C

                             MATTER OF C
                   In DEPORTATION Proceedings
                                 1.—R471655

                      Decided by Board March 28, 1960

Deportability—Based on conviction for crime—Effect of      carom nobis action
 voiding conviction alt initio.
     Judgment by New York court on October 25, 1957, in corm notda action
  vacating respondent's conviction in 1910 for grand larceny, second degree
  (one of two crimes which resulted In his deportation in 1955), is regarded
  as voiding the conviction ab initio since it is predicated upon findings that
  respondent had been deprived of rights guaranteed by the Sixth Amendment.
(2) Nevertheless, the decree voiding the conviction is effective only on and
  after Timmer 2b, 1957. It does not require treating the conviction as nonexistent prior to October 25, 1957; and it does not permit respondent to
  attack the deportation order executed on February 8, 1955, which was clearly
  valid on that date.
CUARGES
  Order    Act of 1952—Section 242(f) [8 U.S.C. 1252(M—Unlawful reentry
            after deportation under 8 U.S.C. 1251(a)(4).
  Lodged: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251 (a) (1)7—Excludable
            at entry under 8 U.S.C. 1182(a) (17)—Arrested and deported, no
            permission to reapply.
           Act of 1952—Section 241(a 1 (2) 18 U.S I. 1251 (a) ( 2 ) — Pntered
            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.
          Act of 1952—Section 241 (a) (1) [8 U.S.C. 1251(a) (I)l—Excludable at entry under S U.S.C. 1182(a) (9)—Convicted of crime—
            Unlawfully entering a building.

                          BEFORE THE BOARD

   Discussion: On March 3, 1959, this Board approved the special
inquiry officer's order of deportation. Thereafter counsel filed a
motion for reconsideration and on June 3, 1959, we granted the motion and reopened the hearing. The case is now before us on appeal
from the special inquiry officer's decision of November 4, 1959, granting voluntary departure, denying all other relief, and directing that
the respondent be deported if he fails to depart voluntarily.
  The respondent is a 61-year-old married male, native and citizen
of Italy, who states that he was lawfully admitted to the United

                                    611
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 insportion At that, time he intended to remain indefinitely ; he did not have an immigrant visa;
and he had not been granted permission to reapply after arrest and
deportation.
   The issues to be determined are whether the respondent is deport.
able, and whether he is eligible for discretionary relief in addition to
voluntary departure. For the reasons hereinafter Stated, we hold that
the respondent is deportable and that discretionary relief, other than
voluntary departure, cannot be granted in this proceeding.
   In the first proceeding, which culminated in the respondent's expulsi ,n on February 8, 1815, he was found deportable under 3 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 scram nobis in the criminal
proceeding relating to the 1919 conviction, the court entered an order
on October 25, 1957, granting counsel's motion to vacate the plea and
sentence imposed. The respondent then pleaded not guilty. On
April 22, 1959, the 1919 indictment was dismissed. On the same
date, a 1918 indictment was dismissed but it was not one of the convictions on which the respondent's deportation was predicated.
   The first lodged charge is based on the allegation that the respond.
ent is deportable because he was excludable in March 1956 under
8 U.S.C. 1182(a) (17) as an alien who had been arrested and deported
and who did not have permission to reapply for admission to the
United States. In this proceeding, the respondent conceded that he
had been deported from the United States on February 8, 1955, and
that he had not received permission to reapply for admission to the
United States. We said in our previous order that counsel had not
cited any judicial or other authority for his contentions that the
granting of the motion serene nobis completely removed the conviction from the record and that this differed from an absolute executive
pardon. None of the cases now cited by counsel indicates to us that
the granting of a motion scram nobis has greater obliterating effect
than a pardon. As stated in Er parts Garland, 

 (1866). "… when the pardon is full, it releases the punishment
and blots out of existence the guilt, so that in the eye of the law the
offender is as hutment as if he had never committed the offense."
   Counsel is correct, however, in his contention that a conviction is
void, as contravening the Sixth Amendment to the Constitution,
where the defendant was not represented by counsel and had not
competently and intelligently waived this right (United States v.
Morgan, 

