P

MATTER OF P—

In DEPORTATION Proceedings

A-8421656

Decided by Attorney General May 24,1961

Recommendation against deportation—Effective when made at time of re-

sentencing unless sole purpose in granting coram nobis was to provide

opportunity for recommendation.

If the court's sole basis in granting a writ of error coram nobis is to provide

an opportunity to mare a recommenuation tation, the mthae-

quent recommendation is ineffective. If it Is clear that this is not the sole

basis upon which the court acted—as when corani nobis is granted because

of a constitutional defect in the prior conviction=the recommendation against

deportation made following retrial satisfies the requirement in section

241(b) of the Act that it must be made at the time of "first imposing judg-

ment." (Overrules Mutter of P—, 8-689.)

BEFORE THE ATTORNEY GENERAL

DISCUSSION: This deportation matter is before me pursuant to

a certification under 8 CFR 3.1(h) (1) (i) for a review of the order

of the Board of Immigration Appeals dated June 21, 1960, re-

versing the special inquiry officer and directing the respondent's

deportation.

The proceeding arises under section 241(a) (4) of the Immigra-

tion and Nationality Act, 66 Stat. 204, as amended, 8 U.S.C. 1251

(a) (4), providing for the deportation of any alien-

's • • who at any time after entry is convicted of two crimes involving moral

,

turpitude, not arising out of a single scheme of criminal misconduct, regard-

less of whether confined therefor and regardless of whether the convictions

were in a single trial.

The respondent was admitted to the United States for permanent

residence in 1952. He was convicted of disorderly conduct in vio-

lation of section 722(8) of the Penal Law of New York in Septem-

ber 1954, and again in March 1959. The charges involved homo-

sexual acts. It is conceded that the offenses constitute crimes involv-

ing moral turpitude. See Babouris v. Esperdy, 269 F.2d 621 (C.A.

2. 1959), cert. den. 362 U.S. 913.

The 1959 non v i eti on was set aside by the New York trial court

on a writ of error coram nobis. On October 2, 1959, the respondent

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was retried and again convicted on his plea of guilty. At this

second trial the court recommended against his deportation. Sec-

tion 241(b) of the Immigration and Nationality Act, 66 Stat. 208,

8 U.S.C. 1251 (b), provides that an alien subject to deportation

under section 241(a) (4) shall not be deported-

. 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, due notice having been given prior to making such recommendation

to representatives of the interested State, the Service, and prosecution

authorities * * *.

The question is whether the recommendation of the court against

deportation satisfies the requirement of section 241(b) that to be

effective it must he made "at the time of first imposing judgment

or passing sentence." The Board of Immigration Appeals has

concluded that the time of first imposing judgment occurred in

March 1959, holding that under the rule in United States eir. rel.

Piperkoff v. Esperdy, 267 F.2d 72 (C.A. 2, 1959), the coram nobis

proceeding had no effect for the purpose of section 241 (b). In

that case the court stated that section 241(b)

• * * announces a federal standard for the determination of what constitutes

the first entry of judgment or the passing of sentence. While we may as-

sume 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)

[sec. 241(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

the extraordinary power vested in the trial court must be exercised.* • •

[267 F.2d at page 75]

The Board's "examination of the various steps in the coraan, nobis

proceeding, particularly the reference to deportation and the plea

of guilty ,.7.7.1on rearraignment," led it to the conclusion that the

proceeding was "for the sole purpose of petitioning the court to make

the statutory recommendation against deportation * * *" and it was,

therefore, untimely and ineffectual.

Although the Board's decision is somewhat unclear, it appar-

ently was of the view that under Piperkulj the test is the accused's

motive—Was the accused's "sole purpose" in seeking coram nobis

to obtain a recommendation against deportation? As I read Piper-

knff, the test to he applied under section 241(b) in coram 11 obis

cases is whether the court's "sole basis" for granting coram nobis

was to make the statutory recommendation against deportation. The

accused's motives or purposes in seeking coram nobis are immaterial,

except insofar as they throw light upon the court's basis for vacat-

ing the conviction.

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The record shows the following In his petition for corm, nobis,

the respondent set forth three grounds for seeking the writ: (1) at

the time of pleading guilty to the March 1959 offense he was not

represented by counsel; (2) having requested that the charges be

translated into German and been refused, he was unable to under-

stand the charges against him; and (3) the conviction could

result in his deportation. At the hearing on the petition, only the

first two grounds were urged. There was no mention of deportation.

The state district attorney, agreeing that the trial proceeding raised

a substantial question of waiver of counsel and failure to understand

the charges, did not oppose granting the writ. The court vacated

the conviction and set the case for retrial. As indicated above, the

respondent subsequently pleaded guilty and was again convicted on

October 2, 1959.

On the basis of these established facts, I have no difficulty in con-

cluding that the opportunity to recommend against deportation was

not the court's "sole basis" for vacating the March 1959 conviction.

Although the court did not. announce, the basis for its decision, it is

clear that it granted corm, nobis because of a constitutional defect in

the prior conviction?

It, therefore, follows that for the purpose of section 241(b) the

March 1959 judgment of conviction has no significance. The time

of "first imposing judgment" was October 2, 1959, and the court's

recommendation against deportation at that time satisfied the statu-

tory requirement. Accordingly, the Board's order of June 21, 1960,

is reversed.

Under the New York Constitution, the accused has a right to be repre-

sented by counsel at any trial, and to be informed of the charges against him.

N.Y. Constitution, Art. I, sec. 6. New York courts have recognized coram

nobis as a proper procedure for attacking convictions where the accused was

not represented by counsel. People v. McCullough, 300 N.Y. 107, 89 N.E.2d

385 (1948) ; Bojinoff v. Pantile., 299 N.Y. 145. 85 N.E.2d 909 (1949). A New

York court also found that a refusal to reread the charges to a defendant

who was unable to understand them the first time, was a denial of due process.

People v. Tat or, 189 Misc. 523, 71 N.Y.S.2d 577 (County Ct., 1947)..

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