Interim Decision #2028 

MATTER OF MARIN 

In Deportation Proceedings 

A-14226796 

Decided by Board March 10, 1970 

Respondent's criminal convictions may be used as a ground for his deportation under section 241 (a) (4) of the Immigration and Nationality Act even 

though at the time of the convictions respondent and the sentencing judge 

were unaware of the recommendation against deportation provisions of 

section 241(b) (2) of the Act.* 

CHARGE: 

Order: Act of 1952—Section 241 (a) (4) [8 U.S.C. 1251 (a) (4)1—Convicted 

of two crimes after entry: petty theft and burglary. 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Joseph S. Hertogs, Esquire Irring A. Appleman 

680 Washington Street Appellate Trial Attorney 

San Francisco, California 94111 Stephen M. Suffin 

Donald L. Ungar, Esquire Trial Attorney 

517 Washington Street (Brief filed) 

San Francisco, California 94111 

(Brief filed) 

The special inquiry officer certified his order terminating 

deportation proceedings. We find the alien deportable. 

The question is whether an alien's criminal conviction may be 

used as a basis for his deportation if he did not know that he 

could have made a timely application to the sentencing court for 

a recommendation against deportation pursuant to section 

241 (b) (2) of the Act, 8 U.S.C. 1251(b) (2). We answer the question in the affirmative. 

Section 241 (b) states that the law requiring -the deportation of 

an alien convicted of a crime involving moral turpitude shall not 

apply (1) if the alien obtains a pardon, or (2) if the sentencing 

court "shall make, at the time of first imposing judgement or 

* Affirmed. See 438 F.2d 933 (C.A. 9, 1971). 

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Interim Decision #2028 

passing sentence, or within thirty days thereafter, a recommendation" that the alien be not deported. 

Respondent, a 24-year-old male, a native and citizen of El Salvador, was admitted for permanent residence on May 29, 1964. 

Conceding that he was convicted of two crimes involving moral 

turpitude after his entry, he contends that he is not deportable. 

He maintains that since, at the time of the convictions, neither 

he, his representative, nor the courts were aware that the courts 

could recommend against his deportation under the authority contained in section 241(b) (2) of the Act, the congressional scheme 

provided for the deportation of aliens was frustrated and the convictions cannot be used to deport him. The special inquiry officer 

sustained the contention. The Service, by brief and at oral argument, requested that the special inquiry officer's order be reversed. Counsel, by brief and at oral argument, requested that no 

change be made in the order of the special inquiry officer. 

Respondent was convicted for petty theft on August 16, 1966 

(Ex. 2), and for burglary, second degree on January 10, 1969 

(Ex. 3). The order to show cause is based on these convictions.) 

The record establishes that at the time of the convictions, neither 

the respondent, his attorneys, nor the judges who presided were 

aware that the respondent's immigration status was in jeopardy 

by reason of the convictions. The judges and respondent stated 

that they were not aware of the existence of section 241 (b) (2) at 

the time of the convictions and there was no discussion within 

the time limits provided by law concerning a recommendation 

against deportation. 

The special inquiry officer's comprehensive review of judicial 

and administrative decisions dealing with the power of the court 

to make a timely recommendation against deportation revealed 

none which held that ignorance of the power prevents the use of 

a conviction as the basis for a deportation order. The basis foi 

the special inquiry officer's original approach is a line of decision 

starting with Gubbels v. Hoy, 261 F.2d 952 (9 Cir., 1958). Thes 

cases hold that since Congress made the recommendations again; 

deportation and intrinsic part of the deportation process, the lac 

of capacity in a convicting tribunal to make a recommendatic 

1Respondent was also convicted of what appears to be two counts of pel 

theft on June 7, 1967 (Ex. 4). He also admitted that he was convicted : 

burglary in September 1969 (pp. 16-17). There was no application fol 

recommendation against deportation in connection with these convictions. 

convictions occurred in courts provided under the laws of the State of C 

fornia. 

