E-069541
Decided by the Board November 18, 1953
Recommendation against deportation, section 241 (b) of the Immigration and Nationality Act — Nunc pro tunc recommendation not effective.
A sentencing judge's nunc pro tunc recommendation against deportation is not effective under section 241 (b) of the Immigration and Nationality Act since it is not made "at the time of first imposing sentence, or within 30 days thereafter."
CHARGE:
Warrant: Immigration and Nationality Act — Convicted of crime involving moral turpitude within 5 years after entry and sentenced to imprisonment for a year or more, to wit: Burglary of the second degree.
BEFORE THE BOARD
Discussion: This case is before us on appeal from an order entered by the special inquiry officer on August 21, 1953, directing that the alien be deported from the United States on the charge contained in the warrant of arrest.
The respondent, a 22-year-old married male, a native and citizen of Mexico, testified that he first came to the United States about 1932, when he was one year old, and that he has lived here since with the exception of temporary absences to Mexico. The record shows that he was reported by the Service on December 12, 1940, as one whose case was at that time being considered for violation of the immigration laws. He apparently was allowed to leave the country at a later date and secured an immigration visa and was admitted for permanent residence on January 16, 1946, as a nonquota immigrant under section 4 (c) of the Immigration Act of 1924. He last entered the United States on or about July 4, 1950 at the port of San Ysidro, Calif., as a returning resident by presenting a resident alien's border crossing identification card.
On June 12, 1953, in the Superior Court of the State of California in and for the county of Los Angeles, upon being convicted on his plea of guilty of the crime of burglary (violation of sec. 459, Penal Code), which the court found to be burglary of the second degree, respondent was sentenced to imprisonment in the Los Angeles county jail for the term of 1 year. The information on which the respondent was convicted and sentenced charged that on or about March 5, 1953, he entered a residence and building in Los Angeles with the intent to commit theft. The crime of burglary in the second degree in California under such circumstances is one involving moral turpitude ( Matter of V---- T----, A-5963331, 2 IN Dec. 213, B.I.A., 1944).
The warrant of arrest in the instant case was served on the respondent on June 24, 1953. Present counsel were first retained to represent the respondent on July 3, 1953. The record shows that on July 6, 1953, they attempted to contact the judge who had sentenced the respondent on June 12, 1953, for the purpose of ascertaining whether the court might consider with favor a request for a recommendation against the deportation of the respondent. Upon learning that the sentencing judge had entered upon his vacation on June 19, 1953, and would not be available until his return to the bench on July 27, 1953, counsel dispatched to the office of the sentencing judge on July 9, 1953, a letter giving the details of the deportation matter and soliciting the court's recommendation to the Attorney General against deporting the respondent.
Counsel, on July 29, 1953, after an interview with and at the request of the sentencing judge, executed a formal notice of a motion to recommend against deportation. Subsequently, on August 7, 1953, in the Superior Court of the State of California in and for the county of Los Angeles, the sentencing judge considered the motion and entered a nunc pro tunc order specifically recommending to the Attorney General of the United States that the respondent be not deported. The court commented that "The matter of whether the defendant should or should not be deported was not brought to the court's attention at the time of the pronouncement of judgment and sentence (June 12, 1953). Had that matter been brought to the court's attention by counsel or by the defendant or by any friend of the court, the court would have as of that date and time made a recommendation to the Attorney General of the United States of America that the defendant in this case be not deported." The court also mentioned that "This court was on vacation and left the jurisdiction of the State of California 7 days after the order was made, to wit, June 19, 1953, and remained outside of the State of California until July 27, 1953." The court also noted that counsel had attempted to contact the court and had been advised by the clerk of the court that the court was out of the jurisdiction of the State.
The appropriate authorities were notified that the motion to recommend that the alien be not deported would be made on August 7, 1953. The Assistant United States Attorney who represented the Service at the hearing on the motion did not oppose the motion on the merits of whether or not respondent should be deported. He told the sentencing judge, however, that he did feel that if the court failed to make the recommendation at the time of sentence or within 30 days thereafter, the court was without jurisdiction to then make such a recommendation.
