MAItt,a OF C
In DEPORTATION Proceedings
A-2471605
Decided by Board March 3, 1959
Deportation order—Collotcy.1 ottock nor permitted after alien has been deported—Deportation hearing—Lodged charges authorized in section 242(f)
proceedings.
(1) No collateral attack is permitted on an executed deportation order, notwithstanding later coram, nobis action that resulted in vacating of conviction record supporting respondent's expulsion under section 241(a) (4) of
the 1952 act.
(2) Respondent's succontitto.. coon.. to the United titan -en In 1956, a year
after his deportation, constitutes an "entry". Contention rejected that he
should be considered as having constructively remained in the United States
on the theory that he is no longer deportable on criminal grounds under
section 241(a) (41 of the act.
(3) Issuance of order to show cause under section 242(f) of the act does not
preclude lodging additional charges of deportability at the hearing.
CHARGES:
Order: Act of 1952—Section 242(5) [8 U.S.C. 1252(f)1—Unlawful reentry
after deportation under 8 II.S.C. 1251(a) (4).
Lodged: Act of 1952 —Section 241(e) (1) to 05.0.0. 1251(a) (11) Excludable
at entry under S U.S.C. 1182(a) (17)—Arrested and deported, no
permission to reapply.
Act of 1952—Section 241(a) {2) [8 C.S.C. 1251(a) (2)1—Entered
without inspection.
Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)1—Excludable
at entry under 8 U.S.C. 1182(a) (20)—No immigrant visa or
other entry document.
Act of 1952—Section 241 (a) (1) [8 U.S.C. 1251(a) (1)1—Excludable
at entry under 8 U.S.C. 1182(a) (9)—Convicted of crime, unlawfully entering a building.
BEFuttri THE BOARD
Discussion: This case is before us pursuant to the special inquiry officer's order of October 8, 1958, directing the respondent's
deportation and certifying the case to this Board for final decision.
The respondent is a 60-year-old divorced male, a native and citizen
of Italy, who states that he was lawfully admitted to the United
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States for permanent residence on August 18, 1905. He was deported from this country on February 8, 1955, and last entered the
United States about March 1956 without inspection. The sole issue
to he determined is whether the respondent is deportable.
In the first proceeding, which culminated in the respondent's expulsion on February 8, 1955, he was found deportable under 8
U.S.C. 1251(a) (4) because of a conviction in 1917 for unlawfully
entering a building and a conviction in 1919 for grand larceny,
second degree. After a hearing on counsel's motion coram nobis
in the criminal proceeding relating to the 1919 conviction, the court
entered an order on October 24, 1957, granting counsel's motion to
vacate the plea and sentence imposed. The respondent was thereupon arraigned on the indictment; he pleaded not guilty; and the
court reserved decision on comma's motion to dicmice the indictment. During the oral argument, it was indicated that the indict
ment was still pending but counsel stated that he was preparing a
motion to have it dismissed for lack of prosecution.
The special inquiry officer concluded that the respondent was not
subject to deportation on the charge stated in the order to show
cause. This charge is not applicable to all aliens who have been
deported but only to those deported pursuant to certain specified
statutory provisions. Included is 8 U.S.C. 1251(a) (4) under which
the respondent was deported. The special inquiry officer reached
his conclusion on the theory that reinstatement of the previous
order of deportation would not be Proper in a case where, at this
time, the respondent would not be deportable on the original charge.
For the reasons hereinafter stated, we concur in the special inquiry
officer's conclusion that the respondent is deportable on the lodged
charges, and we find it unnecessary to consider the charge which
was nnt enctained by the special inquiry officer.
The first lodged charge is predicated on the respondent's inadmissibility in March 1956 under 8 U.S.C. 1182(a) (17) as an alien
who had previously been deported and who had not been granted
permission to reapply for admission to the United States. This
charge differs from that stated in the order to show cause in that
it does not seek to reinstate the prior order of deportation, and it
is the charge applicable to an alien previously deported on any
ground.
