MAItt,a OF C 

In DEPORTATION Proceedings 

A-2471605 

Decided by Board March 3, 1959 

Deportation order—Collotcy.1 ottock nor permitted after alien has been deported—Deportation hearing—Lodged charges authorized in section 242(f) 

proceedings. 

(1) No collateral attack is permitted on an executed deportation order, notwithstanding later coram, nobis action that resulted in vacating of conviction record supporting respondent's expulsion under section 241(a) (4) of 

the 1952 act. 

(2) Respondent's succontitto.. coon.. to the United titan-en In 1956, a year 

after his deportation, constitutes an "entry". Contention rejected that he 

should be considered as having constructively remained in the United States 

on the theory that he is no longer deportable on criminal grounds under 

section 241(a) (41 of the act. 

(3) Issuance of order to show cause under section 242(f) of the act does not 

preclude lodging additional charges of deportability at the hearing. 

CHARGES: 

Order: Act of 1952—Section 242(5) [8 U.S.C. 1252(f)1—Unlawful reentry 

after deportation under 8 II.S.C. 1251(a) (4). 

Lodged: Act of 1952 —Section 241(e) (1) to 05.0.0. 1251(a) (11) Excludable 

at entry under S U.S.C. 1182(a) (17)—Arrested and deported, no 

permission to reapply. 

Act of 1952—Section 241(a) {2) [8 C.S.C. 1251(a) (2)1—Entered 

without inspection. 

Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)1—Excludable 

at entry under 8 U.S.C. 1182(a) (20)—No immigrant visa or 

other entry document. 

Act of 1952—Section 241 (a) (1) [8 U.S.C. 1251(a) (1)1—Excludable 

at entry under 8 U.S.C. 1182(a) (9)—Convicted of crime, unlawfully entering a building. 

BEFuttri THE BOARD 

Discussion: This case is before us pursuant to the special inquiry officer's order of October 8, 1958, directing the respondent's 

deportation and certifying the case to this Board for final decision. 

The respondent is a 60-year-old divorced male, a native and citizen 

of Italy, who states that he was lawfully admitted to the United 

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States for permanent residence on August 18, 1905. He was deported from this country on February 8, 1955, and last entered the 

United States about March 1956 without inspection. The sole issue 

to he determined is whether the respondent is deportable. 

In the first proceeding, which culminated in the respondent's expulsion on February 8, 1955, he was found deportable under 8 

U.S.C. 1251(a) (4) because of a conviction in 1917 for unlawfully 

entering a building and a conviction in 1919 for grand larceny, 

second degree. After a hearing on counsel's motion coram nobis 

in the criminal proceeding relating to the 1919 conviction, the court 

entered an order on October 24, 1957, granting counsel's motion to 

vacate the plea and sentence imposed. The respondent was thereupon arraigned on the indictment; he pleaded not guilty; and the 

court reserved decision on comma's motion to dicmice the indictment. During the oral argument, it was indicated that the indict 

ment was still pending but counsel stated that he was preparing a 

motion to have it dismissed for lack of prosecution. 

The special inquiry officer concluded that the respondent was not 

subject to deportation on the charge stated in the order to show 

cause. This charge is not applicable to all aliens who have been 

deported but only to those deported pursuant to certain specified 

statutory provisions. Included is 8 U.S.C. 1251(a) (4) under which 

the respondent was deported. The special inquiry officer reached 

his conclusion on the theory that reinstatement of the previous 

order of deportation would not be Proper in a case where, at this 

time, the respondent would not be deportable on the original charge. 

For the reasons hereinafter stated, we concur in the special inquiry 

officer's conclusion that the respondent is deportable on the lodged 

charges, and we find it unnecessary to consider the charge which 

was nnt enctained by the special inquiry officer. 

The first lodged charge is predicated on the respondent's inadmissibility in March 1956 under 8 U.S.C. 1182(a) (17) as an alien 

who had previously been deported and who had not been granted 

permission to reapply for admission to the United States. This 

charge differs from that stated in the order to show cause in that 

it does not seek to reinstate the prior order of deportation, and it 

is the charge applicable to an alien previously deported on any 

ground. 

