Interim Decision #1294

MATTER OE O'Snrx.rvAx

In DEPORTATION Proceedings
A 6210570
-

Decided by Board January 15,1963
Re41.1);.ea Df otion February 14,1963
Decided by Board August 2, 1963
Absent an affirmative showing of lack of judicial jurisdiction, the order of the
trial judge, Recorders Court, Michigan, entered March 19, 1902, granting
respondent's motion for new trial, following conviction and sentence, and
dismissing the cause none prosequi, which for all purposes under Michigan
law set aside the conviction, is effective to remove the ground of respondent's
deportability under section 241(a) (Li), 1952 Act, based on suci ► conviction
on October 15, 1959, in the same court, of addiction to unlawful use of narcotic
drugs.
On.szas :
Order: Act of 1952—Section 241(a) (11) [8 U.S.C. 1251(a) (11) ]—Convicted
of violation of a law relating to the illicit possession of narcotic
drugs, to wit unlawful use and addiction to unlawful use of
narcotic drugs.

BEFORE THE BOARD

Respondent, a native and national of Canada, 58 years old and
divorced, was convicted on October 15, 1959 in the Recorder's Court,
Detroit, Michigan of addiction to unlawful use of narcotic drugs. She
was a nurse at Doctors Hospital in Detroit and used her position to
convert the drugs to her own use. 1
Subsequently the Service brought these deportation proceedings,
which the special inquiry officer originally terminated, distinguishing
between illicit possession of narcotics as specified in the order to show
cause and unlawful use of narcotics under the statutory provisions in
Michigan. The examining officer appealed, contending that the conviction for unlawful use encompassed unlawful possession. We sustained the position of the examining officer in our order of November
2

C.L. '48 sec. 835.154, Mich. Stitt. Ann. sec. 18.1124.

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Interim Decision 4t1294
20, 1961, which directed deportation on the charge contained in the
order to show cause, citing Matter of H—U—. 2
Respondent then commenced an action in the United States District
Court, Eastern District of Michigan against the District Director,
which was dismissed on March 21, 1962, on stipulation, because of
respondent's motion pending before this Board for reopening of the
deportation proceedings. We granted oral argument on that motion
on February 28, 1962. Counsel for respondent did not appear for
oral argument, but submitted a supplementary petition in support of
the petition for rehearing.
The supplementary petition called our attention to an order dated
March 19i 1962 of the Recorder's Court which granted respondent's
motion for a new trial and dismissed the cause on motion of the
Assistant Prosecuting Attorney. Columel for respondent contended,
and continues to contend, that such action in the trial court completely
removed the basis of the deportation proceedings.
We granted the motion for reopening and reconsideration. Following the reopened hearing the special inquiry officer again terminated

the proceedings and certified the case to us for final decision, pursuant
to our order.
We now must determine whether the respondent is still deportable
under the provisions of section 241 (a) (11) of the Immigration and
Nationality Act despite the trial court's removal of the conviction
upon which the order to show cause is solely based.
The special inquiry officer contends that there is a marked procedural
difference between the manner in which respondent's conviction was
sot aside and the California procedure which the Attorney General
had under consideration in Matter of A—F—. 3 He states that the ac7

&N Dec. 533.
•
N_ Dec_ 429. The Attorney General held that, in view of the clear
national policy evidenced by the history of paragraph (11) subsection (a) of
section 241 of the Immigration and Nationality Act and subsection (b) of that
section, as amended, it is immaterial that pursuant to a state statute such as
section 1203.4 of the California Penal Code, as amended, or section 1772 of the
Welfare and Institutions Code of that State, the verdict of guilty has been set
aside and the criminal charge dismissed.
At the time the Attorney General's opinion, Arellono-bloree conviction had
not in fact been expunged. Subsequently his probation was terminated and his
conviction expunged. We denied a motion to reopen. A. declaratory judgment
action to review the deportation proceedings followed. The District Court,
Southern District of California affirmed the Attorney General in an unreported
decision dated 12/15/60. Arellano-Flores did not appeal, but sought to relitigate
the same issues on writ of habeas corpus, which was denied by the same District
Court. That decision has been affirmed. Arellano-Flores v. Rosenberg, 310 F.
2d 118 (C.A. 9, 11/9/62). The Court of Appeals did not reach the merits of the
petitioner's enntention that the deportation proceedings bad been voided by the
state proceedings removing his conviction.
3

8 &

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Interim Decision #1294
tion of the trial judge here is a judicial act as opposed to expungement
in California, in which the court's action is ministerial, and concludes
that the present record of the Recorder's Court must, be given full faith
and credit.'
Respondent filed her motion in the trial court more than two years
after conviction, and apparently after satisfactory completion of probation. Except for alleging that respondent would not have pleaded
guilty, and the court would not have accepted such plea, if it had been
realized that upon conviction she would be liable to deportation, the
motion does not in any way challenge the proceedings in the State
court. No prejudicial error is alleged; no newly discovered evidence
is offered.
Whatever on this record the requirements of full faith and credit
may be, it is evident the action of the trial court may be disregarded,
as the Service urges, only if the court exceeded it power under state
law, or if its action, regardless of whether proper under state law , is
in.efiective in the federal proceedings, because of a federal standard

based upon overriding national interest. It is also evident that if
the action of the trial court is given effect the deportation proceedings
no longer have any basis. 5

Michigan statutory law provides that the court in which the trial
of any indictment shall be had may grant a new trial to the defendant
for any cause for which by law a new trial may be granted or when
it shall appear to the court that justice has not been done, and on such
terms or conditions as the court shall direct. 6 Another statutory
28 U.S.C. 1738.
Without conceding that judicial rules of evidence• are applicable in administrative deportation proceedings we note that the certified copy of the court record
and of the moving papers may not comply with rule 44 of the Federal Rules of
Civil Procedure. Chung Young Mew v. Boyd: 309 F. 2d 857 (C.A. 9, 10/30/62).
The papers lack a certificate that the attesting officer, the clerk of the court,
has legal custody of the original record, unless the judge's certificate, which
identifies the attesting officer as the clerk of the court, the court as a court of
record and the seal as the seal of the court, is deemed substantial compliance
with the custody provision.
We need not rule on this point, however. The copy of the court record was
received without objection by the Service. The Service itself submitted the
copy of the moving papers. Counsel for respondent declined to do so and in
fact objected to admission of the moving papers but only as irrelevant. Under
these circumstances any question of admissibility of the records on grounds of
competence has been waived.
Counsel did not renew this objection on appeal. In any event, however, we
consider the copy of the motion relevant for whatever light it might throw on the
basis for the court's action.
O.L. '48 see. 770.1, Mich. Stat. Ann. sec. 28.1098. Statutory provisions pertaining to indictments apply equally for informations. C.L. '48 sec. 767.2, Mich.
Stet. Ann. sec. 28.942.
5

5

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Interim Decision #1294
provision, moderately limiting this authority forbids the granting of
a new trial where there has been only harmless error as to any matter
of pleading or procedure." There is no indication that any such factor
is involved here.
Respondent's motion for leave to file a delayed motion for a new
trial was directed toward the discretion of the trial court, which has
been held to be inherent in Michigan .a The court record shows only
that the motion for new trial was heard and granted and that tale
cause was dismissed on motion of the Assistant Prosecuting Attorney.
The record, does not set forth any basis on which the prosecution
entered a nolle prosequi.9
It might be argued that the action of the trial court here was
divisible, granting of the new trial being a judicial act and dismissal

of the proceedings on the prosecuting attorney's /talk prosequi ministerial. A Michigan statute states, however, that the prosecution must
obtain leave of the court of jurisdiction before entering a nolle prosogni.

