lkis rER OF II— 

In DEPORTATION Proceedings 

A-8868381 

Decided by Board September 18, 1961 

Deportability—Section 241(a)(4), 1952 act—Collateral attack on judgment of 

criminal court—Effect of subsequent action by sentencing court in vacating 

conviction. 

(1) The general rule applies in deportation proceedings that the inclement of 

a criminal court may be attacked collaterally only for lack of jurisdiction. 

(2) The justice court of Michigan is a court of limited jurisdiction without 

common law powers. The justice of the peace cannot alter a sentence once 

imposed, and cannot grant a new trial. 

(3) Respondent was convicted in 1958 by the justice court, Dearborn Township, Michigan, for malicious deStrttion of property and served 50 days in 

jail under a year's probation. In September 1960, at respondent's request 

and with the consent of the prosecutor, the justice of the peace issued an 

order vacating the judgment of conviction. Held: this action was beyond 

the jurisdiction of the justice court and, hence, without effect on respondent's deportabi lity under section 241 (a ) (4) of the Act as a twice convicted 

alien. (Cf. Matter of P—, 3-187.) 

CHABGE: 

Order : Act of 1952—Section 241 (a ) (4) [8 U.S.C. 1251 (a) (4))—Twice convicted of crimes involving moral turpitude, to wit: Larceny and 

malicious UeslrucLluu of pruperLy. 

BEFORE THE BOARD 

DISCUSSION: The special inquiry officer denied the Service motion for reconsideration of his decision terminating proceedings. 

The examining officer has filed this appeal. 

The respondent is a 20-year-old single male, a native and citizen 

of Germany, who was admitted to the United States for permanent 

residence on August 22, 1955. On September 4, 1958, he was convicted in the justice court, Dearborn Township, Michigan, of the 

offense of malicious destruction of property at a trial conducted by 

the justice without a jury. Respondent was sentenced to probation 

for a year, the first 20 days to be served in the Wayne County Jail; 

he was fined $100, or 30 additional days if the fine was not paid. 

Respondent served 50 days. On June 9, 1960, he was convicted in 

460 
the justice court, St. John, Michigan, of the offense of larceny. He 

was sentenced to pay a fine of $100 and to be imprisoned in the 

county jail for 30 days. On October 3, 1960, after a deportation 

hearing, the special inquiry officer ordered the respondent deported 

on the charge set forth above. 

Subsequently, hearing was reopened to permit entry into the record of a court order dated October 20, 1960, by the justice of the 

paece of Dearborn Township justice court. This order states that 

the order of September 4, 1958, was "vacated, set aside and held for 

naught," and that this action had been taken on the motion of the 

respondent, consultation with the prosecuting attorney, and on the 

withdrawal of the complaint by the complainant. 

The special inquiry officer decided that he was bound by precedent 

to recognize the vacating order and terminated proceedings. He 

relied upon Matter of P , 3 187, from which he drew the principle 

that the vacating of the conviction in the State of Michigan was to be 

recognized whether or not a new trial had been involved. Termination was on the theory that the respondent now stood convicted not of 

two crimes, but of one only. 

The examining officer filed a motion for reconsideration of the decision holding that under a "federal standard" the conviction of 

1958 constituted a conviction for immigration purposes despite the 

vacating order of the justice of the peace. The examining officer 

also relied upon the fact that the court had failed to make use of the 

statute which permitted the granting of a new trial and vacating the 

judgment. The examining officer also depended on United States ex 

rel. Piperkof v. Esperdy, 267 F.2d 72 (C.A. 2, 1959). 

The special inquiry officer denied the examining officer's motion. 

He pointed out that in Matter of G—, 9-159, the Attorney General 

held that the interpretation of section 241(a) (4) of the Immigration 

and _Nationality Act is not purely a federal question but one which 

must be determined with regard to state law and to state procedure. 

He held that the record did not affirmatively show that the justice of 

the peace was without jurisdiction to vacate his prior conviction and 

pointed to indicia to the contrary—consultation taken with the office 

of the prosecuting attorney, the fact that a proceeding in a criminal 

case before a justice of the peace is based upon a complaint and the 

complaint was withdrawn, and the fact that if the action was taken 

under section 28.1098 of the Michigan Statutes, Annotated, providing 

for a new trial, there was, despite the Service contention, a showing of 

adequate cause in the respondent's youth and the fact that he was not 

represented by counsel when convicted. Finally, the special inquiry 

officer held that even if the order were to show on its face an error of 

law, it would not be subject to collateral attack. 

461 
At oral argument the Service representative pointed out that section 27.3181, Michigan Statutes, Annotated, denies the justice court 

the power of setting aside a verdict and arresting judgment thereon. 

He pointed to opinions of the Attorney General of the State of 

Michigan to the effect that a justice of the peace may not alter a 

sentence entered upon his docket. The Service represeritative stated 

that a new trial was not available to the respondent because a timely 

application for new trial had not been made, and argued that once 

the sentence had been served the court did not have the power to 

reduce the sentence (People v. Fox, 20 N.W. 732). The Service 

representative believes that the instant case is within Matter of B—, 

8-686, because the sole purpose for the setting aside of the sentence 

was the desire to eliminate respondent's liability to deportation. 

