Interim Decision #1994
MATTER OF TAFOYA-GUTIERREZ
In Deportation Proceedings
A-8935449
Decided by Board July 18, 1969
Where the court's recommendation against deportation was not made within
30 days of first imposing sentence pursuant to section 241(b) (2) of the
Immigration and Nationality Act, it is ineffective to avert deportation,
notwithstanding the motion to amend sentence was filed, and hearing
thereon scheduled, within 30 days of the original sentencing.
CHARGE:
Order: Act of 1052—Section 241(a) (4) [8 U.S.C. 1251(a) (4)1—Convicted
of a crime involving moral turpitude within five
years after entry.
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
R. Stanley Ditus, Esquire R. A. Vielhaber
P. 0. Box 463 Appellate Trial Attorney
Burlington, Colorado 80807
The proceedings arc before us on appeal from the decision of
the special inquiry officer who found respondent deportable as
charged and ordered his deportation to Mexico.
The respondent is a 38-year-old single male alien, a native and
citizen of Mexico, who was admitted to the United States for permanent residence on March 7, 1960. He returned to Mexico on
November 15, 1964, remaining there approximately six months.
When he returned to the United States on May 12, 1965, he was
admitted as a returning resident alien upon presenting his alien
registration receipt card.
The record shows that on November 4, 1966 in the Superior
Court for the State of Alaska, Third Judicial District, the respondent was convicted on his plea of guilty of the offense of
rape as charged in the second count of the indictment, and sentenced to serve a term of three years, which sentence was suspended and the respondent placed on probation for a period of
two years (Ex. 4, p. 2). He was thus found guilty of a crime in-
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Interim Decision #1994
volving moral turpitude committed within five years after entry,
for which he was sentenced to confinement for a period of more
than a year. He is deportable under section 241 (a) (4), Immigration and Nationality Act.
Counsel's first contention is that his client did not make an
entry when he returned to the United States on May 12, 1965, citing the case of Rosenberg v. Fleuti,
(1963). We
do not think that the circumstances of the respondent's departure
and extended stay outside the United States bring him within the
rule enunciated in the Rosenberg v. Fleuti case. His absence was
a meaningful and intended absence from the United States and
was not a brief and casual visit which might, under the Fleuti
rule, exempt him from the requirements of an "entry" when he
returned. The respondent in this case definitely made an entry
within the meaning of section 101(a) (13), Immigration and Nationality Act (8 U.S.C. 1101 (a) (13) ) .
Counsel contends that since the court which found respondent
guilty and sentenced him has made a recommendation to the Attorney General that he be not deported, these proceedings be terminated because of the provisions of section 241 (b) (2), Immigration and Nationality Act (8 U.S.C. 1251 (h) (2)). The facts
surrounding this recommendation of the court are as follows.
Respondent was found guilty and was sentenced on November
4, 1966, which sentence was entered into the record on November
17, 1966. On December 2, 1966, counsel filed a motion to have the
court amend its order by adding a recommendation against deportation. The hearing was held on this same date, and the record
indicates that the District Director of the Service testified. It does
not appear that any action was taken by the court at that time.
On December 16, 1966, counsel filed a "Motion for Reconsideration". The record is not clear why it was necessary to move the
court to reconsider the original motion, unless the court originally
had denied the motion on December 2, 1966. Be that as it may,
the hearing on this motion, scheduled for January 6, 1967, was
continued until January 13, 1967, and continued again until January 27, 1967, at which time the court granted the motion to
amend its original order to the extent of incorporating a recommendation to the Attorney General that the respondent not be deported.
Section 241 (b) (2) of the Act specifically provides that the
court sentencing an alien must make the recommendation at the
time of first imposing judgment or passing sentence or within 30
days thereafter. This clearly did not occur in this case. A timely
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Interim Decision #1994
recommendation has not been made. 1 It is true the motion to
amend the order was filed within 30 days and the hearing scheduled within 30 days, but the court's recommendation was not
made within 30 days of the original sentencing. The court has no
power to enlarge its order or to enter a nunc pro tunc order
granting the relief after the expiration of the time provided by
statute. Such an action is a nullity and the courts have so held. 2
Tohldterwisubofatheplincmdof
statute, which limits the time within which the extraordinary
power vested in the trial court must be exercised. We have followed the court's interpretation of the statute in this respect.
Thus, on the basis of the evidence presented, the court's order of
January 27, 1967 does not afford the respondent relief from deportation under section 241 (b) (2) of the Immigration and
Nationality Act.
For the above reasons, the appeal will be dismissed.
ORDER: It is ordered that the appeal be and the same is
hereby dismissed.
I Matter of S—, 9 I. & N. Dee. 613 (BIA, 1962).
2 pi\oerkoff v. Murff,