 (1954) ; Johnson v. Zerbst, 

(1938) ). Exhibit R-3 shows that on October 25, 1957, the judge

                                  612
hearing the motion corara nobis found, with respect to indictment
34,469—A of the year 1919, that the respondent was not represented
by counsel at the trial, and that the trial court had not informed him
of his right to such re presentation In view of this finding and in
accordance with the decisions cited, the respondent's 1919 conviction
 was void. In United States v. Morgan, 

 (C.A. 2, 1955),
 it was said by way of dictum (p. 674, note 3) : "Of course, the conviction is not void in the sense tint the defendant may disregard the
 conviction before it has been judicially declared invalid."
    In referring to the retroactive effect of corona notis, counsel has
cited certain cases holding that a man serving a sentence as a second
offender, whose prior conviction was then set aside, may thereafter
 be resentenced as a first offender on the sentence being served. Hower , we actually do give retroactive effect to the order revoking the
 1919 conviction. When the respondent entered the United States in
March 1956, he was, in fact, excludable under 8 U.S.C. 1182(a) (9)
because of the 1917 and 1919 convictions, the 1919 conviction not
having been removed until October 25, 1957. Nevertheless, the respondent is not charged in this proceeding with being excludable in
March 1956 because of the 1919 conviction. On the authority of tho
Supreme Court's decisions in United States v. Morgan and Joh,n4on
v. 

 we hold that the respondent is to be regarded as
never having been convicted of the 1919 offense. In other words, as
of October 25, 1957, the 1919 conviction was wiped out ab initio.
    While the conviction has now been removed at initio, and although
it does not seem that the respondent could be deported under 8 U.S.C.
1251(a) (4) upon a new proceeding instituted at this time, there still
remains the question as to the legal effect of the respondent's deportation on February 8, 1955. On that date, he was, in truth and in fact,
an alien who had been convicted of two crimoo involving moral turpitude and he was actually subject to deportation under 8 U.S.C.
 1251(a) (4). Counsel asserts that most of the previous cases in which
attempts were made to attack the validity of deportation orders after
they had been executed involved a change in the interpretation of
the law. He contends that the respondent's case involved a change
of facts and that it is distinguishable for that reason. However, he
has cited no case in which there was a change of facts and the executed order of deportation was considered a nullity.
   We do not perceive any logical reason why, following deportation,
one rule should be followed where a change of facts thereafter occurred and another rule where there subsequently took place a change
in the judicial construction of the law. If anything, it would seem
that the case would be stronger on behalf of the alien who had been
erroneously deported because of a mistaken interpretation of the law
than in the case of this respondent whose deportation was strictly in

                                  613
accordance with the law and facts as they existed at the time of
deportation.
   A statement was quoted by counsel from section 522 of the Civil
Practice Act of New York which permits the making of a motion to
set aside a final judgment for error in fact not arising upon the trial.
However, the accomplished deportation here is not a judgment and
counsel himself does not allege that there was an error in fact, but
contends there was a change of fact. Section 522 is entirely irrelevant
to this respondent's case and the same is true with respect to Federal
Rules of Civil Procedure 50 and 50, Title 28, United States Code.
   Counsel has sought to draw an analogy between the respondent's
case and cases in which a marriage or naturalization has been ann - lied    revoked ab initio. Apparently courted claims that the
invariable rule was to deport aliens who entered the United States
on the basis of such marriages or naturalizations. Although some
aliens have been deported under the ab initio doctrine, we did not
apply the doctrine blir dly and the question of whether such an alien
should be deported depended upon the facts of the particular case.
For example, the administrative interpretation of the 1937 act, as
indicated in Matter of B—, 3 T. & N. Dec. 102, 104 (1947), and the
specific language of 8 U.S.C. 1251(c) show that deportation does not
follow in every case where the marriage is annulled retroactively to
the date of marriage. We held that the aliens were not deportable
 in Matter of B     , supra, and in Matter of 21!    , 

