MATTER OF K— 

In EXCLUSION Proceedings 

A-10970591 

Decided by Board October 20, 1960 

Recommendation against deportation--Section 241(b)—Effect upon excludability. 

(1) Recommendation against deportation complying with requirements of section 241(b) of the Immigration and Nationality Act held effective to relieve 

alien of consequences of either deportability or excludability in respect to 

conviction for crime committed in United States. 

(2) Hungarian parolee found admissible for permanent residence under Act 

of July 25, 1958 where sentencing court recommended against deportation 

for crime committed while on parole. 

EXCLUDABLE:. Act of 1952—Section 212(a) (9) [8 U.S.C. 1182(a) (9) ]—Convicted 

of and admits crime--Armed robbery and assault with intent 

to commit murder. 

BEFORE THE BOARD 

DISCUSSION: The special inquiry officer ordered that the applicant be admitted to the United States for permanent residence under 

the Act of July 25, 1958 as of January 1, 1957, and the case is before 

us on that officer's certification. 

The applicant is a 21-year-old unmarried male, a native and last a 

citizen oi Hungary, who was paroled into the United States under 8 

U.S.C. 1182(d) (5) on January 1, 1957. On July 8, 1958, the applicant was sentenced to imprisonment for one to ten years following 

his conviction for armed robbery and assault with intent to commit 

murder, committed in the United States on May 2, 1958. On July 22, 

1958, Judge Donovan, who had sentenced the applicant, recommended that he be not deported as a result of this conviction. The 

applicant was paroled from prison on October 9, 1959. His immigration parole was terminated on June 21, 1960, at which time he 

was accorded a hearing before a special inquiry officer. The sole 

issue to be determined is whether the special inquiry officer's action 

in admitting the applicant for permanent residence was proper. For 

the reasons hereinafter stated, we approve his disposition of the 

case. 

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Prior to sentencing the applicant, Judge Donovan requested information concerning the effect of a recommendation against deportation in this case and an officer of the Service called upon him on 

July 7, 1958, to discuss the matter. Apparently Judge Donovan was 

informed that a recommendation against deportation in the applicant's case would have no legal effect. It was stated' during the 

hearing and at the oral argument that, although there might be some 

question concerning the matter, the Government was not urging that 

there had been a failure to comply with the notice requirements of 

8 U.S.C. 1251(b). Accordingly, we will not regard the question of 

the sufficiency of the notice as an issue in this case. 

Under the Act of July 25, 1958, (72 Stat. 419; 8 U.S.C. 1182, Note; 

Public Law 85-559), a paroled Hungarian refugee, who had been 

in the United States at least two years, could be admitted for permanent residence provided he was found (except for his lack of an 

immigrant visa) to have been admissible as an immigrant at the time 

of arrival and also at the time of inspection two years later. Except 

insofar as the Act of July 25, 1958 shows that the applicant's admissibility is to be determined as of June 21, 1960, when he appeared 

before the special inquiry officer, this special legislation has no direct 

bearing on the question which is involved in this case, and the problem is one of general application. 

Since the applicant had been convicted of a crime involving moral 

turpitude prior to June 21, 1960, it is clear that he would have been 

inadmissible to the United States under 8 U.S.C. 1182(a) (9) if it 

had not been for the court's recommendation. The question which 

requires solution in this case is whether the court's recommendation 

that this applicant be not deported because of his conviction, which 

recommendation would be an absolute bar if this were a proceeding 

to expel and deport the applicant, is to be considered a nullity because the present proceeding happens to be one for the purpose of 

excluding and deporting him on the basis of the same conviction. 

The statutory provision involved is S U.S.C. 1251(b), the pertinent 

part of which is as follows: 

(b) The provisions of subsection (a) (4) of this section respecting the deportation of an alien convicted of a crime or crimes shall not apply (1) in 

the case of any alien whn has slihsequent to such onnvietinn been Etranted a 

full and unconditional pardon by the President of the United States or by 

the Governor of any of the several States, or (2) if the court sentencing such 

alien for such crime shall make • * * a recommendation to the Attorney 

General that such alien not be deported * *. 

