Interim Decision #1294 

MATTER OE O'Snrx.rvAx 

In DEPORTATION Proceedings 

A-6210570 

Decided by Board January 15,1963 

Re41.1);.ea Dfotion February 14,1963 

Decided by Board August 2, 1963 

Absent an affirmative showing of lack of judicial jurisdiction, the order of the 

trial judge, Recorders Court, Michigan, entered March 19, 1902, granting 

respondent's motion for new trial, following conviction and sentence, and 

dismissing the cause none prosequi, which for all purposes under Michigan 

law set aside the conviction, is effective to remove the ground of respondent's 

deportability under section 241(a) (Li), 1952 Act, based on suci ► conviction 

on October 15, 1959, in the same court, of addiction to unlawful use of narcotic 

drugs. 

On.szas : 

Order: Act of 1952—Section 241(a) (11) [8 U.S.C. 1251(a) (11) ]—Convicted 

of violation of a law relating to the illicit possession of narcotic 

drugs, to wit unlawful use and addiction to unlawful use of 

narcotic drugs. 

BEFORE THE BOARD 

Respondent, a native and national of Canada, 58 years old and 

divorced, was convicted on October 15, 1959 in the Recorder's Court, 

Detroit, Michigan of addiction to unlawful use of narcotic drugs. She 

was a nurse at Doctors Hospital in Detroit and used her position to 

convert the drugs to her own use. 1 

Subsequently the Service brought these deportation proceedings, 

which the special inquiry officer originally terminated, distinguishing 

between illicit possession of narcotics as specified in the order to show 

cause and unlawful use of narcotics under the statutory provisions in 

Michigan. The examining officer appealed, contending that the conviction for unlawful use encompassed unlawful possession. We sustained the position of the examining officer in our order of November 

2 C.L. '48 sec. 835.154, Mich. Stitt. Ann. sec. 18.1124. 

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Interim Decision 4t1294 

20, 1961, which directed deportation on the charge contained in the 

order to show cause, citing Matter of H—U—. 2 

Respondent then commenced an action in the United States District 

Court, Eastern District of Michigan against the District Director, 

which was dismissed on March 21, 1962, on stipulation, because of 

respondent's motion pending before this Board for reopening of the 

deportation proceedings. We granted oral argument on that motion 

on February 28, 1962. Counsel for respondent did not appear for 

oral argument, but submitted a supplementary petition in support of 

the petition for rehearing. 

The supplementary petition called our attention to an order dated 

March 19i 1962 of the Recorder's Court which granted respondent's 

motion for a new trial and dismissed the cause on motion of the 

Assistant Prosecuting Attorney. Columel for respondent contended, 

and continues to contend, that such action in the trial court completely 

removed the basis of the deportation proceedings. 

We granted the motion for reopening and reconsideration. Following the reopened hearing the special inquiry officer again terminated 

the proceedings and certified the case to us for final decision, pursuant 

to our order. 

We now must determine whether the respondent is still deportable 

under the provisions of section 241 (a) (11) of the Immigration and 

Nationality Act despite the trial court's removal of the conviction 

upon which the order to show cause is solely based. 

The special inquiry officer contends that there is a marked procedural 

difference between the manner in which respondent's conviction was 

sot aside and the California procedure which the Attorney General 

had under consideration in Matter of A—F—. 3 He states that the ac7 &N Dec. 533. • 

38 & N_ Dec_ 429. The Attorney General held that, in view of the clear 

national policy evidenced by the history of paragraph (11) subsection (a) of 

section 241 of the Immigration and Nationality Act and subsection (b) of that 

section, as amended, it is immaterial that pursuant to a state statute such as 

section 1203.4 of the California Penal Code, as amended, or section 1772 of the 

Welfare and Institutions Code of that State, the verdict of guilty has been set 

aside and the criminal charge dismissed. 

At the time the Attorney General's opinion, Arellono-bloree conviction had 

not in fact been expunged. Subsequently his probation was terminated and his 

conviction expunged. We denied a motion to reopen. A. declaratory judgment 

action to review the deportation proceedings followed. The District Court, 

Southern District of California affirmed the Attorney General in an unreported 

decision dated 12/15/60. Arellano-Flores did not appeal, but sought to relitigate 

the same issues on writ of habeas corpus, which was denied by the same District 

Court. That decision has been affirmed. Arellano-Flores v. Rosenberg, 310 F. 

2d 118 (C.A. 9, 11/9/62). The Court of Appeals did not reach the merits of the 

petitioner's enntention that the deportation proceedings bad been voided by the 

state proceedings removing his conviction. 

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TOS-456-03---22 
Interim Decision #1294 

tion of the trial judge here is a judicial act as opposed to expungement 

in California, in which the court's action is ministerial, and concludes 

that the present record of the Recorder's Court must, be given full faith 

and credit.' 

Respondent filed her motion in the trial court more than two years 

after conviction, and apparently after satisfactory completion of probation. Except for alleging that respondent would not have pleaded 

guilty, and the court would not have accepted such plea, if it had been 

realized that upon conviction she would be liable to deportation, the 

motion does not in any way challenge the proceedings in the State 

court. No prejudicial error is alleged; no newly discovered evidence 

is offered. 

Whatever on this record the requirements of full faith and credit 

may be, it is evident the action of the trial court may be disregarded, 

as the Service urges, only if the court exceeded it power under state 

law, or if its action, regardless of whether proper under state law , is 

in.efiective in the federal proceedings, because of a federal standard 

based upon overriding national interest. It is also evident that if 

the action of the trial court is given effect the deportation proceedings 

no longer have any basis. 5 

Michigan statutory law provides that the court in which the trial 

of any indictment shall be had may grant a new trial to the defendant 

for any cause for which by law a new trial may be granted or when 

it shall appear to the court that justice has not been done, and on such 

terms or conditions as the court shall direct. 6Another statutory 

5 28 U.S.C. 1738. 

5Without conceding that judicial rules of evidence• are applicable in administrative deportation proceedings we note that the certified copy of the court record 

and of the moving papers may not comply with rule 44 of the Federal Rules of 

Civil Procedure. Chung Young Mew v. Boyd: 309 F. 2d 857 (C.A. 9, 10/30/62). 

The papers lack a certificate that the attesting officer, the clerk of the court, 

has legal custody of the original record, unless the judge's certificate, which 

identifies the attesting officer as the clerk of the court, the court as a court of 

record and the seal as the seal of the court, is deemed substantial compliance 

with the custody provision. 