Such provision indicates the court had discretion. Thus the dismissal
would also be a judicial act. In any event, we are principally concerned with the effect of the granting of the new trial which, if we are
to be bound thereby, in itself effectively removed the conviction for the
purposes of these proceedings. Proper granting of a new trial generC.L. '48 sec. 769.26, Mich. Stat. Ann. sec. 28.1096.
The time for Ming such motion as a matter of right had long expired. C.L.
'48, sec. 770.2, Mich. Stat. Ann. sec. 28.1099. Attorney General v. Recorder's
Judge, 341 Mich. 461, 67 N.W. 2d 708 (1954) ; People v. Hurwieli. 239 Minh. 261,
243 N.W. 230 (1932) ; People v. Nick 360 Mich. 219, 103 N.W.2d 435 (1960) ;
People v. Andrews, 360 Mich. 572,104 N.W. 2d 199 (1960).
A Michigan statute provides that the prosecution shall set forth the basis
for entering a none prose:via. C.L. '48, see. 767.20, Mich. Stet. Ann. am. 28.989.
Statutes to the same effect have been interpreted in Colorado as mandatory and
in Texas as directory. Van Gundy v. O'Kane,142 Colo. 114, 351 P. 2d 282 (1960) ;
Ex parte Rusk, 128 Tex. Crim. 135, 79 S.W. 2d 865 (1935) ; Ex parte Kinsey,
152 Tex. Crim. 425, 214 S.W.2d 628 (reh. den. 1948). No interpretation of this
provision by the Michigan courts has been found.
Counsel for respondent said at oral argument that the Michigan prosecutor
can make a motion to dismiss any proceedings pending before a court and upon
that motion in the proceedings are dismissed. He cited no authority however.
In passing we might mention that there is some evidence that the prosecution
in Michigan has broad power to nol. pros. In an early ease the Michigan Supreme
Court adopted the procedure, highly unusual at the time, of remanding the cam
to a circuit court with direction that a nolle prosegui be entered. Such judicial
assumption of the prosecution's power indicates that Michigan courts would be
likely to take a liberal view of the exercise of that power by the prosecution.
8

Peoples v. Outgo, 23 Mich. 93 (1871).

323

Interim Decision #1294
ally vacates the judgment and places the defendant back in the position
occupied prior to trial." This is the rule in Michigan.n
Respondent moved for a new trial partially to obtain an opportunity
to change her plea of guilty." The privilege of withdrawing a plea
of guilty after sentencing involves setting aside the judgment of the
court and is not favored. The Supreme Court of Michigan so ruled
in affirming a denial of a motion for leave to withdraw a plea of guilty
and for a new trial. The defendant had expected a lighter sentence
than the trial court imposed. The court endorsed the view of a California court that, where the defendant knows his rights and the
consequences of his act of pleading guilty, the mere fact that he hoped,
or believed, or was led by counsel to believe that he would receive a
shorter sentence or milder punishment by pleading guilty than after
trial and conviction, does not warrant the trial judge's exercise of
discretion in favor of permitting the change of plea."
The same court also affirmed denial of a motion for a new trial based
upon refusal of the trial court to allow withdrawal of a plea of guilty
before sentencing when, through the sentencing of a codefendant, the
defendant has reason to expect a heavier sentence than previously
anticipated.14 Michigan law, therefore, indicates that a new trial
will not ordinarily be granted when its purpose is to afford an. opportunity to change a plea of guilty because the resulting punishment
is greater than anticipated. If, therefore the trial judge granted a
new trial to respondent merely to enable her to avoid deportation,
he would apparently have acted contrary to the way in which he could
properly act under the law of his state in an issue confined to punishment lawfully imposed by the court but substantially beyond the
defendant's expectation."
Counsel for respondent relies mainly upon the power of a. Michigan
trial court judge to act as the judge did here. As authority he cites
" Matter of CI—, I L & N. Dec. 96; Matter of H—, Int. Dee. No. 1159 (7/26/61) ;
24 C.T.S. Crim. Law sec. 1426.
Counsel for the Service points out that here there was in fact no new trial
and no new plea. These of course were obviated by the dismissal of the proceedings. If the prosecution or the court had acted beyond its powers in dismissing the action we would be faced with the question whether the granting
of the new trial and the dismissal were divisible or interdependent. We have
not found that either exceeded its authority in this respect, however.
People v. Huffman., 315 Mich. 134, 23 N.W. 24 236 (1946).
"Respondent's allegations in support of withdrawal of her plea of guilty are
the only ones in her motion upon which the court could have effectively acted.
"People v. Goldman, 245 Mich. 578,228 N.W. 124 (1929).
"People v. Case, 340 Mich. 526, 65 N.W. 2d 803 (1954).
23 A. trial court has no obligation, moreover, in accepting a plea of guilty to
warn a defendant about possible deportation. 1 7.5. es rel. Darante v. Holton, 228
F. 24 827 (OA. 7), reh. den., cert. den. 351 U.S. 763 (1956).
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Interim Decision #1291
only Attorney General v. Recorder's Judge, also cited by the special
inquiry officer?'
The Service Representative questions the authority of the trial judge
under state law to remove the conviction, likening such action to an
expungeraent or pardon. He refers to People v. Fox." In Fox the
Michigan Supreme Court overruled the particular trial judge who
tried respondent. A sentence of life imprisonment for robbery had

been partly served when the trial court reduced the sentence. The
Supreme Court held that the trial court's jurisdiction had ended with
pronouncement of the sentence, and that to permit the power to reduce
the sentence under the circumstances would infringe on the pardoning
power of the governor and violate the jurisdiction of the parole board.
That case did not involve a new trial, however, and is not authority
for any such restriction on the power of the trial court when, as here,

a new trial has been granted.
The Service Representative also contends that deportation of narcotics offenders is an area in which the Federal Government has the
predominant interest, that the trial court acted solely to circumvent
the federal statute, and that the court had no jurisdiction over the matter for this purpose.
It is clear that Congress has attempted to circumscribe the power
of trial judges to affect deportation proceedings involving narcotic
violations?' Counsel for respondent asserts that Michigan judges
would act properly and with restraint where a conflict with federal law
is indicated. Congress, however, has indicated unwillingness to accept
any judicial recommendations with respect to deportation of narcotic
offenders."
Respondent's motion in the trial court, in addition to contending

that in view of the deportation proceedings the consequences of her
plea. of guilty were more severe and far reaching than she or the court

realized, asserted that the court never had notice of the deportation
proceedings and had no opportunity to place in its files and record
within the 30 day statutory period following the court's sentence a
recommendation for or against her deportation. Due to the statutory
proscription such references in her motion for a new trial could not
have been given effect by the court. 2°
Moreover, for the same reason, a pardon would be ineffective against
respondent's deportation. The granting of a nolle prosegui after ver-

"Supra a.

" 312 Mich. 577, 20 N.W.2d 732 (1945).
supra'.
"Matter of
"Sec. 301(c) Act of 7/18/56 amending see. 241(b) of the Immigration and
Nationality. Act, 70 Stet. 575.
" Sec. 241(b) of the Immigration and Nationality Act, as amended.
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Interim Decision #1294
diet has been likened to a pardonn , The prosecution's act of granting
a none prosegui in respondent's case, if granted only to defeat her
deportation would have something of the effect of a. pardon, although
technically because of the intervening grant of a new trial the none
prosegui was not entered after judgment.
Congress in setting up the statutory rules covering deportation has
not specifically dealt with new trials, or other proceedings to reopen

or otherwise affect final judgments, the results of which could affect
deportability. Elsewhere in the statute Congress considered the effect
of the power of a court to correct, reopen, alter, modify or vacate its
judgments or decrees and did not infringe upon that powei... 22 That
provision, however, which relates to revocation of naturalization, arose
to overcome the effect of Bindezyek v. Finuoarte. 23
The Supreme Court held in Bindczyck that section 338 of the
Nationality Act of 1940, the predecessor to section 340 of the Immigration and Nationality Act, was the exclusive procedure to cancel citizenship based upon evidence outside the record revealing fraudulent or
illegal procurement. The Court upheld a United States district
court's judgment declaring plaintiff to be a citizen of the United
States, thus overruling a Maryland court which had on motion of the
Government set aside its own order of naturalization on the ground

it was obtained by fraud.
Because of the special history of section 340(j) of the Immigration
and Nationality Act and the different situations encompassed by that
section and section 241(b) of the Act, Congress' silence on new trials
and similar proceedings in the latter provision permits no inference
that Congress did or did not intend to make such procedures ineffective in proceedings under section 241(a) (11), along with pardons and
judicial recommendations against deportation. Congress, even when
legislating upon matters in which the federal interest is very high,
rarelpoccupies a field completely.
Although several cases have been decided both administratively
and judicially on the general proposition of the effect of farther eriminal proceedings, other than strictly review proceedings, upon orders
of deportation which have been based upon the results of the prior
proceedings, all may be distinguished from the instant case on substantial grounds.
In our order of May 3, 1962 reopening these proceedings we stated
that the procedure setting aside the conviction here might be distinstate of Louisiana ex rel. Butler v. liaise, 48 La. Ann. 109 (1895).
"Section 340(3) of the Immigration and Nationality Act, 8 U.S.O. 1451(1).
"342 U.S. 76 (1951).

