Interim Decision #3120 

MATTER OF LIGIDAKIS 

In Deportation Proceedings 

A-35669900 

Decided by Board July 25, 1989 

Due notice to the Immigration and Naturalization Service regarding a judicial 

recommendation against deportation pursuant to section 241(b)(2) of the Immigration 

and Nationality Act, 8 U.S.C. § 1251(b)(2) (1982), shall be regarded as having been 

made where the Service has actual notice prior to the recommendation and does not 

interpose an objection based on insufficient preparation time under 8 C.F.R. § 241.1 

(1984) but instead prepares and presents its representations. 

CHARGE: 

Order: Act of 1952—Sec. 241(a)(4) [8 U.S.C. § 1251(a)(4)]—Crimes involving moral 

turpitude 

ON BEHALF OF RESPONDENT. 

Scott E. Richardson, Esquire 

Brown & Herrick 

1745 S. Alma School Road, Suite 130 

P.O. Box 17760 

Mesa, Arizona 85212-7760 

ON BEHALF OF SERVICE. 

John B. Bartos 

District Counsel 

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members 

In a decision dated December 18, 1984, an immigration judge 

found the respondent deportable as charged under section 241(a)(4) of 

the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(4) (1982), as 

an alien convicted of two crimes involving moral turpitude not arising 

out of a single scheme of criminal misconduct, denied his application 

for relief under section 212(c) of the Act, 8 U.S.C. § 1182(c) (1982), 

and ordered him deported to Greece. The respondent appealed from 

that decision. The appeal will be sustained. 

The respondent is a 43-year-old native and citizen of Greece who 

was admitted to the United States for lawful permanent residence on 

July 15, 1977. On May 18, 1984, an Order to Show Cause, Notice of 

Hearing, and Warrant for Arrest of Alien (Form I-221S) was issued 

charging the respondent with deportability based on a 1978 conviction 

for burglary in the Municipal Court of Los Angeles, California, and a 

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1984 conviction for robbery in the Superior Court of the State of 

California for the County of Orange. The record contains a judicial 

recommendation against deportation with respect to the respondent's 

1984 robbery conviction which was issued on June 12, 1984, by the 

Superior Court of Orange County, California. 

Early in a deportation hearing conducted on December 18, 1984, 

the respondent's attorney mentioned the recommendation against 

deportation.' However, there was at that time no discussion regarding 

the effect of the recommendation on deportability. Near the end of the 

hearing, the immigration judge raised the matter of the recommendation and inquired as to its effect. The Immigration and Naturalization 

Service attorney acknowledged that a valid recommendation against 

deportation for a given conviction would bar the Service from issuing 

an Order to Show Cause based upon that conviction. He argued, 

however, that the recommendation relating to the respondent's 

robbery conviction was invalid due to lack of proper notice to the 

district director as required by the regulations. See 8 C.F.R. § 241.1 

(1984). 

In his decision of December 18, 1984, the immigration judge denied 

the respondent's application for discretionary relief and ordered him 

deported, finding that although the respondent was statutorily eligible 

fur a section 2 I 2(c) waiver, he did not merit a favorable exercise of 

discretion. The immigration judge made no mention in his decision of 

the recommendation against deportation. 

On appeal, the respondent seeks termination of the deportation 

proceedings, arguing that the recommendation against deportation 

with respect to his robbery conviction mandatorily forestalls his 

deportation based upon that charge. In September 1986, the Service 

made a motion for summary dismissal of the appeal based on the 

generalized nature of the respondent's statement and his failure to file 

a brief in support thereof. The reason for the Service's position is 

unclear given the respondent's detailed, 8-paragraph statement of 

reasons for appeal appended to his Notice of Appeal (Form I-290A), 

dated December 28, 1984, and his 10-page brief, filed on May 16, 

1986. In any event, the respondent again provided a copy of his appeal 

brief to the Service in September 1986. No response from the Service 

has been received to date. 

We agree with the respondent that the California Superior Court's 

recommendation against deportation with respect to his robbery 

iWe note that the respondent initially conceded deportability at a hearing conducted 

on October 15, 1984, at which he appeared pro se. The respondent was subsequently 

represented by former counsel at the December 18, 1984, hearing and is currently 

represented by present counsel on appeal. 

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conviction precludes his deportation based on that crime. Section 

241(b) of the Act provides in pertinent part: 

The provisions of subsection (a)(4) respecting the deportation of an alien 

convicted of a crime or crimes shall not apply ... (2) if the court sentencing such 

alien for such crimes 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, who shall be granted an opportunity to make representations 

in the matter. 

The respondent was convicted of robbery on May 14, 1984, and the 

recommendation against deportation based on that crime was made 

within 30 days, on June 12, 1984. The recommendation states, inter 

alia, that "due notice [was] given to the Director of the Immigration 

and Naturalization Service and to ... [the] District Attorney of 

Orange County, State of California." 

As noted earlier, the Service argued at the December 1984 

deportation hearing that notice was not in fact given them. The Service 

stated that it had been a mere fortuity that they were apprised of the 

respondent's sentencing and the recommendation against deportation 

and that they thereupon registered telephonic, opposition, giving it 

"the best shot [we] had." In an affidavit executed on May 13, 1986, the 

respondent states that his attorney notified the Service of his hearing 

on the recommendation against deportation, that the hearing lasted 

approximately 3 hours, and that the District Attorney appeared to 

oppose the recommendation, as did a Service official by telephone. 

We find nothing in the record to support the Service's contention 

that proper notice concerning the recommendation was not given. All 

of the respondent's evidence points to the contrary. However, 

assuming, arguendo, that written or oral notice was not given, the 

Service concedes it had actual notice and thereafter elected to proceed 

in opposition to the recommendation telephonically. This course of 

action was not the only option available to the Service. The regulations 

at 8 C.F.R. § 241.1 (1984) provide in part: 

If less than 5 days' notice is received [by the Service] and sufficient time remains to 

prepare proper representations, due notice shall be regarded as having been made. 

When less than 5 days' notice is received and sufficient time is not available to 

prepare proper representations, but the 30-day statutory period will expire before 

proper representations can be prepared, an objection shall be interposed to the 

recommendation against deportation on the ground that due notice was not received. 

Inasmuch as the Service did not interpose an objection based upon 

allegedly insufficient preparation time but rather prepared and 

presented its representations, we find that due notice was made. 

Accordingly, we conclude that the judicial recommendation against 

deportation with respect to the respondent's robbery conviction was 

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validly issued by the Superior Court of Orange County, California, on 

June 12, 1984, and consequently bars the respondent's deportation 

based upon that conviction. The respondent's appeal shall therefore be 

sustained and deportation proceedings shall be terminated. 

ORDER: The appeal is sustained and the deportation proceedings are terminated. 

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