Counsel contends that the nunc pro tunc recommendation of the court against deportation is effective and timely under section 241 (b) of the Immigration and Nationality Act, although such recommendation was made on August 7, 1953, more than 30 days after the respondent was convicted and sentenced. We find this contention of counsel to be without merit.
Section 241 (b) reads as follows:
(b) The provisions of subsection (a) (4) respecting the deportation of an alien convicted of a crime or crimes shall not apply (1) in the case of any alien who has subsequent to such conviction been granted a full and unconditional pardon by the President of the United States or by the governor of any of the several States, or (2) if the court sentencing such alien for such crime shall make at the time of first imposing judgment or passing sentence, or within 30 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.
In considering a similar provision under prior immigration laws, the courts have consistently held that a recommendation against deportation by the sentencing judge more than 30 days after imposing judgment or passing sentence is ineffectual, United States ex rel. Arcara v. Flynn, 11 F. (2d) 899; United States ex rel. Klonis v. Davis, 13 F. (2d) 630; United States v. Esposito, 67 F. Supp. 770; Ex parte Eng, 77 F. Supp. 74. Counsel state that in these cases more than one year and, in some instances, as much as 4 years had passed from the time of final judgment before the recommendation against deportation was made or sought and that such cases are therefore distinguishable from the instant case. We note, however, that the courts' decisions in the above-cited cases clearly indicate that the recommendation against deportation in order to be effective must be made within the prescribed 30-day period.
In United States ex rel. Klonis v. Davis ( supra) where an alien had been convicted in August 1923, and his attorneys at the time of the conviction did not know of his alienage and where in January 1925 the sentencing judge issued a "nunc pro tunc" recommendation against deportation after the warrant of arrest in deportation proceedings had been issued, the court ruled that such recommendation was not timely and stated, in referring to the 30-day provision in the law, "the power of the court was exactly circumscribed, and we may not enlarge it." In United States ex rel. Santarelli v. Hughes, 116 F. (2d) 613, 616, the court said that the sentencing judge's action "is judicial and so subject only to such clear legislative prescription as the 30-day provision."
The sentencing judge's recommendation against deportation in the instant case is of no benefit to the respondent as it was not made "at the time of first imposing judgment or passing sentence, or within 30 days thereafter." Consequently, since the respondent has been convicted of a crime involving moral turpitude committed within 5 years after entry and was sentenced to confinement therefor in a prison or corrective institution for a year or more, it is concluded that he is subject to deportation on the charge contained in the warrant of arrest.
The respondent has been arrested on several occasions in addition to the arrest for burglary shown above. On March 11, 1947, he was arrested in Holbrook, Ariz. for violation of the "Dyer Act" (transporting a stolen automobile from one State to another).
According to the respondent, after his return to California he was treated as a juvenile by the courts there and was remanded to the Correctional Institute at Preston, Calif., where he served 17 months under the auspices of the California Youth Authority. The record shows that on October 31, 1951, respondent was arrested for theft. He testified that in connection with this arrest he was convicted of the crime of petty theft and was sentenced to 180 days imprisonment and served 30 days, 150 days having been suspended. The record also shows that he was arrested on May 10, 1952 for failure to answer to a citation and was sentenced to a $40 fine or 8 days in jail. The record also reflects that he was arrested in May 1950, for suspected rape; in September 1951, on suspicion of violation of the Narcotic Act; and in September 1952, for grand theft involving an automobile. The respondent testified that the "suspicion of rape" and "suspicion of violation of Narcotic Act" charges were dismissed and that he did not commit the grand theft for which he was arrested in September 1952, and was therefore released.
The respondent married a native-born citizen of the United States in California on April 6, 1953. They have no children. Respondent is ineligible for any discretionary relief. Since he is subject to deportation as charged in the warrant of arrest, his appeal will be dismissed.
Order: It is ordered that the appeal be and the same is hereby dismissed.