326

Interim Decision #1294
guishable from the procedure which the Attorney General had under
consideration in. Matter of A—F— .24
The. Attorney General specifically limited that holding to the effect
of state laws of the nature of the California statutes considered in
his opinion upon deportation proceedings brought under section 241
(a) (11). He disapproved Matter of D—, which also involved a narcotic conviction." Later, however, he upheld a decision of this Board
terminating deportation proceedings in which a California conviction
for a nonnarcotic offense was expunged under the procedure authorized
by section 1203.4 of the State's Penal Code." It is clear therefore that
the rule in Matter of A—F— is to be narrowly applied.
We agree with the special inquiry officer and respondent's counsel
that there are substantial differences between expungement of a conviction under statutory provisions like those in California and the
procedures followed in respondent's case. The latter were not based
upon special, defined statutory authority, peculiar to a small number
of jurisdictions. The trial judge and the prosecuting attorney exercised powers which are recognized in Michigan as inherent in their
positions, and which have been so recognized in a number of jurisdictions. Michigan statutes do not place much restriction on these
powers.
The trial judge's granting of a new trial was clearly a judicial act,
performed in the exercise of his discretion His dismissal of the cause
on the prosecuting attorney's nolle prosequi was probably a judicial
act under Michigan law. Even if ministerial, however, it would not
appear to impair the effect on the deportation proceedings of the
granting of a new trial:

Respondent's completion of her period of probation before the grant •
of a new trial may have been a factor influencing the judge and
prosecuting attorney, but the action which they took could have been
taken at any time. Unlike the California procedure, absence of any
pending probationary period was not a necessary condition for the
action taken. Apparently respondent's conviction could not now be
used for any purpose in Michigan, whereas in California the conviction remains available for certain purposes. Thus even though both
expungement in California and granting of a new trial coupled with
dismissal of the action remove the record of conviction, cases involving
the California procedure are not necessarily controlling here. We
do not appear to have in respondent's case a technical expungement
which the Attorney General found ineffective for deportation purposes
in Matter of A—F—.
" Supra
23 7 1. & N. Dec. 670.

Matter of G—, Int. Dec. No. 1119 (1/17/61).

327

Interim Decision #129-I
The special inquiry officer refers to two decisions of this Board
which have considered the Michigan procedure, both involving nonnarcotic convictions, Matter of P— and Matter of r11-.27 In Matter
of H— we distinguished Matter of A—F— on the basis that the latter
is confined. to narcotic cam." Hatter of H— thus has limited precedent value for respondent's case, but does indicate the procedure of
granting a new trial may be effective in defeating deportation proceedings where Congress has not imposed, directly or indirectly, an over-

riding federal standard.
The special inquiry officer believes that it is immaterial whether the
court acted solely to enable respondent to avoid deportation, citing
Matter of P— and Matter of H—." He notes, however, the somewhat
contrary effect of a later decision in which the Attorney General
pointed out, in a nonnarcotic case, that the court granted eon= wobis
to correct a constitutional defect in the prior decision and not solely to
obtain an opportunity to recommend against deportation." The Attorney General upheld the validity of such recommendation at the
retrial as made at "the time of first imposing judgment or passing
sentence." 31
The Attorney General was not squarely confronted with the question
whether a court's action taken solely to enable a delayed recommendation against deportation is effective. In Matter of 8—, also a nonnarcotic case, we specifically answered that question." The court
vacated a conviction, accepted. a new plea and resentenced the defendant, recommending for the first time against deportation. The
court based its action solely on its previous unawareness that the defendant was subject to deportation, and its belief that this added
penalty would constitute "manifest injustice" under the New Jersey
statute authorizing its procedure. We held that under these circumstances the court's recommendation was ineffective and the second
conviction shill supported deportation.
Both of these decisions referred to U.S ex rel. Piperleoff v. Esperdy."
The Court of Appeals for the Second Circuit there found that the New
York court granted coranb nobis solely to repair an earlier omission
to recommend against deportation. The court concluded that section
241(b) of the Immigration and Nationality Act establishes a federal
standard for determining what constitutes the first entry of judgment
"3 I. & N. Dee. 187 and supra
"Matter of G—. supra".
" Supra 2' and ".
" Matter of P , Int. Dee. No. 1142 (5/24/61) •
—

" Section 241 (1)) of -the Immigration and Nationality Ac t.
a' int. Dee. No. 1206 (4/19/62).
"267 F.2d 72 (CA. 2, 1959).
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Interim Decision #1294
or passing of sentence, which the trial court's action did not meet-.
Reading Matter of A—F— in the light of these three recent cases
under section 241(b) V of the Immigration and Nationality Act presents
a strong argument that any judicial action to set aside a narcotic conviction solely for the purpose of enabling avoidance of deportation
would be ineffective. To hold otherwise might perniit a court to do
by indirection what it. could not do directly. The law is fax from clear

here on the federal question, however. Cases which concern the specific statutory provisions for judicial recommendations against deportation obviously differ from those, like respondent's, which. can be
brought within the statute only by implication. We have pointed out
some of the more important distinguishing factors in respondent's
case. A careful reading of the cases reveals additional ones.

The Supreme Court in Pino v. Landon rejected the view of the Court
of Appeals that a federal standard attaches to the term "convicted"
for the purposes of section 241(a) (4) of the Immigration. and Nationality Act 74
The Attorney General pointed out in Matter of G-- that the Massa.chusetts procedure considered in Pino v. Landon revoked the sentence
but did not disturb the finding of guilt, while the California procedure
which he considered in Matter of A—F—, and again in Matter of G—,
went further by setting aside the plea or finding of guilt. The Michigan procedure goes still further since the conviction is set aside for all
purposes so far as the State is concerned, whereas in California the
record of the prior conviction may be used for limited purposes.
In Giova v. Rosenberg the Court of Appeals for the 9th Circuit ruled
that it had no jurisdiction to review an order of this Board denying
a motion to reopen deportation proceedings. 35 The court stated that
it was tempted to discuss the merits of the case, but could not reach
the rationale behind Pino v. Nichols, page 248, or the effect of the
Attorney General's holding in Matter ofd—F--, or this Board's decisions in Matter of B— and Matter of G--, because the Court could not
give an advisory opinion." Such statement, however, indicates the
"349 U.S. 901 (10-55). The case involved the finality of a conviction under
unique procedure. Cf. Hernandez-Valensuela v. .Rosenberg, 304 F. 2d 639 (CA.
9, 1962).
"308 F. 2d 347 (C.A. 9, 1962).
"Natter of B—, 7 I. & N. Dec. 160 and Matter of G—, 5 I. & N. Dec. 129 concerned respectively an amnesty and extinction of a record of conviction under
Italian law. Pino v. Nichols, 215 F. 2d 237 (1954), reversed per curium sub
nom. Pino v. Landon,, supra", states at page 243 that the meaning of the word
"convicted" with respect to the deportability of aliens is a federal question to be
determined in the light of the policy behind section 241(a) (4) of the Immigration and Nationality Act.

