MATTER OF C 

In DEPORTATION Proceedings 

1.—R471655 

Decided by Board March 28, 1960 

Deportability—Based on conviction for crime—Effect of carom nobis action 

voiding conviction alt initio. 

Judgment by New York court on October 25, 1957, in corm notda action 

vacating respondent's conviction in 1910 for grand larceny, second degree 

(one of two crimes which resulted In his deportation in 1955), is regarded 

as voiding the conviction ab initio since it is predicated upon findings that 

respondent had been deprived of rights guaranteed by the Sixth Amendment. 

(2) Nevertheless, the decree voiding the conviction is effective only on and 

after Timmer 2b, 1957. It does not require treating the conviction as nonexistent prior to October 25, 1957; and it does not permit respondent to 

attack the deportation order executed on February 8, 1955, which was clearly 

valid on that date. 

CUARGES 

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

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

Lodged: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251 (a) (1)7—Excludable 

at entry under 8 U.S.C. 1182(a) (17)—Arrested and deported, no 

permission to reapply. 

Act of 1952—Section 241(a 1 (2) 18 U.S I. 1251 (a) ( 2 ) —Pntered 

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. 

Act of 1952—Section 241 (a) (1) [8 U.S.C. 1251(a) (I)l—Excludable at entry under S U.S.C. 1182(a) (9)—Convicted of crime—

Unlawfully entering a building. 

BEFORE THE BOARD 

Discussion: On March 3, 1959, this Board approved the special 

inquiry officer's order of deportation. Thereafter counsel filed a 

motion for reconsideration and on June 3, 1959, we granted the motion and reopened the hearing. The case is now before us on appeal 

from the special inquiry officer's decision of November 4, 1959, granting voluntary departure, denying all other relief, and directing that 

the respondent be deported if he fails to depart voluntarily. 

The respondent is a 61-year-old married male, 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 insportion At that, time he intended to remain indefinitely ; he did not have an immigrant visa; 

and he had not been granted permission to reapply after arrest and 

deportation. 

The issues to be determined are whether the respondent is deport. 

able, and whether he is eligible for discretionary relief in addition to 

voluntary departure. For the reasons hereinafter Stated, we hold that 

the respondent is deportable and that discretionary relief, other than 

voluntary departure, cannot be granted in this proceeding. 

In the first proceeding, which culminated in the respondent's expulsi ,n on February 8, 1815, he was found deportable under 3 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 scram nobis in the criminal 

proceeding relating to the 1919 conviction, the court entered an order 

on October 25, 1957, granting counsel's motion to vacate the plea and 

sentence imposed. The respondent then pleaded not guilty. On 

April 22, 1959, the 1919 indictment was dismissed. On the same 

date, a 1918 indictment was dismissed but it was not one of the convictions on which the respondent's deportation was predicated. 

The first lodged charge is based on the allegation that the respond. 

ent is deportable because he was excludable in March 1956 under 

8 U.S.C. 1182(a) (17) as an alien who had been arrested and deported 

and who did not have permission to reapply for admission to the 

United States. In this proceeding, the respondent conceded that he 

had been deported from the United States on February 8, 1955, and 

that he had not received permission to reapply for admission to the 

United States. We said in our previous order that counsel had not 

cited any judicial or other authority for his contentions that the 

granting of the motion serene nobis completely removed the conviction from the record and that this differed from an absolute executive 

pardon. None of the cases now cited by counsel indicates to us that 

the granting of a motion scram nobis has greater obliterating effect 

than a pardon. As stated in Er parts Garland, 71 U.S. 333, 380 

(1866). "* * * when the pardon is full, it releases the punishment 

and blots out of existence the guilt, so that in the eye of the law the 

offender is as hutment as if he had never committed the offense." 

Counsel is correct, however, in his contention that a conviction is 

void, as contravening the Sixth Amendment to the Constitution, 

where the defendant was not represented by counsel and had not 

competently and intelligently waived this right (United States v. 