Counsel contends that the granting of his motion coram nobis
completely removed the conviction from the record and that this
differs from an absolute executive pardon. No judicial or other authority was cited. We regard this distinction, if any exists, as unimportant. The order of October 25, 1957, in the corarn nobis
proceeding, which set aside the conviction for grand larceny in 1919,
has been given retroactive effect in this deportation proceeding
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because, even though the respondent was actually excludable m
March 1956 by reason of his conviction of two crimes prior thereto,
he is not charged in this proceeding with having been excludable on
account of the 1919 conviction. Pardons have been given a similar
retroactive effect in immigration cases. For example, in Matter of
H—, 6 I. & N. Dec. 90 (1954), an alien who last entered in 1943
was then excludable because of a conviction prior thereto but she
was held not to be deportable when she secured in 1953 a pardon
for the crime, following the institution of deportation proceedings.
Along the same line, counsel also argues that the effect of the
granting of the motion coram nobis was to wipe out ab initio the
1919 conviction for grand larceny. In other words, the contention
is that we must now consider that this conviction was nonexistent
on February 8, 1955, when the respondent was deported. We find
no merit in this contention and hold that, as of October 25, 1957,
this 1919 conviction ceased to exist but that, in truth and in fact,
it was in existence on February 8, 1955.
It has heretofore been held that after deportation has been accomplished the alien will not be permitted to attack the validity of
that deportation order in a subsequent expulsion or exclusion proceeding. United States ex rel. Steffner v. Carmichael, 183 F.2d
19 (C.A. 5, 1950), cert. den. 340 TT.S. 529; United States ex
Koehler v. Corsi,
60 F.2d 123 (C.C.A. 2, 1932); Matter of S—,
3 I. & N. Dec. 83 (1949); Matter of R ,
3 I. & N. Dec. 605
(1949) ; Matter of P—,
3 I. & N. Dec. 818 (1950) ; Matter of
C ,
4 I. & N. Dec. 126 (1950); Matter of R ,
4 I. & N.
Dec. 173 (1950).
Counsel asserts that the cases previously decided have involved a
change in the judicial or administrative interpretation of the law,
and we agree that this is true except as to United States ex rel.
Koehler v. Corsi, supra, and Matter of C
R , supra. He
seeks to distinguish the respondent's case on the ground that it involved not a change of interpretation, but a change of facts. Hence,
his contention is that, for that reason, there should be a departure
from the established rule in the respondent's case. We doubt that
what was a fact on February 8, 1955, ceased to be a fact on or
prior to that date by reason of some subsequent occurrence.
Assuming that under some fictional theory there can be such a
thing as a retroactive change of facts, we do not find counsel's
argument persuasive. In most of the cases cited above, a change
in the interpretation of the law occurred after the alien's deportation. That means that those aliens had actually been deported erroneously. Nevertheless, when they were subsequently charged with
excludability or deportability as aliens previously deported and not
having permission to reapply, they were not permitted to say that
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there was actually no deportation because the order had been
entered erroneously. In the respondent's case, there was no error
in the previous order of deportation because, until the court's order
of °etcher 25, 1957, in the Cara7iZ nob:, proceeding, the respondent
was an alien who, in truth and in fact, had been convicted of two
crimes involving moral turpitude.
We can perceive no logical basis for permitting the respondent in
this proceeding to attack the validity of the previous order of deportation under a fictional theory concerning an asserted retroactive
change of facts when the decided cases hold that this cannot be
done even by an alien who woe deported solely because of an
erroneous interpretation of the law. Accordingly, we reject counsers contention that the respondent's case is distinguishable on this
ground.
During the oral argument, there was some discussion concerning
our decisions holding that the law of the case becomes fixed at the
time of deportation. While such a statement was made in Matter
of 1?—, 3 I. & N. Dec. 605, supra, and Matter of P , supra,
we do not base our decision here on any such concept but solely on
the primary proposition for which all of the cited cases stand, that
is, that an alien who has been deported will not be permitted to
attack the validity of that deportation order in any subsequent
proceedings.