We need not rule on this point, however. The copy of the court record was 

received without objection by the Service. The Service itself submitted the 

copy of the moving papers. Counsel for respondent declined to do so and in 

fact objected to admission of the moving papers but only as irrelevant. Under 

these circumstances any question of admissibility of the records on grounds of 

competence has been waived. 

Counsel did not renew this objection on appeal. In any event, however, we 

consider the copy of the motion relevant for whatever light it might throw on the 

basis for the court's action. 

O.L. '48 see. 770.1, Mich. Stat. Ann. sec. 28.1098. Statutory provisions pertaining to indictments apply equally for informations. C.L. '48 sec. 767.2, Mich. 

Stet. Ann. sec. 28.942. 

322 
Interim Decision #1294 

provision, moderately limiting this authority forbids the granting of 

a new trial where there has been only harmless error as to any matter 

of pleading or procedure." There is no indication that any such factor 

is involved here. 

Respondent's motion for leave to file a delayed motion for a new 

trial was directed toward the discretion of the trial court, which has 

been held to be inherent in Michigan .a The court record shows only 

that the motion for new trial was heard and granted and that tale 

cause was dismissed on motion of the Assistant Prosecuting Attorney. 

The record, does not set forth any basis on which the prosecution 

entered a nolle prosequi.9 

It might be argued that the action of the trial court here was 

divisible, granting of the new trial being a judicial act and dismissal 

of the proceedings on the prosecuting attorney's /talk prosequi ministerial. A Michigan statute states, however, that the prosecution must 

obtain leave of the court of jurisdiction before entering a nolle prosogni. 

Such provision indicates the court had discretion. Thus the dismissal 

would also be a judicial act. In any event, we are principally concerned with the effect of the granting of the new trial which, if we are 

to be bound thereby, in itself effectively removed the conviction for the 

purposes of these proceedings. Proper granting of a new trial generC.L. '48 sec. 769.26, Mich. Stat. Ann. sec. 28.1096. 

8The time for Ming such motion as a matter of right had long expired. C.L. 

'48, sec. 770.2, Mich. Stat. Ann. sec. 28.1099. Attorney General v. Recorder's 

Judge, 341 Mich. 461, 67 N.W. 2d 708 (1954) ; People v. Hurwieli. 239 Minh. 261, 

243 N.W. 230 (1932) ; People v. Nick 360 Mich. 219, 103 N.W.2d 435 (1960) ; 

People v. Andrews, 360 Mich. 572,104 N.W. 2d 199 (1960). 

A Michigan statute provides that the prosecution shall set forth the basis 

for entering a none prose:via. C.L. '48, see. 767.20, Mich. Stet. Ann. am. 28.989. 

Statutes to the same effect have been interpreted in Colorado as mandatory and 

in Texas as directory. Van Gundy v. O'Kane,142 Colo. 114, 351 P. 2d 282 (1960) ; 

Ex parte Rusk, 128 Tex. Crim. 135, 79 S.W. 2d 865 (1935) ; Ex parte Kinsey, 

152 Tex. Crim. 425, 214 S.W.2d 628 (reh. den. 1948). No interpretation of this 

provision by the Michigan courts has been found. 

Counsel for respondent said at oral argument that the Michigan prosecutor 

can make a motion to dismiss any proceedings pending before a court and upon 

that motion in the proceedings are dismissed. He cited no authority however. 

In passing we might mention that there is some evidence that the prosecution 

in Michigan has broad power to nol. pros. In an early ease the Michigan Supreme 

Court adopted the procedure, highly unusual at the time, of remanding the cam 

to a circuit court with direction that a nolle prosegui be entered. Such judicial 

assumption of the prosecution's power indicates that Michigan courts would be 

likely to take a liberal view of the exercise of that power by the prosecution. 

Peoples v. Outgo, 23 Mich. 93 (1871). 

323 
Interim Decision #1294 

ally vacates the judgment and places the defendant back in the position 

occupied prior to trial." This is the rule in Michigan.n 

Respondent moved for a new trial partially to obtain an opportunity 

to change her plea of guilty." The privilege of withdrawing a plea 

of guilty after sentencing involves setting aside the judgment of the 

court and is not favored. The Supreme Court of Michigan so ruled 

in affirming a denial of a motion for leave to withdraw a plea of guilty 

and for a new trial. The defendant had expected a lighter sentence 

than the trial court imposed. The court endorsed the view of a California court that, where the defendant knows his rights and the 

consequences of his act of pleading guilty, the mere fact that he hoped, 

or believed, or was led by counsel to believe that he would receive a 

shorter sentence or milder punishment by pleading guilty than after 

trial and conviction, does not warrant the trial judge's exercise of 

discretion in favor of permitting the change of plea." 

The same court also affirmed denial of a motion for a new trial based 

upon refusal of the trial court to allow withdrawal of a plea of guilty 

before sentencing when, through the sentencing of a codefendant, the 

defendant has reason to expect a heavier sentence than previously 

anticipated.14Michigan law, therefore, indicates that a new trial 

will not ordinarily be granted when its purpose is to afford an. opportunity to change a plea of guilty because the resulting punishment 

is greater than anticipated. If, therefore the trial judge granted a 

new trial to respondent merely to enable her to avoid deportation, 

he would apparently have acted contrary to the way in which he could 

properly act under the law of his state in an issue confined to punishment lawfully imposed by the court but substantially beyond the 

defendant's expectation." 

Counsel for respondent relies mainly upon the power of a. Michigan 

trial court judge to act as the judge did here. As authority he cites 

" Matter of CI—, I L & N. Dec. 96; Matter of H—, Int. Dee. No. 1159 (7/26/61) ; 

24 C.T.S. Crim. Law sec. 1426. 

Counsel for the Service points out that here there was in fact no new trial 

and no new plea. These of course were obviated by the dismissal of the proceedings. If the prosecution or the court had acted beyond its powers in dismissing the action we would be faced with the question whether the granting 

of the new trial and the dismissal were divisible or interdependent. We have 

not found that either exceeded its authority in this respect, however. 

People v. Huffman., 315 Mich. 134, 23 N.W. 24 236 (1946). 

"Respondent's allegations in support of withdrawal of her plea of guilty are 

the only ones in her motion upon which the court could have effectively acted. 