Morgan, 346 U.S. 502 (1954) ; Johnson v. Zerbst, 304 U.S. 458 

(1938) ). Exhibit R-3 shows that on October 25, 1957, the judge 

612 
hearing the motion corara nobis found, with respect to indictment 

34,469—A of the year 1919, that the respondent was not represented 

by counsel at the trial, and that the trial court had not informed him 

of his right to such representation In view of this finding and in 

accordance with the decisions cited, the respondent's 1919 conviction 

was void. In United States v. Morgan, 222 F.2d 673 (C.A. 2, 1955), 

it was said by way of dictum (p. 674, note 3) : "Of course, the conviction is not void in the sense tint the defendant may disregard the 

conviction before it has been judicially declared invalid." 

In referring to the retroactive effect of corona notis, counsel has 

cited certain cases holding that a man serving a sentence as a second 

offender, whose prior conviction was then set aside, may thereafter 

be resentenced as a first offender on the sentence being served. Hower , we actually do give retroactive effect to the order revoking the 

1919 conviction. When the respondent entered the United States in 

March 1956, he was, in fact, excludable under 8 U.S.C. 1182(a) (9) 

because of the 1917 and 1919 convictions, the 1919 conviction not 

having been removed until October 25, 1957. Nevertheless, the respondent is not charged in this proceeding with being excludable in 

March 1956 because of the 1919 conviction. On the authority of tho 

Supreme Court's decisions in United States v. Morgan and Joh,n4on 

v. Zerbst, supra, we hold that the respondent is to be regarded as 

never having been convicted of the 1919 offense. In other words, as 

of October 25, 1957, the 1919 conviction was wiped out ab initio. 

While the conviction has now been removed at initio, and although 

it does not seem that the respondent could be deported under 8 U.S.C. 

1251(a) (4) upon a new proceeding instituted at this time, there still 

remains the question as to the legal effect of the respondent's deportation on February 8, 1955. On that date, he was, in truth and in fact, 

an alien who had been convicted of two crimoo involving moral turpitude and he was actually subject to deportation under 8 U.S.C. 

1251(a) (4). Counsel asserts that most of the previous cases in which 

attempts were made to attack the validity of deportation orders after 

they had been executed involved a change in the interpretation of 

the law. He contends that the respondent's case involved a change 

of facts and that it is distinguishable for that reason. However, he 

has cited no case in which there was a change of facts and the executed order of deportation was considered a nullity. 

We do not perceive any logical reason why, following deportation, 

one rule should be followed where a change of facts thereafter occurred and another rule where there subsequently took place a change 

in the judicial construction of the law. If anything, it would seem 

that the case would be stronger on behalf of the alien who had been 

erroneously deported because of a mistaken interpretation of the law 

than in the case of this respondent whose deportation was strictly in 

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accordance with the law and facts as they existed at the time of 

deportation. 

A statement was quoted by counsel from section 522 of the Civil 

Practice Act of New York which permits the making of a motion to 

set aside a final judgment for error in fact not arising upon the trial. 

However, the accomplished deportation here is not a judgment and 

counsel himself does not allege that there was an error in fact, but 

contends there was a change of fact. Section 522 is entirely irrelevant 

to this respondent's case and the same is true with respect to Federal 

Rules of Civil Procedure 50 and 50, Title 28, United States Code. 

Counsel has sought to draw an analogy between the respondent's 

case and cases in which a marriage or naturalization has been ann - lied revoked ab initio. Apparently courted claims that the 

invariable rule was to deport aliens who entered the United States 

on the basis of such marriages or naturalizations. Although some 

aliens have been deported under the ab initio doctrine, we did not 

apply the doctrine blir dly and the question of whether such an alien 

should be deported depended upon the facts of the particular case. 