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Interim Decision #2028 

prevents the conviction from being used as the basis for a deportation order. The special inquiry officer reasons that the lack of 

an opportunity to obtain a recommendation because of the incapacity of the court is, in effect, no different than the lack of an 

opportunity to ask for a recommendation which occurs when the 

court, the alien, and his representatives are unaware of the provisions of section 241 (b) (2) of the Act. 2 

Approaching it from another aspect, the special inquiry officer 

points out that since the alien's ability to ask the court to make a 

recommendation against deportation is a "right", and since a 

"right" can be given up only by an intelligent waiver, it follows 

that an alien unaware that he possesses the "right" cannot make 

an intelligent waiver of it, and to use a conviction so obtained 

would violate due process. 

The special inquiry officer has shown that a serious recurrent 

problem exists because judges, lawyers, and aliens are so frequently unaware of the recommendation provisions during the period statutory limitations permit effective action. However, we 

cannot accept his thoughtful solution for we find no authority for 

it in either the language of the law or in the interpretations of 

the law considered as a whole. 

Certainly, the language of the law does not suggest that utilization of a conviction as the basis for the deportation of an alien 

requires the alien to be informed by the sentencing court that he 

has the right to ask for the recommendation against deportation. 

Judicial and administrative interpretations, when considered as a 

whole, do not show it has been so interpreted. In fact, the authority is to the contrary. That at the time of sentencing, the aliens 

were unaware they had the opportunity to ask the court for a 

recommendation is apparent from a series of cases dealing with 

aliens who attempted to obtain a recommendation against deportation after the passing of the statutory time. Nevertheless, the 

reviewing courts refused to give validity to late recommendations 

and permitted the convictions to be used as the basis for the deportation of the aliens, U.S. ex rel Klonis v. Davis, 13 F.2d 630 

(2 Cir., 1926) is an example. There, a timely application for a 

2Counsel believes that Gobbets, supra, turned not on lack of capacity of 

the military court to make a recommendation, but on the fact that because 

of its organization, the alien could not have effectively obtained a recommendation. As we read the case, the organization of the military court was 

merely one of the factors that persuaded the circuit court that a military 

court has no capacity to make the recommendation. The Supreme Court's 

comment on Gubbets, supra, indicates that the military court lacked capacity, Costello v. INS, 376 U.S. 120, 127, note eleven (1964). 

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Interim Decision #2028 

recommendation was not made because the alien's attorneys I 

not known of his alienage and the danger of his being deport 

They learned of this after the statutory time had run. They 

tallied a nuns pro tune amendment of the sentence with the / 

ommendation that the alien be not deported. The immigration 

ficials refused to honor the recommendation. On review 

district court held that the recommendation did not bar depo3 

tion. The circuit court approved. It held that it could not inter 

late in the law a provision that the recommendation could 

made within 30 days after the effect of the sentence was reath 

Several courts have indicated the absence of any obligation 

a sentencing court to inform an alien that he has the opportui 

to ask for a recommendation. Todaro v. Munster, 62 F.2d 963 

Cir., 1933), cert. denied 289 'U.S. 738, involved a review of a 

portation order based on a narcotic conviction. By way of diet 

the court stated that as long as the recommendation was 

made, it was immaterial whether or not a sentencing court 

an erroneous impression as to its power to recommend aga 

deportation. 

In U.S. ex rel. Durante v. Holton, 228 F.2d 827 (7 Cir., 19€ 

cert. denied 351 U.S. 963, the court stated that there was no 

upon a sentencing court to advise a convicted alien of the pc 

bility of deportation that might result from the criminal con 

tion. The court stated that a judgment of conviction otbained 

result of a guilty plea in a court which had not informed 

alien that the conviction might be made a basis for his depo 

tion had not been obtained without due process of law. 

In Joseph v. Esperdy, 267 F. Supp. 492 (S.D.N.Y., 1966), 

alien's deportation was sought because of a narcotic convic 

obtained on a plea of guilty. The alien maintained that the 

viction was void because he had not been advised that his cor 

tion would subject him to deportation. The court stated (p. 4 

that even in a federal court, where the full range of conseque 

had to be set out, it seemed absurd to expect a judge to explai 

each "defendant who pleads guilty the full range of coned 

consequences of his plea and, indeed, to anticipate what those 

lateral consequences are. Nothing more should be expected of 

State court" (emphasis in original). 

