Interim Decision 4t1560
31.vrrEn or Rossi
In Deportation Proceedings
A-3459526
De*led by Board March, J0,1966
Since respondent is an alien, having been denaturalized in 1962, he is deportable under section 241(a) (11), Immigration and Nationality Act, as
amended, on the basis or his narcotics conviction in 1954, notwithstanding
the conviction occurred at a time when he was a naturalized U. S. citizen.
CHARGES
Order: Act of 1952—Section 241(10(11) [8 'I7.9-0. 1251(a)(11)3—Convicted of unlawful sale of narcotics.
Act of 1952—Section 241(a) (11) 18 U.S.C. 1251(a) (11)3—Con.
victed of conspiracy to sell narcotics.
Lodged: Act of 1052—Section 241(a) (1) [8 U.S.C. 1251(a) (1)3—Excludable
at entry under section 3, Immigration Act of 1917
[8 U.S.C. 136, 1946 Ed.)—Convicted of crimes—
aggravated theft (two offenses); sale of military
effects; complicity in inflicting lesions; criminal
association to commit premeditated homicide.
This case is before us on appeal from a. decision of a special inquiry officer denying the application under 8 U.S.C. 1254(a) and directing the respondent's •deportation.
The respondent is a 64-year-old married male who is a native of
Italy and whose present citizenship has not been determined. He
first entered the Tnited States in 1937 as a stowaway. Following
preexamination proceedings; he was lawfully admitted for permanent residence on March 5, 1946- and became a naturalized United
States citizen on December 6, 1951. A denaturalization suit was subsequently filed, and the deeree admitting him to citizenship Nv.' as set
aside on December 26, 1962. On February 17, 1954, in the United
States District Court for the Southern District of New York, the
respondent was convicted on two counts of an indictment for unlawfully conspiring to sell narcotics and for unlawfully selling narcot-
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Interim Decision #1560.
Ira in violation of 18 U.S.C. 371 and 21 U.S.C. 173474. The convictions for those two offenses are the basis for the two charges in the
order to show cause. The special inquiry officer held that these two
charges were sustained. The issues are whether this ruling is correct
and, if so, 'whether the respondent is eligible for any discretionary
relief. Since we concur in the special inquiry officer's conclusion, concerning deportability, it is unnecessary to determine whether the re- -
spondent is additionally deportable on the charge lodged at the hearing which was that the respondent was excludable at the time of his
entry because of convictions , occurring in Italy during the period,
from 1919 to 1929. .
With regard to the issue of deportability, both parties seem to
concede that the question resolves itself into Whether the respondent's
case is controlled by Costello v. low* ration and Naturalisation
Service, 876 U.S. 120 (1964). Costello is similar to the _case of the
respondent with respect• the fact that both individuals were naturalized as United •Stales citizens, were then convicted of crimes,and
were then denaturalized.
. Counsel asserts that the special inquiry officer was in. error in
stating that the court's .decision in the Costello case was based, in
part, upon the use of the present tense "is convicted" in section. 241
(a) (4) of the Immigration and Nationality Act. It is-true that the
third clause of section 241(a) (11), under which :the respondent's deportation is sought, contains The language "who hai been convicted."
However, we agree with counsel that the court's opinion shows that
the Costello decision was not predicated on the fact that the.present
tense "is"'had been used,
In Costello v. Immigration and Naturalisation Service, supra, the
court said that there were two possibl& constructions of s_ eCtion 241
(a) (4) ; that .there is nothing in the legislative history so specific
as to resolve the ambiguity of the statutory language; and that considerable light is forthcoming from Section 241(b) (2). Counsel al:
leged that the court merely stated that -its reference to section 241 .(b)-
additional evidence why section 241(a) (4) was 'not' appliCable was
to Costello; that this was not the reason for the court's conclusion; .
andthecoursaitwnWgs.decioupn
that factor. Other thin counsel's bare statements, there is nothing in
his brief which supports them. After careful analysis of the court's
opinion, we are satisfied that it 'was, in fact, primarily predicated
on the provisions of section 241(b) and the fact that Costello, being
a naturalized citizen at the time of his convictions, was depriVed
of any opportunity of requesting the sentencing court to recommend
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against his deportation. Accordingly, we reject this contention of
counsel.
As the Supreme Court stated in Costello at page 126, section
241(b) (2) is made specifically applicable to section 241(a) (4).
