on the one hand avoiding the harsh consequence of deportation if the 30-day provision is construed to be directory, and on the other the administrative convenience which would be served by a mandatory construction — to adopt the latter construction would require the strongest indication of congressional intention that it should be done. No such intention emerges from the history or language of the provision, or from the nature of the official action involved.
A mandatory construction of the 30-day provision would be inconsistent with Supreme Court decisions which have construed statutes involving the possible deportation of an alien in a manner to avoid that harsh result where ambiguity or doubt arises from the language and context of the statute.
In Fong Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 376, 92 L.Ed. 433 (1948), the Court said:
We resolve the doubts in favor of the [lenient] construction because deportation is a drastic measure and at times the equivalent of banishment or exile, Delgadillo v. Carmichael, 332 U.S. 388, 68 S.Ct. 10, 92 L.Ed. 17. It is the forfeiture for misconduct of a residence in this country. Such a forfeiture is a penalty. To construe this statutory provision less generously to the alien might find support in logic. But since the stakes are considerable for the individual, we will not assume that Congress meant to trench on his freedom beyond that which is required by the narrowest of several possible meanings of the words used.
The same attitude toward deportation under the immigration laws is reflected in Costello v. INS, 376 U.S. 120, 128, 84 S.Ct. 580, 11 L.Ed.2d 559 (1964), where the Court refused to apply the nunc pro tunc fiction to ease the way to deportation.
Moreover, to construe the time provision as mandatory, would be inconsistent with long established general principles of statutory construction where the court is called upon to decide whether such a provision, applicable to official action, is directory or mandatory. The following statement of principles' suggests the appropriate analysis:
[Although the legislative intent should be controlling . . . where the time, or manner of performing the action directed by the statute is not essential to the purpose of the statute, provisions in regard to time or method are generally interpreted as directory only. (Footnotes omitted.)
2 J. Sutherland, Statutes and Statutory Construction § 2804, at 217 (1943). See also id. §§ 2801-04 (Supp.1972) and 3 id. Ch. 58 (1943, Supp.1972).1
*1312As to the legislative history of Section 1251(b) (2), no relevant intent is expressed in the House or the Senate Report2 of the bill that ultimately became law, or in either of the two Conference Reports that were prepared.3 The preoccupation of both Houses that pervades deliberations was the geographic limitation to restrict the influx of certain immigrant groups and the literacy test designed to prevent entry of the allegedly “meaner sorts” of persons.4 Only a brief discussion on the House floor suggests concern on the part of a few Congressmen for the pressure that might be exerted on a judge were he free to write letters recommending against deportation a long time after sentencing.5 Another expressed consideration was the freshness of the alien’s case in the judge’s mind. It was suggested that a court might recommend against deportation at the end of a twenty year prison sentence when recommendation would be of little value in relation to the offense for which the court sentenced the alien twenty years earlier.6
Neither of the above purposes, assuming from the scant history of this provision that they are reflected in the 30-day period, is served by construing the provision mandatorily in the present case.7 The record reveals the disposition of the judge against deportation at the time he sentenced appellant; considerations of pressure are therefore irrelevant. Equally irrelevant is the consideration of staleness. We know that the lapse of time in this ease did not affect the freshness of the facts in the judge’s mind.
The 30-day provision seems clearly directory under applicable principles. To repeat, to hold it mandatory would have, as here, the harsh consequence of deportation to the alien and his wife. To hold it directory would cause no comparable harm. Moreover, the basic purpose of the statute, to make the recommendation of the sentencing court avail*1313able to the alien and to the authorities, is defeated under a mandatory construction of the time provision.
I find nothing to support the view that it was the “manifest intention of Congress” that in a situation like the one before us the recommendation of Judge Russell should not be effective. There is not the slightest evidence that Congress, in vesting the recommendatory power in the sentencing court, contemplated that the court might not be aware of the power and, if the court were not, that the alien should be deported, even if the court, when becoming aware of its authority in the matter, promptly made the recommendation based on the situation as of the time of sentencing.
I do not intimate that the time is unlimited or uncontrolled. But sufficient unto the day is the problem thereof, and it would seem necessary now only to hold that the wisdom of the law places the 30-day provision in the directory category, and that, accordingly, Judge Russell’s recommendation should be given effect, subject as in Haller to the right of the Service to seek, if so advised, reconsideration by the sentencing court.
. As a general rule, a statute which specifies a time for the performance of an official duty will be construed as directory so far as the time for performance is concerned,74 especially where the statute fixes the time simply for convenience or orderly procedure.75 But there are various exceptions. For instance, the language may be such that the performance of the act within or at the specified time, is imperative.70 As a result, if the statute contains prohibitive or negative words relating to the time within which the act is to be performed, it will be considered mandatory.77 Furthermore, a statute may even make time the essence of the official act.78 In such a case, the requirement as to tiie time of performance is also mandatory.79 Moreover, the consequences of failing to perform the official act within or at the designated time, may be considered,80 so indicative of the legislative intention.81 Even the nature of the act is entitled to consideration.82 (Footnotes omitted.)
Crawford, Statutory Construction, Interpretation of Laws § 269, at 535-36 (1940).
[W]here a statute fixes a time within which public officers are to. perform some act touching the rights of " others, *1312and there is no substantial reason apparent from the statute itself, from other statutes, or from the consequences of delay — e. g., a wrong to the intervening rights of third parties 105 — why the act might not be as well done after the expiration of the period limited as during the same, or indicating that the Legislature intended it should not be done at all if not within that period, the latter will, as regards third persons, be treated as directory, and the fixing of it will not invalidate or prevent official acts, under the statute, after the expiration of the prescribed period.106 (Footnotes omitted.)
Endlich, Interpretation of Statutes § 437, at 620-21 (1888).
. H.Rep.No.95, 64th Cong., 1st Sess. (1916) ; S.Rep.No.352, 64th Cong., 1st Sess. (1916).
. Conf.Rep. Nos. 1266, 1291, 64th Cong., 2d Sess. (1917), reprinted at 54 Cong. Rec. 1289, 1488 (1917).
. See, e. g., 53 Cong.Rec. 4768-4816, 4841-85, 4932-62, 5023-52, 5164-94 (1916) ; 54 Cong.Rec. 152-62, 205-26, 253-77, 313-16, 994-97, 1289-95, 1488-95, 2442-57, 2616-29 (1917).
. 53 Cong.Rec. 5169-70 (1916).
. 53 Cong.Rec. 5170 (1916).
. The only similar case to deal with the legislative history of the 30-day provision, decided in 1926, construed the provision to be mandatory on the assumption that because the suggestion of a Congressman made during a House debate that the judge be authorized to write a letter to the Attorney General “at any-time” was not followed, and the 30-day time period emerged in the final version, Congress intended the provision to be inexorably construed for all purposes as mandatory. United States ex rel. Arcara v. Flynn, 11 F.2d 899 (W.D.N.Y.1926). It does not follow from a rejection of a loosely drawn “at any time” provision that Congress intended the 30-day provision to be construed mandatorily, particularly if the judge is ignorant of his power to prevent deportation. Moreover, the District Court in Arcara did not have the benefit of the Supreme Court decisions referred to above.
Arcara deals with the provision enacted in 1917, as part of § 19, 39 Stat. 874, ch. 29. In 1952, when Congress revised the immigration laws, the same 30-day provision was reincorporated into the present Section 1251(b) without any further light as to its proper construction in a case such as the present.