Interim Decision 4t1560 

31.vrrEn or Rossi 

In Deportation Proceedings 

A-3459526 

De*led by Board March, J0,1966 

Since respondent is an alien, having been denaturalized in 1962, he is deportable under section 241(a) (11), Immigration and Nationality Act, as 

amended, on the basis or his narcotics conviction in 1954, notwithstanding 

the conviction occurred at a time when he was a naturalized U. S. citizen. 

CHARGES 

Order: Act of 1952—Section 241(10(11) [8 'I7.9-0. 1251(a)(11)3—Convicted of unlawful sale of narcotics. 

Act of 1952—Section 241(a) (11) 18 U.S.C. 1251(a) (11)3—Con. 

victed of conspiracy to sell narcotics. 

Lodged: Act of 1052—Section 241(a) (1) [8 U.S.C. 1251(a) (1)3—Excludable 

at entry under section 3, Immigration Act of 1917 

[8 U.S.C. 136, 1946 Ed.)—Convicted of crimes—

aggravated theft (two offenses); sale of military 

effects; complicity in inflicting lesions; criminal 

association to commit premeditated homicide. 

This case is before us on appeal from a. decision of a special inquiry officer denying the application under 8 U.S.C. 1254(a) and directing the respondent's •deportation. 

The respondent is a 64-year-old married male who is a native of 

Italy and whose present citizenship has not been determined. He 

first entered the Tnited States in 1937 as a stowaway. Following 

preexamination proceedings; he was lawfully admitted for permanent residence on March 5, 1946- and became a naturalized United 

States citizen on December 6, 1951. A denaturalization suit was subsequently filed, and the deeree admitting him to citizenship Nv.' as set 

aside on December 26, 1962. On February 17, 1954, in the United 

States District Court for the Southern District of New York, the 

respondent was convicted on two counts of an indictment for unlawfully conspiring to sell narcotics and for unlawfully selling narcot- 

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Interim Decision #1560. 

Ira in violation of 18 U.S.C. 371 and 21 U.S.C. 173474. The convictions for those two offenses are the basis for the two charges in the 

order to show cause. The special inquiry officer held that these two 

charges were sustained. The issues are whether this ruling is correct 

and, if so, 'whether the respondent is eligible for any discretionary 

relief. Since we concur in the special inquiry officer's conclusion, concerning deportability, it is unnecessary to determine whether the re- - 

spondent is additionally deportable on the charge lodged at the hearing which was that the respondent was excludable at the time of his 

entry because of convictions , occurring in Italy during the period, 

from 1919 to 1929. . 

With regard to the issue of deportability, both parties seem to 

concede that the question resolves itself into Whether the respondent's 

case is controlled by Costello v. low* ration and Naturalisation 

Service, 876 U.S. 120 (1964). Costello is similar to the _case of the 

respondent with respect• the fact that both individuals were naturalized as United •Stales citizens, were then convicted of crimes,and

were then denaturalized. 

. Counsel asserts that the special inquiry officer was in. error in 

stating that the court's .decision in the Costello case was based, in 

part, upon the use of the present tense "is convicted" in section. 241 

(a) (4) of the Immigration and Nationality Act. It is-true that the 

third clause of section 241(a) (11), under which :the respondent's deportation is sought, contains The language "who hai been convicted." 

However, we agree with counsel that the court's opinion shows that 

the Costello decision was not predicated on the fact that the.present 

tense "is"'had been used, 

In Costello v. Immigration and Naturalisation Service, supra, the 

court said that there were two possibl& constructions of s_ eCtion 241 

(a) (4) ; that .there is nothing in the legislative history so specific 

as to resolve the ambiguity of the statutory language; and that considerable light is forthcoming from Section 241(b) (2). Counsel al: 

leged that the court merely stated that -its reference to section 241 .(b)- 

additional evidence why section 241(a) (4) was 'not' appliCable was 

to Costello; that this was not the reason for the court's conclusion; . 

 and that the court stated that it was not Wing its. decision upon 

that factor. Other thin counsel's bare statements, there is nothing in 

his brief which supports them. After careful analysis of the court's 

opinion, we are satisfied that it 'was, in fact, primarily predicated 

on the provisions of section 241(b) and the fact that Costello, being 

a naturalized citizen at the time of his convictions, was depriVed 

of any opportunity of requesting the sentencing court to recommend 

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against his deportation. Accordingly, we reject this contention of 

counsel. 

