Interim Decision #2236 

MATTER OF PLATA 

In Deportation Proceedings 

A-19027116 

Decided by Board November 5, 1973 

(1) The time and notice requirements of section 241(b)(2) of the Immigration and 

Nationality Act are mandatory and a timely recommendation against deportation is rendered ineffective if the notice requirements of the section are not 

complied with.% 

(2) In the instant case, following conviction of a crime involving moral turpitude 

and suspension of imposition of the sentence to confinement, respondent was 

placed on probation with the probation order containing the directive "will not 

be deported". While the directive of the court may have constituted a timely 

recommendation against respondent's deportation under section 241(6)(2) of the 

Act, absence of the requisite prior notice to the Service rendered the recommendation ineffective. 

CHARGE: 

Order: Act of 1952—Section 241(aX4) [8 U.S.C. 1251(aX4)I—Convicted of a crime 

involving moral turpitude committed within five years 

after entry. 

ON BEHALF OF RESPONDENT: Robert L. Millard, Esquire 

El Paso Legal Assistance Society 

109 N. Oregon St., Room 919 

El Paso, Texas 79901 

This is an appeal from an order of an immigration judge finding 

the respondent deportable, denying his request for voluntary 

departure, and directing his deportation to Mexico. The appeal will 

be dismissed. 

The respondent is a 22-year-old unmarried male alien, native 

and citizen of Mexico, who was lawfully admitted to the United 

States for permanent residence on January 2, 1970. At a hearing 

before an immigration judge, at which he was represented by 

present counsel, the respondent admitted the truth of the factual 

allegations of the Order to Show Cause but denied deportability. 

The basis for the respondent's denial of deportability, and the sole 

issue on this appeal, is his contention that he is the subject of a 

valid judicial recommendation against deportation under section 

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241(b)(2) of the Immigration and Nationality Act. The immigration 

judge found the recommendation to be defective for failure to give 

prior notice to the Service, as required by section 241(b)(2). We 

concur in the immigration judge's conclusion. 

The record indicates that on March 9, 1972, in the District Court 

for the 34th Judicial District, El Paso County, Texas, the respondent pleaded guilty to the offense of theft of property of the value of 

$50 and over, and was sentenced to confinement in the state 

penitentiary for 10 years (Ex 3). The record further shows that the 

imposition of that sentence was suspended and the respondent 

was placed on probation for the same period (Ex. 3). 

Contained in respondent's probation order is the directive "will 

not be deported" in item 14 (Ex. 3). While this directive of the 

Court may have constituted a timely recommendation under 

section 241(b)(2), there is no evidence that the Service was given 

the requisite prior notice so as to have an opportunity to make 

representations in the matter. Counsel has cited no cases, nor 

have we found arty, wherein an unexplained absence of notice did 

not render the recommendation ineffective.' This Board has long 

taken the view that Congress intended the time and notice 

requirements of section 241(b)(2) to be mandatory, and that a 

timely recommendation against deportation is rendered ineffective 

if the notice requirements are not complied with. See Matter of I—, 

& N. Dec. 426 (BIA 1954). Despite the often harsh consequences of mandatory construction of the statute, the courts have 

consistently supported this view. See Velez-Lozano v. INS, 463 F.2d 

1305 (D.C. Cir. 1972); Marin v. INS, 438 F.2d 932 (C.A. 9, 1971), cert. 

denied 403 U.S. 923; U.S. as rel. Piperkoff v. Esperdy, 267 F.2d 72 

(C.A. 2, 1959). 

Counsel argues that with respect to the notice requirement of 

section 241(b)(2), the intent of Congress to make the provision 

mandatory is not as clear as it is in the "thirty days" limitation. 

Indeed, most cases which involve a defective judicial recommendation against deportation turn on the question of timeliness, rather 

than notice. There is nothing to indicate that Congress intended 

section 241(b)(2) to be divisible, with the time requirement mandatory and the notice requirement merely directory? 

I The case of Holler v. Esperdy, 397 F.2d 211 (C.A. 2, 1968), upon which counsel 

relies, is distinguishable from the present case. There the sentencing judge had 

assumed the responsibility of giving the required notice. The Court of Appeals 

held that his failure to do so did not make the recommendation ineffective, and 

that the conviction could not be used as a basis for deportation until the Service 

had an opportunity to present its views and the court acted on them. 

2Judze Fahv's dissenting opinion in Velez-Lozano v. INS, 463 F.2d 1305 (D.C. 

Cir. 1972), which argues that section 241(b)(2) should be given a directory 

interpretation, represents an individual view. 

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Thus, while we recognize the consequences which flow from this 

construction of section 241(b)(2), our decision here is consonant 

with the consistent interpretation given this statutory provision 

by this Board and the reviewing courts. The decision of the 

immigration judge was therefore correct and will be affirmed. 

ORDER: The appeal is dismissed. 

464