Counsel contends that the granting of his motion coram nobis 

completely removed the conviction from the record and that this 

differs from an absolute executive pardon. No judicial or other authority was cited. We regard this distinction, if any exists, as unimportant. The order of October 25, 1957, in the corarn nobis 

proceeding, which set aside the conviction for grand larceny in 1919, 

has been given retroactive effect in this deportation proceeding 

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because, even though the respondent was actually excludable m 

March 1956 by reason of his conviction of two crimes prior thereto, 

he is not charged in this proceeding with having been excludable on 

account of the 1919 conviction. Pardons have been given a similar 

retroactive effect in immigration cases. For example, in Matter of 

H—, 6 I. & N. Dec. 90 (1954), an alien who last entered in 1943 

was then excludable because of a conviction prior thereto but she 

was held not to be deportable when she secured in 1953 a pardon 

for the crime, following the institution of deportation proceedings. 

Along the same line, counsel also argues that the effect of the 

granting of the motion coram nobis was to wipe out ab initio the 

1919 conviction for grand larceny. In other words, the contention 

is that we must now consider that this conviction was nonexistent 

on February 8, 1955, when the respondent was deported. We find 

no merit in this contention and hold that, as of October 25, 1957, 

this 1919 conviction ceased to exist but that, in truth and in fact, 

it was in existence on February 8, 1955. 

It has heretofore been held 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 TT.S. 529; United States ex 

Koehler v. Corsi, 60 F.2d 123 (C.C.A. 2, 1932); Matter of S—, 

3 I. & N. Dec. 83 (1949); Matter of R , 3 I. & N. Dec. 605 

(1949) ; Matter of P—, 3 I. & N. Dec. 818 (1950) ; Matter of 

C , 4 I. & N. Dec. 126 (1950); Matter of R , 4 I. & N. 

Dec. 173 (1950). 

Counsel asserts that the cases previously decided have involved a 

change in the judicial or administrative interpretation of the law, 

and we agree that this is true except as to United States ex rel. 

Koehler v. Corsi, supra, and Matter of C R , supra. He 

seeks to distinguish the respondent's case on the ground that it involved not a change of interpretation, but a change of facts. Hence, 

his contention is that, for that reason, there should be a departure 

from the established rule in the respondent's case. We doubt that 

what was a fact on February 8, 1955, ceased to be a fact on or 

prior to that date by reason of some subsequent occurrence. 

Assuming that under some fictional theory there can be such a 

thing as a retroactive change of facts, we do not find counsel's 

argument persuasive. In most of the cases cited above, a change 

in the interpretation of the law occurred after the alien's deportation. That means that those aliens had actually been deported erroneously. Nevertheless, when they were subsequently charged with 

excludability or deportability as aliens previously deported and not 

having permission to reapply, they were not permitted to say that 

278 
there was actually no deportation because the order had been 

entered erroneously. In the respondent's case, there was no error 

in the previous order of deportation because, until the court's order 

of °etcher 25, 1957, in the Cara7iZ nob:, proceeding, the respondent 

was an alien who, in truth and in fact, had been convicted of two 

crimes involving moral turpitude. 

We can perceive no logical basis for permitting the respondent in 

this proceeding to attack the validity of the previous order of deportation under a fictional theory concerning an asserted retroactive 

change of facts when the decided cases hold that this cannot be 

done even by an alien who woe deported solely because of an 

erroneous interpretation of the law. Accordingly, we reject counsers contention that the respondent's case is distinguishable on this 

ground. 

During the oral argument, there was some discussion concerning 

our decisions holding that the law of the case becomes fixed at the 

time of deportation. While such a statement was made in Matter 

of 1?—, 3 I. & N. Dec. 605, supra, and Matter of P , supra, 

we do not base our decision here on any such concept but solely on 

the primary proposition for which all of the cited cases stand, that 

is, that an alien who has been deported will not be permitted to 

attack the validity of that deportation order in any subsequent 

proceedings. 