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Interim Decision #1291
court's probable nonconcurrence with at least some of the reasoning
behind these holdings.
We are not at all sure that the Attorney General would extend his
ruling in Matter of A F to cover a situation like respondent's even
though her case also involves a narcotics violation. Thus it is questionable whether respondent's case falls within the ambit of Matter of
A — F— and Piperkoff, as the Service Representative urges, even if,
as he assumes, the Recorder's Court acted solely to defeat respondent's
deportation."
Moreover, we are unable to follow the Service Representative in
this assumption. Respondent's counsel has pointed out that considerations other than respondent's liability to deportation may have
—

—

moved the court and the prosecution. No reason is given for the portion of the order either granting a new trial or dismissing the case.

There is no indication that the trial court based its action even in part
upon respondent's motion. However desirable we might consider a
detailed record setting forth the reasons for the court's action, a judge

in Michigan does not appear to be under any compulsion to provide
one."
With due regard for the fast that there is a strong federal interest
here, and that the only evidence of the reasons for the court's action
points to the impact of the federal statute, we are unable to rule that
the Michigan court acted without sufficient authority. There is nothing to indicate that the court exceeded its authority under state law,
which bestows broad discretionary powers. It is not clear that there
is a federal standard applicable here which requires that conflicting
state action be disregarded. Insofar as these matters are in doubt
the doubts should be resolved in favor of the respondent."
We consider that there should be a clear indication that a particular
application of a trial court's authority is ineffective before we disregard
it. Our reasoning on this point is similar to that which we applied
in Matter of H— in disposing of the Service's contention that no
effect should be given to the second sentence of the court and consistent
with the position we have generally taken in this type of case." We
shall approve the decision of the special inquiry officer.
87 In Hatter of H—, supra", we distinguish Piperkoff from a situation involving a new trial. As we have noted, however, Matter of H— was not concerned
with a narcotics violation.
"Rule 47 of the Michigan Court rules calls for the Ming of a concise statement
of the judge's reasons for denying a motion for a new trial, but makes no such
Provision if the motion is granted. 24 Mich. S. B. J.47.
"Fong Haw Tan v.Phelan, 333 U.S.0 (1948).
Cf. Matter of G--, supra."

880

Interim Decision #1294

ORDER: It is ordered that the decision of the special inquiry
officer terminating the deportation proceedings be and hereby is
approved.
BEFORE THE CENTRAL OFFICE

THE IMMIGRATION AND NATURALIZATION SERVICE
MOVES THE BOARD OF IMMIGRATION APPEALS FOR
RECONSIDERATION of its order of -January 15, 1963, approving
the decision of the Special Inquiry Officer.
FACTS

Respondent is a native and national of Canada, a divorced female,
age 58. On October 15, 1959, in the Recorder's Court of the City . of
Detroit, Michigan, she plead guilty to unlawful use of narcotic drugs.
She was sentenced to two years imprisonment and placed on probation.
On November 20, 1961, the Board found her deportable under sec:tion 241(a) (11) by reason of this conviction, and ordered deportation.
On February 16, 1962, counsel for the respondent filed in the
Recorder's Court for the City of Detroit, Michigan, a "Motion for a
New Trial, Notice of Motion and Affidavit in Support of Motion."
The motion recited as the reasons for requesting a new trial that the
conviction was more far-reaching in its consequence than realized at
the time, inasmuch as it was not known that deportation proceedings
would be instigated based upon the conviction; that the court was
not informed of the deportation proceedings; that the court had never
had an opportunity to make a recommendation either for or against
the deportation of the defendant from the United States within the
thirty-day period following the sentence; and, that the defendant
and the court did not anticipate that the plea and conviction would be
as severe in effect in causing the defendant to be separated from • and
deprived of her family and home in this country.
The affidavit in support of the motion also cited as the sole reason
for the motion, that the deponent was being penalized in excess of the
original sentence contemplated by the court, in that a warrant for
deportation had issued requiring her deportation, and that if she had
known of the contemplated action by the Immigration Service she
would not have pleaded guilty and the court would have stated that
the sentence was not to be the basis of a deportation proceeding. A
certified copy of the order of the Recorder's Court states, "On the 19th
day of March 1962. Motion for new trial heard and granted on
motion of Assistant Prosecuting Attorney William Flanigan, the
court orders said cause be and the same hereby dismissed." Insofar
as shown by the record, this reflects the entire proceeding in the
Recorder's Court.
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Interim Decision *1294
Following rehearing and introduction of the above evidence in the
instant deportation case, the proceedings were terminated by the
Special Inquiry Officer on the ground that the action of the Recorder's
Court must be given full faith and credit, and the criminal conviction
no longer exists as a basis for deportation. The Board has sustained
this ruling.
DISCUSSION

It should be pointed out initially that the motion for new trial
erroneouly asserted a capability in the court to make a. recommendation
against deportation. Section 241(b) expressly is inapplicable in the
case of any alien charged with being deportable under subsection 241
(a) (11). This provision was added by section 301(c) of the Act of
July 18, 1950. It reflects the concern of the Congress over court decisions 1 holding that a pardon or judicial recommendation against

deportation relieved a narcotic offender of deportability. Since
July 18, 1956, this is not the case.
In this connection also, as noted by the Attorney General in Matter of A--F—, 8 I. & N. 429, 445, the history of section 241(a) (11) is
convincing that Congress did not intend that aliens convicted of narcotic violations should escape deportation.
Traffic in narcotics has been a continuing and serious federal concern. Congress has progressively strengthened the deportation laws dialing with aliens
involved in such traffic. Thus, . . . in 1940 the deportation statute was amended
to eliminate the requirement that in addition to a conviction there must be a
sentence. At the same time the statute was extended to convictions for violation of State as well as Federal statutes. And, since the 1956 amendment an
alien may no longer escape deportability by proffering a pardon.

Significantly, the Act of July 18, 1956, increased the severity of the
statute as to narcotic offenders by making the deportation provisions
applicable to those convicted for possessing narcotics as well as conspiracy to violate the narcotic laws.

There exists no provision for expungement under Michigan law, and
even if such provision did exist, under the ride in Matter of ArellanoFlores, 8 I. & N. 429 (262 F. 2d 667) such expungement would not
relieve of deportability. In this connection the Attorney General has
said :
In the face of this clear national policy, I do not believe that the term 'convicted' may be regarded as flexible enough to permit an alien to take advantage of
a technical 'expungement' which is the product of a state procedure wherein
the merits of the conviction and its validity have no place. I believe that Congress intended the inquiry to stop at the point at which it is ascertained that
there has been a conviction in the normal sense in which the term is used in
1 De Luca v. O'Rourke, 213 F. 2d 759, C.A. 8, 1954; Ex parte Robles-Rubio, 119
F. Stipp. 610 (N.D. Calif., 1954).

332

Interim Decision #1294
Federal law. . . . Of course, if the conviction is still subject to reversal by the
usual processes of appellate scrutiny, the statute is not satisfied. But beyond
this I do not think the inquiry can extend, consonant with the congressional
purpose and policy. . . . Moreover, to follow the Board's view would maim the

deportability of the alien depend upon the vagaries of state law. . . ." (Id: at
446)

As noted in the oral argument before the Board, and commented
on in the decision of January 15, 1963, no Michigan authority has been
specified as authorizing the procedure in this case, after a conviction
and after the sentence had been served. While the moving papers
are designated "Motion for a New Trial" the record of the proceedings in the Recorder's Court do not establish that there was in fact a
new plea or trial. The order reflects only that the motion for new trial
was heard and granted, and that on motion of the proneouting attorney

the cause was dismissed. On the present record there was no rehearing on the merits nor does it appear that the alien was even present.
However, assuming arguendo that the procedure before the Recorder's Court was in the nature of a corm nobis proceeding, and that there
was in effect something in the nature of a new trial or proceeding,
nevertheless it would be without force and effect as to this proceeding
if the sole basis for vacating the judgment was to defeat a Federal
mandate as to deportability. Piperkoff v. Esperdy, C.A. 2, 267 F.
.2d. 72.2 Here, the moving papers in the Recorder's Court recited one
cause, and one cause only, for the action, namely, to relieve of deportability. Despite the fact that this was specifically made an. issue in
the course of oral argument before the Board, counsel alleged no other
or different ground for the.action taken, nor does the record leave any
serious room for speculation: 3
The decision has chosen to treat the Recorder's Court proceeding as
the granting of a new trial and the entry of a none prosegui by the
prosecutor. • As noted above, there is a serious question as to the validity or propriety of this action under the Michigan law, or of the
jurisdiction of the court to take the action, particularly in connection
with the issue of a punishment lawfully imposed by the court but
substantially beyond the defendant's expectation (dec. p. 8, and cases
cited). If the court acted beyond its jurisdiction, then clearly its
Of. Matter of Pleat, Int. Dec. No. 1142. where in addition to seeking the
writ because the conviction could result in deportation, the respondent also
indicated an abuse of due process in that be had not been represented by counsel
and did not understand the charges against him at the time of first conviction—
and where the Attorney General ruled the action of the court in setting aside
the conviction must be recognized since it might have rested on some basis other
than relieving deportability.
The Board so found on almost identical facts in Matter of
Int. Dee. No_
1206 and Matter of II—, Int. Dec. No. 1170.

