B

                             MATTER OF B—
                   In DEPORTATION Proceedings
                                 A-8258569
                       Decided by Board June 21, 1960

Recommendation against deportation—Ineffective when made at time of
 resentencing.
Judicial recommendation against deportation made at time of resentencing Is
  held ineffective to avert deportation where sole purpose of court in vacating
  original judgment of conviction and sentence was to repair the omission to
  have made such recommendation initially within the time limitation set by
  section 241(b).

CHARGES :
  Order: Act of 1952—Section 241(a) (4) (8 U.S.C. 1251(a) (4)1—Convicted
             of two crimes—Receiving stolen property; burglar:.
  Lodged: Act of 1952—Section 241(a) (4) [8 U.S.C. 1251(a) (4)]—Crime
             within five years—Receiving stolen property.

                           BEFORE THE BOARD

   Discussion: This case is before us on appeal from a decision of
a special inquiry officer directing the respondent's deportation.
   The respondent is a 21-year-old unmarried male, native and citizen of Guatemala, who last entered the United States on August 26,
1955, as a returning resident. He came to this country with his
parents in 1946 at the age of 7 and has resided in the United
States since that time. The special inquiry officer held that the
respondent was deportable on the lodged charge but not on the
charge stated in the order to show cause. The latter had been
based on convictions for 2 offenses, but the respondent received an
absolute pardon for one of the crimes from the Governor of Virginia on October 16, 1959. The lodged charge was predicated solely
on a conviction in the United States District Court for the District
of Columbia for receiving stolen property, the offense having been
committed about January 3, 1958. The only issue to be determined
is whether that charge is sustained.
   We have carefully reviewed the entire record and have considered
the contentions of counsel. In connection with the conviction for
receiving stolen property, the respondent on June 30, 1958, was
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  sentenced to imprisonment for a term of 1 to 3 years. Execution
  of the sentence was suspended and he was placed on probation for
  3 years. On October 17, 1958, probation was revoked and the
  sentence previously imposed was ordered into effect. In May 1959
 the respondent through counsel filed a motion to vacate the judgment of conviction and the sentence imposed. Thereafter, he moved
  the court to recommend to the Attorney General that he be not
 deported, and notice of the motion was forwarded to the United
  States Attorney and to the Service on July 2, 1959. On July 17,
  1959, while the respondent was still serving the sentence imposed
 on June 30, 1958, the judgment of conviction and the sentence
  were vacated; he was convicted and sentenced to a term of imprisonment of 3 months to 1 year and 11 months; and the court recommended against his deportation.
    Under 8 U.S.C. 1251(b) (2), a conviction is eliminated as a basis
 for deportation "… if the court sentencing such alien for such
 crime 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 …." Prior
 notice must also be given, but the Service does not question the
 sufficiency of the notice in this respondent's case.
    Counsel is correct in his assertion that under Pino v. Landon,
 

 (1955), a conviction must have attained finality in
 order to support an order of deportation. Matter of D—, 

, which counsel cited in this connection, was overruled
 in Matter of A                , A-2904545, Int. Dec. No. 1024 (Atty.
 Gen., 1959). However, counsel apparently concedes that the judgment of conviction on July 17, 1959, attained finality and we do
not consider that the respondent's case involves the question of
 finality of conviction but rather the question of when there first
occurred the imposition of judgment or passing of sentence.
    It is true that on July 17, 1959, the court vacated the judgment of
 conviction entered on June 30, 1958, as being null and void and,
insofar as the criminal proceeding is concerned, that judgment was
superseded by the judgment of July 17, 1959. In the deportation
proceeding against the respondent, on the other hand, the question
is not whether one judgment of conviction is valid and another
judgment of conviction is invalid, but instead we have only the
question as to whether, for deportation purposes, sentence was first
imposed on June 30, 1958, or on July 17, 1959. It is our opinion
that, in truth and in fact, judgment was first imposed and sentence
was first passed on June 30, 1958, and the question resolves itself
into whether this action of the court can be disregarded in order to
make the subsequent action on July 17, 1959, the first imposing of
judgment and passing of sentence.
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  In United States ex rel. Piperkoff v. Esperdy, 

 (C.A.
2, 1959), the court said (p. 75) :
   We hold that § 1251(b) [of Title 8, United States Code] announces a federal standard for the determination of what constitutes the first entry of
judgment or the passing of sentence. While we may assume that in many or
even most cases that standard incorporates and adopts the relevant state law,
we hold that it does not do so where the sole basis for the vacation and reentry of judgment is to repair the omission to make the statutory recommendation against deportation permitted by §1251(b). To hold otherwise would
be to defeat the plain command of the statute, which strictly, and for good
purpose, limits the time within which We extraordinary power Tested in the
trial court must be exercised. …
  In the motion to vacate the judgment of conviction and the
sentence imposed, it was asserted that the failure of trial counsel to
advise the court that the defendant (this respondent) was an alien
and to request from the court a recommendation that he not be
deported deprived this respondent of such a substantial right as to
render the assistance of trial counsel ineffective. It is our considered opinion that the motion itself shows clearly that the sole
purpose for vacating and reentering the judgment of conviction in
the respondent's case on July 17, 1959, was to repair the omission
to make the statutory recommendation against deportation when
sentence was first imposed on June 30, 1958. Since the facts in the
respondent's case bring it within the quoted language of the Piperkoff decision, we consider that case to be controlling. In view
of the foregoing, the appeal will be dismissed.
   Order: It is ordered that the appeal be and the same is hereby
dismissed.




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