It is true, as the Service asserts, that in 8 U.S.C. 1251(b) Congress 

changed a prior similar provision so that legislative pardons are no 

longer within its purview. However, we find no support for the 

contention of the Service that Congress deliberately changed the 

statutory language in order that 8 U.S.C. 1251 (b) would apply only 

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to crimes after entry and not to crimes prior to entry. Neither 

8 U.S.U. 1251 (b) nor the prior provision contain any specific reference to crimes after entry or prior to entry, and the language of 

both, other than that relating to pardons, is almost identical. The 

prior statutory provision, which appeared in section 19(a) of the 

Immigration Act of 1917 as amended [8 U.S.C. 155(a), 1946 ed.], 

was as follows: 

* * * Provided further, That the provision of this section respecting the 

deportation of aliens convicted of a crime involving moral turpitude shall not 

apply to one who has been pardoned, nor shall such deportation be made or 

directed if the court, or judge thereof, sentencing such alien for such crime 

shall * * make a recommendation to the Attorney General that such alien 

shall not be deported * * *. 

The Service contends that although a pardon or the sentencing 

court's recommendation has the effect of immunizing the alien from 

being deported under 8 U.S.C. 1251(a) (4), the same pardon or 

court's recommendation concerning the identical conviction has no 

efficacy if the basis for deportation or exclusion is under some provinion other than 8 U.S.C. 1951(a) (4). The argument is predicated 

on the language of 8 U.S.C. 1251(b) which reads: "The provisions 

of subsection (a) (4) of this section * " shall not apply," and it is 

claimed that this limits the provision to 8 U.S.C. 1251(a) (4). The 

comparable prior statutory provision in the 1917 Act appeared in 

section 19(a) which section related to deportation and it was also 

limited to that section as distinguished from section 3 of the 1917 

Act [8 U.S.C. 136, 1946 ed.] pertaining to exclusion. Nevertheless, 

as will hereinafter appear, the 1917 Act provision was held to be 

applicable to any crime committed in the United States whether 

prior to or subsequent to entry. 

The Service representative stated during the oral argument that 

there is some judicial authority that a full and unconditional pardon 

wipes out a crime completely and that consequently there would be 

some logic in holding a pardon effective in both exclusion and deportatiOn cases, but that a different rule should be applied in the 

case of a court's recommendation against deportation. Whether a 

pardon does or does not obliterate the crime completely is not the 

determinative factor, because it is the statute itself which provides 

that an alien is not to be deported for a crime for which he has been 

granted a full and unconditional pardon by the President or a Governor of a State. 8 U.S.C. 1251(b) sets forth two matters which 

bar deportation: (1) a pardon, or (2) the sentencing court's recommendation again5t deportation. Since the statutory provision treats 

both equally, it follows that the same rule must be adopted concerning the pardons and recommendations of the court against deportation. 

123 
There was cited on behalf of the Service our decision in Matter 

of D—, 8 658, in which we said that section 4 of the Act of September 3, 1954 [8 -U.S.C. 1182a] could not be used where the deportation 

charge is based on 8 U.S.C. 1251(a) (4). 8 U.S.C. 1182a specifically 

refers to an alien who is excludable because of the conviction of a 

misdemeanor and, hence, this statutory provision had no applicability 

to the alien there who was not excludable but who was subject to 

deportation under 8 U.S.C. 1251(a) (4). Accordingly, Matter of 

D—, supra, has no relevance to the issue involYed here. 

During the oral argument, the Service representative took the 

position that the special inquiry officer's decision was in conflict with 

Leng May Ma v. Barber, 357 U.S. 185 (1958). In that case, the 

alien contended that she was eligible for a stay of deportation under 

8 U.S.C. 1253(h). That statutory provision authorizes the Attorney 

General to withhold deportation of an alien "within the United 

States" under certain circumstances. The decision of the Supreme 

Court turned on the fact that since the alien had merely been paroled 

she had not made an entry and did not, therefore, meet the requirement of 8 U.S.C. 1253(h) of being "within the United States." That 

question is not involved in this applicant's case because it is clear 

that he is not "within the United. States" and that he has not made 

an entry in contemplation of law. As we have indicated above, the 

sole question in the applicant's case is whether a pardon or a court's 

recommendation as to a particular conviction is to he disregarded 

merely because this is an exclusion case rather than a deportation 

case. 