333

Interim Decision #1294
action need not be given full faith and credit. (Matter of
Dec. No. 1170.)
However; again assuming the action valid in the State of Michigan
as a noZle prosequi, and completely effective within that state as wiping
out the conviction, nevertheless it cannot wipe out the conviction for
immigration purposes if a state judicial process was resorted to solely

to relieve of deportability under the Federal statute. It is to be noted
that in Piperkoff, supra, the court assumed for purposes of the case
that under the law of New York it was proper for the court to vacate
the earlier judgment as it did. That did not affect the outcome of
the deportation proceedings.
A similar question.. was presented in Matter of S—, Int. Dec. No.

1206. There a county court acted under a New Jersey statute reading,
". . . to correct manifest injustice, the court, after sentence, may set
aside the judgment of conviction and prevent the defendant to withdraw his plea." The court permitted the vacating and setting aside of
the plea of guilty and sentence, for a conviction forming the basis of
the deportation proceeding.
The Board pointed out:
The difficulty arises not with the jurisdiction of the state court to grant the
motion to vacate but the attempt of the state court to invade an area to which
Congress has seen fit to erect or impose a federal standard. . . . The "manifest
injustice" referred to . . . was . . . the specifically stated reason that the court
was not aware (at the time of first sentencing) that the defendant was subject
to deportation as an alien, did not consider that the defendant was faced with
additional penalty of deportation and that it would be manifestly unjust to subject the defendant to the additional penalty. ...
Pointing to Matter of Plata, Int. Dee. No. 1142, supra, the Board then
held that the recommendation against deportation made at the time
of re-sentencing, was not effective to relieve of deportability within
the federal mandate set forth in section 241(b) of the Immigration
and Nationality Act, since the vacating of the first judgment was
solely to defeat the congressional mandate.
The analogy is obvious. No basis exists for applying a more ameliorative rule to a narcotics conviction than to the ordinary criminal
conviction. On the contrary, no deportation provision in the Act evidences a clearer restrictive congressional intent than section 241(a)
(11).4 The successive amendments of the narcotics provisions of the •
statute to make them more stringent, reflect the constant and increasing concern of the Congress in this area. In barring narcotic offenders
from section 241(b) relief the Congress has said firmly and unequivocally that an alien in the category of this alien, shall be deported.
The purpose and intent of the statute, and the desire of the Congress,
4

H. Rep. 2546, 84th Congress, 2nd Session.
334

Interim Decision #1294
cannot be frustrated by an action of a state court aimed purely and
solely at defeating federal mandate.
It is no solution to say that the Congress in the statute barred pardons or judicial recommendations, but did not deal with the area of
new trials or a possible nolle prosegul. The Congress obviously could
not foresee every device to which resort might be had, to avoid the
effect of the statute. By the same token a state court proceeding

attacking the prior conviction on valid grounds having nothing to do
with immigration, or only incidental thereto, obviously must be given
full faith and credit. But this is not the situation where the overriding national interest has been expressed in. a federal statute and the
action of the state court is for the sole purpose of defeating that federal statute.
In summary, by express language of the statute, a pardon would
not be effective to defeat deportation. Similarly, a recommendation
against deportation by the sentencing court would have no effect.
Under Arellarao-Flores, supra, expurgement under lawful state process would be without effect. Under Piperko/f a new trial granted
solely for the purpose of relieving of deportability under section
241(a) (4) by vacating judgment and imposing a new sentence would
be without effect. No logical basis for distinction as to .a narcotic
conviction presents itself. Under Matter of B—, Int. Dec. No. 1206,
a setting aside of conviction under lawful state process, if done for
the sole purpose of defeating deportation, even as to a nonnarcotic
offender, would be without effect. Again, no basis for distinction as
to the narcotic offender exists in view of the firmly expressed intent
,

of the Congress that the narcotic offender be treated even more stringently than the ordinary criminal. In the light of these rulings and

even assuming the state court to have jurisdiction to take the action
it did, the one additional step required here occasions no difficulty.
It is submitted that where motion for new trial is granted after conviction and sentence, and the case then nolle prossed, that action also
would have no effect on the deportation proceedings if done solely to
defeat these deportation proceedings.
Motion is made that the Board reconsider and withdraw its order
of January 15, 1963, approving the decision of the Special Inquiry
Officer, and that the alien be found deportable as charged.
BEFORE THE BOARD

The Service moves for reconsideration of our order of January 15,
1963, which affirmed the special inquiry officer's order that the deportation proceedings be terminated. We adhere to our previous decision.
The Service motion, as well as our decision of January 15, 1963, sets
forth the facts. We shall not restate them.
335

Interim Decision #1294
L Did the trial judge act solely to remove deportability?

The Service continues to assume that the trial judge in granting
respondent's motion for a new trial (and probably also in granting
the prosecuting attorney's motion for dismissal) acted solely to defeat
respondent's deportation. Since the Service has submitted no evidence which shows clearly the basis for the judge's action, this assumption is essential to its argument.
As we pointed out in our prior decision, even though respondent's
motion for a new trial appears to be directed only against the deportation proceedings, we cannot assume, with the Service, that the court
acted solely to enable respondent to avoid deportation. There is no
inescapable inference that the court considered only what appears in
respondent's motion. Thus the Service has failed to meet its burden
of proof at the initial point in its contentions. The motion, as well as
the case against respondent, really fails here. Moreover, the Service
motion, in essence, merely reasserts the argument which the Service
has previously made in the case? On either basis we might summarily
deny the motion. We go on to answer the Service's objections, however, because of the importance of the issues here.
IL If the trial judge so acted, does a federal standard control?

We acknowledged in our prior decision that, assuming the trial judge
acted solely to defeat deportation; the Service's argument that a federal
standard prevails here has a certain force. We still found that argument insufficient as a basis for respondent's deportation. The argument has gained no additional force in its restatement. In fact it has
suffered. Subsequent to its formulation, the Court of Appeals for the
Third Circuit overruled one of our decisions on which the Service
relies.
The law does not establish that an overall federal standard would

nullify the trial court's action here if that action were taken solely to
defeat deportation. Of course there is a limited "federal standard" in
deportation eases which rest upon convictions in state courts. The
Court of Appeals for the Second Circuit has so recognized for an
application of section 241(b) of the Immigration and Nationality
Act in U.S. ex. rel. Piperkof v. .1' spertly. 2 The Attorney General so
1 The Service cites only two judicial decisions which we did not consider in our
prior decision. Those decisions form part of the background for the amendment
to section 241(b), Immigration and Nationality Act. Respondent's case does
not specifically concern section 241 (b), however. That section is useful here only
for discussion purposes—to point out limitations and distinctions—especially in
considering whether the amendment thereto aids in creating a controlling federal
standard here.
'267 F.2d 72 (C.A. 2, 1959). cited by the Service.