"People v. Goldman, 245 Mich. 578,228 N.W. 124 (1929). 

"People v. Case, 340 Mich. 526, 65 N.W. 2d 803 (1954). 

23 A. trial court has no obligation, moreover, in accepting a plea of guilty to 

warn a defendant about possible deportation. 17.5. es rel. Darante v. Holton, 228 

F. 24 827 (OA. 7), reh. den., cert. den. 351 U.S. 763 (1956). 

324 
Interim Decision #1291 

only Attorney General v. Recorder's Judge, also cited by the special 

inquiry officer?' 

The Service Representative questions the authority of the trial judge 

under state law to remove the conviction, likening such action to an 

expungeraent or pardon. He refers to People v. Fox." In Fox the 

Michigan Supreme Court overruled the particular trial judge who 

tried respondent. A sentence of life imprisonment for robbery had 

been partly served when the trial court reduced the sentence. The 

Supreme Court held that the trial court's jurisdiction had ended with 

pronouncement of the sentence, and that to permit the power to reduce 

the sentence under the circumstances would infringe on the pardoning 

power of the governor and violate the jurisdiction of the parole board. 

That case did not involve a new trial, however, and is not authority 

for any such restriction on the power of the trial court when, as here, 

a new trial has been granted. 

The Service Representative also contends that deportation of narcotics offenders is an area in which the Federal Government has the 

predominant interest, that the trial court acted solely to circumvent 

the federal statute, and that the court had no jurisdiction over the matter for this purpose. 

It is clear that Congress has attempted to circumscribe the power 

of trial judges to affect deportation proceedings involving narcotic 

violations?' Counsel for respondent asserts that Michigan judges 

would act properly and with restraint where a conflict with federal law 

is indicated. Congress, however, has indicated unwillingness to accept 

any judicial recommendations with respect to deportation of narcotic 

offenders." 

Respondent's motion in the trial court, in addition to contending 

that in view of the deportation proceedings the consequences of her 

plea. of guilty were more severe and far reaching than she or the court 

realized, asserted that the court never had notice of the deportation 

proceedings and had no opportunity to place in its files and record 

within the 30-day statutory period following the court's sentence a 

recommendation for or against her deportation. Due to the statutory 

proscription such references in her motion for a new trial could not 

have been given effect by the court. 2° 

Moreover, for the same reason, a pardon would be ineffective against 

respondent's deportation. The granting of a nolle prosegui after ver- 

"Supra a. 

" 312 Mich. 577, 20 N.W.2d 732 (1945). 

"Matter of supra'. 

"Sec. 301(c) Act of 7/18/56 amending see. 241(b) of the Immigration and 

Nationality.Act, 70 Stet. 575. 

" Sec. 241(b) of the Immigration and Nationality Act, as amended. 

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Interim Decision #1294 

diet has been likened to a pardonn ,The prosecution's act of granting 

a none prosegui in respondent's case, if granted only to defeat her 

deportation would have something of the effect of a. pardon, although 

technically because of the intervening grant of a new trial the none 

prosegui was not entered after judgment. 

Congress in setting up the statutory rules covering deportation has 

not specifically dealt with new trials, or other proceedings to reopen 

or otherwise affect final judgments, the results of which could affect 

deportability. Elsewhere in the statute Congress considered the effect 

of the power of a court to correct, reopen, alter, modify or vacate its 

judgments or decrees and did not infringe upon that powei... 22That 

provision, however, which relates to revocation of naturalization, arose 

to overcome the effect of Bindezyek v. Finuoarte. 23 

The Supreme Court held in Bindczyck that section 338 of the 

Nationality Act of 1940, the predecessor to section 340 of the Immigration and Nationality Act, was the exclusive procedure to cancel citizenship based upon evidence outside the record revealing fraudulent or 

illegal procurement. The Court upheld a United States district 

court's judgment declaring plaintiff to be a citizen of the United 

States, thus overruling a Maryland court which had on motion of the 

Government set aside its own order of naturalization on the ground 

it was obtained by fraud. 

Because of the special history of section 340(j) of the Immigration 

and Nationality Act and the different situations encompassed by that 

section and section 241(b) of the Act, Congress' silence on new trials 

and similar proceedings in the latter provision permits no inference 

that Congress did or did not intend to make such procedures ineffective in proceedings under section 241(a) (11), along with pardons and 

judicial recommendations against deportation. Congress, even when 

legislating upon matters in which the federal interest is very high, 

rarelpoccupies a field completely. 

Although several cases have been decided both administratively 

and judicially on the general proposition of the effect of farther eriminal proceedings, other than strictly review proceedings, upon orders 

of deportation which have been based upon the results of the prior 

proceedings, all may be distinguished from the instant case on substantial grounds. 

In our order of May 3, 1962 reopening these proceedings we stated 

that the procedure setting aside the conviction here might be distinstate of Louisiana ex rel. Butler v. liaise, 48 La. Ann. 109 (1895). 

"Section 340(3) of the Immigration and Nationality Act, 8 U.S.O. 1451(1). 

"342 U.S. 76 (1951). 

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Interim Decision #1294 

guishable from the procedure which the Attorney General had under 

consideration in. Matter of A—F— .24 

The. Attorney General specifically limited that holding to the effect 

of state laws of the nature of the California statutes considered in 

his opinion upon deportation proceedings brought under section 241 

(a) (11). He disapproved Matter of D—, which also involved a narcotic conviction." Later, however, he upheld a decision of this Board 

terminating deportation proceedings in which a California conviction 

for a nonnarcotic offense was expunged under the procedure authorized 

by section 1203.4 of the State's Penal Code." It is clear therefore that 

the rule in Matter of A—F— is to be narrowly applied. 

We agree with the special inquiry officer and respondent's counsel 

that there are substantial differences between expungement of a conviction under statutory provisions like those in California and the 

procedures followed in respondent's case. The latter were not based 

upon special, defined statutory authority, peculiar to a small number 

of jurisdictions. The trial judge and the prosecuting attorney exercised powers which are recognized in Michigan as inherent in their 

positions, and which have been so recognized in a number of jurisdictions. Michigan statutes do not place much restriction on these 

powers. 

