MATTER OF B— 

In DEPORTATION Proceedings 

A-8258569 

Decided by Board June 21, 1960 

Recommendation against deportation—Ineffective when made at time of 

resentencing. 

Judicial recommendation against deportation made at time of resentencing Is 

held ineffective to avert deportation where sole purpose of court in vacating 

original judgment of conviction and sentence was to repair the omission to 

have made such recommendation initially within the time limitation set by 

section 241(b). 

CHARGES : 

Order: Act of 1952—Section 241(a) (4) (8 U.S.C. 1251(a) (4)1—Convicted 

of two crimes—Receiving stolen property; burglar:. 

Lodged: Act of 1952—Section 241(a) (4) [8 U.S.C. 1251(a) (4)]—Crime 

within five years—Receiving stolen property. 

BEFORE THE BOARD 

Discussion: This case is before us on appeal from a decision of 

a special inquiry officer directing the respondent's deportation. 

The respondent is a 21-year-old unmarried male, native and citizen of Guatemala, who last entered the United States on August 26, 

1955, as a returning resident. He came to this country with his 

parents in 1946 at the age of 7 and has resided in the United 

States since that time. The special inquiry officer held that the 

respondent was deportable on the lodged charge but not on the 

charge stated in the order to show cause. The latter had been 

based on convictions for 2 offenses, but the respondent received an 

absolute pardon for one of the crimes from the Governor of Virginia on October 16, 1959. The lodged charge was predicated solely 

on a conviction in the United States District Court for the District 

of Columbia for receiving stolen property, the offense having been 

committed about January 3, 1958. The only issue to be determined 

is whether that charge is sustained. 

We have carefully reviewed the entire record and have considered 

the contentions of counsel. In connection with the conviction for 

receiving stolen property, the respondent on June 30, 1958, was 

686 
sentenced to imprisonment for a term of 1 to 3 years. Execution 

of the sentence was suspended and he was placed on probation for 

3 years. On October 17, 1958, probation was revoked and the 

sentence previously imposed was ordered into effect. In May 1959 

the respondent through counsel filed a motion to vacate the judgment of conviction and the sentence imposed. Thereafter, he moved 

the court to recommend to the Attorney General that he be not 

deported, and notice of the motion was forwarded to the United 

States Attorney and to the Service on July 2, 1959. On July 17, 

1959, while the respondent was still serving the sentence imposed 

on June 30, 1958, the judgment of conviction and the sentence 

were vacated; he was convicted and sentenced to a term of imprisonment of 3 months to 1 year and 11 months; and the court recommended against his deportation. 

Under 8 U.S.C. 1251(b) (2), a conviction is eliminated as a basis 

for deportation "* * * if the court sentencing such alien for such 

crime shall make, at the time of first imposing judgment or passing 

sentence, or within thirty days thereafter, a recommendation to the 

Attorney General that such alien not be deported * * *." Prior 

notice must also be given, but the Service does not question the 

sufficiency of the notice in this respondent's case. 

Counsel is correct in his assertion that under Pino v. Landon, 

349 U.S. 901 (1955), a conviction must have attained finality in 

order to support an order of deportation. Matter of D—, 7 I. & 

N. Dec. 670, which counsel cited in this connection, was overruled 

in Matter of A , A-2904545, Int. Dec. No. 1024 (Atty. 

Gen., 1959). However, counsel apparently concedes that the judgment of conviction on July 17, 1959, attained finality and we do 

not consider that the respondent's case involves the question of 

finality of conviction but rather the question of when there first 

occurred the imposition of judgment or passing of sentence. 

It is true that on July 17, 1959, the court vacated the judgment of 

conviction entered on June 30, 1958, as being null and void and, 

insofar as the criminal proceeding is concerned, that judgment was 

superseded by the judgment of July 17, 1959. In the deportation 

proceeding against the respondent, on the other hand, the question 

is not whether one judgment of conviction is valid and another 

judgment of conviction is invalid, but instead we have only the 

question as to whether, for deportation purposes, sentence was first 

imposed on June 30, 1958, or on July 17, 1959. It is our opinion 

that, in truth and in fact, judgment was first imposed and sentence 

was first passed on June 30, 1958, and the question resolves itself 

into whether this action of the court can be disregarded in order to 

make the subsequent action on July 17, 1959, the first imposing of 

judgment and passing of sentence. 

687 
In United States ex rel. Piperkoff v. Esperdy, 267 F.2d. 72 (C.A. 

2, 1959), the court said (p. 75) : 

We hold that § 1251(b) [of Title 8, United States Code] announces a federal standard for the determination of what constitutes the first entry of 

judgment or the passing of sentence. While we may assume that in many or 

even most cases that standard incorporates and adopts the relevant state law, 

we hold that it does not do so where the sole basis for the vacation and reentry of judgment is to repair the omission to make the statutory recommendation against deportation permitted by §1251(b). To hold otherwise would 

be to defeat the plain command of the statute, which strictly, and for good 

purpose, limits the time within which We extraordinary power Tested in the 

trial court must be exercised. * * * 

In the motion to vacate the judgment of conviction and the 

sentence imposed, it was asserted that the failure of trial counsel to 

advise the court that the defendant (this respondent) was an alien 

and to request from the court a recommendation that he not be 

deported deprived this respondent of such a substantial right as to 

render the assistance of trial counsel ineffective. It is our considered opinion that the motion itself shows clearly that the sole 

purpose for vacating and reentering the judgment of conviction in 

the respondent's case on July 17, 1959, was to repair the omission 

to make the statutory recommendation against deportation when 

sentence was first imposed on June 30, 1958. Since the facts in the 

respondent's case bring it within the quoted language of the Piperkoff decision, we consider that case to be controlling. In view 

of the foregoing, the appeal will be dismissed. 

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

dismissed. 

688