For example, the administrative interpretation of the 1937 act, as 

indicated in Matter of B—, 3 T. & N. Dec. 102, 104 (1947), and the 

specific language of 8 U.S.C. 1251(c) show that deportation does not 

follow in every case where the marriage is annulled retroactively to 

the date of marriage. We held that the aliens were not deportable 

in Matter of B , supra, and in Matter of 21! , 3 I. & N. Dec. 25 

(1947). Revocation of naturalization also does not necessarily result 

in deportation of that person or his wife or minor child (Matter of 

C , 3 I. & N. Dec. 275 (Atty. Gyn., 1950) ; Matter of P—, 4 

I. & N. Dec. 373 (1951) ; 8 U.S.C. 1451; 8 CFR 101.1(j)). Since 

there was no invariable rule that deportation must follow under the 

at initio doctrine, we reject counsel's contention that this doctrine 

requires us to hold that the respondent was erroneously deported 

in 1955. 

To summarize, we hold that on and after October 25, 1957, the respondent's 1919 conviction must be considered as having been revoked 

ab initio, but we are not persuaded that the conviction must now be 

considered as nonexistent on February 8, 1955, when the respondent 

was deported. The warrant of arrest which resulted in that deportation was served on the respondent on August 6, 1953, and deportation did not occur until February 5, 1051. No reason has boon eug 

gested for the respondent's failure to institute the scram nobis proceeding prior to his deportation, and he made no attempt to attack 

the validity of the deportation order through judicial proceedings. 

Where an alien thus sleeps on his rights and deportation has been 

accomplished, we see no reason why he should then be permitted to 

challenge the validity of the executed warrant of deportation. The 

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situation is somewhat similar to the doctrine of res judiccda which 

requires a defendant to present all his defenses at the time of trial or 

be foreclosed from subsequently asserting them. 

The following cocee have et,talili.,:btid the rule 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. Stefiner v. Cannichael, 183 

F.2d 19 (GA. 5, 1950), cert. den. 340 'U.S. 829; Daskaloff v. Zurbrick, 

103 RSA. 579 (C.C.A. 6, 1939) ; United States cal rel. Koehler a. Corsi, 

60 E'.2d 123 (C.C.A. 2, 1932) ; Matter of S , 3 I. & N. Dec. 83 

(1949) ; Matter of tL , 3 1. & N. Dec. 505 (j.VIV) ; Matter of 

3 I. & N. Dec. 818 (1950) ; Hatter of C P. , 4I. & N. Dec. 126 

(1950) ; Matter of R I. & N. Dec. 173 (1950)). We hold that 

these decisions are controlling in the respondent's case and that he 

cannot, in this proceeding, attack the validity of the executed order 

of deportation. 

There was quoted by counsel, with the emphasis indicated, the following sentence appearing on page 20 of United States ex eel. Steff - 

seer v. Carmichael, supra: "Where an alien has been deported from 

the United States pursuant to a warrant of deportation, we do not 

think it permissible to allow a collateral attack on the previous deportation order in a subsequent deportation proceeding, unless we 

are convinced that there was a gross miscarriage of justice 'in the 

former proceedsngs." There, the contention of the alien was that the 

first deportation order in 1936 was illegal and void ad initio. Since 

the court was of the opinion that Steffner could not attack the previous deportation order, the language which counsel emphasized was 

dictum. The statutory provision, under which Steffner was deported, 

was subsequently construed by the Supreme Court in another case in 

such a way that Steffner would not have been deportable. In the 

cited case, the Court of Appeals said that if it conceded that the 

original order of deportation should be examined, Steffner would not 

be in any better position because it was of the opinion that the original order was valid when entered. As we have previously indicated, 

the original deportation order against this respondent was clearly 

valid at the time it was entered. Hence, the prior deportation of 

this respondent was obviously not "a gross miscarriage of justice," 

and under the Steffner decision cannot now be attacked. 