The trial judge's granting of a new trial was clearly a judicial act, 

performed in the exercise of his discretion His dismissal of the cause 

on the prosecuting attorney's nolle prosequi was probably a judicial 

act under Michigan law. Even if ministerial, however, it would not 

appear to impair the effect on the deportation proceedings of the 

granting of a new trial: 

Respondent's completion of her period of probation before the grant • 

of a new trial may have been a factor influencing the judge and 

prosecuting attorney, but the action which they took could have been 

taken at any time. Unlike the California procedure, absence of any 

pending probationary period was not a necessary condition for the 

action taken. Apparently respondent's conviction could not now be 

used for any purpose in Michigan, whereas in California the conviction remains available for certain purposes. Thus even though both 

expungement in California and granting of a new trial coupled with 

dismissal of the action remove the record of conviction, cases involving 

the California procedure are not necessarily controlling here. We 

do not appear to have in respondent's case a technical expungement 

which the Attorney General found ineffective for deportation purposes 

in Matter of A—F—. 

" Supra 

237 1. & N. Dec. 670. 

Matter of G—, Int. Dec. No. 1119 (1/17/61). 

327 
Interim Decision #129-I 

The special inquiry officer refers to two decisions of this Board 

which have considered the Michigan procedure, both involving nonnarcotic convictions, Matter of P— and Matter of r11-.27 In Matter 

of H— we distinguished Matter of A—F— on the basis that the latter 

is confined. to narcotic cam." Hatter of H— thus has limited precedent value for respondent's case, but does indicate the procedure of 

granting a new trial may be effective in defeating deportation proceedings where Congress has not imposed, directly or indirectly, an overriding federal standard. 

The special inquiry officer believes that it is immaterial whether the 

court acted solely to enable respondent to avoid deportation, citing 

Matter of P— and Matter of H—." He notes, however, the somewhat 

contrary effect of a later decision in which the Attorney General 

pointed out, in a nonnarcotic case, that the court granted eon= wobis 

to correct a constitutional defect in the prior decision and not solely to 

obtain an opportunity to recommend against deportation." The Attorney General upheld the validity of such recommendation at the 

retrial as made at "the time of first imposing judgment or passing 

sentence." 31 

The Attorney General was not squarely confronted with the question 

whether a court's action taken solely to enable a delayed recommendation against deportation is effective. In Matter of 8—, also a nonnarcotic case, we specifically answered that question." The court 

vacated a conviction, accepted. a new plea and resentenced the defendant, recommending for the first time against deportation. The 

court based its action solely on its previous unawareness that the defendant was subject to deportation, and its belief that this added 

penalty would constitute "manifest injustice" under the New Jersey 

statute authorizing its procedure. We held that under these circumstances the court's recommendation was ineffective and the second 

conviction shill supported deportation. 

Both of these decisions referred to U.S ex rel. Piperleoff v. Esperdy." 

The Court of Appeals for the Second Circuit there found that the New 

York court granted coranb nobis solely to repair an earlier omission 

to recommend against deportation. The court concluded that section 

241(b) of the Immigration and Nationality Act establishes a federal 

standard for determining what constitutes the first entry of judgment 

"3 I. & N. Dee. 187 and supra 

"Matter of G—. supra". 

" Supra 2' and ". 

" Matter of P—, Int. Dee. No. 1142 (5/24/61) • 

" Section 241 (1)) of -the Immigration and Nationality Ac t. 

a' int. Dee. No. 1206 (4/19/62). 

"267 F.2d 72 (CA. 2, 1959). 

328 
Interim Decision #1294 

or passing of sentence, which the trial court's action did not meet-. 

Reading Matter of A—F— in the light of these three recent cases 

under section 241(b) V of the Immigration and Nationality Act presents 

a strong argument that any judicial action to set aside a narcotic conviction solely for the purpose of enabling avoidance of deportation 

would be ineffective. To hold otherwise might perniit a court to do 

by indirection what it. could not do directly. The law is fax from clear 

here on the federal question, however. Cases which concern the specific statutory provisions for judicial recommendations against deportation obviously differ from those, like respondent's, which. can be 

brought within the statute only by implication. We have pointed out 

some of the more important distinguishing factors in respondent's 

case. A careful reading of the cases reveals additional ones. 

The Supreme Court in Pino v. Landon rejected the view of the Court 

of Appeals that a federal standard attaches to the term "convicted" 

for the purposes of section 241(a) (4) of the Immigration. and Nationality Act 74 

The Attorney General pointed out in Matter of G-- that the Massa.- 

chusetts procedure considered in Pino v. Landon revoked the sentence 

but did not disturb the finding of guilt, while the California procedure 

which he considered in Matter of A—F—, and again in Matter of G—, 

went further by setting aside the plea or finding of guilt. The Michigan procedure goes still further since the conviction is set aside for all 

purposes so far as the State is concerned, whereas in California the 

record of the prior conviction may be used for limited purposes. 

In Giova v. Rosenberg the Court of Appeals for the 9th Circuit ruled 

that it had no jurisdiction to review an order of this Board denying 

a motion to reopen deportation proceedings. 35The court stated that 

it was tempted to discuss the merits of the case, but could not reach 

the rationale behind Pino v. Nichols, page 248, or the effect of the 

Attorney General's holding in Matter ofd—F--, or this Board's decisions in Matter of B— and Matter of G--, because the Court could not 

give an advisory opinion." Such statement, however, indicates the 

"349 U.S. 901 (10-55). The case involved the finality of a conviction under 

unique procedure. Cf. Hernandez-Valensuela v. .Rosenberg, 304 F. 2d 639 (CA. 

9, 1962). 

"308 F. 2d 347 (C.A. 9, 1962). 

"Natter of B—, 7 I. & N. Dec. 160 and Matter of G—, 5 I. & N. Dec. 129 concerned respectively an amnesty and extinction of a record of conviction under 

Italian law. Pino v. Nichols, 215 F. 2d 237 (1954), reversed per curium sub 

nom. Pino v. Landon,, supra", states at page 243 that the meaning of the word 

"convicted" with respect to the deportability of aliens is a federal question to be 

determined in the light of the policy behind section 241(a) (4) of the Immigration and Nationality Act. 

329 
Interim Decision #1291 

court's probable nonconcurrence with at least some of the reasoning 

behind these holdings. 

We are not at all sure that the Attorney General would extend his 

ruling in Matter of A—F— to cover a situation like respondent's even 

though her case also involves a narcotics violation. Thus it is questionable whether respondent's case falls within the ambit of Matter of 

A—F— and Piperkoff, as the Service Representative urges, even if, 

as he assumes, the Recorder's Court acted solely to defeat respondent's 

deportation." 