336

Interim Decision #1294
recognized for certain narcotic cases in Matter of Arellano-Flores.s
We see no grounds for extending the standard found by the Attorney
General to the situation presented by respondent's case.
We have at least twice rejected quite similar arguments, vigorously
advanced by the Service, advocating holding ineffective a state court's
action which otherwise would relieve of deportability.4
Tho concluding reasoning urged by the Service motion suggests

that under Arellano-Flores expungement under lawful state process
would be without effect, that under Piperkof a new trial granted solely
for the purpose of relieving of deportability under section 241 (a) (4)
by vacating judgment and imposing a new sentence would be without effect, and that under Matter of S— a setting aside of the conviction under lawful state process, if done for the sole purpose of
defeating deportation, would be without effects The Service then

suggests that the one additional step required here occasions no difficulty—granting of a motion for new trial after conviction and sentence, with the case then gaol& prossed, also should have no effect on
deportation proceedings if done solely to defeat. those proceedings.
Unfortunately for the foregoing reasoning, the grounds set forth
in our decision in Matter of B— have been judicially overruled .° Thus
the Service's argument breaks down at a crucial point. Even before
s8
4

of

I. & N. Dec. 429.
Matter of G--, Int. Dec. No. 1119, 'approved by the Attorney General ; Matter
int. Dec. No. 1159.

° Matter of Arellano-nores, supra° ; GS. em. rel. Piperkoff v. Esperdy, supra ';
Matter of S—, Int. Dec. No. 1206.
The Service notes Arent:no -Floras v. Hop, 202 F. 2d 667 (C.A. 2, 1058) cert.

den. 362 U.S. 921, as a parallel citation for Matter of Areflano-Plores. That case,
however, occurred prior to the expungement of conviction which led to the Attorney General's decision in Arellano-Flores. The Attorney General's opinion in

, supra' demonstrated the inapplicability of Arollano Florae v.
Hoy to his decision in Matter of Arertano-Ploree. Our order of January 15, 1963
gives the subsequent judicial history of the Areilano-Flores case. We noted also
in our prior decision that in Giov a v. Rosenberg, 308 F. 2d 347 (CA. 9, 1962) the
court indicates that it questions the soundness of Matter of Areliano-Plores.
The Service refers to Matter of H—, Int. Dec. No. '1170, along with Matter
of
as an instance in which we have found that the court acted to defeat
we did mention that it was difficult to conclude
deportation. In Matter of
Matter of 0.

—

from the record that the conviction was not vacated because it made the respondent liable to deportation. Our decision, however, turned upon our conclusion that the justice court did not have authority under its own state law to
vacate the judgment of conviction. Moreover, although we reversed the special
inquiry officer, we approved his opinion that there was no controlling federal

standard and that Piperkoff was inapplicable.

° Bawkaw v. Immigration and Naturalization Service, 814 F. 2d 34 (CA. 3,
1963). This case is a further indication that the principle in Piperkoff has restricted application.

337
7GS-150-65-23

Interim Decision #1294
the 'Court of Appeals reversed Matter of S—, however, we were unwilling to take the step from our reasoning in that case to a similar
action in respondent's case. Our order of January 15, 1963 distinguished Piperkof and Matter of 8—, as well as Matter of AreIlano-

Flores.
The Service says Piperleoff and Matter of S— should not be distinguished on the grounds that they concerned nonnarcatic offenses.
In those cases, however, the claims of nondeportability were based
upon judicial recommendations against deportation. In view of the
amendment of section 241(b) that issue cannot be present in a narcotics case.' The Service thus tries to reason analogously from situations which could not themselves be reproduced in a case like that of
respondent. We think the gap between the cases is too great to be
bridged by analogy, although the Service, in its preoccupation with
Congress' restrictive measures against alien narcotics offenders, bridges
it easily.
The Service in effect says judicial and administrative decisions have

disregarded certain procedures of the courts whose sole purpose was
to enable a recommendation against deportation. Congress has made
the deportation provisions for narcotics violators more stringent than
for other criminal aliens. Therefore in amending section 241(b) of
the Act to make it inapplicable to persons deportable under section 241
(a) (11), Congress intended any judicial process, even though otherwise a valid exercise of the court's authority, to be without effect, if
designed solely to prevent deportation of an alien convicted of a
narcotics violation.
This conclusion does not necessarily follow, however. It overlooks

the effect of any judicial authority in areas which Congress has not
specifically restricted. It also fails to appreciate that a federal standard for the term "conviction" in deportation cases has been found
only to a very limited extents
Our prior decision pointed out that Congress has limited to pardons
and judicial recommendations against deportation its prohibition
against measures preventing deportation of alien narcotics violators.
7 The motion notes in its opening discussion that section 241(b) is inapplicable
here.
9 Discussing the Government's contention that, if a judgment of conviction is
vacated for the purpose of avoiding deportation, a subsequent recommendation
against deporation is ineffective, the court in Swam says, "This argument
misses the mark, for no contention is made that the state court either exceeded
its jurisdiction or abused its discretion in vacating the plea of non suit together
with the judgment of conviction, and subsequently dismissing the indictment.
Thus, the action of the state court is concededly valid. That being so, the
original judgment is as much a nullity as if the grand jury had never returned
an indictment." Supra e at 37.

338

Interim Decision #1294
The Service says this approach is no help. We quite agree. The
statute does not give any specific aid here. The statutory language
should not be readily extended, however. We cannot assume that
Congress intended that any procedure lying ordinarily within the
power of the courts, which a court deems warranted in a particular
case, should be nullified if the court's action obstructs the deportation
provisions of the statute and is designed solely for that purpose.

Statutory deportation provisions should 'be construed strictly against
the Government. Moreover, a court has reversed an attempt by us to
disregard judicial action in a case squarely within section 241(b)
.9

III. Did the trial judge exceed his authority under the state law?
Tn addition to arguing that there is a. controlling federal standard

here, the Service again questions the authority of the trial court to
grant a new trial and then to dismiss the proceedings 011 the prosecuting attorney's motion. The motion states that no Michigan authority has been specified as authorizing the procedure in this case, after a
conviction and after the sentence had been served. It notes that we
commented in our order of January 15, 1963 on this fact, which the
Service had brought out at oral argument.

We think the Service's failure to specify any authority which indicates the court exceeded its jurisdiction is more significant. We made
a diligent search of Michigan authorities and discovered no indication
that the trial judge lacked authority either to grant the motion for new
trial or, on motion of the prosecuting attorney, to dismiss the proceedings without holding a new trial. In fact our review of Michigan law
indicates that the trial judge here probably acted within his authority.1° In any event, the court's action may not be held ineffective
Saivism v. Immigration and Naturalization Service, supra"

'Compare People v. Barrows, 358 Mich. 267,

99 N.W. 2d 347 (1959). The
Supreme Court of Michigan reversed an order denying a new trial. The appellant had been originally sentenced on a plea of guilty to three years' probation.
Before the probationary period expired appellant was convicted of another
offense in New York. (The terms of the Michigan probation provided for
appellant to leave Michigan and to reside with his father in New York.) Almost
ten years thereafter appellant moved for a new trial in the Michigan proceeding
with leave to withdraw his plea of guilty. Appellant was then still serving
his New York sentence. Although pointing out that Michigan courts do not look
with favor upon long-delayed motions for new trials, the court said that under
Michigan law there is no final time limitation upon the power of the trial court
to grant a motion for new trial—such motions being within the inherent power
of the court where leave to file the motion is first obtained. The court cited
People v. Hurizielt, 259 Mich. 361, 243 N.W. 230 (1932), which we cited in our
order of January 15, 1963, and People v. Burnstein, 261 Mich. 534, 246 N.W. 217
(1933).

339

Interim Decision #1294
merely because its authority to so act might be questionable. Lack of
jurisdiction must be affirmatively shown. Therefore, the motion also
fails because of the Service's failure to show that the trial court ea-seeded its authority.
nr.
The further consideration which we have given to this matter in
'response to the Service motion for reconsideration leads us to deny
that motion insofar as it seeks reversal of our order of January 15, 1963
and entry of un order of deportation.
ORDER: It is ordered that the motion for reconsideration and
withdrawal of our order of January 15, 1963, which approved the
decision of the special inquiry officer terminating these proceedings,
and for entry of an order of deportation be and hereby is denied.

It is further ordered that these proceedings be terminated in accordance with the order of the special inquiry officer, dated July 9, 1962,
approved by our order of January 15, 1963.