As the Supreme Court stated in Costello at page 126, section 

241(b) (2) is made specifically applicable to section 241(a) (4). 

This is because section 241(b) contains the language: "The provisions of subsection (a) (4) * * * shall-not apply * * (2) if the 

court * * * shall make * * * recommendation to the Attorney General that such alien not be deported * *." Since the court's 

authority to recommend against deportation was thus limited_ to 

deportation charges under section 241(a) (4) • it follows that, under 

• the Immigration and Nationality Act of 1952, a court had no such 

authority as to deportation charges based on section 241(a) (11). 

Counsel asserts that, notwithstanding this language of section 241(b), 

"the Courti had regularly ruled that a judicial recommendation 

against deportation, precluded deportation even in a "narcotics case 

* *." However, no judicial decisions were cited for this proposition. We are satisfied that the cases, involving judicial recommendations against deportation in narcotic cases, were those in 

which the recommendations had been made prior to December 24, 

1952, the effective date of the Immigration and Nationality Act 

and of section 241(b). - In two cases, -recommendations against deportation had been made prior to December 21, 1952; deportation 

proceedings were instituted after December 24; 1952; and the courts 

held that the status of nondeportability, which the anent acquired -

-prior to the effective date of the immigration and Nationality Act, 

continued to protect them from deportation thereafter. United 

States ex rel. De Luca v. O'Rourke, 213 F.2d 759 (8th Cir., 1954), 

and Ex parte Robles-Rubio, 119 F. Supp. 610 (N.D. Cal., 1954). 

However, this theory was rejected by the Supreme Court in Lehmann v. United,States ex rel. Carson, 853 U.S. 685 (1957), and 

Mulcahey v. Catalanotte, 353 'U.S. 692 (1b57). Thereafter, we 

specifically held in Matter of 17-31—, 8 L & N. Dec. 94 (1958), that 

an alien Was deportable on the basis -of a narcotic conviction not--

withstanding the, sentencing court's recommendation against deportation made in 195- 

Section 301(c) of the Act of July 18, 1956 [Narcotic Control Act 

of 1956) added to section 241(b) of the Immigration and Nationality 

Act [8 U.S.C. 1251(b)] the following sentence: "The provisions of 

this subsection shall not -apply in the case of any alien who is 

charged with being deportable from the United States under subsection (a) (11) of this section." Counsel •contends that, inasmuch 

as the respondent's convictions occurred prior to July 18, 1956, the, 

sentencing court could have made s recommendation against deportn.- 

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tion if he had not been an ostensible citizen at that time.' The 

respondent's convictions occurred on February 17, 1954 which was 

subsequent to the effective date of the Immigration and Nationality 

Act [Deeernber 24,1.952]: Counsel has not cited any judicial decision 

in which a sentencing court made a recommendation against deportation in a narcotic case after December 24, 1952, and we are not 

aware of any. As we have indicated above, the opening language 

of section 241(b), as originally enacted, made. this provision inapplicable to a deportation charge under section 241(a) (11). Conference Report No. 2546,1which is part of the legislative history of 

the Act of July 18, 1956, indicates that the addition of the quoted 

sentence was not for the purpose of changing metion . 211(b) but 

merely for the purpoie of clarifying its original meaning., Even 

if the respondent had not been a citizen but had been an alien for 

all purposes at the time of the convictions in 1954, we are con-• 

vinced that the sentencing court could not have made a valid recommendation: against' doportation. We must, therefore; reject counsel's 

contention insofar as it is based on the Act of July 18, 1956. 

For the reasons indicated above, we are satisfied that the respond- _ 

ea's case is not controlled by the Costello decision. On the saw; 

trary, we believe that the respondent's ease cannot be distinguished. 

from United States ex rel. Elehenlaub v. Shaughnessy, 338 -U.S. 521 

(1950). That case also involved a conviction during a period when 

the individual was a naturalized citizen, and the court held that 

he was deportable. Since the respondent is now an 'alien and he 

"has been convicted" of a narcotic violation, we hold that he is 

deportable in accordance with the provisions of section 241(a) (11) 

of the Immigration and Nationality Act. 

Counsel's brief does not contain any art argument that. the special 

inquiry officer was in error in holding that the respondent was 

statutorily ineligible for suspension of deportation or any other 

form of discretionary relief. This matter was fully discussed by 

the special inquiry officer, and we concur in his conclusions. Accordingly, the appeal will be dismissed. 

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

dismissed. 

'1950 U.S. Code Congressional and Administrative, News, WI 2, p. 3321. 

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