We have already indicated our opinion that under the factual 

situation existing at the time of the respondent's deportation on 

February 8, 1955, he had been convicted of two crimes involving 

moral turpitude, and the fact that one of the convictions ceased to 

exist on October 25, 1957, did not render the order of deportation 

invalid. 'When the respondent entered the United States in March 

1055, he was, in truth and in fact, an alien who had been previously 

deported and who had not been granted permission to reapply for 

admission to the United States. Accordingly, we hold that he was 

excludable in March 1956 under 8 U.S.C. 1182 (a)(17) and that 

the first lodged charge is sustained. 

In connection with the three remaining charges, it is clear from 

the record that the respondent entered without inspection in March 

1956; that he intended to remain indefinitely; and that he did not 

have an immigrant visa or other entry document. Eliminating the 

conviction which was set aside in 1957, the respondent was excludable in March 1950 because of his prior conviction of a crime involving turpitude, that is, unlawfully entering a building. Counsel 

contends that we should waive these defects relating to the respondent's March 1956 entry although no statutory authority for doing 

so was cited and no such authority exists. 8 U.S.C. 1182(c) is 

specifically limited to aliens who proceeded abroad voluntarily and 

279 
not under an order of deportation, and it would also be inapplicable 

to the entry without inspection charge. 

Counsel also contends that we should completely disregard the 

entry of March 1956 and consider that the respondent has constructively remained in the United States on the theory that he 

would not now be subject to deportation under 8 U.S.C.'1251(a) (4) 

and he did not depart from the United States voluntarily but was 

deported against his will. A similar contention was advanced and 

rejected in Matter Of R—, .copra. That 041,1, was &rifled prior to 

the Immigration and Nationality Act which contains a specific provision [8 U.S.C. 1101(a) (13)] that the term "entry" means any 

coming of an alien into the United States from a foreign port or 

place with one exception mentioned. It is further provided that 

no person whose departure was occasioned by deportation shall be 

entitled to the exception. Under these circumstances, we hold that 

the respondent made an entry in March 1956, and we conclude that 

he is deportable on the last three lodged charges mentioned above. 

Counsel contends that the regulations preclude the lodging of additional charges where the proceedings are under section 242(f) of 

the Immigration and Nationality Act [8 U.S.C. 1252(f)]. He cites 

8 CFR 242.6 which provides that the order to show cause in the 

case of an alien within thc purview of section 942(f) shall charge 

him with deportability only under that section. However, this 

means only that the order to sh,ou, cause shall not contain other 

charges but it does not preclude the lodging of additional charges. 

As a matter of fact, 8 CFR 242.22(d), which relates only to proceedings under section 242(f), specifically refers to the lodging of 

additional charges. Hence, we find this contention to be without 

merit. 

Counsel contends that the offense of unlawfully entering a building in violation of section 405 of the New York Penal Code does not 

necessarily involve moral turpitude and that the charge that the 

respondent was excludable under 8 U.S.C. 1182(a) (9) should not 

be sustained. This same section of the New York Penal Code was 

carefully considered in Matter of W—, 4 I. & N. Dec. 241 (1951), 

in which the facts pertaining to the conviction were entirely analogous to the facts in the respondent's case. We there held that a 

conviction for unlawfully entering a building in violation of section 

405 of the New York Penal Code involved moral turpitude. Accordingly, we adhere to our previous similar conclusion in the 

respondent's case. 

During the oral argument, counsel stated that he believed that 

the court would grant his proposed motion to have the 1919 indictment for grand larceny dismissed; that the respondent's first 

marriage was terminated by divorce on December 12, 1958; and 

000 
that he will shortly marry a citizen of the United States. On this 

basis, counsel asked that the case be remanded to the New York 

office for consideration as to the granting of discretionary relief. 

We will not remand the case on the assumptirm thnt certain contingencies may occur, and approval of the special inquiry officer's 

order will be directed. However, if the indictment for grand larceny is dismissed, counsel may file a motion for reconsideration. 

Order: It is ordered that the special inquiry's officer's order, 

directing deportation, be and the same is hereby approved. 

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