Interim Decision #1621
MATTER or Maxotrx
In Deportation Proceedings
A-12041077
Decided by Board Jury 15, 1986
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Collateral attack on an order of deportation executed in 1953 is warranted
when that order resulted in a gross miscarriage of justice because, upon the
basis of the then existing judicial and administrative decisions, the finding
of deportahuity was not In accord with the law as interpreted at that time.
CHAIM
Order : Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)3—Excludable
at time of entry—Section 212(a) (17) [8 U.S.C.
1182(a) (17)3 and section 242(f) [8 13.8.0. 1252(f) ]
—Entry after deportation as prostitute.
The special inquiry officer certified his order terminating proceedings.
In issue is the propriety of respondent's deportation hi 1953 and
the effect of subseqUent reentries without permission to reapply_
The facts have been fully stated in previous orders. Briefly, respondent, a divorced female, a native and citizen of Canada, was admitted to the United States in 1925 for permanent residence with her
parents and other.members of her family. On December 7, 1953 she
was deported to Canada on the charge that she had engaged in prostitution after entry (section 241(a) (12) of the Act, 8 U.S.C. 1251
(a) (12) ) (administrative appeal was filed, but later withdrawn).
At that deportation hearing, the respondent consistently denied that
she had ever committed an act of prostitution. The evidence presented to sustain the charge was a record of conviction on a plea of
guilty to a charge of soliciting and offering to commit prostitution in
New Orleans in 1953. There was no independent evidence to support
the record of conviction. Respondent explained the conviction as
arising out of an incident in which an individual forced himself upon
her and when the police came upon the scene accused her of offering
to commit prostitution.
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• Interim Decision *1621
Respondent never obtained the consent of the Attorney General to
her applying for admission after deportation (section 212(a) (17) of
the Act, 8 U.S.C. 1182(a) (17)). However, she reentered the United
States in 1958 or 1959. On April 21, 1964 she was deported for having reentered without the Attorney General's consent to apply.
She again entered the United States on. November 24, 1964. In
March 1966 the Service started the instant proceedings under section 242(f) of the Act (8 U.S.O. 1252(f) ) to deport respondent on
the basis of the 1953 order of deportation, and because of the fact
she had entered without the Attorney General's consent. The special
inquiry officer ruled that the 1953 deportation was a gross miscarriage of justice, that it most be considered a nullity, and that it
therefore could not serve as a basis for deporting the respondent. The
special inquiry officer ruled as he did because of his belief that the
charge should not have been sustained at the original hearing for at
that time proof of even one not of prostitution. would. not have required a. finding of deportability (U.S. ex rel. Mittleo v. Curran,
8 F.2d 355, 2d Oir., 1925; see Mirabal-Baton v. Esperdy, 188 F.
Snpp. 317, S.D.N.Y., 1960; Matter of 2"—,
6 I. & N. Dec. 474) and at
that time the Service had not even presented proof of one act of
prostitution: the controverted proof merely showed an oiler to commit prostitution.
We concur in the special inquiry officer's well-reasoned conclusion.
Respondent's deportation in 1953 on the charge that she had been a
prostitute is based upon a record which plainly reveals that the Service had failed to sustain its burden of proof. There was a gross
miscarriage of justice; the error should not be perpetuated (McLeod
v. Peterson,
283 F.2d 180 (3rd Cir., 1960); accord, • United States v.
Bowles,
331 F.2d 742 (3rd Cir., 1964) ; see Matter of S—,
3 I. & N.
Dec. 83. But see De Souza v. Rarbar,
263 F.2d 470 (9th Cir., 1959),
cert. den.
359 U.S. 989).
The Service pointing to judicial decisions holding that a collateral
attack on a prior deportation proceeding cannot be made unless there
was a lack of due process or a jurisdictional issue, contends that
neither of these elements is present here. The short answer is that
the special inquiry officer relied upon judicial and administrative
authority permitting collateral attack where there has been a gross
miscarriage of justice.
The Service contends that the issue of deportability should not be
retried so many years after it was decided. We are neither reevaluating evidence nor applying an interpretation of law made subsequent to the time of the original deportation decision. We merely
state that on the basis of judicial and administrative decisions exist-
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Interim Decision #1621 •
ing at the time of the original proceeding,' no order of deportation
should have been entered. The finding of deportability In. 1953 was
not in accord with the law as interpreted at that time.
Without citation of authority, the Service contends that the Board
is interfering with the operation of criminal statutes (relating , to the
reentry of deported aliens) by permitting a collateral attack on the
prior deportation proceeding. The contention cannot stand in view
of the judicial authority which permits collateral attack under certain circumstances.
The Service contends that the special inquiry officer acted in the
belief that proof of even one act of prostitution could not have served
as the basis for deportation in 1953, whereas the law then. was that
such proof might be sufficient. The special inquiry officer's statement
must be taken as applied to the facts before him where there, was no
proof that the respondent had engaged in prostitution.
The special inquiry officer properly waived the technical grounds
of deportation which might arise from the fact that the respondent
reentered the United States without proper documents after her deportation. In addition, we shall give the respondent a munc pro tuna
grant of permission to reapply in connection with each of these reentries to eliminate whatever technical objection may arise from the
fact that she reentered without the prior consent of the Attorney
General after having been deported.
ORDER: It is ordered that respondent be granted permission to
reapply mow pro tuna in connection with each entry made after her
deportation in 1953.
It is further ordered that no ehang,e be made in the order of the
special inquiry officer.