8 U.S.C. 1182(a) (9) requires the exclusion of an alien who has 

been convicted of a crime involving moral turpitude. This applies 

to a conviction which occurred prior to the alien's entry. It may 

relate to a crime committed in a foreign country or a crime committed in the United States and it may refer to a crime committed after 

an original entry into the United States and prior to a reentry. 

8 U.S.C. 1251(a) (4) relates to convictions for a crime or crimes 

committed after entry. As we have previously indicated, the comparable provisions of the 1917 Act were sections 3 and 19(a), respectively. In Perkins v. United States ex rel. Malesexie, 99 F.2d 

255 (C.C.A. 3, 1938), the Government contended that the pardon 

provision of the 1917 Act could not apply to crimes committed prior 

to entry but the court held that this provision applies equally to 

crimes- committed prior to entry and crimes committed after entry so 

long as the conviction and the pardon were for a crime committed 

in the United States. Subsequently, a similar conclusion was reached 

with respect to the provision of the 1917 Act concerning a court's 

recommendation against deportation (Rasmussen v. Robinson, 163 

124 
F.2d 732 (C.U.A. 3, 1947)). Relying on the latter decision, on 

July 8, 1948, the Central Office of the Service held that the recommendation against deportation of the sentencing court (as to crimes 

committed in the United States) had the effect of immunizing an 

alien from excLuelon on the basis of the conviction (Matter of Hand 1—, 3-236, 240-243). At page 241 of that decision it was 

stated that this Board had reached the same conclusion in an unreported decision dated April 28, 1948. During the 12 years which 

have elapsed since that time, the Board has consistently followed this 

rule and it does not appear to have been questioned by the Service 

except in Matter of H—, 6-90 (1954). 

Matter of H—, supra, involved a pardon for a crime committed in the United States prior to entry. The Service, in its 

motion in that case (6-91), stated that it was well established 

that if the case had been one to be decided under' the 1917 Act the 

alien would not have been deportable with respect to crimes committed prior to her reentries. However, it was contended that a 

different result was required under the Immigration and Nationality 

Act because 8 U.S.C. 1251(b) commences with the words, "The provisions of subsection (a) (4) of this section." As we have indicated 

above, the provisions of the 1917 Act and the present law are similar 

in this respect, and the argument advanced in the applicant's case is 

exactly the same as the one which had been urged in Matter of H—. 

We have again considered the matter but we adhere to the conclusions reached in Matter of H—, supra, for the reasons which were 

fully set forth in that decision. It is our considered opinion that a 

pardon or a court's recommendation against deportation which meets 

the requirements of 8 U.S.C. 1251(b) has the effect of immunizing 

the alien insofar as that conviction is concerned regardless of 

whether the proceeding against him is to exclude and deport or 

expel and deport and regardless of whether the statutory provision 

involved is 8 U.S.C. 1182(a) (9), 1251(a) (1) or 1251(a)(4). This, 

of course, applies only to a crime committed within the United States 

since it is well settled that a foreign pardon is'not effective to prevent deportation and this would also be true of any recommendation against deportation made by a foreign court. 

The Service asserts that in the cases previously decided there had 

been a conviction for a crime during a previous lawful or unlawful 

residence in the United States and that the question concerning 

admissibility arose when the alien attempted to return to the United 

States after an absence. If we adopted the view urged by the 

Service, an alien who had lived in the United States for many 

years and who had been convicted of a crime involving moral turpitude would have to be excluded when now applying for readmission after a short absence even though he had been pardoned or had 

125 
received the favorable recommendation of the sentencing court. It 

was also contended by the Service that the applicant's case does 

not involve equitable factors such as long residence in the United 

States, family ties, etc., but that, on the contrary, the applicant has 

only a short period of residence here and has abused this country's 

hospitality by the commission of a serious crime. Counsel for the 

applicant states that there were extenuating circumstances; that the 

applicant was a "freedom fighter" in Hungary; and that his deportation to that country would result in imprisonment or execution. 

All of these matters are irrelevant since only a legal issue is involved 

in this case and we have concluded that the sentencing court's favorable recommendation requires the ruling that neither deportation 

nor exclusion proceedings against the applicant can be predicated 

on the conviction mentioned above. 

ORDER: It is ordered that the special inquiry officer's order, admitting the applicant for permanent residence, be approved.