E-25308 (A-4771776)
Decided by the Board July 21, 1953
Recommendation against deportation by convicting court prior to December 24, 1952 — Effect on deportability of alien under section 241 (b) (11) of the Immigration and Nationality Act.
The recommendation of the trial judge on April 14, 1943, that the alien not be deported on the basis of his conviction and sentence to 2 years imprisonment for a narcotic violation is not a bar to deportation under section 241 (a) (11) of the Immigration and Nationality Act. The two clauses relating to narcotic convictions contained in that section are retrospective and an alien may be deported under such section even though, prior thereto, there had been a specific statutory provision which precluded his deportation (see Matter of M----, A-2669541, Int. Dec. 442, June 1, 1953) and the provision relating to a recommendation by the court against deportation contained in action 241 (b) of the act is now specifically limited to persons who are deportable under section 241 (a) (4).
CHARGES:
Warrant: Act of 1924 — No immigration visa.
Lodged: Act of 1931 — Convicted of narcotic violation.
Act of 1952 — Section 241 (a) (1), excludable at time of entry — No immigration visa.
Act of 1952 — Section 241 (a) (2), entered without inspection.
Act of 1952 — Section 241 (a) (11), convicted of violation of law governing the importation of a narcotic drug (21 U.S.C. 174).
BEFORE THE BOARD
Discussion: This case is before us on appeal from a decision of the special inquiry officer on April 24, 1953, directing the respondent's deportation.
The respondent is a 53-year-old male, native and citizen of Italy. The Service contends that he entered the United States subsequent to July 1, 1924. On April 13, 1943, the respondent was sentenced to imprisonment for a term of 2 years following his plea of guilty to an indictment charging that about November 1941 he and other defendants had concealed and facilitated the concealment of approximately 66 ounces of a narcotic drug, namely heroin hydrochloride, knowing at the time that the drug had been imported into the United States in violation of law. On the following day, the court forwarded to the Attorney General a recommendation that the respondent be not deported because of this conviction.
With respect to the charges that the respondent was not in possession of an immigration visa at the time of entry and that he entered without inspection, he testified that he entered the United States at the port of New York on December 8, 1923, as a member of the crew of the SS. Paris. Later, he testified that he did no work on the vessel and that he had paid approximately $300 to a member of the crew (apparently for smuggling the respondent on the ship and for assisting him in leaving the vessel at New York). It is clear from the testimony that the respondent makes no claim that he was inspected by an immigrant inspector at the time he entered the United States, and we conclude that the charge based on section 241 (a) (2) of the Immigration and Nationality Act is sustained.
In support of its contention that the respondent entered the United States after July 1, 1924, the Government introduced an affidavit of O---- V---- executed before an American consular officer which is to the effect that N---- I---- committed a theft on her property on June 25, 1924, and that during the first week of July 1924, he came to her with his relatives and asked to be pardoned; an affidavit of G---- D----, an Italian police official, before an American consular officer to the effect that N---- I---- is mentioned in the official records of the Italian police as having been in Italy during the years 1924, 1925, and 1926, and that he departed from Italy about May 1, 1927; and a copy of the penal proceedings relating to the theft committed on June 25, 1924, which shows that the country guard had identified N---- I---- as one of three persons committing the theft. In each of these documents, the age, place of birth, and names of parents of N---- I---- agree with the information which the respondent has furnished concerning himself. The respondent submitted a certificate by the Mayor of Cinisi, Palmero, Italy, that the respondent immigrated to the United States in 1923 and has not returned, and a statement by a physician to the effect that O---- V---- is 71 years of age, is suffering from certain illnesses, and that this "reflects on her memory and intelligence."
Section 291 of the Immigration and Nationality Act provides in part, that in any deportation proceeding under chapter 5 against any person, the burden of proof shall be upon such person to show the time, place and manner of his entry into the United States and that if such burden of proof is not sustained, such person shall be presumed to be in the United States in violation of law. After a careful review of the record, it is our considered opinion that the respondent entered the United States subsequent to July 1, 1924, and we conclude that he is deportable under section 241 (a) (1) of the Immigration and Nationality Act because he was not in possession of an immigration visa at the time of his entry.
In connection with the charge based on section 241 (a) (11) of the Immigration and Nationality Act, the respondent's counsel argued that, because the trial judge made a recommendation against deportation, the respondent is not deportable on that charge. He relies on Dang Nam v. Bryan, 74 F. (2d) 379 (C.C.A. 9, 1934). The Service representative concedes that, because of the court's recommendation and under the decision mentioned, the respondent would not have been deportable prior to the Immigration and Nationality Act by reason of the narcotic conviction. We have previously held that the two clauses, relating to narcotic convictions, which are contained in section 241 (a) (11) of the Immigration and Nationality Act, are retrospective and that an alien may be deported under that act even though, prior thereto, there had been a specific statutory provision which precluded his deportation. Matter of M----, A-2669541, Int. Dec. No. 442, decided June 1, 1953.
In view of our decision in Matter of M---- ( supra), the question of whether the respondent is deportable because of his conviction on the narcotic charge must be determined solely in accordance with the provisions of the Immigration and Nationality Act. Section 241 (b) of that act provides, in part, "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 * * * a recommendation to the Attorney General that such alien not be deported * * *." Since the provision relating to a recommendation by the court against deportation is now specifically limited to persons who are deportable under section 241 (a) (4) and since there is no similar provision relating to section 241 (a) (11), under which the respondent is deportable, it follows that the recommendation against deportation which was made by the court in his case is not a bar to his deportation under section 241 (a) (11) of the Immigration and Nationality Act.
Counsel took exception to the special inquiry officer's refusal to grant voluntary departure. Under section 244 (e) of the Immigration and Nationality Act, voluntary departure cannot be granted to an alien within the provisions of section 241 (a) (11) unless he is within the provisions of paragraph (4) or (5) of section 244 (a). Paragraph (5) is the applicable paragraph and requires that good moral character be proved for a period of 10 years, whereas section 244 (e) requires such proof for 5 years. Exhibit 6 shows that the respondent was imprisoned from April 16, 1943, until November 19, 1944, and he, therefore, cannot prove 10 years good moral character because of the provisions of section 101 (f) (7) of the Immigration and Nationality Act. We deem it unnecessary to determine definitely, however, whether the respondent would be required to establish good moral character for 5 years or 10 years in order to be eligible for voluntary departure since section 244 (e) specifically provides that it is discretionary whether voluntary departure shall be granted. After careful review of the record, we do not believe that this case warrants the discretionary relief of voluntary departure. In view of the foregoing, the appeal will be dismissed.
Order: It is ordered that the appeal be and the same is hereby dismissed.