Moreover, we are unable to follow the Service Representative in 

this assumption. Respondent's counsel has pointed out that considerations other than respondent's liability to deportation may have 

moved the court and the prosecution. No reason is given for the portion of the order either granting a new trial or dismissing the case. 

There is no indication that the trial court based its action even in part 

upon respondent's motion. However desirable we might consider a 

detailed record setting forth the reasons for the court's action, a judge 

in Michigan does not appear to be under any compulsion to provide 

one." 

With due regard for the fast that there is a strong federal interest 

here, and that the only evidence of the reasons for the court's action 

points to the impact of the federal statute, we are unable to rule that 

the Michigan court acted without sufficient authority. There is nothing to indicate that the court exceeded its authority under state law, 

which bestows broad discretionary powers. It is not clear that there 

is a federal standard applicable here which requires that conflicting 

state action be disregarded. Insofar as these matters are in doubt 

the doubts should be resolved in favor of the respondent." 

We consider that there should be a clear indication that a particular 

application of a trial court's authority is ineffective before we disregard 

it. Our reasoning on this point is similar to that which we applied 

in Matter of H— in disposing of the Service's contention that no 

effect should be given to the second sentence of the court and consistent 

with the position we have generally taken in this type of case." We 

shall approve the decision of the special inquiry officer. 

87In Hatter of H—, supra", we distinguish Piperkoff from a situation involving a new trial. As we have noted, however, Matter of H— was not concerned 

with a narcotics violation. 

"Rule 47 of the Michigan Court rules calls for the Ming of a concise statement 

of the judge's reasons for denying a motion for a new trial, but makes no such 

Provision if the motion is granted. 24 Mich. S. B. J.47. 

"Fong Haw Tan v.Phelan, 333 U.S.0 (1948). 

Cf. Matter of G--, supra." 

880 
Interim Decision #1294 

ORDER: It is ordered that the decision of the special inquiry 

officer terminating the deportation proceedings be and hereby is 

approved. 

BEFORE THE CENTRAL OFFICE 

THE IMMIGRATION AND NATURALIZATION SERVICE 

MOVES THE BOARD OF IMMIGRATION APPEALS FOR 

RECONSIDERATION of its order of -January 15, 1963, approving 

the decision of the Special Inquiry Officer. 

FACTS 

Respondent is a native and national of Canada, a divorced female, 

age 58. On October 15, 1959, in the Recorder's Court of the City .of 

Detroit, Michigan, she plead guilty to unlawful use of narcotic drugs. 

She was sentenced to two years imprisonment and placed on probation. 

On November 20, 1961, the Board found her deportable under sec:- 

tion 241(a) (11) by reason of this conviction, and ordered deportation. 

On February 16, 1962, counsel for the respondent filed in the 

Recorder's Court for the City of Detroit, Michigan, a "Motion for a 

New Trial, Notice of Motion and Affidavit in Support of Motion." 

The motion recited as the reasons for requesting a new trial that the 

conviction was more far-reaching in its consequence than realized at 

the time, inasmuch as it was not known that deportation proceedings 

would be instigated based upon the conviction; that the court was 

not informed of the deportation proceedings; that the court had never 

had an opportunity to make a recommendation either for or against 

the deportation of the defendant from the United States within the 

thirty-day period following the sentence; and, that the defendant 

and the court did not anticipate that the plea and conviction would be 

as severe in effect in causing the defendant to be separated from •and 

deprived of her family and home in this country. 

The affidavit in support of the motion also cited as the sole reason 

for the motion, that the deponent was being penalized in excess of the 

original sentence contemplated by the court, in that a warrant for 

deportation had issued requiring her deportation, and that if she had 

known of the contemplated action by the Immigration Service she 

would not have pleaded guilty and the court would have stated that 

the sentence was not to be the basis of a deportation proceeding. A 

certified copy of the order of the Recorder's Court states, "On the 19th 

day of March 1962. Motion for new trial heard and granted on 

motion of Assistant Prosecuting Attorney William Flanigan, the 

court orders said cause be and the same hereby dismissed." Insofar 

as shown by the record, this reflects the entire proceeding in the 

Recorder's Court. 

331 
Interim Decision *1294 

Following rehearing and introduction of the above evidence in the 

instant deportation case, the proceedings were terminated by the 

Special Inquiry Officer on the ground that the action of the Recorder's 

Court must be given full faith and credit, and the criminal conviction 

no longer exists as a basis for deportation. The Board has sustained 

this ruling. 

DISCUSSION 

It should be pointed out initially that the motion for new trial 

erroneouly asserted a capability in the court to make a. recommendation 

against deportation. Section 241(b) expressly is inapplicable in the 

case of any alien charged with being deportable under subsection 241 

(a) (11). This provision was added by section 301(c) of the Act of 

July 18, 1950. It reflects the concern of the Congress over court decisions 1holding that a pardon or judicial recommendation against 

deportation relieved a narcotic offender of deportability. Since 

July 18, 1956, this is not the case. 

In this connection also, as noted by the Attorney General in Matter of A--F—, 8 I. & N. 429, 445, the history of section 241(a) (11) is 

convincing that Congress did not intend that aliens convicted of narcotic violations should escape deportation. 

Traffic in narcotics has been a continuing and serious federal concern. Congress has progressively strengthened the deportation laws dialing with aliens 

involved in such traffic. Thus, . . . in 1940 the deportation statute was amended 

to eliminate the requirement that in addition to a conviction there must be a 

sentence. At the same time the statute was extended to convictions for violation of State as well as Federal statutes. And, since the 1956 amendment an 

alien may no longer escape deportability by proffering a pardon. 

Significantly, the Act of July 18, 1956, increased the severity of the 

statute as to narcotic offenders by making the deportation provisions 

applicable to those convicted for possessing narcotics as well as conspiracy to violate the narcotic laws. 

