Interim Decision #2028
MATTER OF MARIN
In Deportation Proceedings
A-14226796
Decided by Board March 10, 1970
Respondent's criminal convictions may be used as a ground for his deportation under section 241 (a) (4) of the Immigration and Nationality Act even
though at the time of the convictions respondent and the sentencing judge
were unaware of the recommendation against deportation provisions of
section 241(b) (2) of the Act.*
CHARGE:
Order: Act of 1952—Section 241 (a) (4) [8 U.S.C. 1251 (a) (4)1—Convicted
of two crimes after entry: petty theft and burglary.
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Joseph S. Hertogs, Esquire Irring A. Appleman
680 Washington Street Appellate Trial Attorney
San Francisco, California 94111 Stephen M. Suffin
Donald L. Ungar, Esquire Trial Attorney
517 Washington Street (Brief filed)
San Francisco, California 94111
(Brief filed)
The special inquiry officer certified his order terminating
deportation proceedings. We find the alien deportable.
The question is whether an alien's criminal conviction may be
used as a basis for his deportation if he did not know that he
could have made a timely application to the sentencing court for
a recommendation against deportation pursuant to section
241 (b) (2) of the Act, 8 U.S.C. 1251(b) (2). We answer the question in the affirmative.
Section 241 (b) states that the law requiring -the deportation of
an alien convicted of a crime involving moral turpitude shall not
apply (1) if the alien obtains a pardon, or (2) if the sentencing
court "shall make, at the time of first imposing judgement or
* Affirmed. See 438 F.2d 933 (C.A. 9, 1971).
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Interim Decision #2028
passing sentence, or within thirty days thereafter, a recommendation" that the alien be not deported.
Respondent, a 24-year-old male, a native and citizen of El Salvador, was admitted for permanent residence on May 29, 1964.
Conceding that he was convicted of two crimes involving moral
turpitude after his entry, he contends that he is not deportable.
He maintains that since, at the time of the convictions, neither
he, his representative, nor the courts were aware that the courts
could recommend against his deportation under the authority contained in section 241(b) (2) of the Act, the congressional scheme
provided for the deportation of aliens was frustrated and the convictions cannot be used to deport him. The special inquiry officer
sustained the contention. The Service, by brief and at oral argument, requested that the special inquiry officer's order be reversed. Counsel, by brief and at oral argument, requested that no
change be made in the order of the special inquiry officer.
Respondent was convicted for petty theft on August 16, 1966
(Ex. 2), and for burglary, second degree on January 10, 1969
(Ex. 3). The order to show cause is based on these convictions.)
The record establishes that at the time of the convictions, neither
the respondent, his attorneys, nor the judges who presided were
aware that the respondent's immigration status was in jeopardy
by reason of the convictions. The judges and respondent stated
that they were not aware of the existence of section 241 (b) (2) at
the time of the convictions and there was no discussion within
the time limits provided by law concerning a recommendation
against deportation.
The special inquiry officer's comprehensive review of judicial
and administrative decisions dealing with the power of the court
to make a timely recommendation against deportation revealed
none which held that ignorance of the power prevents the use of
a conviction as the basis for a deportation order. The basis foi
the special inquiry officer's original approach is a line of decision
starting with Gubbels v. Hoy, 261 F.2d 952 (9 Cir., 1958). Thes
cases hold that since Congress made the recommendations again;
deportation and intrinsic part of the deportation process, the lac
of capacity in a convicting tribunal to make a recommendatic
1 Respondent was also convicted of what appears to be two counts of pel
theft on June 7, 1967 (Ex. 4). He also admitted that he was convicted :
burglary in September 1969 (pp. 16-17). There was no application fol
recommendation against deportation in connection with these convictions.
convictions occurred in courts provided under the laws of the State of C
fornia.