At oral argument counsel for the respondent stated that the lack 

of power to set aside a verdict related to jury decisions and did not 

affect the power to set aside the judgment of a justice sitting without 

a jury. He contended that the restriction on the power to set aside 

a verdict or judgment is a limitation under code law and does not 

affect the common-law rights possessed by the justice court. He 

pointed to cases where leave to file delayed motion for new trial was 

granted after the statutory time !or appeal had expired, and argued 

that the respondent's constitutional rights were not protected at the 

time of hi3 conviction in 1958 and would have required the vacating 

of the judgment and the granting of a new trial if such motion had 

been made. 

The judgment of a criminal court enjoys the same immunity from 

collateral attack as does a civil decision (15 Am. Jur., Cr. Law, sec. 

504). Its force cannot be questioned other than by a judicial proceeding which is recognized for such specific purpose, except that 

the question of whether the court had jurisdiction to make the order 

may be raised in any forum. It is, therefore, proper to inquire into 

(1) the legal organization of the tribunal, (2) whether it had jurisdiction over the person, (3) whether it had jurisdiction over the 

subject matter, and (4) whether it had the power to grant the judgment (Vasquez v. Vasquez, 240 P.2d 319; see also Brock v. Superior 

CourG, 177 P.2d 273, 274). We see no reason in deportation proceed - 

ings for any departure from this general rule. It is proper to inquire here whether the court had the power to vacate the judgment 

of conviction. We believe the record establishes that the justice of 

the peace was without jurisdiction to enter the vacating order. The 

Attorney General of the State of Michigan has stated that the justice court is one of limited juridiction without common-law powers; 

that a justice of the peace does not have the right to change a sentence after the same has been imposed ; and that a justice of the 

462 
peace cannot grant a new trial (Opinions Attorney General, Michigan, 1030-1032, pp. 318 310, Appendix "A"). We find nothing to 

show that the jurisdiction and procedure of the justice court in 

criminal cases has changed significantly since this opinion of the 

Attorney General was rendered. Section 28.1192-28.1239, Michigan 

Statutes, Annotated; see People v. Fox, 312 Mich. 577; 20 N.W. 732. 

Counsel contends that the justice had the power to vacate the 

judgment of conviction here because it was a "void" one, and has 

cited cases supporting the rule that a court may vacate a void judgment. The judgment was void, counsel contends, because the respondent was not represented at the time of the conviction and because his youth and inexperience left him ignorant that he was 

entitled to the aid of an attorney. (Counsel refers to Michigan 

Court Rule 35(a), which requires the court in a prosecution involving a felony to advise the defendant of his constitutional rights before accepting a plea of guilty. The pertinency of this rule is not 

apparent since a felony was not involved here.) The difficulty with 

counsel's contention is that a careful examination of both the petition to vacate the judgment and the order vacating the judgment 

fails to reveal that the conviction was vacated because it was void. 

The petition reveals that the respondent was not represented at the 

time of the conviction but it does not state that he was denied representation, or that, lie did not know that he could have had representation if he wanted it, or that he could not be legally convicted unless 

he had been represented. The petition reveals that the respondent's 

plea of guilty was entered without knowledge that the conviction 

could affect his immigration status, but there is no allegation that 

the alien did not commit the criminal offense of which he was 

charged, or that he did not know the effect of the guilty plea in the 

criminal matter, or that it was involuntarily made. It is difficult to 

conclude from this record that the conviction was not vacated because it made the respondent liable to deportation. The case of 

Hodges v. Bagg, 81 _Mich. 543; 45 N.W. 841, cited by counsel, is, we 

believe, distinguishable. Hodges concerned the vacating of an oral 

order dismissing an action before a justice of the peace in the mistaken belief that the plaintiff had failed to appear. However, before 

an entry of the order had been made and within a few minutes of 

the making of the order, the court learned of its error. The court 

treated the oral order as a nullity and assumed jurisdiction of the 

matter. This action was upheld on appeal, the appellate court 

stating that a court can disregard a void judgment but resting its 

approval nu flip grniiild that, the justice had not rendered any judgment. This is quite unlike the present case where the judgment and 

sentence were entered, where the sentence was served, and the conviction remained unquestioned for about 2 years. 

463 
Taking a different approach to the problem, counsel alleges that 

the court was justified in vacating the judgment of conviction under 

section 28.1098 of the Michigan Statutes, Annotated, which permits 

a new trial to be granted , in the interest of justice. We are of the 

opinion that this section is not pertinent. First, it is clear that a 

new trial was not granted here. Furthermore, it does not appear 

that this provision applies to proceedings in the justice court. The 

Attorney General in his opinion, stating that the justice court could 

not order a new trial, revealed his awareness of the existence of a 

provision similar in essence to the one in question. It follows, therefore, that the cases cited by counsel concerning the power of a court 

other than the justice court to grant a new trial are not pertinent 

to the issue. (The one case, Hodges v. Bagg, supra, related to the 

:j ustice court, has been discussed.) 