In discussing United States ex rel. Koehler v. Corsi, supra, counsel 

slated that when the finding, of fact have been outmoded, the law 

of the case should be reexamined and set aside. That decision does 

not show whether the alien claimed there had been an error of fact 

or of law. In the first proceeding, the alien filed a petition for a 

writ of habeas corpus but the District Court's decision was adverse 

to him and he later withdrew his appeal from that decision. In the 

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subsequent exclusion proceeding, where he attempted to show that 

his previous deportation was unlawful, the court said that the law 

of the case became fixed when the decision of the District Court became final and it was then too late to attack the deportation as not 

in pursuance of law. In Matter of B—, 3 I & N. Dec. 605, and in 

Matter of P—, 3 I & N. Dec. 818, both of which were "cited above, 

there were statements that the law of the case becomes fixed at the 

time of deportation. However, we do not base our decision 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 subsequent proceedings. The law of the case doctrine arises when 

a court has rendered a decision. Hence, it did arise in the Koehler 

case but does not appear to be pertinent in this respondent's case 

since the validity of the previous deportation order was not passed 

upon by any court. 

Although the doctrine of law of the case is technically not applicable here, the situation is somewhat analogous. A certain finality 

does attach when a warrant of deportation has been executed by the 

expulsion of the alien. The question of whether an alien is or is nut 

deportable should not be subject to relitigation after deportation has 

been accomplished. At that point, judicial review would no longer 

be poesible because the ease would be moot. Similarly, the regulations [8 CFR 3.2, 3.3(a) and 3.4] provide that departure prior to 

taking an appeal shall constitute a waiver of the right to appeal; 

that departure after making a motion to reopen or reconsider is to 

be understood as a withdrawal of the motion; and that departure 

subsequent to the taking of an appeal but prior to a decision thereon 

shall constitute a withdrawal of the appeal. 

Daskaloff v. Zurbrick, supra, is particularly pertinent to the respondent's case. There, the alien was deported in 1921 on the ground 

that she was a prostitute and she reentered the United States in 1928. 

Later a deportation proceeding was instituted which resulted in the 

issuance of a warrant of deportation. In the subsequent habeas 

corpus proceeding, the alien claimed that the accusations made against 

her in the first deportation proceeding were untrue. The court said 

that irrespective of the guilt or innocence of the alien of the charge 

upon which she was first deported, the inquiry under the statutory 

provision then in effect was solely whether the alien had, in fact, been 

deported as a prostitute. The court also said that the alien could 

not collaterally attack the validity of the prior proceedings. Hence, 

this case did not involve a change in the interpretation of the law 

but related to an effort on the part of the alien to show that the 

facts were not as they had been found originally. 

For the reasons stated above, we hold that the respondent is pre616 
eluded in this proceeding from attacking the validity of the executed 

order and warrant of deportation. This disposes of counsel's contention concerning the first lodged charge with the exception of his 

argument that the respondent did not make an "entry" within the 

meaning of the immigration laws when he returned to the United 

States in March 1956. We turn now to this latter contention which 

is also asserted as a reason why the other three lodged charges should 

not be sustained. 

Counsel's argument is that the respondent's departure from the 

United States on February 8, 1955, was involuntary because he was 

deported at that time and that his return in March 1956 should, therefore, not be considered as constituting an entry. This is exactly the 

same argument that was advanced and rejected by this Board in 

Matter of S , supra (1 I. & N. Dec. at pages 93-94). The position of the Board was passed upon and upheld in the subsequent 

judicial proceedings in the same ease—United States ex rel. Steffner 

v. Carmichael, supra. 

In connection with this contention, counsel also cited Delgadillo v. 

Carmichael, 332 U.S. 388 (1947), in which the court held that an 

alien whose presence in the foreign country occurred because his 

vessel had been torpedoed did not make an "entry" upon his return 

to the United States. Counsel also stated that the respondent's position was made "crystal clear" by the decision in Schoeps v. Carmicliael, 177 F.2d 391 (CA. 9, 1949). While the Delgadillo decision 

did establish that not every arrival of an alien in the United States 

constitutes an "entry" for immigration purposes, the case of Schoeps 

is not of assistance to the respondent since that alien was held to 

have made an entry upon returning from a visit of a few hours in 

Mexico. 