340


Interim Decision #2684

MATTER OF GARCIA
In Deportation Proceedings
A-20066063
Decided by Board December 27, 1978
(1) Rule that reopening of proceedings will be denied absent a prima facie showing that the
statutory requirements for relief have been met must be reexamined as to adjustment
of status in view of the amendment of 8 C.F.R. 245.2(a)(2) permitting an adjustment
application, filed with a visa petition, to be retained if later approval of the petition
would make a visa available at time of filing.
(2)8 C.F.R. 245.2(a)(2), permitting simultaneous filing of an application for adjustment of
status and a visa petition, applies both before andafter the issuance of an Order to Show
Cause.
(3) Service policy permits a prima facie qualified beneficiary of a visa petition to remain in
the United States pending final adjudication of the petition and an adjustment application.
(4) Unless clear ineligibility is apparent in the record, the Board shall generally grant
motions to reopen in cases involving an application for adjustment of status filed
simultaneously with a visa petition pursuant to 8 C.F.R. 245.2(a)(2), notwithstanding
the fact that the petition has not yet been adjudicated.
(5) An immigration judge may, in his discretion, grant a motion to reopen or a request for
a continuance of a deportation hearing pending final adjudication of a visa petition filed
simultaneously with an adjustment application under 8 C.F.R. 245.2(a)(2) where a
prima facie approvable visa petition and adjustment application have been submitted to
him. Matter of Kotte, Interim Decision 2634 (BIA 1978) clarified.
CHARGE:

0 rder. Act of 1952 —Section 241(a)(2) [8 U.S.G. 1251(a)(2)1 —Nonimmigrant —remained
longer than permitted
ON BEHALF OF RESPONDENT:

Claude Henry Kleefield, Esquire
Suite 1408 -1414

1860 Broadway
New York, Nov York 10023
BY: ➢ ilhollan, Chairman, Maniatis, Appleman, Maguire, and Farb, Board Members

In a decision dated June 6, 1978, the Board dismissed an appeal from
found three
respondents deportable as overstays pursuant to section 241(a)(2) of the
Immigration and Nationality Act, 8 U.S.C. 1251(a)(2), denied their
the October 17, 1977, decision of an immigration judge wilieh

653

Interim. Decision #2684
applications for suspension of deportation pursuant to section 244(a)(1)
of the Act, 8 U.S.C. 1254(a)(1), but granted them the privilege of
voluntary departure in lieu of deportation. The male respondent, who
will hereafter be referred to as the respondent, now moves to reopen
the deportation proceedings to permit him to apply for adjustment of

status pursuant to section 245 of the Act, 8 U.S.C. 1255. The motion will
be granted.
In order to qualify for adjustment of status under section 245, as
amended,' an alien must apply for adjustment, establish that he is
eligible to receive an immigrant visa and is admissible to the United
States for permanent residence, and that an immigrant visa is immediately available to him at the time his application is filed. We have
held that absent a prima facie showing that the statutory requirements
for the relief sought have been met, reopening of the proceedings is
generally inappropriate. See Muter of Lanz, 14 I. & N. Dec. 98 (BIA
1972); Matter of Sipus, 14 I. & N. Dec. 229 (BIA 1972).
The respondent's motion to reopen for consideration of his application
for adjustment of status 2 is predicated upon a visa petition filed by his
United States citizen spouse to accord him immediate relative status
under section 201(b) of the Ad, 8 U.S.C. 1151(b). The visa petition,
which was filed simultaneously with the respondent's adjustment application pursuant to amended regulation 8 C.F.R. 245.2(b)(2), has not yet
been approved and the respondent consequently cannot at present establish immediate visa availability, a statutory prerequisite to a grant of
section 245 relief.
We have examined our policy with respect to the disposition of motions to reopen for consideration of adjustment applications based upon
as yet unadjudicated visa petitions in light of the present regulation
permitting simultaneous filing. In order to give what we consider to be
appropriate effect to the simultaneous filing provisions of 8 C.F.Xi.
245.2(a)(2), as amended, we shall hereafter generally reopen the deportation proceedings in such cases unless clear ineligibility is apparent in
the record.
The 1976 Amendments to the Act amended section 245 to designate
the date the adjustment application is filed, rather than the date it is
approved, as the date to be used in determining whether a visa is
immediately available. Concomitant with the effective date of tine
amendment to the statute, the Service amended its regulation 8 C.F.R.
245.2(a)(2) to allow an adjustment application filed simultaneously with
a. visa petition to be retained for processing provided that the
-

1 1976 Amendments to the Immigration and Nationality Act, Pub. L. 94-571, 90 Slat.
2703 (effective January 1, 1977).
2 Under 8 C. F.R. 242.22, the filing of an application for adjustment of status may 1e
considered a motion to reopen.

654

Interim Decision #2684
subsequent approval of the petition would make a visa immediately
available at the time the adjustment application is filed. The amended
regulation provides in pertinent part:
(2) Filing application. Before an application for adjustrnp.nt of status tinder section 245
of the Act may be considered properly filed, a visa must be immediately available. If a
visa would be immediately available only upon approval of a visa petition, the application will not be considered properly filed unless such petition has first been approved. If
a visa petition is submitted simultaneously with the adjustment application, the adjustment application shall be retained for processing an ly if approval of the petition

when reached for adjudication would make a visa immediately available at the time of
filing of the adjustment application. If such petition is subsequently approved, the date
of filing the adjustment application shall be deemed the date which the accompanying
petition was filed. (Emphasis supplied.)

In order for an alien's adjustment application to be accepted for
processing under the simultaneous filing provisions of 8 C.F.R.
245.2(a)(2), he must establish, inter alia, that a visa would be immediately avilable to him at the time of filing but for the tact that his
visa petition has not yet been approved. By deeming the filing date of
the adjustment application to be the date the accompanying petition is
filed, the amended regulation insures that the beneficiary of a prima
facie approvable visa petition, who is subsequently found to have been
fully qualified in fact for adjustment of status at the time of simultaneous filing, will not luse Lis eligibility by virtue of the fact that visa
numbers may no longer be available to him by the time his petition is
approved and his adjustment application may accordingly be considered
properly filed. Thus, the regulation allows an otherwise qualified applicant to preserve immediate visa availability and, hence, eligiblity for
adjustment of status throughout the often protracted period of administrative processing. It is evident that the benefit bestowed by the regulation would be illusory were such alien to become or remain subject to
the execution of an order of deportation during the processing period.
It has been suggested that the simultaneous filing provisions of 8
C.F.R. 245.2(a)(2) were designed to apply only where the visa petition
and adjustment application are submitted to the District Director prior
to the institution of deportation proceedings. We find that neither the
language of the regulation itself nor policy considerations support an
interpretation which would render the regulation nugatory after an
Order to Show Cause has been issued and we decline to adopt such a
restrictive interpretation. Such interpretation, moreover, appears to
have been rejected by the Service as a matter of policy.
Subsequent to the effective date of the amendments to the statute and
the regulations, the Service adopted a policy of refraining from either
deporting or instituting proceedings against the beneficiary of a prima
facie approvable visa petition if approval of the petition would make the
beneficiary immediately eligible for adjustment of status. Immigration
655

