A-4988228.
Decided by Board May 5, 1955.
Recommendation against deportation prior to December 24, 1952 — Effect on deportability under section 241 (a) (11) of Immigration and Nationality Act.
The recommendation of a trial court in 1940 that an alien not be deported by reason of his conviction of violating a narcotic statute is a bar to deportation under section 241 (a) (11) of the 1952 act since the savings clause in section 405 (a) is broad enough to preserve the efficacy of the court's recommendation against deportation (overruling 5 IN Dec. 343).
CHARGE:
Warrant: 1952 Act — Violation of narcotic laws.
BEFORE THE BOARD
Discussion: This case is before us on appeal from an order of the special inquiry officer dated February 17, 1955, directing the respondent's deportation on the charge stated above. Exceptions have been taken to the finding of deportability.
The record relates to a native and citizen of China, male, married, 52 years of age, who last entered the United States at the port of Honolulu, T.H., on March 16, 1922, ex SS. CHINA. He was convicted in the United States District Court, Honolulu, T.H., on February 14, 1940, for violating the Narcotic Drugs Importing and Exporting Act and the Harrison Narcotic Act. The court recommended that the respondent be not deported.
The special inquiry officer in his opinion refers to a decision of the Eighth Circuit Court of Appeals in which the court held that section 241 (a) (11) of the Immigration and Nationality Act did not change the status of an alien who was not deportable under the 1917 act, because of the recommendation of the sentencing judge, to that of a deportable alien by reason of the fact that section 241 (b) does not expressly authorize recommendation with respect to an alien now subject to deportation because of the retroactive provisions of section 241 (a) (11) ( supra). Relying upon a decision by this Board in Matter of I----, E-25308, 5 IN Dec. 343, July 21, 1953, the special inquiry officer concluded that the decision of the Eighth Circuit Court of Appeals was not controlling.
United States ex rel. DeLuca v. O'Rourke, 213 F. (2d) 759 (January 17, 1954), rehearing denied July 14, 1954.
Since our decision in Matter of I---- ( supra), the issue of whether a non-deportable status created by a judicial recommendation in a narcotic case prior to the effective date of the Immigration and Nationality Act of 1952 continues to relieve the alien from deportation under that act, has been before the court on two separate occasions. The United States District Court for the Northern District of California, Southern Division, in the case of Ex parte Robles-Rubio, held that the savings clause of the 1952 act (section 405 (a)) was of sufficient breadth to encompass a previous recommendation against deportation and continues to relieve the narcotic offender.
119 F. Supp. 610 (January 21, 1954).
The same issue was before the Court of Appeals for the Eighth Circuit in the case of United States ex rel. DeLuca v. O'Rourke. fn1 The Circuit Court in the DeLuca case reasoned that notwithstanding the uncertainty created by the statutory provisions of the 1952 act concerned with judicial recommendations in behalf of aliens deportable for crimes involving moral turpitude as distinguished from those deportable as narcotic violators, the savings clause of the 1952 act is broad enough to preserve the efficacy of the recommendation of the sentencing judge and to prevent the deportation of the alien because of the conviction.
Section 241 (a) (4), section 241 (a) (11) and section 241 (b) of the Immigration and Nationality Act of 1952.
Since the position we took in Matter of I----, ( supra), has been overruled by judicial authority, we find that the recommendation against deportation with which we are here concerned continues to relieve the respondent from deportation as a narcotic violator. Cf. Matter of C---- M----, A-1776931, 23 L.W. 2431, Int. Dec. No. 683 (B.I.A., February 3, 1955). The appeal will be sustained.
Order: It is ordered that the appeal be and the same is hereby sustained; the proceedings under the warrant of arrest issued July 28, 1954, are hereby terminated.