 (1947). Revocation of naturalization also does not necessarily result
in deportation of that person or his wife or minor child (Matter of
 C , 

 (Atty. Gyn., 1950) ; Matter of P—, 

 (1951) ; 8 U.S.C. 1451; 8 CFR 101.1(j)). Since
there was no invariable rule that deportation must follow under the
at initio doctrine, we reject counsel's contention that this doctrine
requires us to hold that the respondent was erroneously deported
in 1955.
   To summarize, we hold that on and after October 25, 1957, the respondent's 1919 conviction must be considered as having been revoked
ab initio, but we are not persuaded that the conviction must now be
considered as nonexistent on February 8, 1955, when the respondent
was deported. The warrant of arrest which resulted in that deportation was served on the respondent on August 6, 1953, and deportation did not occur until February 5, 1051. No reason has boon eug
gested for the respondent's failure to institute the scram nobis proceeding prior to his deportation, and he made no attempt to attack
the validity of the deportation order through judicial proceedings.
Where an alien thus sleeps on his rights and deportation has been
accomplished, we see no reason why he should then be permitted to
challenge the validity of the executed warrant of deportation. The

                                  614
situation is somewhat similar to the doctrine of res judiccda which
requires a defendant to present all his defenses at the time of trial or
be foreclosed from subsequently asserting them.
   The following cocee have et,talili.,:btid the rule 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. Stefiner v. Cannichael, 

 (GA. 5, 1950), cert. den. 340 'U.S. 829; Daskaloff v. Zurbrick,
103 RSA. 579 (C.C.A. 6, 1939) ; United States cal rel. Koehler a. Corsi,
60 E'.2d 123 (C.C.A. 2, 1932) ; Matter of S , 

 (1949) ; Matter of tL     , 3 1. & N. Dec. 505 (j.VIV) ; Matter of

 (1950) ; Hatter of C           P.     , 4I. & N. Dec. 126
 (1950) ; Matter of R        I. & N. Dec. 173 (1950)). We hold that
these decisions are controlling in the respondent's case and that he
cannot, in this proceeding, attack the validity of the executed order
of deportation.
   There was quoted by counsel, with the emphasis indicated, the following sentence appearing on page 20 of United States ex eel. Steff -
seer v. 

 "Where an alien has been deported from
the United States pursuant to a warrant of deportation, we do not
think it permissible to allow a collateral attack on the previous deportation order in a subsequent deportation proceeding, unless we
are convinced that there was a gross miscarriage of justicein     ' the
former proceedsngs." There, the contention of the alien was that the
first deportation order in 1936 was illegal and void ad initio. Since
the court was of the opinion that Steffner could not attack the previous deportation order, the language which counsel emphasized was
dictum. The statutory provision, under which Steffner was deported,
was subsequently construed by the Supreme Court in another case in
such a way that Steffner would not have been deportable. In the
cited case, the Court of Appeals said that if it conceded that the
original order of deportation should be examined, Steffner would not
be in any better position because it was of the opinion that the original order was valid when entered. As we have previously indicated,
the original deportation order against this respondent was clearly
valid at the time it was entered. Hence, the prior deportation of
this respondent was obviously not "a gross miscarriage of justice,"
and under the Steffner decision cannot now be attacked.
   In discussing United States ex rel. Koehler v. Corsi, supra, counsel
slated that when the finding, of fact have been outmoded, the law
of the case should be reexamined and set aside. That decision does
not show whether the alien claimed there had been an error of fact
or of law. In the first proceeding, the alien filed a petition for a
writ of habeas corpus but the District Court's decision was adverse
to him and he later withdrew his appeal from that decision. In the

