Interim Decision #3120
MATTER OF LIGIDAKIS
In Deportation Proceedings
A-35669900
Decided by Board July 25, 1989
Due notice to the Immigration and Naturalization Service regarding a judicial
recommendation against deportation pursuant to section 241(b)(2) of the Immigration
and Nationality Act, 8 U.S.C. § 1251(b)(2) (1982), shall be regarded as having been
made where the Service has actual notice prior to the recommendation and does not
interpose an objection based on insufficient preparation time under
8 C.F.R. § 241.1
(1984) but instead prepares and presents its representations.
CHARGE:
Order: Act of 1952—Sec. 241(a)(4) [
8 U.S.C. § 1251(a)(4)]—Crimes involving moral
turpitude
ON BEHALF OF RESPONDENT. ON BEHALF OF SERVICE.
Scott E. Richardson, Esquire John B. Bartos
Brown & Herrick District Counsel
1745 S. Alma School Road, Suite 130
P.O. Box 17760
Mesa, Arizona 85212-7760
BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members
In a decision dated December 18, 1984, an immigration judge
found the respondent deportable as charged under section 241(a)(4) of
the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(4) (1982), as
an alien convicted of two crimes involving moral turpitude not arising
out of a single scheme of criminal misconduct, denied his application
for relief under section 212(c) of the Act,
8 U.S.C. § 1182(c) (1982),
and ordered him deported to Greece. The respondent appealed from
that decision. The appeal will be sustained.
The respondent is a 43-year-old native and citizen of Greece who
was admitted to the United States for lawful permanent residence on
July 15, 1977. On May 18, 1984, an Order to Show Cause, Notice of
Hearing, and Warrant for Arrest of Alien (Form I-221S) was issued
charging the respondent with deportability based on a 1978 conviction
for burglary in the Municipal Court of Los Angeles, California, and a
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1984 conviction for robbery in the Superior Court of the State of
California for the County of Orange. The record contains a judicial
recommendation against deportation with respect to the respondent's
1984 robbery conviction which was issued on June 12, 1984, by the
Superior Court of Orange County, California.
Early in a deportation hearing conducted on December 18, 1984,
the respondent's attorney mentioned the recommendation against
deportation.' However, there was at that time no discussion regarding
the effect of the recommendation on deportability. Near the end of the
hearing, the immigration judge raised the matter of the recommendation and inquired as to its effect. The Immigration and Naturalization
Service attorney acknowledged that a valid recommendation against
deportation for a given conviction would bar the Service from issuing
an Order to Show Cause based upon that conviction. He argued,
however, that the recommendation relating to the respondent's
robbery conviction was invalid due to lack of proper notice to the
district director as required by the regulations. See 8 C.F.R. § 241.1
(1984).
In his decision of December 18, 1984, the immigration judge denied
the respondent's application for discretionary relief and ordered him
deported, finding that although the respondent was statutorily eligible
fur a section 2 I 2(c) waiver, he did not merit a favorable exercise of
discretion. The immigration judge made no mention in his decision of
the recommendation against deportation.
On appeal, the respondent seeks termination of the deportation
proceedings, arguing that the recommendation against deportation
with respect to his robbery conviction mandatorily forestalls his
deportation based upon that charge. In September 1986, the Service
made a motion for summary dismissal of the appeal based on the
generalized nature of the respondent's statement and his failure to file
a brief in support thereof. The reason for the Service's position is
unclear given the respondent's detailed, 8 paragraph statement of
-
reasons for appeal appended to his Notice of Appeal (Form I-290A),
dated December 28, 1984, and his 10-page brief, filed on May 16,
1986. In any event, the respondent again provided a copy of his appeal
brief to the Service in September 1986. No response from the Service
has been received to date.
We agree with the respondent that the California Superior Court's
recommendation against deportation with respect to his robbery
iWe note that the respondent initially conceded deportability at a hearing conducted
on October 15, 1984, at which he appeared pro se. The respondent was subsequently
represented by former counsel at the December 18, 1984, hearing and is currently
represented by present counsel on appeal.
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conviction precludes his deportation based on that crime. Section
241(b) of the Act provides in pertinent part:
The provisions of subsection (a)(4) respecting the deportation of an alien
convicted of a crime or crimes shall not apply ... (2) if the court sentencing such
alien for such crimes shall make, at the time of first imposing judgment or passing
sentence or within thirty days thereafter, a recommendation to the Attorney General
that such alien not be deported, due notice having been given prior to making such
recommendation to representatives of the interested State, the Service, and
prosecution authorities, who shall be granted an opportunity to make representations
in the matter.
The respondent was convicted of robbery on May 14, 1984, and the
recommendation against deportation based on that crime was made
within 30 days, on June 12, 1984. The recommendation states, inter
alia, that "due notice [was] given to the Director of the Immigration
and Naturalization Service and to ... [the] District Attorney of
Orange County, State of California."
As noted earlier, the Service argued at the December 1984
deportation hearing that notice was not in fact given them. The Service
stated that it had been a mere fortuity that they were apprised of the
respondent's sentencing and the recommendation against deportation
and that they thereupon registered telephonic, opposition, giving it
"the best shot [we] had." In an affidavit executed on May 13, 1986, the
respondent states that his attorney notified the Service of his hearing
on the recommendation against deportation, that the hearing lasted
approximately 3 hours, and that the District Attorney appeared to
oppose the recommendation, as did a Service official by telephone.
We find nothing in the record to support the Service's contention
that proper notice concerning the recommendation was not given. All
of the respondent's evidence points to the contrary. However,
assuming, arguendo, that written or oral notice was not given, the
Service concedes it had actual notice and thereafter elected to proceed
in opposition to the recommendation telephonically. This course of
action was not the only option available to the Service. The regulations
at 8 C.F.R. § 241.1 (1984) provide in part:
If less than 5 days' notice is received [by the Service] and sufficient time remains to
prepare proper representations, due notice shall be regarded as having been made.
When less than 5 days' notice is received and sufficient time is not available to
prepare proper representations, but the 30-day statutory period will expire before
proper representations can be prepared, an objection shall be interposed to the
recommendation against deportation on the ground that due notice was not received.
Inasmuch as the Service did not interpose an objection based upon
allegedly insufficient preparation time but rather prepared and
presented its representations, we find that due notice was made.
Accordingly, we conclude that the judicial recommendation against
deportation with respect to the respondent's robbery conviction was
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validly issued by the Superior Court of Orange County, California, on
June 12, 1984, and consequently bars the respondent's deportation
based upon that conviction. The respondent's appeal shall therefore be
sustained and deportation proceedings shall be terminated.
ORDER: The appeal is sustained and the deportation proceedings are terminated.
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