Interim Decision #1994 

MATTER OF TAFOYA-GUTIERREZ 

In Deportation Proceedings 

A-8935449 

Decided by Board July 18, 1969 

Where the court's recommendation against deportation was not made within 

30 days of first imposing sentence pursuant to section 241(b) (2) of the 

Immigration and Nationality Act, it is ineffective to avert deportation, 

notwithstanding the motion to amend sentence was filed, and hearing 

thereon scheduled, within 30 days of the original sentencing. 

CHARGE: 

Order: Act of 1052—Section 241(a) (4) [8 U.S.C. 1251(a) (4)1—Convicted 

of a crime involving moral turpitude within five 

years after entry. 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

R. Stanley Ditus, Esquire R. A. Vielhaber 

P. 0. Box 463 Appellate Trial Attorney 

Burlington, Colorado 80807 

The proceedings arc before us on appeal from the decision of 

the special inquiry officer who found respondent deportable as 

charged and ordered his deportation to Mexico. 

The respondent is a 38-year-old single male alien, a native and 

citizen of Mexico, who was admitted to the United States for permanent residence on March 7, 1960. He returned to Mexico on 

November 15, 1964, remaining there approximately six months. 

When he returned to the United States on May 12, 1965, he was 

admitted as a returning resident alien upon presenting his alien 

registration receipt card. 

The record shows that on November 4, 1966 in the Superior 

Court for the State of Alaska, Third Judicial District, the respondent was convicted on his plea of guilty of the offense of 

rape as charged in the second count of the indictment, and sentenced to serve a term of three years, which sentence was suspended and the respondent placed on probation for a period of 

two years (Ex. 4, p. 2). He was thus found guilty of a crime in342 
Interim Decision #1994 

volving moral turpitude committed within five years after entry, 

for which he was sentenced to confinement for a period of more 

than a year. He is deportable under section 241 (a) (4), Immigration and Nationality Act. 

Counsel's first contention is that his client did not make an 

entry when he returned to the United States on May 12, 1965, citing the case of Rosenberg v. Fleuti, 374 U.S. 449 (1963). We 

do not think that the circumstances of the respondent's departure 

and extended stay outside the United States bring him within the 

rule enunciated in the Rosenberg v. Fleuti case. His absence was 

a meaningful and intended absence from the United States and 

was not a brief and casual visit which might, under the Fleuti 

rule, exempt him from the requirements of an "entry" when he 

returned. The respondent in this case definitely made an entry 

within the meaning of section 101(a) (13), Immigration and Nationality Act (8 U.S.C. 1101 (a) (13) ) . 

Counsel contends that since the court which found respondent 

guilty and sentenced him has made a recommendation to the Attorney General that he be not deported, these proceedings be terminated because of the provisions of section 241 (b) (2), Immigration and Nationality Act (8 U.S.C. 1251 (h) (2)). The facts 

surrounding this recommendation of the court are as follows. 

Respondent was found guilty and was sentenced on November 

4, 1966, which sentence was entered into the record on November 

17, 1966. On December 2, 1966, counsel filed a motion to have the 

court amend its order by adding a recommendation against deportation. The hearing was held on this same date, and the record 

indicates that the District Director of the Service testified. It does 

not appear that any action was taken by the court at that time. 

On December 16, 1966, counsel filed a "Motion for Reconsideration". The record is not clear why it was necessary to move the 

court to reconsider the original motion, unless the court originally 

had denied the motion on December 2, 1966. Be that as it may, 

the hearing on this motion, scheduled for January 6, 1967, was 

continued until January 13, 1967, and continued again until January 27, 1967, at which time the court granted the motion to 

amend its original order to the extent of incorporating a recommendation to the Attorney General that the respondent not be deported. 

Section 241 (b) (2) of the Act specifically provides that the 

court sentencing an alien must make the recommendation at the 

time of first imposing judgment or passing sentence or within 30 

days thereafter. This clearly did not occur in this case. A timely 

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Interim Decision #1994 

recommendation has not been made. 1It is true the motion to 

amend the order was filed within 30 days and the hearing scheduled within 30 days, but the court's recommendation was not 

made within 30 days of the original sentencing. The court has no 

power to enlarge its order or to enter a nunc pro tunc order 

granting the relief after the expiration of the time provided by 

statute. Such an action is a nullity and the courts have so held. 2 

 To hold otherwise would be to defeat the plain command of the 

statute, which limits the time within which the extraordinary 

power vested in the trial court must be exercised. We have followed the court's interpretation of the statute in this respect. 

Thus, on the basis of the evidence presented, the court's order of 

January 27, 1967 does not afford the respondent relief from deportation under section 241 (b) (2) of the Immigration and 

Nationality Act. 

For the above reasons, the appeal will be dismissed. 

ORDER: It is ordered that the appeal be and the same is 

hereby dismissed. 

I Matter of S—, 9 I. & N. Dee. 613 (BIA, 1962). 

2 pi\oerkoff v. Murff, 267 F.2d 72 (2 Cir., 1959) ; Ex parte Eng, 77 F. 

Supp. 74 (N.D. Cal., 1949). See also Matter of S—, supra. 

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