There exists no provision for expungement under Michigan law, and 

even if such provision did exist, under the ride in Matter of ArellanoFlores, 8 I. & N. 429 (262 F. 2d 667) such expungement would not 

relieve of deportability. In this connection the Attorney General has 

said : 

In the face of this clear national policy, I do not believe that the term 'convicted' may be regarded as flexible enough to permit an alien to take advantage of 

a technical 'expungement' which is the product of a state procedure wherein 

the merits of the conviction and its validity have no place. I believe that Congress intended the inquiry to stop at the point at which it is ascertained that 

there has been a conviction in the normal sense in which the term is used in 

1 De Luca v. O'Rourke, 213 F. 2d 759, C.A. 8, 1954; Ex parte Robles-Rubio, 119 

F. Stipp. 610 (N.D. Calif., 1954). 

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Interim Decision #1294 

Federal law. . . . Of course, if the conviction is still subject to reversal by the 

usual processes of appellate scrutiny, the statute is not satisfied. But beyond 

this I do not think the inquiry can extend, consonant with the congressional 

purpose and policy. . . . Moreover, to follow the Board's view would maim the 

deportability of the alien depend upon the vagaries of state law. . . ." (Id: at 

446) 

As noted in the oral argument before the Board, and commented 

on in the decision of January 15, 1963, no Michigan authority has been 

specified as authorizing the procedure in this case, after a conviction 

and after the sentence had been served. While the moving papers 

are designated "Motion for a New Trial" the record of the proceedings in the Recorder's Court do not establish that there was in fact a 

new plea or trial. The order reflects only that the motion for new trial 

was heard and granted, and that on motion of the proneouting attorney 

the cause was dismissed. On the present record there was no rehearing on the merits nor does it appear that the alien was even present. 

However, assuming arguendo that the procedure before the Recorder's Court was in the nature of a corm nobis proceeding, and that there 

was in effect something in the nature of a new trial or proceeding, 

nevertheless it would be without force and effect as to this proceeding 

if the sole basis for vacating the judgment was to defeat a Federal 

mandate as to deportability. Piperkoff v. Esperdy, C.A. 2, 267 F. 

.2d. 72.2Here, the moving papers in the Recorder's Court recited one 

cause, and one cause only, for the action, namely, to relieve of deportability. Despite the fact that this was specifically made an. issue in 

the course of oral argument before the Board, counsel alleged no other 

or different ground for the.action taken, nor does the record leave any 

serious room for speculation: 3 

The decision has chosen to treat the Recorder's Court proceeding as 

the granting of a new trial and the entry of a none prosegui by the 

prosecutor. • As noted above, there is a serious question as to the validity or propriety of this action under the Michigan law, or of the 

jurisdiction of the court to take the action, particularly in connection 

with the issue of a punishment lawfully imposed by the court but 

substantially beyond the defendant's expectation (dec. p. 8, and cases 

cited). If the court acted beyond its jurisdiction, then clearly its 

Of. Matter of Pleat, Int. Dec. No. 1142. where in addition to seeking the 

writ because the conviction could result in deportation, the respondent also 

indicated an abuse of due process in that be had not been represented by counsel 

and did not understand the charges against him at the time of first conviction—

and where the Attorney General ruled the action of the court in setting aside 

the conviction must be recognized since it might have rested on some basis other 

than relieving deportability. 

The Board so found on almost identical facts in Matter of Int. Dee. No_ 

1206 and Matter of II—, Int. Dec. No. 1170. 

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Interim Decision #1294 

action need not be given full faith and credit. (Matter of 

Dec. No. 1170.) 

However; again assuming the action valid in the State of Michigan 

as a noZle prosequi, and completely effective within that state as wiping 

out the conviction, nevertheless it cannot wipe out the conviction for 

immigration purposes if a state judicial process was resorted to solely 

to relieve of deportability under the Federal statute. It is to be noted 

that in Piperkoff, supra, the court assumed for purposes of the case 

that under the law of New York it was proper for the court to vacate 

the earlier judgment as it did. That did not affect the outcome of 

the deportation proceedings. 

A similar question.. was presented in Matter of S—, Int. Dec. No. 

1206. There a county court acted under a New Jersey statute reading, 

". . . to correct manifest injustice, the court, after sentence, may set 

aside the judgment of conviction and prevent the defendant to withdraw his plea." The court permitted the vacating and setting aside of 

the plea of guilty and sentence, for a conviction forming the basis of 

the deportation proceeding. 

The Board pointed out: 

The difficulty arises not with the jurisdiction of the state court to grant the 

motion to vacate but the attempt of the state court to invade an area to which 

Congress has seen fit to erect or impose a federal standard. . . . The "manifest 

injustice" referred to . . . was . . . the specifically stated reason that the court 

was not aware (at the time of first sentencing) that the defendant was subject 

to deportation as an alien, did not consider that the defendant was faced with 

additional penalty of deportation and that it would be manifestly unjust to subject the defendant to the additional penalty. ... 

Pointing to Matter of Plata, Int. Dee. No. 1142, supra, the Board then 

held that the recommendation against deportation made at the time 

of re-sentencing, was not effective to relieve of deportability within 

the federal mandate set forth in section 241(b) of the Immigration 

and Nationality Act, since the vacating of the first judgment was 

solely to defeat the congressional mandate. 

The analogy is obvious. No basis exists for applying a more ameliorative rule to a narcotics conviction than to the ordinary criminal 

conviction. On the contrary, no deportation provision in the Act evidences a clearer restrictive congressional intent than section 241(a) 

(11).4The successive amendments of the narcotics provisions of the • 

statute to make them more stringent, reflect the constant and increasing concern of the Congress in this area. In barring narcotic offenders 

from section 241(b) relief the Congress has said firmly and unequivocally that an alien in the category of this alien, shall be deported. 

The purpose and intent of the statute, and the desire of the Congress, 

4 H. Rep. 2546, 84th Congress, 2nd Session. 

334 
Interim Decision #1294 

cannot be frustrated by an action of a state court aimed purely and 

solely at defeating federal mandate. 

It is no solution to say that the Congress in the statute barred pardons or judicial recommendations, but did not deal with the area of 

new trials or a possible nolle prosegul. The Congress obviously could 

not foresee every device to which resort might be had, to avoid the 

effect of the statute. By the same token a state court proceeding 

attacking the prior conviction on valid grounds having nothing to do 

with immigration, or only incidental thereto, obviously must be given 

full faith and credit. But this is not the situation where the overriding national interest has been expressed in. a federal statute and the 

action of the state court is for the sole purpose of defeating that federal statute. 

In summary, by express language of the statute, a pardon would 

not be effective to defeat deportation. Similarly, a recommendation 

against deportation by the sentencing court would have no effect. 