                                   615
subsequent exclusion proceeding, where he attempted to show that
his previous deportation was unlawful, the court said that the law
of the case became fixed when the decision of the District Court became final and it was then too late to attack the deportation as not
in pursuance of law. In Matter of B—, 3 I & N. Dec. 605, and in
Matter of P—, 3 I & N. Dec. 818, both of which were "cited above,
there were statements that the law of the case becomes fixed at the
time of deportation. However, we do not base our decision 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 subsequent proceedings. The law of the case doctrine arises when
a court has rendered a decision. Hence, it did arise in the Koehler
case but does not appear to be pertinent in this respondent's case
since the validity of the previous deportation order was not passed
upon by any court.
  Although the doctrine of law of the case is technically not applicable here, the situation is somewhat analogous. A certain finality
does attach when a warrant of deportation has been executed by the
expulsion of the alien. The question of whether an alien is or is nut
deportable should not be subject to relitigation after deportation has
been accomplished. At that point, judicial review would no longer
be poesible because the ease would be moot. Similarly, the regulations [8 CFR 3.2, 3.3(a) and 3.4] provide that departure prior to
taking an appeal shall constitute a waiver of the right to appeal;
that departure after making a motion to reopen or reconsider is to
be understood as a withdrawal of the motion; and that departure
subsequent to the taking of an appeal but prior to a decision thereon
shall constitute a withdrawal of the appeal.
  Daskaloff v. Zurbrick, supra, is particularly pertinent to the respondent's case. There, the alien was deported in 1921 on the ground
that she was a prostitute and she reentered the United States in 1928.
Later a deportation proceeding was instituted which resulted in the
issuance of a warrant of deportation. In the subsequent habeas
corpus proceeding, the alien claimed that the accusations made against
her in the first deportation proceeding were untrue. The court said
that irrespective of the guilt or innocence of the alien of the charge
upon which she was first deported, the inquiry under the statutory
provision then in effect was solely whether the alien had, in fact, been
deported as a prostitute. The court also said that the alien could
not collaterally attack the validity of the prior proceedings. Hence,
this case did not involve a change in the interpretation of the law
but related to an effort on the part of the alien to show that the
facts were not as they had been found originally.
  For the reasons stated above, we hold that the respondent is pre-

                                  616
 eluded in this proceeding from attacking the validity of the executed
 order and warrant of deportation. This disposes of counsel's contention concerning the first lodged charge with the exception of his
argument that the respondent did not make an "entry" within the
meaning of the immigration laws when he returned to the United
 States in March 1956. We turn now to this latter contention which
is also asserted as a reason why the other three lodged charges should
not be sustained.
   Counsel's argument is that the respondent's departure from the
United States on February 8, 1955, was involuntary because he was
deported at that time and that his return in March 1956 should, therefore, not be considered as constituting an entry. This is exactly the
same argument that was advanced and rejected by this Board in
Matter of S , supra (1 I. & N. Dec. at pages 93-94). The position of the Board was passed upon and upheld in the subsequent
judicial proceedings in the same ease—United States ex rel. Steffner
v. 

 In connection with this contention, counsel also cited Delgadillo v.
Carmichael, 

 (1947), in which the court held that an
 alien whose presence in the foreign country occurred because his
 vessel had been torpedoed did not make an "entry" upon his return
 to the United States. Counsel also stated that the respondent's position was made "crystal clear" by the decision in Schoeps v. Carmicliael, 

 (CA. 9, 1949). While the Delgadillo decision
 did establish that not every arrival of an alien in the United States
 constitutes an "entry" for immigration purposes, the case of Schoeps
 is not of assistance to the respondent since that alien was held to
 have made an entry upon returning from a visit of a few hours in
 Mexico.
    Counsel devoted a considerable part of hie brief to his argument
 that the respondent did not make an entry and he cited a number of
 judicial and administrative decisions. The Immigration and Nationality Act, which became effective on December 24, 1952, contains a
 definition of the term "entry" [8 U.S.C. 1101(a) (13], but the word
had not been defined in the prior immigration laws. All but one of
the decisions cited by counsel had been rendered prior to December
24, 1952. The one exception is Savoretti v. United States ex rel.
Pincus, 