It is true, as the special inquiry officer states, that many c 

on the section are concerned with the issue of the timeline: 

the recommendation against deportation and not with the sii 

cance of the lack of knowledge; yet, as we pointed out, the al 

lack of knowledge, which was apparent in most of the cases 

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Interim Decision #2028 

not prevent the court from ruling against the alien, nor did the 

line of cases on which the special inquiry officer relies repudiate 

the cases concerned with the time limitations. 

Moreover, Congress must have been aware of the many decisions in which, despite an alien's failure to seek a recommendation because of his ignorance of the possibility, his conviction was 

made the basis for an order of deportation. Yet, although Congress revised the section in 1952 and 1956, it took no steps to 

eliminate the problem presented here. Congressional acceptance 

of the situation is some evidence that Congress did not intend 

that a conviction could not be used as the basis for deportation 

unless it was shown that the convicted alien was aware of the opportunity to obtain a recommendation that the law offered him. 

In U.S. ex rel. Circella, v. Sahli, 216 F.2d 33 (7 Cir., 1954), 

cert. denied 348 U.S. 964, the alien contended that use of his 1916 

conviction as the basis for an order of deportation was a denial 

of due process because, since the conviction occurred before the 

1917 Act authorized courts to make recommendations, it deprived 

him of the opportunity to ask for a recommendation that aliens 

had who were convicted after the 1917 Act became effective. The 

court rejected the contention. 

We have some additional grounds for our conclusion. The 

wording of section 241 (b) (2) and judicial interpretations reveal 

that it was the intent of Congress to have the matter of a recommendation settled within a 31-day period including the date of 

the passing of sentence. To make ignorance a material matter 

would nullify the limitation, for such a conclusion might require 

reopening of the criminal case and extension of the power of the 

court beyond the time provided by Congress. 3 

The cases based on Gubbels, supra, did not deal with the issue 

before us. They concerned, aliens who did not have the opportunity of successfully applying for a recommendation against deportation. In the instant case, the alien had the opportunity. 

There is no evidence he was misled by the Government. His failure to take advantage of the application because of his ignorance 

is not excusable. See Lockhart v. United States, No. 21,311 (9 

Cir., 12/18/69) (ignorance that failure to take administrative appeal would preclude judicial review did not excuse the failure). 

Moreover, to explore the question whether a conviction should 

3 At the hearing, counsel contended that the alien was forever nondeportable by reason of a conviction entered without knowledge of the possibility 

that he could apply for a recommendation against deportation (p. 7). At 

oral argument, counsel indicated that the defect might be cured by a motion, 

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or should not have been accompanied by a recommendation 

against deportation violates the long established rule that a collateral attack on a criminal conviction will not be permitted in a 

deportation proceeding. We are bound by the conviction as it 

stands, Matter of T--, 3 I. & N. Dec. 641 (BIA, 1949). 

As to the constitutional issue, if one is presented, we have no 

power to pass on it, Matter of L—, 4 I. & N. Dec. 566 (B1A, 

1951). We note for the record the Service contention that Congress did not grant a "right" but a "privilege" and therefore no 

constitutional issue is involved. 

To accept the special inquiry officer's position would result in a 

situation where an alien could be better off if he did not seek a 

recommendation at the time of sentencing. Later, he could attempt to prove that he was ignorant of his right to apply at the 

time of sentencing. If the "defect" is not curable, he would have 

frustrated the congressional intent to deport convicted aliens. If 

the "defect" is curable, action would be required that would involve courts and administrative officials in litigation. It is difficult 

to believe Congress contemplated this. 

The appellate trial attorney has pointed out that the respondent is not remediless. He can eliminate the convictions for deportation purposes if he obtains a pardon, section 241(b) (1) of the 

Act. 

ORDER The order of the special inquiry officer is withdrawn. 

The case is returned to the special inquiry officer for the entry of 

an appropriate order. 

502