In further support of the contention that a justice court can alter 

its judgment even if it is not void, counsel relies upon section 27.3181, 

Michigan Statutes, Annotated, which purports to divest. a justice of 

the power to set aside a verdict. It is counsel's contention that this 

section prohibits a justice from setting aside a judgment based on a 

verdict, that is, where a jury is involved, but that otherwise a judge 

has the power to change an order. The section is found in the law 

defining the civil jurisdiction of the court and there appears to be 

no authority for intermingling the civil and criminal powers given 

to the justice court. (/7t re Heirtad, - 954 Mich. 581; 936 N.W. 869). 

Moreover, the interpretation advanced by counsel is not supported 

by a citation of authority and we have found no case which makes 

the distinction counsel relies upon. 

Matter of P—, 3-187, cited by the special inquiry officer in his 

capable order, furnishes support for his conclusion that a modification 

of a sentence in Michigan to defeat deportation has been recognized 

without a strict adherence to statutory procedure in obtaining a new 

trial; however, it must be pointed out that insofar as P— himself 

was concerned, a new trial had taken place and that the administrative 

decision purported to apply "the principle enunciated by the Casado 

(United States ex rel. Casado v. Uh.l , S.D.N.Y., No. 8-31, June 21, 

1910, unreported) decision" in which there was also a new trial. It 

is conceded that had P— personally attended proceedings at his new 

trial, the superseding judgment would have been effective. In the 

instant case, it does not appear that the action of the court could have 

been effective despite any waiver by the respondent or prosecuting 

attorney since it affirmatively appears that the court did not have 

power to vacate the judgment of conviction. We agree with the 

special inquiry officer in his evaluation of the Service contention concerning a federal standard and the inapplicability of United States ex 

rel. Piperkoff v. Esperdy, supra. 

464 
While the result leached iii finding the iespundent deportable is 

harsh under the circumstances shown here, the respondent does fall 

within the confines of the law requiring his deportation and, absent 

a reversal of the conviction, or a pardon, his deportation must be 

ordered. 

ORDER: It is ordered that the appeal of the examining officer be 

and the same is hereby sustained. 

APPENDIX "A" 

BIENNIAL REPORT OF ATTORNEY GENERAL 

MICHIGAN, 1930-32, pp. 348-49 

October 23, 1931 

Mr. L. 0. Telfer 

201-205 U.S Bank Bldg. 

Port Huron, Michigan 

Dear Sir : 

We have your letter of September 10th in which you ask for an 

opinion of this department regarding the right of a circuit judge 

to change a sentence after the same has been imposed. You also 

inquire what right a justice of the peace has to change a sentence 

after the same has been imposed. 

16 Corpus Juris, page 1314, in discussing the right of a court to 

modify, change or revise its sentence, states the rule as follows: 

At any time during the term the court has power to reconsider the judgment, and to revise and correct it by mitigating and even by Increasing its 

severity, where the original sentence has not been executed or put into 

operation. 

The authority cites the case of People v. Dane, 81 Mich. 36, 

wherein the court held (quoting from the :syllabus): 

The imposition of a void sentence by a circuit judge does not deprive him 

of authority to impose a valid one, nothing having been done by way of executing the first sentence. 

In the Dane case the court cited the earlier case of People v. 

Maervey, 76 Mich. 323, wherein our court held (quoting from the 

syllabus) : 

The authority of a circuit judge over a prisoner ceases upon sentencing him 

to State prison, and remanding him to jail to await the execution of the 

sentence. 

A circuit judge has no power to vacate a sentence imposed upon a prisoner, 

of imprisonment in State prison, after remanding him to jail to await its 

execution, and impose a heavier one because of the prisoner's attempted 

escape from jail, and such a sentence will be set aside and the original one 

held to be in full force. 

465 

654377 63 31 
These decisions were approved by our Supreme Court in In re 

Richards, 150 Mich. 421, where the court again held that : 

A trial court cannot set aside a valid sentence and impose a new and different one after the prisoner has been remanded to jail to await the execution of his sentence. 

While the imposition of a sentence and the act of remanding the 

prisoner to the county jail thereby prevents the circuit judge from 

changing the sentence imposed, yet under our statute a motion for 

new trial could be filed within the proper time and the sentence of 

the court set aside upon the granting of said motion. The court 

would then be in a position after the retrial to impose a new and 

different sentence. 

Jurisdiction and procedure of justice courts in criminal cases 

are found in chapter 14 Of the Code of Criminal Procedure, the 

same being section 17426-17470 of the Compiled Laws of 1929. 

Section 7 of said chapter provides that "after the accused shall 

plead guilty to such charge the court shall thereupon render judgment thereon." 

Inasmuch as a justice court is a court of limited jurisdiction 

without common law powers, we do not believe that a justice of the 

peace would have any right to change a sentence after the same 

has been imposed. New trials are purely statutory. At the common law there was no new trial. Frazer v. Judge of Recorder's 

Court, 112 Mich. 469. Our court held in the case of Alt v. Lalone, 

54 Mich. 308, that a justice of the peace could not grant a new trial. 

Very truly yours, 

[s] PAUL W. VOORHIES, 

Attorney General. 

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