MATTER OF P— 

In DEPORTATION Proceedings 

A-8421656 

Decided by Attorney General May 24,1961 

Recommendation against deportation—Effective when made at time of resentencing unless sole purpose in granting coram nobis was to provide 

opportunity for recommendation. 

If the court's sole basis in granting a writ of error coram nobis is to provide 

an opportunity to mare a recommenuation tation, the mthaequent recommendation is ineffective. If it Is clear that this is not the sole 

basis upon which the court acted—as when corani nobis is granted because 

of a constitutional defect in the prior conviction=the recommendation against 

deportation made following retrial satisfies the requirement in section 

241(b) of the Act that it must be made at the time of "first imposing judgment." (Overrules Mutter of P—, 8-689.) 

BEFORE THE ATTORNEY GENERAL 

DISCUSSION: This deportation matter is before me pursuant to 

a certification under 8 CFR 3.1(h) (1) (i) for a review of the order 

of the Board of Immigration Appeals dated June 21, 1960, reversing the special inquiry officer and directing the respondent's 

deportation. 

The proceeding arises under section 241(a) (4) of the Immigration and Nationality Act, 66 Stat. 204, as amended, 8 U.S.C. 1251 

(a) (4), providing for the deportation of any alien- 

's • • who at any time after entry is convicted of two crimes involving , moral 

turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions 

were in a single trial. 

The respondent was admitted to the United States for permanent 

residence in 1952. He was convicted of disorderly conduct in violation of section 722(8) of the Penal Law of New York in September 1954, and again in March 1959. The charges involved homosexual acts. It is conceded that the offenses constitute crimes involving moral turpitude. See Babouris v. Esperdy, 269 F.2d 621 (C.A. 

2. 1959), cert. den. 362 U.S. 913. 

The 1959 non v i eti on was set aside by the New York trial court 

on a writ of error coram nobis. On October 2, 1959, the respondent 

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was retried and again convicted on his plea of guilty. At this 

second trial the court recommended against his deportation. Section 241(b) of the Immigration and Nationality Act, 66 Stat. 208, 

8 U.S.C. 1251 (b), provides that an alien subject to deportation 

under section 241(a) (4) shall not be deported- 

. 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, due notice having been given prior to making such recommendation 

to representatives of the interested State, the Service, and prosecution 

authorities * * *. 

The question is whether the recommendation of the court against 

deportation satisfies the requirement of section 241(b) that to be 

effective it must he made "at the time of first imposing judgment 

or passing sentence." The Board of Immigration Appeals has 

concluded that the time of first imposing judgment occurred in 

March 1959, holding that under the rule in United States eir. rel. 

Piperkoff v. Esperdy, 267 F.2d 72 (C.A. 2, 1959), the coram nobis 

proceeding had no effect for the purpose of section 241 (b). In 

that case the court stated that section 241(b) 

• * * 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) 

[sec. 241(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 

the extraordinary power vested in the trial court must be exercised.* • • 

[267 F.2d at page 75] 

The Board's "examination of the various steps in the coraan, nobis 

proceeding, particularly the reference to deportation and the plea 

of guilty ,.7.7.1on rearraignment," led it to the conclusion that the 

proceeding was "for the sole purpose of petitioning the court to make 

the statutory recommendation against deportation * * *" and it was, 

therefore, untimely and ineffectual. 

Although the Board's decision is somewhat unclear, it apparently was of the view that under Piperkulj the test is the accused's 

motive—Was the accused's "sole purpose" in seeking coram nobis 

to obtain a recommendation against deportation? As I read Piperknff, the test to he applied under section 241(b) in coram 11 obis 

cases is whether the court's "sole basis" for granting coram nobis 

was to make the statutory recommendation against deportation. The 

accused's motives or purposes in seeking coram nobis are immaterial, 

except insofar as they throw light upon the court's basis for vacating the conviction. 

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The record shows the following In his petition for corm, nobis, 

the respondent set forth three grounds for seeking the writ: (1) at 

the time of pleading guilty to the March 1959 offense he was not 

represented by counsel; (2) having requested that the charges be 

translated into German and been refused, he was unable to understand the charges against him; and (3) the conviction could 

result in his deportation. At the hearing on the petition, only the 

first two grounds were urged. There was no mention of deportation. 

The state district attorney, agreeing that the trial proceeding raised 

a substantial question of waiver of counsel and failure to understand 

the charges, did not oppose granting the writ. The court vacated 

the conviction and set the case for retrial. As indicated above, the 

respondent subsequently pleaded guilty and was again convicted on 

October 2, 1959. 

On the basis of these established facts, I have no difficulty in concluding that the opportunity to recommend against deportation was 

not the court's "sole basis" for vacating the March 1959 conviction. 

Although the court did not. announce, the basis for its decision, it is 

clear that it granted corm, nobis because of a constitutional defect in 

the prior conviction? 

It, therefore, follows that for the purpose of section 241(b) the 

March 1959 judgment of conviction has no significance. The time 

of "first imposing judgment" was October 2, 1959, and the court's 

recommendation against deportation at that time satisfied the statutory requirement. Accordingly, the Board's order of June 21, 1960, 

is reversed. 

Under the New York Constitution, the accused has a right to be represented by counsel at any trial, and to be informed of the charges against him. 

N.Y. Constitution, Art. I, sec. 6. New York courts have recognized coram 

nobis as a proper procedure for attacking convictions where the accused was 

not represented by counsel. People v. McCullough, 300 N.Y. 107, 89 N.E.2d 

385 (1948) ; Bojinoff v. Pantile., 299 N.Y. 145. 85 N.E.2d 909 (1949). A New 

York court also found that a refusal to reread the charges to a defendant 

who was unable to understand them the first time, was a denial of due process. 

People v. Tat or, 189 Misc. 523, 71 N.Y.S.2d 577 (County Ct., 1947).. 

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