A-6790797
Decided by Central Office December 29, 1948 Decided by Board February 15, 1949
Smuggling aliens for gain on or after June 28, 1940 — Deportability under section 19 (b) of the Immigration Act of 1917, as amended June 28, 1940 — Effect of court's recommendation against deportation, upon conviction for violation of 8 U.S.C. 144
Since the evidence of record establishes that the alien knowingly and for gain smuggled aliens into the United States on or after June 28, 1940, the alien is subject to deportation under section 19 (b) of the Immigration Act of 1917, as amended, notwithstanding that following his conviction (and sentence to $250 fine), in 1947 for violation of 8 U.S.C. 144 (illegally bringing alien into the United States), the court recommended that such conviction and sentence not be a ground for deportation.
CHARGE:
Warrant: Act of 1917, as amended — Crime within 5 years, to wit: Smuggling aliens.
BEFORE THE CENTRAL OFFICE
Upon consideration of the entire record, the findings of fact and conclusions of law proposed by the Presiding Inspector and served on the alien and his attorney February 4, 1948, are hereby adopted.
Discussion: Counsel for respondent filed exceptions contending that in view of respondent's conviction on November 14, 1947, of violating 8 U.S.C. 144 (illegally bringing aliens into the United States) and sentenced to pay a $250 fine, at which time the court recommended that such conviction and sentence not be a ground for deportation, that recommendation is binding and respondent is not deportable, since the finding by this Service of deportability is based on said conviction and sentence. However, the finding of this Service is not based upon the respondent's conviction and sentence. Though such finding is predicated on the conduct out of which his conviction by the court on the criminal charge resulted, the administrative conclusion is distinct and apart from the court proceedings, and relies only upon the proscribed conduct within the provisions of subsection (b) of section 19 of the Immigration Act of 1917, as amended. A recommendation of a sentence in court, because of a conviction, does not preclude deportation, and neither does a pardon, when the evidence exclusive of the record of conviction is sufficient to sustain the deportation order. U.S. ex rel. DiTomasso v. Martineau, 97 F. (2d) 503 (C.C.A. 2, 1938); Rasmussen v. Robinson et al. 163 F. (2d) 732 (C.C.A. 3, 1947); Matter of M----, 55896/962 (May 23, 1941); Matter of S---- V----, A-6755522 (C.O. Sept. 24, 1947). Consequently, counsel's exceptions are not sustained.
Recommendation: It is recommended that the alien be deported to Mexico, at Government expense, on the charge contained in the warrant of arrest.
So ordered.
Upon consideration of the entire record, it is ordered that the appeal from the decision of the Commissioner be and the same is hereby dismissed.
It is further ordered that motion to reopen be and the same is hereby denied.