Counsel devoted a considerable part of hie brief to his argument 

that the respondent did not make an entry and he cited a number of 

judicial and administrative decisions. The Immigration and Nationality Act, which became effective on December 24, 1952, contains a 

definition of the term "entry" [8 U.S.C. 1101(a) (13], but the word 

had not been defined in the prior immigration laws. All but one of 

the decisions cited by counsel had been rendered prior to December 

24, 1952. The one exception is Savoretti v. United States ex rel. 

Pincus, 214 F.2d 314 (C.A. 5, 1954), but even there the deportation 

proceeding had been instituted prior to December 24, 1952, and the 

case was decided under the prior legislation [section 19(a) of the 

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

Since the word "entry" was defined in the Immigration and Nationality Act, it is to that definition we must look and not to the 

judicial interpretation of "entry" in the cases decided under the prior 

legislation. We specifically referred to this definition in our order 

617 
of March 3, 1959, but counsel ignored this. 8 U.S.C. 1101(a) (13) 

provides as follows: 

The term "entry" meane any coming of an alien into the United States, 

from a foreign port or place * * *, whether voluntarily or otherwise, except 

that an alien having a lawful permanent residence in the United States shall 

not be regarded as making an entry into the United States for the purposes 

of the immigration laws if the alien proves to the satisfaction of the Attorney 

General that his departure to a foreign port or place * * was not intended 

or reasonably to be expected by him or his presence in a foreign port or place 

* * was not voluntary: Provided, That no person whose departure from the 

United Staters was occaaioned by deportation proceedings, extradition, or other 

legal process shall be held to be entitled to such exception. 

The foregoing definition does, of course, take into consideration 

the judicial construction of tho -word "entry" which had boon an 

nounced in the Delgculillo and other cases but the term is defined with 

more exactness. First, it is provided that any coming of an alien 

whether voluntarily or otherwise shall constitute an entry. Then, an 

exception is made for an alien having a lawful permanent residence 

if he proves that his departure to a foreign place was not intended 

or that his presence in a foreign place was not voluntary. Finally, 

it is provided that this exception shall not apply to a person who 

had been deported. 

The respondent testified that after his deportation he had been in 

Italy and other countries and that he boarded the vessel upon which 

he returned to the United States at Nassau, Bahama Islands. When 

the facts are examined in the light of the definition in 8 U.S.C. 

1101(a) (13), it is apparent that in March 1956 there was a voluntary coming of this respondent into the United States from a foreign 

place (the Bahamas). Due to the fact that the respondent's departure was occasioned by deportation, it is clear from the definition 

that he cannot avail himself of the one exception mentioned in this 

statutory provision. Inasmuch as the facts in the respondent's case 

bring him precisely within the definition, we hold that his return to 

the United States in March 1956 constituted an "entry" under the 

immigration laws. Since he had been deported and did not have 

permission to reapply for admission to the United States, he was 

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

lodged charge is sustained. 

In the third lodged charge, it is asserted that the respondent is 

deportable on the ground ChM; he was eyeludahle at the time, of entry 

under 8 U.S.C. 1182(a) (20) because he did not have an immigrant 

visa or other entry document. Counsel contends that a waiver of 

documents should be granted under 8 U.S.C. 1181(h). That statutory provision is limited to otherwise admissible aliens who departed 

temporarily. We have already concluded that the respondent was 

excludable under 8 U.S.C. 1182(a) (17). Therefore, 8 U.S.C. 1181(b) 

618 
cannot be utilized in the respondent's case and we hold that the third 

lodged charge is sustained. 

The second lodged charge is that the respondent is deportable 

under S USE 1. 951 (e.) (9) h.eftusa he entepod without it.pootion. 

Counsel contends that this charge should be held inapplicable under 

Matter of Y A-7205042, Int. Dec. No. 975 (1959). We held 

there that a lawful permanent resident of the United States who 

reentered on several occasions after short absences by claiming United 

States citizenship could be considered as being within the purview 

of the first sentence of section 7 of the Act of September 11, 1957 

(8 U.S.C. 1251a J provided that lack of documents was waived under 

the discretionary authority in 8 U.S.C. 1151(b). We have already 

concluded that 8 U.S.C. 1181 (b) cannot be used in this respondent's 

cunt and that he ass excludable under paragraphs (17) and (20) of 

8 U.S.C. 1182(a). Section 7 of the Act of September 11, 1957 is 

limited to aliens who were otherwise admissible. Accordingly, this 

relief is not available to the respondent, and the second lodged 

charge is sustained. 