 (C.A. 5, 1954), but even there the deportation
proceeding had been instituted prior to December 24, 1952, and the
case was decided under the prior legislation [section 19(a) of the
Immigration Act of 1917; 8 U.S.C. 155(a), 1946 ed.].
   Since the word "entry" was defined in the Immigration and Nationality Act, it is to that definition we must look and not to the
judicial interpretation of "entry" in the cases decided under the prior
legislation. We specifically referred to this definition in our order

                                 617
 of March 3, 1959, but counsel ignored this. 8 U.S.C. 1101(a) (13)
 provides as follows:
  The term "entry" meane any coming of an alien into the United States,
from a foreign port or place …, whether voluntarily or otherwise, except
that an alien having a lawful permanent residence in the United States shall
not be regarded as making an entry into the United States for the purposes
of the immigration laws if the alien proves to the satisfaction of the Attorney
General that his departure to a foreign port or place … was not intended
or reasonably to be expected by him or his presence in a foreign port or place
… was not voluntary: Provided, That no person whose departure from the
United Staters was occaaioned by deportation proceedings, extradition, or other
legal process shall be held to be entitled to such exception.

   The foregoing definition does, of course, take into consideration
the judicial construction of tho -word "entry" which had boon an
nounced in the Delgculillo and other cases but the term is defined with
more exactness. First, it is provided that any coming of an alien
whether voluntarily or otherwise shall constitute an entry. Then, an
exception is made for an alien having a lawful permanent residence
if he proves that his departure to a foreign place was not intended
or that his presence in a foreign place was not voluntary. Finally,
it is provided that this exception shall not apply to a person who
had been deported.
   The respondent testified that after his deportation he had been in
Italy and other countries and that he boarded the vessel upon which
 he returned to the United States at Nassau, Bahama Islands. When
 the facts are examined in the light of the definition in 8 U.S.C.
 1101(a) (13), it is apparent that in March 1956 there was a voluntary coming of this respondent into the United States from a foreign
 place (the Bahamas). Due to the fact that the respondent's departure was occasioned by deportation, it is clear from the definition
 that he cannot avail himself of the one exception mentioned in this
 statutory provision. Inasmuch as the facts in the respondent's case
bring him precisely within the definition, we hold that his return to
the United States in March 1956 constituted an "entry" under the
immigration laws. Since he had been deported and did not have
permission to reapply for admission to the United States, he was
excludable in March 1956 under 8 U.S.C. 1182(a) (17) and the first
lodged charge is sustained.
   In the third lodged charge, it is asserted that the respondent is
deportable on the ground ChM; he was eyeludahle at the time, of entry
under 8 U.S.C. 1182(a) (20) because he did not have an immigrant
visa or other entry document. Counsel contends that a waiver of
documents should be granted under 8 U.S.C. 1181(h). That statutory provision is limited to otherwise admissible aliens who departed
temporarily. We have already concluded that the respondent was
excludable under 8 U.S.C. 1182(a) (17). Therefore, 8 U.S.C. 1181(b)

