A-8087231.
Decided by Board December 7, 1954.
Recommendation against deportation — Section 241 (b) of Immigration and Nationality Act — Prior notice to Service mandatory.
A timely recommendation against deportation made by the court when imposing sentence was ineffective because of failure to comply with the mandatory provisions of section 241 (b) of the Immigration and Nationality Act for prior notice to the interested State, the Service, and the prosecution authorities.
CHARGE:
Warrant: Act of 1952 — Crime within five years — Larceny.
BEFORE THE BOARD
Discussion: This case is before us on appeal from the decision of a special inquiry officer on July 21, 1954, directing the respondent's deportation.
The respondent is a 19-year-old male, native and citizen of Greece, who last entered the United States on or about May 1, 1953, at which time he was admitted as a returning legal resident. He was admitted for permanent residence on August 23, 1951. On July 28, 1953, following his conviction of "Larceny over $50," he was sentenced to imprisonment for a period of not less than eight months nor more than five years and the record of the proceedings on that date bears the notation "The Court recommends that defendant be not deported."
We have carefully considered counsel's contentions in his brief and during the oral argument. Clearly, the respondent is deportable under section 241 (a) (4) of the Immigration and Nationality Act because of the conviction mentioned above unless the provisions of section 241 (b) of that act are applicable. The pertinent part of section 241 (b) is as follows:
The provisions of subsection (a) (4) 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 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.
Counsel contends that the conviction records are silent as to whether notice was or was not given as required by section 241 (b); that it is now impossible for the judge, who made the recommendation, to state whether notice was given because of the time which has since elapsed and the large number of cases handled by him; and that it should be presumed that the judge complied with the provisions of the statute rather than that he did not. In our view, there is no occasion for indulging in any presumption in this case. It appears from statements of the special inquiry officer that the Service file does not contain any notice from the court, prior to the making of the recommendation against deportation. Counsel has indicated that evidence cannot be submitted that there was due notice. We find, therefore, that notice was not given to the Service prior to the making of the recommendation by the court.
There is also no evidence that the recommendation of the court was transmitted to the Attorney General or to the Service.
Counsel also urges that since the court was in possession of all the facts relating to the case, its recommendation against deportation should be honored. In this respect, the respondent's case is no different from other cases in which deportation was ordered despite a court's recommendation against deportation. Thus, deportation is not precluded where the recommendation was made more than 30 days after sentence was imposed or where the evidence, exclusive of the record of conviction, was sufficient to sustain the deportation order. It is true that the court could have recommended against deportation even if the Service had been given due notice and had made adverse representations. Nevertheless, it is clear from the statute that Congress intended that due notice should be given to the State, the Service and to prosecution authorities and that they were to have the opportunity of making representations before the court made its decision as to whether to recommend that the alien be not deported. It is our considered opinion that since the action of the court did not comply with the mandatory provisions of section 241 (b) of the Immigration and Nationality Act, the recommendation against deportation is ineffective.
United States ex rel. Klonis v. Davis, 13 F. (2d) 630 (C.C.A. 2, 1926); United States ex rel. Arcara v. Flynn, 11 F. (2d) 899 (W.D.N.Y., 1926).
United States ex rel. Di Tomasso v. Martineau, 97 F. (2d) 503 (C.C.A. 2, 1938); Matter of A---- L----, 3 IN Dec. 468, decided February 15, 1949.
There are certain appealing factors in this case. The respondent was not quite 18 years of age when the offense was committed. He was brought to this country by his uncle when he was only 16 years old and his parents reside abroad. His testimony indicates that there may have been extenuating circumstances in connection with the larceny offense. However, the respondent is statutorily ineligible for any form of discretionary relief and we have no alternative but to dismiss the appeal.
Order: It is ordered that the appeal be and the same is hereby dismissed.