We have already indicated our opinion that under the factual
situation existing at the time of the respondent's deportation on
February 8, 1955, he had been convicted of two crimes involving
moral turpitude, and the fact that one of the convictions ceased to
exist on October 25, 1957, did not render the order of deportation
invalid. 'When the respondent entered the United States in March
1055, he was, in truth and in fact, an alien who had been previously
deported and who had not been granted permission to reapply for
admission to the United States. Accordingly, we hold that he was
excludable in March 1956 under 8 U.S.C. 1182 (a)(17) and that
the first lodged charge is sustained.
In connection with the three remaining charges, it is clear from
the record that the respondent entered without inspection in March
1956; that he intended to remain indefinitely; and that he did not
have an immigrant visa or other entry document. Eliminating the
conviction which was set aside in 1957, the respondent was excludable in March 1950 because of his prior conviction of a crime involving turpitude, that is, unlawfully entering a building. Counsel
contends that we should waive these defects relating to the respondent's March 1956 entry although no statutory authority for doing
so was cited and no such authority exists. 8 U.S.C. 1182(c) is
specifically limited to aliens who proceeded abroad voluntarily and
279
not under an order of deportation, and it would also be inapplicable
to the entry without inspection charge.
Counsel also contends that we should completely disregard the
entry of March 1956 and consider that the respondent has constructively remained in the United States on the theory that he
would not now be subject to deportation under 8 U.S.C.'1251(a) (4)
and he did not depart from the United States voluntarily but was
deported against his will. A similar contention was advanced and
rejected in Matter Of R — , .copra. That 041,1, was &rifled prior to
the Immigration and Nationality Act which contains a specific provision [8 U.S.C. 1101(a) (13)] that the term "entry" means any
coming of an alien into the United States from a foreign port or
place with one exception mentioned. It is further provided that
no person whose departure was occasioned by deportation shall be
entitled to the exception. Under these circumstances, we hold that
the respondent made an entry in March 1956, and we conclude that
he is deportable on the last three lodged charges mentioned above.
Counsel contends that the regulations preclude the lodging of additional charges where the proceedings are under section 242(f) of
the Immigration and Nationality Act [8 U.S.C. 1252(f)]. He cites
8 CFR 242.6 which provides that the order to show cause in the
case of an alien within thc purview of section 942(f) shall charge
him with deportability only under that section. However, this
means only that the order to sh,ou, cause shall not contain other
charges but it does not preclude the lodging of additional charges.
As a matter of fact, 8 CFR 242.22(d), which relates only to proceedings under section 242(f), specifically refers to the lodging of
additional charges. Hence, we find this contention to be without
merit.
Counsel contends that the offense of unlawfully entering a building in violation of section 405 of the New York Penal Code does not
necessarily involve moral turpitude and that the charge that the
respondent was excludable under 8 U.S.C. 1182(a) (9) should not
be sustained. This same section of the New York Penal Code was
carefully considered in Matter of W—, 4 I. & N. Dec. 241 (1951),
in which the facts pertaining to the conviction were entirely analogous to the facts in the respondent's case. We there held that a
conviction for unlawfully entering a building in violation of section
405 of the New York Penal Code involved moral turpitude. Accordingly, we adhere to our previous similar conclusion in the
respondent's case.
During the oral argument, counsel stated that he believed that
the court would grant his proposed motion to have the 1919 indictment for grand larceny dismissed; that the respondent's first
marriage was terminated by divorce on December 12, 1958; and
000
that he will shortly marry a citizen of the United States. On this
basis, counsel asked that the case be remanded to the New York
office for consideration as to the granting of discretionary relief.
We will not remand the case on the assumptirm thnt certain contingencies may occur, and approval of the special inquiry officer's
order will be directed. However, if the indictment for grand larceny is dismissed, counsel may file a motion for reconsideration.
Order: It is ordered that the special inquiry's officer's order,
directing deportation, be and the same is hereby approved.
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