C
(1) Judgment by New York court on October 25, 1957, in coram nobis action vacating respondent‘s conviction in 1919 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 October 25, 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.
CHARGES:
Order: Act of 1952—Section 242(f) [
Lodged: Act of 1952—Section 241(a)(1) [
Act of 1952—Section 241(a)(2) [
Act of 1952—Section 241(a)(1) [
Act of 1952—Section 241(a)(1) [
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 9, 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
The issues to be determined are whether the respondent is deportable, 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 expulsion on February 8, 1955, he was found deportable under
The first lodged charge is based on the allegation that the respondent is deportable because he was excludable in March 1956 under
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, 346 U.S. 502 (1954); Johnson v. Zerbst, 304 U.S. 458 (1938)). Exhibit R-3 shows that on October 25, 1957, the judge
In referring to the retroactive effect of coram nobis, 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. However, 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
While the conviction has now been removed ab initio, and although it does not seem that the respondent could be deported under
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
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 59 and 60, 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 annulled or revoked ab initio. Apparently counsel 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 blindly 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 I. & N. Dec. 102, 104 (1947), and the specific language of
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 8, 1955. No reason has been suggested for the respondent‘s failure to institute the coram 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
The following cases have established 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. Steffner v. Carmichael, 183 F.2d 19 (C.A. 5, 1950), cert. den. 340 U.S. 829; Daskaloff v. Zurbrick, 103 F.2d 579 (C.A. 6, 1939); United States ex rel. Koehler v. Corsi, 60 F.2d 123 (C.A. 2, 1932); Matter of S—, 3 I. & N. Dec. 83 (1948); Matter of R—, 3 I. & N. Dec. 605 (1949); Matter of P—, 3 I. & N. Dec. 818 (1950); Matter of C—R—, 4 I. & N. Dec. 126 (1950); Matter of R—, 4 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 rel. Steffner v. Carmichael, supra: “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 justice in the former proceedings.” 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 stated that when the findings 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
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 not deportable should not be subject to relitigation after deportation has been accomplished. At that point, judicial review would no longer be possible because the case would be moot. Similarly, the regulations [
Daskaloff v. Zurbrick, supra, is particularly pertinent to the respondent‘s case. There, the alien was deported in 1931 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-
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 (3 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 case—United States ex rel. Steffner v. Carmichael, supra.
In connection with this contention, counsel also cited Delgadillo v. Carmichael, 332 U.S. 388 (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. Carmichael, 177 F.2d 391 (C.A. 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 his 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” [
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
The term “entry” means 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 States was occasioned 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 the word “entry” which had been announced in the Delgadillo 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
In the third lodged charge, it is asserted that the respondent is deportable on the ground that he was excludable at the time of entry under
The second lodged charge is that the respondent is deportable under
In the fourth lodged charge, it is alleged that the respondent was excludable at the time of entry under
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 was not subject to deportation under
The other issue is whether the respondent is eligible for discretionary relief in addition to voluntary departure which was granted by the special inquiry officer. Counsel contends that the respondent
Counsel stated that he was requesting permission to reapply for admission in connection with the 1955 deportation, but 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.
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