Under Arellarao-Flores, supra, expurgement under lawful state process would be without effect. Under Piperko/f, a new trial granted 

solely for the purpose of relieving of deportability under section 

241(a) (4) by vacating judgment and imposing a new sentence would 

be without effect. No logical basis for distinction as to .a narcotic 

conviction presents itself. Under Matter of B—, Int. Dec. No. 1206, 

a setting aside of conviction under lawful state process, if done for 

the sole purpose of defeating deportation, even as to a nonnarcotic 

offender, would be without effect. Again, no basis for distinction as 

to the narcotic offender exists in view of the firmly expressed intent 

of the Congress that the narcotic offender be treated even more stringently than the ordinary criminal. In the light of these rulings and 

even assuming the state court to have jurisdiction to take the action 

it did, the one additional step required here occasions no difficulty. 

It is submitted that where motion for new trial is granted after conviction and sentence, and the case then nolle prossed, that action also 

would have no effect on the deportation proceedings if done solely to 

defeat these deportation proceedings. 

Motion is made that the Board reconsider and withdraw its order 

of January 15, 1963, approving the decision of the Special Inquiry 

Officer, and that the alien be found deportable as charged. 

BEFORE THE BOARD 

The Service moves for reconsideration of our order of January 15, 

1963, which affirmed the special inquiry officer's order that the deportation proceedings be terminated. We adhere to our previous decision. 

The Service motion, as well as our decision of January 15, 1963, sets 

forth the facts. We shall not restate them. 

335 
Interim Decision #1294 

L Did the trial judge act solely to remove deportability? 

The Service continues to assume that the trial judge in granting 

respondent's motion for a new trial (and probably also in granting 

the prosecuting attorney's motion for dismissal) acted solely to defeat 

respondent's deportation. Since the Service has submitted no evidence which shows clearly the basis for the judge's action, this assumption is essential to its argument. 

As we pointed out in our prior decision, even though respondent's 

motion for a new trial appears to be directed only against the deportation proceedings, we cannot assume, with the Service, that the court 

acted solely to enable respondent to avoid deportation. There is no 

inescapable inference that the court considered only what appears in 

respondent's motion. Thus the Service has failed to meet its burden 

of proof at the initial point in its contentions. The motion, as well as 

the case against respondent, really fails here. Moreover, the Service 

motion, in essence, merely reasserts the argument which the Service 

has previously made in the case? On either basis we might summarily 

deny the motion. We go on to answer the Service's objections, however, because of the importance of the issues here. 

IL If the trial judge so acted, does a federal standard control? 

We acknowledged in our prior decision that, assuming the trial judge 

acted solely to defeat deportation; the Service's argument that a federal 

standard prevails here has a certain force. We still found that argument insufficient as a basis for respondent's deportation. The argument has gained no additional force in its restatement. In fact it has 

suffered. Subsequent to its formulation, the Court of Appeals for the 

Third Circuit overruled one of our decisions on which the Service 

relies. 

The law does not establish that an overall federal standard would 

nullify the trial court's action here if that action were taken solely to 

defeat deportation. Of course there is a limited "federal standard" in 

deportation eases which rest upon convictions in state courts. The 

Court of Appeals for the Second Circuit has so recognized for an 

application of section 241(b) of the Immigration and Nationality 

Act in U.S. ex. rel. Piperkof v. .1' spertly. 2 The Attorney General so 

1The Service cites only two judicial decisions which we did not consider in our 

prior decision. Those decisions form part of the background for the amendment 

to section 241(b), Immigration and Nationality Act. Respondent's case does 

not specifically concern section 241 (b), however. That section is useful here only 

for discussion purposes—to point out limitations and distinctions—especially in 

considering whether the amendment thereto aids in creating a controlling federal 

standard here. 

'267 F.2d 72 (C.A. 2, 1959). cited by the Service. 

336 
Interim Decision #1294 

recognized for certain narcotic cases in Matter of Arellano-Flores.s 

We see no grounds for extending the standard found by the Attorney 

General to the situation presented by respondent's case. 

We have at least twice rejected quite similar arguments, vigorously 

advanced by the Service, advocating holding ineffective a state court's 

action which otherwise would relieve of deportability.4 

Tho concluding reasoning urged by the Service motion suggests 

that under Arellano-Flores expungement under lawful state process 

would be without effect, that under Piperkof a new trial granted solely 

for the purpose of relieving of deportability under section 241 (a) (4) 

by vacating judgment and imposing a new sentence would be without effect, and that under Matter of S— a setting aside of the conviction under lawful state process, if done for the sole purpose of 

defeating deportation, would be without effects The Service then 

suggests that the one additional step required here occasions no difficulty—granting of a motion for new trial after conviction and sentence, with the case then gaol& prossed, also should have no effect on 

deportation proceedings if done solely to defeat. those proceedings. 

Unfortunately for the foregoing reasoning, the grounds set forth 

in our decision in Matter of B— have been judicially overruled .° Thus 

the Service's argument breaks down at a crucial point. Even before 

s 8 I. & N. Dec. 429. 

4 Matter of G--, Int. Dec. No. 1119, 'approved by the Attorney General ; Matter 

of int. Dec. No. 1159. 

° Matter of Arellano-nores, supra° ; GS. em. rel. Piperkoff v. Esperdy, supra '; 

Matter of S—, Int. Dec. No. 1206. 

The Service notes Arent:no-Floras v. Hop, 202 F. 2d 667 (C.A. 2, 1058) cert. 

den. 362 U.S. 921, as a parallel citation for Matter of Areflano-Plores. That case, 

however, occurred prior to the expungement of conviction which led to the Attorney General's decision in Arellano-Flores. The Attorney General's opinion in 

Matter of 0.—, supra' demonstrated the inapplicability of Arollano Florae v. 

Hoy to his decision in Matter of Arertano-Ploree. Our order of January 15, 1963 

gives the subsequent judicial history of the Areilano-Flores case. We noted also 

in our prior decision that in Giov a v. Rosenberg, 308 F. 2d 347 (CA. 9, 1962) the 

court indicates that it questions the soundness of Matter of Areliano-Plores. 

