Interim Decision #2236
MATTER OF PLATA
In Deportation Proceedings
A-19027116
Decided by Board November 5, 1973
(1) The time and notice requirements of section 241(b)(2) of the Immigration and
Nationality Act are mandatory and a timely recommendation against deportation is rendered ineffective if the notice requirements of the section are not
complied with.%
(2) In the instant case, following conviction of a crime involving moral turpitude
and suspension of imposition of the sentence to confinement, respondent was
placed on probation with the probation order containing the directive "will not
be deported". While the directive of the court may have constituted a timely
recommendation against respondent's deportation under section 241(6)(2) of the
Act, absence of the requisite prior notice to the Service rendered the recommendation ineffective.
CHARGE:
Order: Act of 1952—Section 241(aX4) [8 U.S.C. 1251(aX4)I—Convicted of a crime
involving moral turpitude committed within five years
after entry.
ON BEHALF OF RESPONDENT: Robert L. Millard, Esquire
El Paso Legal Assistance Society
109 N. Oregon St., Room 919
El Paso, Texas 79901
This is an appeal from an order of an immigration judge finding
the respondent deportable, denying his request for voluntary
departure, and directing his deportation to Mexico. The appeal will
be dismissed.
The respondent is a 22-year-old unmarried male alien, native
and citizen of Mexico, who was lawfully admitted to the United
States for permanent residence on January 2, 1970. At a hearing
before an immigration judge, at which he was represented by
present counsel, the respondent admitted the truth of the factual
allegations of the Order to Show Cause but denied deportability.
The basis for the respondent's denial of deportability, and the sole
issue on this appeal, is his contention that he is the subject of a
valid judicial recommendation against deportation under section
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Interim Decision #2236
241(b)(2) of the Immigration and Nationality Act. The immigration
judge found the recommendation to be defective for failure to give
prior notice to the Service, as required by section 241(b)(2). We
concur in the immigration judge's conclusion.
The record indicates that on March 9, 1972, in the District Court
for the 34th Judicial District, El Paso County, Texas, the respondent pleaded guilty to the offense of theft of property of the value of
$50 and over, and was sentenced to confinement in the state
penitentiary for 10 years (Ex 3). The record further shows that the
imposition of that sentence was suspended and the respondent
was placed on probation for the same period (Ex. 3).
Contained in respondent's probation order is the directive "will
not be deported" in item 14 (Ex. 3). While this directive of the
Court may have constituted a timely recommendation under
section 241(b)(2), there is no evidence that the Service was given
the requisite prior notice so as to have an opportunity to make
representations in the matter. Counsel has cited no cases, nor
have we found arty, wherein an unexplained absence of notice did
not render the recommendation ineffective.' This Board has long
taken the view that Congress intended the time and notice
requirements of section 241(b)(2) to be mandatory, and that a
timely recommendation against deportation is rendered ineffective
if the notice requirements are not complied with. See Matter of I— ,
& N. Dec. 426 (BIA 1954). Despite the often harsh consequences of mandatory construction of the statute, the courts have
consistently supported this view. See Velez -Lozano v. INS, 463 F.2d
1305 (D.C. Cir. 1972); Marin v. INS,
438 F.2d 932 (C.A. 9, 1971), cert.
denied
403 U.S. 923; U.S. as rel. Piperkoff v. Esperdy,
267 F.2d 72
(C.A. 2, 1959).
Counsel argues that with respect to the notice requirement of
section 241(b)(2), the intent of Congress to make the provision
mandatory is not as clear as it is in the "thirty days" limitation.
Indeed, most cases which involve a defective judicial recommendation against deportation turn on the question of timeliness, rather
than notice. There is nothing to indicate that Congress intended
section 241(b)(2) to be divisible, with the time requirement mandatory and the notice requirement merely directory?
I The case of Holler v. Esperdy, 397 F.2d 211 (C.A. 2, 1968), upon which counsel
relies, is distinguishable from the present case. There the sentencing judge had
assumed the responsibility of giving the required notice. The Court of Appeals
held that his failure to do so did not make the recommendation ineffective, and
that the conviction could not be used as a basis for deportation until the Service
had an opportunity to present its views and the court acted on them.
2 Judze Fahv's dissenting opinion in Velez-Lozano v. INS,
463 F.2d 1305 (D.C.
Cir. 1972), which argues that section 241(b)(2) should be given a directory
interpretation, represents an individual view.
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Thus, while we recognize the consequences which flow from this
construction of section 241(b)(2), our decision here is consonant
with the consistent interpretation given this statutory provision
by this Board and the reviewing courts. The decision of the
immigration judge was therefore correct and will be affirmed.
ORDER: The appeal is dismissed.
464