                                      618
cannot be utilized in the respondent's case and we hold that the third
lodged charge is sustained.
  The second lodged charge is that the respondent is deportable
under S USE 1 . 951 (e.) (9) h.eftusa he entepod without it.pootion.
Counsel contends that this charge should be held inapplicable under
Matter of Y       A - 7205042, Int. Dec. No. 975 (1959). We held
 there that a lawful permanent resident of the United States who
  reentered on several occasions after short absences by claiming United
  States citizenship could be considered as being within the purview
  of the first sentence of section 7 of the Act of September 11, 1957
  (8 U.S.C. 1251a J provided that lack of documents was waived under
  the discretionary authority in 8 U.S.C. 1151(b). We have already
  concluded that 8 U.S.C. 1181 (b) cannot be used in this respondent's
  cunt and that he ass excludable under paragraphs (17) and (20) of
 8 U.S.C. 1182(a). Section 7 of the Act of September 11, 1957 is
 limited to aliens who were otherwise admissible. Accordingly, this
  relief is not available to the respondent, and the second lodged
 charge is sustained.
    In the fourth lodged charge, it is alleged that the respondent was
 excludable at the time of entry under 8 U.S.C. 1182(a) (0) because
 of the conviction for unlawfully entering a building. The record
 shows only that the respondent was sentenced to the penitentiary.
 Counsel contends that this was a petty offense within the terms of
 section 4 of the Act of September 3, 1954 L8 U.S.C. 1182a]. This
 contention was discussed by the special inquiry officer. The crime
 of unlawfully entering a building is a misdemeanor under the law
 of New York and the applicable punishment is imprisonment for not
 more than one year. The respondent testified that he was imprisoned
 for 4 months and 20 days. We considered a somewhat similar question in aftate• of C     U      ,   8945125, Int. Dec. No. 1030 (1;Th's) 5
 but that case is distinguishable. We find it unnecessary to determine
 whether the respondent's 1917 conviction may be classified as a petty
 offense under 8 U.S.C. 1182a inasmuch as the respondent does not
meet its requirement that such an alien must have been otherwise
 admissible. We hold that the fourth lodged charge is sustained.
    The remaining contentions of counsel concerning deportability are
 without merit and do not require specific discussion. We have concluded above that the four lodged charges are sustained. In his
decision of November 4, 1959, the special inquiry officer held that the
respondent ‘v a:5 not ;object 10 deportation under 8 U.S.U. 1252(f).
Since the respondent is deportable on the lodged charges, we need not
consider or discuss the charge stated in the order to show cause.
    The other issue is whether the respondent is eligible for discretionary relief in addition to I oluntury departure which was granted
by the special inquiry officer. Counsel contends that the respondent
                                   619
 is entitled to apply for relief under section 5 of the Act of September 11, 1957 [8 U.S.C. 1182b] and to secure a determination of the
application prior to departing from the United States. He asserts
that section 5 has been used by this Board in proceedings to adjust
status under section 245 of the Immigration and Nationality Act
 [8 U.S.C. 1255], citing Matter of M , A 10256535, Int. Dec. No.
990 (1959). However, that was a decision of the Service and this
Board has nothing to do with adjustment of status under 8 U.S.C.
1255. Matter of 0 — , A-8250353, Tilt_ Dee. No. 972 (1959), is inapposite because there the issue arose in exclusion proceedings.
Matter of G—, A-71443'73, Int. Dec. No. 1004 (1959), has no bearing on the issue here. Relief under section 5 of the Act of September 11, 1957 is not available to aliens within the United States except
that it could be utilized in preexamination proceedings during the
period that procedure was in effect (Camanarata v. Sahli, 

 (E.D. Mich., 1958) ; Matter of DeP—, A-10547426, Int.
Dec. No. 978 (1959) ). The latter was a decision of the Attorney
General and is controlling in this respondent's case. Accordingly,
we hold that he cannot secure determination of an application under
section 5 while he is within the United States.
  Counsel stated that he was requesting permission to reapply for
admission in connection with the 1355 deportation, b1t the special
inquiry officer denied this relief. This matter was not mentioned
in counsel's brief to this Board. However, assuming that the respondent's present marriage continues in existence to the time of his
application for a visa, it appears that he has been granted permission
to reapply for admission after deportation in accordance with 8
CFR 212.2, his marriage to his citizen spouse having occurred on
February 28, 1959. The special inquiry officer has granted voluntary
departure which is the only additional relief which is appropriate at
this time. In view of the foregoing, the appeal will be dismissed.
  Order: It is ordered that the appeal be and the same is hereby
dismissed.




                                  620