The Service refers to Matter of H—, Int. Dec. No. '1170, along with Matter 

of as an instance in which we have found that the court acted to defeat 

deportation. In Matter of we did mention that it was difficult to conclude 

from the record that the conviction was not vacated because it made the respondent liable to deportation. Our decision, however, turned upon our conclusion that the justice court did not have authority under its own state law to 

vacate the judgment of conviction. Moreover, although we reversed the special 

inquiry officer, we approved his opinion that there was no controlling federal 

standard and that Piperkoff was inapplicable. 

° Bawkaw v. Immigration and Naturalization Service, 814 F. 2d 34 (CA. 3, 

1963). This case is a further indication that the principle in Piperkoff has restricted application. 

337 

7GS-150-65-23 
Interim Decision #1294 

the 'Court of Appeals reversed Matter of S—, however, we were unwilling to take the step from our reasoning in that case to a similar 

action in respondent's case. Our order of January 15, 1963 distinguished Piperkof and Matter of 8—, as well as Matter of AreIlanoFlores. 

The Service says Piperleoff and Matter of S— should not be distinguished on the grounds that they concerned nonnarcatic offenses. 

In those cases, however, the claims of nondeportability were based 

upon judicial recommendations against deportation. In view of the 

amendment of section 241(b) that issue cannot be present in a narcotics case.' The Service thus tries to reason analogously from situations which could not themselves be reproduced in a case like that of 

respondent. We think the gap between the cases is too great to be 

bridged by analogy, although the Service, in its preoccupation with 

Congress' restrictive measures against alien narcotics offenders, bridges 

it easily. 

The Service in effect says judicial and administrative decisions have 

disregarded certain procedures of the courts whose sole purpose was 

to enable a recommendation against deportation. Congress has made 

the deportation provisions for narcotics violators more stringent than 

for other criminal aliens. Therefore in amending section 241(b) of 

the Act to make it inapplicable to persons deportable under section 241 

(a) (11), Congress intended any judicial process, even though otherwise a valid exercise of the court's authority, to be without effect, if 

designed solely to prevent deportation of an alien convicted of a 

narcotics violation. 

This conclusion does not necessarily follow, however. It overlooks 

the effect of any judicial authority in areas which Congress has not 

specifically restricted. It also fails to appreciate that a federal standard for the term "conviction" in deportation cases has been found 

only to a very limited extents 

Our prior decision pointed out that Congress has limited to pardons 

and judicial recommendations against deportation its prohibition 

against measures preventing deportation of alien narcotics violators. 

7 The motion notes in its opening discussion that section 241(b) is inapplicable 

here. 

9 Discussing the Government's contention that, if a judgment of conviction is 

vacated for the purpose of avoiding deportation, a subsequent recommendation 

against deporation is ineffective, the court in Swam says, "This argument 

misses the mark, for no contention is made that the state court either exceeded 

its jurisdiction or abused its discretion in vacating the plea of non suit together 

with the judgment of conviction, and subsequently dismissing the indictment. 

Thus, the action of the state court is concededly valid. That being so, the 

original judgment is as much a nullity as if the grand jury had never returned 

an indictment." Supra eat 37. 

338 
Interim Decision #1294 

The Service says this approach is no help. We quite agree. The 

statute does not give any specific aid here. The statutory language 

should not be readily extended, however. We cannot assume that 

Congress intended that any procedure lying ordinarily within the 

power of the courts, which a court deems warranted in a particular 

case, should be nullified if the court's action obstructs the deportation 

provisions of the statute and is designed solely for that purpose. 

Statutory deportation provisions should 'be construed strictly against 

the Government. Moreover, a court has reversed an attempt by us to 

disregard judicial action in a case squarely within section 241(b) .9 

III. Did the trial judge exceed his authority under the state law? 

Tn addition to arguing that there is a. controlling federal standard 

here, the Service again questions the authority of the trial court to 

grant a new trial and then to dismiss the proceedings 011 the prosecuting attorney's motion. The motion states that no Michigan authority has been specified as authorizing the procedure in this case, after a 

conviction and after the sentence had been served. It notes that we 

commented in our order of January 15, 1963 on this fact, which the 

Service had brought out at oral argument. 

We think the Service's failure to specify any authority which indicates the court exceeded its jurisdiction is more significant. We made 

a diligent search of Michigan authorities and discovered no indication 

that the trial judge lacked authority either to grant the motion for new 

trial or, on motion of the prosecuting attorney, to dismiss the proceedings without holding a new trial. In fact our review of Michigan law 

indicates that the trial judge here probably acted within his authority.1° In any event, the court's action may not be held ineffective 

Saivism v. Immigration and Naturalization Service, supra" 

'Compare People v. Barrows, 358 Mich. 267, 99 N.W. 2d 347 (1959). The 

Supreme Court of Michigan reversed an order denying a new trial. The appellant had been originally sentenced on a plea of guilty to three years' probation. 

Before the probationary period expired appellant was convicted of another 

offense in New York. (The terms of the Michigan probation provided for 

appellant to leave Michigan and to reside with his father in New York.) Almost 

ten years thereafter appellant moved for a new trial in the Michigan proceeding 

with leave to withdraw his plea of guilty. Appellant was then still serving 

his New York sentence. Although pointing out that Michigan courts do not look 

with favor upon long-delayed motions for new trials, the court said that under 

Michigan law there is no final time limitation upon the power of the trial court 

to grant a motion for new trial—such motions being within the inherent power 

of the court where leave to file the motion is first obtained. The court cited 

People v. Hurizielt, 259 Mich. 361, 243 N.W. 230 (1932), which we cited in our 

order of January 15, 1963, and People v. Burnstein, 261 Mich. 534, 246 N.W. 217 

(1933). 

339 
Interim Decision #1294 

merely because its authority to so act might be questionable. Lack of 

jurisdiction must be affirmatively shown. Therefore, the motion also 

fails because of the Service's failure to show that the trial court ea-

-seeded its authority. 

nr. 

The further consideration which we have given to this matter in 

'response to the Service motion for reconsideration leads us to deny 

that motion insofar as it seeks reversal of our order of January 15, 1963 

and entry of un order of deportation. 

ORDER: It is ordered that the motion for reconsideration and 

withdrawal of our order of January 15, 1963, which approved the 

decision of the special inquiry officer terminating these proceedings, 

and for entry of an order of deportation be and hereby is denied. 

It is further ordered that these proceedings be terminated in accordance with the order of the special inquiry officer, dated July 9, 1962, 

approved by our order of January 15, 1963. 

340