This is because section 241(b) contains the language: "The provisions of subsection (a) (4) … shall-not apply … (2) if the
court … shall make … recommendation to the Attorney General that such alien not be deported …." Since the court's
authority to recommend against deportation was thus limited_ to
deportation charges under section 241(a) (4) • it follows that, under
• the Immigration and Nationality Act of 1952, a court had no such
authority as to deportation charges based on section 241(a) (11).
Counsel asserts that, notwithstanding this language of section 241(b),
"the Courti had regularly ruled that a judicial recommendation
against deportation, precluded deportation even in a "narcotics case
…." However, no judicial decisions were cited for this proposition. We are satisfied that the cases, involving judicial recommendations against deportation in narcotic cases, were those in
which the recommendations had been made prior to December 24,
1952, the effective date of the Immigration and Nationality Act
and of section 241(b). - In two cases, - recommendations against deportation had been made prior to December 21, 1952; deportation
proceedings were instituted after December 24; 1952; and the courts
held that the status of nondeportability, which the anent acquired -
- prior to the effective date of the immigration and Nationality Act,
continued to protect them from deportation thereafter. United
States ex rel. De Luca v. O'Rourke, 213 F.2d 759 (8th Cir., 1954),
and Ex parte Robles-Rubio,
119 F. Supp. 610 (N.D. Cal., 1954).
However, this theory was rejected by the Supreme Court in Lehmann v. United, States ex rel. Carson,
853 U.S. 685 (1957), and
Mulcahey v. Catalanotte, 353 'U.S. 692 (1b57). Thereafter, we
specifically held in Matter of 17-31—, 8 L & N. Dec. 94 (1958), that
an alien Was deportable on the basis -of a narcotic conviction not--
withstanding the, sentencing court's recommendation against deportation made in 195-
Section 301(c) of the Act of July 18, 1956 [Narcotic Control Act
of 1956) added to section 241(b) of the Immigration and Nationality
Act [8 U.S.C. 1251(b)] the following sentence: "The provisions of
this subsection shall not -apply in the case of any alien who is
charged with being deportable from the United States under subsection (a) (11) of this section." Counsel •contends that, inasmuch
as the respondent's convictions occurred prior to July 18, 1956, the,
sentencing court could have made s recommendation against deportn.-
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Interim Decision #1560
tion if he had not been an ostensible citizen at that time.' The
respondent's convictions occurred on February 17, 1954 which was
subsequent to the effective date of the Immigration and Nationality
Act [Deeernber 24,1.952]: Counsel has not cited any judicial decision
in which a sentencing court made a recommendation against deportation in a narcotic case after December 24, 1952, and we are not
aware of any. As we have indicated above, the opening language
of section 241(b), as originally enacted, made. this provision inapplicable to a deportation charge under section 241(a) (11). Conference Report No. 2546,1 which is part of the legislative history of
the Act of July 18, 1956, indicates that the addition of the quoted
sentence was not for the purpose of changing metion . 211(b) but
merely for the purpoie of clarifying its original meaning., Even
if the respondent had not been a citizen but had been an alien for
all purposes at the time of the convictions in 1954, we are con-•
vinced that the sentencing court could not have made a valid recommendation: against' doportation. We must, therefore; reject counsel's
contention insofar as it is based on the Act of July 18, 1956.
For the reasons indicated above, we are satisfied that the respond - _
ea's case is not controlled by the Costello decision. On the saw;
trary, we believe that the respondent's ease cannot be distinguished.
from United States ex rel. Elehenlaub v. Shaughnessy, 338 -U.S. 521
(1950). That case also involved a conviction during a period when
the individual was a naturalized citizen, and the court held that
he was deportable. Since the respondent is now an 'alien and he
"has been convicted" of a narcotic violation, we hold that he is
deportable in accordance with the provisions of section 241(a) (11)
of the Immigration and Nationality Act.
Counsel's brief does not contain anyargument
art that. the special
inquiry officer was in error in holding that the respondent was
statutorily ineligible for suspension of deportation or any other
form of discretionary relief. This matter was fully discussed by
the special inquiry officer, and we concur in his conclusions. Accordingly, the appeal will be dismissed.
ORDER: It is ordered that the appeal be .and the same is hereby
dismissed.
'1950 U.S. Code Congressional and Administrative, News, WI 2, p. 3321.
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