In the fourth lodged charge, it is alleged that the respondent was 

excludable at the time of entry under 8 U.S.C. 1182(a) (0) because 

of the conviction for unlawfully entering a building. The record 

shows only that the respondent was sentenced to the penitentiary. 

Counsel contends that this was a petty offense within the terms of 

section 4 of the Act of September 3, 1954 L8 U.S.C. 1182a]. This 

contention was discussed by the special inquiry officer. The crime 

of unlawfully entering a building is a misdemeanor under the law 

of New York and the applicable punishment is imprisonment for not 

more than one year. The respondent testified that he was imprisoned 

for 4 months and 20 days. We considered a somewhat similar question in aftate• of C U , 8945125, Int. Dec. No. 1030 (1;Th's) 5 

but that case is distinguishable. We find it unnecessary to determine 

whether the respondent's 1917 conviction may be classified as a petty 

offense under 8 U.S.C. 1182a inasmuch as the respondent does not 

meet its requirement that such an alien must have been otherwise 

admissible. We hold that the fourth lodged charge is sustained. 

The remaining contentions of counsel concerning deportability are 

without merit and do not require specific discussion. We have concluded above that the four lodged charges are sustained. In his 

decision of November 4, 1959, the special inquiry officer held that the 

respondent ‘v a:5 not ;object 10 deportation under 8 U.S.U. 1252(f). 

Since the respondent is deportable on the lodged charges, we need not 

consider or discuss the charge stated in the order to show cause. 

The other issue is whether the respondent is eligible for discretionary relief in addition to I oluntury departure which was granted 

by the special inquiry officer. Counsel contends that the respondent 

619 
is entitled to apply for relief under section 5 of the Act of September 11, 1957 [8 U.S.C. 1182b] and to secure a determination of the 

application prior to departing from the United States. He asserts 

that section 5 has been used by this Board in proceedings to adjust 

status under section 245 of the Immigration and Nationality Act 

[8 U.S.C. 1255], citing Matter of M , A 10256535, Int. Dec. No. 

990 (1959). However, that was a decision of the Service and this 

Board has nothing to do with adjustment of status under 8 U.S.C. 

1255. Matter of 0—, A-8250353, Tilt_ Dee. No. 972 (1959), is inapposite because there the issue arose in exclusion proceedings. 

Matter of G—, A-71443'73, Int. Dec. No. 1004 (1959), has no bearing on the issue here. Relief under section 5 of the Act of September 11, 1957 is not available to aliens within the United States except 

that it could be utilized in preexamination proceedings during the 

period that procedure was in effect (Camanarata v. Sahli, 163 F. 

Supp. 125 (E.D. Mich., 1958) ; Matter of DeP—, A-10547426, Int. 

Dec. No. 978 (1959) ). The latter was a decision of the Attorney 

General and is controlling in this respondent's case. Accordingly, 

we hold that he cannot secure determination of an application under 

section 5 while he is within the United States. 

Counsel stated that he was requesting permission to reapply for 

admission in connection with the 1355 deportation, b1t the special 

inquiry officer denied this relief. This matter was not mentioned 

in counsel's brief to this Board. However, assuming that the respondent's present marriage continues in existence to the time of his 

application for a visa, it appears that he has been granted permission 

to reapply for admission after deportation in accordance with 8 

CFR 212.2, his marriage to his citizen spouse having occurred on 

February 28, 1959. The special inquiry officer has granted voluntary 

departure which is the only additional relief which is appropriate at 

this time. In view of the foregoing, the appeal will be dismissed. 

Order: It is ordered that the appeal be and the same is hereby 

dismissed. 

620