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Interim Decision #2028
prevents the conviction from being used as the basis for a deportation order. The special inquiry officer reasons that the lack of
an opportunity to obtain a recommendation because of the incapacity of the court is, in effect, no different than the lack of an
opportunity to ask for a recommendation which occurs when the
court, the alien, and his representatives are unaware of the provisions of section 241 (b) (2) of the Act. 2
Approaching it from another aspect, the special inquiry officer
points out that since the alien's ability to ask the court to make a
recommendation against deportation is a "right", and since a
"right" can be given up only by an intelligent waiver, it follows
that an alien unaware that he possesses the "right" cannot make
an intelligent waiver of it, and to use a conviction so obtained
would violate due process.
The special inquiry officer has shown that a serious recurrent
problem exists because judges, lawyers, and aliens are so frequently unaware of the recommendation provisions during the period statutory limitations permit effective action. However, we
cannot accept his thoughtful solution for we find no authority for
it in either the language of the law or in the interpretations of
the law considered as a whole.
Certainly, the language of the law does not suggest that utilization of a conviction as the basis for the deportation of an alien
requires the alien to be informed by the sentencing court that he
has the right to ask for the recommendation against deportation.
Judicial and administrative interpretations, when considered as a
whole, do not show it has been so interpreted. In fact, the authority is to the contrary. That at the time of sentencing, the aliens
were unaware they had the opportunity to ask the court for a
recommendation is apparent from a series of cases dealing with
aliens who attempted to obtain a recommendation against deportation after the passing of the statutory time. Nevertheless, the
reviewing courts refused to give validity to late recommendations
and permitted the convictions to be used as the basis for the deportation of the aliens, U.S. ex rel Klonis v. Davis, 13 F.2d 630
(2 Cir., 1926) is an example. There, a timely application for a
2 Counsel believes that Gobbets, supra, turned not on lack of capacity of
the military court to make a recommendation, but on the fact that because
of its organization, the alien could not have effectively obtained a recommendation. As we read the case, the organization of the military court was
merely one of the factors that persuaded the circuit court that a military
court has no capacity to make the recommendation. The Supreme Court's
comment on Gubbets, supra, indicates that the military court lacked capacity, Costello v. INS,
376 U.S. 120, 127, note eleven (1964).
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Interim Decision #2028
recommendation was not made because the alien's attorneys I
not known of his alienage and the danger of his being deport
They learned of this after the statutory time had run. They
tallied a nuns pro tune amendment of the sentence with the /
ommendation that the alien be not deported. The immigration
ficials refused to honor the recommendation. On review
district court held that the recommendation did not bar depo3
tion. The circuit court approved. It held that it could not inter
late in the law a provision that the recommendation could
made within 30 days after the effect of the sentence was reath
Several courts have indicated the absence of any obligation
a sentencing court to inform an alien that he has the opportui
to ask for a recommendation. Todaro v. Munster, 62 F.2d 963
Cir., 1933), cert. denied 289 'U.S. 738, involved a review of a
portation order based on a narcotic conviction. By way of diet
the court stated that as long as the recommendation was
made, it was immaterial whether or not a sentencing court
an erroneous impression as to its power to recommend aga
deportation.
In U.S. ex rel. Durante v. Holton, 228 F.2d 827 (7 Cir., 19€
cert. denied
351 U.S. 963, the court stated that there was no
upon a sentencing court to advise a convicted alien of the pc
bility of deportation that might result from the criminal con
tion. The court stated that a judgment of conviction otbained
result of a guilty plea in a court which had not informed
alien that the conviction might be made a basis for his depo
tion had not been obtained without due process of law.
In Joseph v. Esperdy, 267 F. Supp. 492 (S.D.N.Y., 1966),
alien's deportation was sought because of a narcotic convic
obtained on a plea of guilty. The alien maintained that the
viction was void because he had not been advised that his cor
tion would subject him to deportation. The court stated (p. 4
that even in a federal court, where the full range of conseque
had to be set out, it seemed absurd to expect a judge to explai
each "defendant who pleads guilty the full range of coned
consequences of his plea and, indeed, to anticipate what those
lateral consequences are. Nothing more should be expected of
State court" (emphasis in original).
It is true, as the special inquiry officer states, that many c
on the section are concerned with the issue of the timeline:
the recommendation against deportation and not with the sii
cance of the lack of knowledge; yet, as we pointed out, the al
lack of knowledge, which was apparent in most of the cases
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not prevent the court from ruling against the alien, nor did the
line of cases on which the special inquiry officer relies repudiate
the cases concerned with the time limitations.
Moreover, Congress must have been aware of the many decisions in which, despite an alien's failure to seek a recommendation because of his ignorance of the possibility, his conviction was
made the basis for an order of deportation. Yet, although Congress revised the section in 1952 and 1956, it took no steps to
eliminate the problem presented here. Congressional acceptance
of the situation is some evidence that Congress did not intend
that a conviction could not be used as the basis for deportation
unless it was shown that the convicted alien was aware of the opportunity to obtain a recommendation that the law offered him.
In U.S. ex rel. Circella, v. Sahli, 216 F.2d 33 (7 Cir., 1954),
cert. denied
348 U.S. 964, the alien contended that use of his 1916
conviction as the basis for an order of deportation was a denial
of due process because, since the conviction occurred before the
1917 Act authorized courts to make recommendations, it deprived
him of the opportunity to ask for a recommendation that aliens
had who were convicted after the 1917 Act became effective. The
court rejected the contention.
We have some additional grounds for our conclusion. The
wording of section 241 (b) (2) and judicial interpretations reveal
that it was the intent of Congress to have the matter of a recommendation settled within a 31-day period including the date of
the passing of sentence. To make ignorance a material matter
would nullify the limitation, for such a conclusion might require
reopening of the criminal case and extension of the power of the
court beyond the time provided by Congress. 3
The cases based on
Gubbels, supra, did not deal with the issue
before us. They concerned, aliens who did not have the opportunity of successfully applying for a recommendation against deportation. In the instant case, the alien had the opportunity.
There is no evidence he was misled by the Government. His failure to take advantage of the application because of his ignorance
is not excusable. See Lockhart v. United States, No. 21,311 (9
Cir., 12/18/69) (ignorance that failure to take administrative appeal would preclude judicial review did not excuse the failure).
Moreover, to explore the question whether a conviction should
3 At the hearing, counsel contended that the alien was forever nondeportable by reason of a conviction entered without knowledge of the possibility
that he could apply for a recommendation against deportation (p. 7). At
oral argument, counsel indicated that the defect might be cured by a motion,
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Interim Decision #2028
or should not have been accompanied by a recommendation
against deportation violates the long established rule that a collateral attack on a criminal conviction will not be permitted in a
deportation proceeding. We are bound by the conviction as it
stands, Matter of T--, 3 I. & N. Dec. 641 (BIA, 1949).
As to the constitutional issue, if one is presented, we have no
power to pass on it, Matter of L—,
4 I. & N. Dec. 566 (B1A,
1951). We note for the record the Service contention that Congress did not grant a "right" but a "privilege" and therefore no
constitutional issue is involved.
To accept the special inquiry officer's position would result in a
situation where an alien could be better off if he did not seek a
recommendation at the time of sentencing. Later, he could attempt to prove that he was ignorant of his right to apply at the
time of sentencing. If the "defect" is not curable, he would have
frustrated the congressional intent to deport convicted aliens. If
the "defect" is curable, action would be required that would involve courts and administrative officials in litigation. It is difficult
to believe Congress contemplated this.
The appellate trial attorney has pointed out that the respondent is not remediless. He can eliminate the convictions for deportation purposes if he obtains a pardon, section 241(b) (1) of the
Act.
ORDER The order of the special inquiry officer is withdrawn.
The case is returned to the special inquiry officer for the entry of
an appropriate order.
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