Interim Decision #2684
and Naturalization Service Operations Instructions 242.1(a)(25) and
245.1(a). 3 The normal procedure, then; where such petition and adjustment application have been accepted for processing by the District
Director prior to the issuance of an Order to Show Cause, is to hold the
adjustment application in abeyance pending final adjudication of the visa

petition. By virtue of Operations Instruction 242.1(a)(25), an Order to
Show Cause will not ordinarily be issued in the meantime.
The Instruction is not, however, limited to cases in which the visa
petition and adjustment application are submitted to the District Director prior to the institution of deportation proceedings but, rather, proscribes as well the deportation of a beneficiary of an unadjuclicated visa
petition who has made a colorable showing of eligibility for adjustment
of status on the basis of his claimed preference status. Thus, it is clear
from the express language of Operations Instruction 242.1(a)(25) that its
underlying policy of allowing a prima facie qualified beneficiary of a visa
petition to remain in the United States pending final adjudication of the
petition and adjustment application was intended to apply to an alien
who, although indisputably deportable, can demonstrate a substantial
claim to relief from deportation under section 245 of the Act.
In Matter of Kotte, Interim Decision 2634 (BIA 1978), a case which
dealt with the same issue in a different procedural context, we held that
notwithotandimg the foregoing changes in the statute and the regulations, an alien does not have an absolute right to an adjournment of a

deportation hearing until such time as the visa petition upon which his
adjustment application is predicated has been adjudicated. Implicit in
our holding, however, is the corollary proposition that an immigration
judge may, in his discretion, grant a continuance or reopen a deportation hearing p ending final adjudication of the petition. For the reasons
that led us to our conclusion that a motion to reopen for consideration of
Operations Instruction 242.1(a) states:
(25) See 01 245.1(a) before issuing an order to show cause against an alien who may be
eligible to apply for adjustment of status.
Pending final adjudication of a petition which has been filed, the district director will not
deport, or institute proceedings against, the beneficiary of the petition if approval of the
petition would make the beneficiary immediately eligible for adjustment of status under
section 245 of the Act or for voluntary departure under the Service policy set forth in
Operations Instruction 242.10(a)(6)(i). The district director may, however, seek to
deport or institute proceedings against the beneficiary when it is determined that the
petition is frivolous or there are substantial adverse factors which, based on the district
director's opinion, would probably lead to the denial of adjustment of status or extended
voluntary departure in the exercise of discretion.
Operations Instruction 245.1(a) provides in pertinent part:
An otherwise eligible alien who is unlawfully in the United States and who has riot
heretofore filed a section 245 application shall normally be afforded an opportunity to Ole
3

such an application prior to the institution of deportation proceedings.

656

Interim Decision #2684
an adjustment application should not be denied solely because the accompanying visa petition has not yet been approved, we believe that
discretion should, as a general rule, be favorably exercised where a
prima facie approvable visa petition and adjustment application have
been submitted in the course of a deportation hearing or upon a motion
to reopen. To the extent that our decision in Matter of Kotte, supra, may
have been misinterpreted to require a contrary disposition in such
cases, Kotte is herewith clarified.
We do not intend, by our holding, to establish an inflexible rule

requiring the immigration judge in all cases to continue the deportation
proceedings at the initial hearing or on remand or, in another procedural
context, to reopen the proceedings pending final adjudication by the
District Director of the visa petition. It dearly would not be an abuse of
discretion for the immigration judge to summarily deny a request for a
continuance or a motion to reopen upon his determination that the visa
petition is frivolous or that the adjustment application would be denied
on statutory grounds or in the exercise of discretion notwithstanding
the approval of the petition. We are satisfied that the breadth of the
immigration judge's discretion, together with continuing efforts by the

Service to expedite the processing of visa petitions submitted simultaneously with applications for adjustment of status,' should serve to
alleviate concerns that the policy announced herein will result in unduly
delaying the entry of final orders of deportation in unmeritorious cases.
In the present case, the respondent simultaneously submitted the
visa petition and adjustment application as authorized by 8 C.F.R.
245_2(a)(2). However, the visa petition and supporting documents,
rather than having been retained for adjudication by the Service office
having jurisdiction over the case, were included in the record file forwarded to the Board for consideration of the respondent's motion to
reopen. Approval of the visa petition is not possible so long as the
petition is before the Board and no apparent attempt was made by the
District Director to adjudicate the petition prior to its transmittal to us. 3
The evidence submitted in support of the visa petition makes out a
colorable showing that the respondent qualifies for immediate relative
' A recent development in this regard was the introduction by the Service of a

consolidated, simplified form to replace Forms 1-130 and 1-485, the relative petition and
adjustment of status forms, in cases involving simultaneous filings under 8 C.F.R.
245.2(a)(2). The Service has also announced its intention of similarly combining the
1-140 petition with the 1-485 in the near future. See the Service's Commissioner's
Communique dated March 6, 1978.
In the interest of expediting administrative processing in such cases, it would seem
to be a better practice for the Service office to retain the original visa petition and
supporting documents for adjudication, noting in the record file that the petition has
been submitted, and to forward the remaining portion of the record file to the Board for
consideration of the motion.

657

Interim Decision #2684
status as the spouse of a United States citizen and, hence, that an
immigrant visa will be immediately available to him on the basis of such
status when the visa petition filed on his behalf is reached for adjudications There is no indication in the record that he is otherwise ineligible
for a grant of section 245 relief. Accordingly, without reaching any
conclusion as to the Ultimate merits of the visa . petition filed on the
respondent's behalf or of his application for adjustment of status, we

shall grant the motion and remand the record to the immigration judge
for further, proceedings consistent with the foregoing opinion.

ORDER: The motion is granted. The proceedings as to the moving
respondent are reopened and the record is remanded to the immigration
judge for further proceedings consistent with the foregoing opinion.
FURTHER ORDER: If discretionary relief should be granted by the
immigration judge, the outstanding order of deportation shall be withdrawn.

4 The respondent's spouse submitted a certified translation of her birth certificate
evidencing her United States citizenship and a certified copy of her certificate of
marriage to the respondent. The visa petition recites that neither the respondent rlor
his wife had ever entered into a prior marriage. Thus, it appears that the documentary
requirements of 8 C.P.R. 204.2 have been fully satisfied.

658


MATTER OF S—

Application for Certificate of Citizenship
A-11171850
Decided by Regional Commissioner March 10, 1960
Approved by Aociogarce Oor.Oni.7000rt.cr Marco 54, 1000

Expatriation—Act of March 2, 1907—Wartime oath of allegiance effective upon
termination of hostilities when confirmed by subsequent acts.
Dual United States and British national at birth who took oath of allegiance
to British Crown M 1917 upon enlistment In Canadian Army at age 22, which
oath was effectively confirmed after the wartime period by repeated acts
consistent only with relinquishment of United States nationality, is held
pursuant to section 2 of the Act of March 2, 1907 to have lost United States
nationality as of the date of termination of hostilities, July 2, 1921, Hence,
his child born abroad In 1924 did not acquire United States citizenship at
birth under R.S. 1993,

BEFORE THE REGIONAL -COMMISSIONER

Discussion: This case is on appeal from the decision of the District Director, St. Paul, Minnesota, of October 6, 1959, denying the
application of D—M-----S— for a certificate of citizenship.
Applicant claims that she acquired United States citizenship under section 1993, R.S., at birth in Canada on June 28, 1924, through
her father, F W K , who was then a citizen of the United
States through birth therein. The issue involved is the citizenship
of the father at the time of applicant's birth.
The father was born in the United States on February 9, 1895,
of British national parents. In 1910 he moved to Canada with his
parents and remained in that country except for temporary visits to
the United States to attend school from October to May in 1916
and 1917. He applied in Canada for a homestead on March 10,
1913, and was issued letters patent thereon on August 4, 1916, after
reaching his majority. In his sworn statement dated April 18, 1916,
in support of this application for the letters patent, the father gave
his age as twenty-one years and stated that he was a British subject
by birth. He did not take an oath of allegiance either in connection with the application for or the issuance of letters patent. On
September 7, 1917, at Winnipeg, Canada, he enlisted in the Canadian Army and took the then required oath of allegiance to the
604

British Crown, serving until his discharge on July 30, 1919. The
oath taken by him in 1917 provided as follows:
, do make Oath, that I will be faithful and bear true
Allegiance to

His

lklajeety King Ceorgc the 11:5 licira and But,mmrts,

and that I will as in duty ballad honestly and faithfully defend His Majesty,
His Heirs and Successors, in Person, Crown and Dignity, against all enemies,
and will observe and obey all orders of His Majesty, His Heirs and Successors, and of all the Generals and Officers set over me. So help me God.

The father had become a United States citizen by birth in this
country (Fourteenth Amendment to the United States Constitution).
Being the son of British national parents, he also acquired British
nationality at birth (the Act of 7 Anne, c. 5). See also, Hackworth,
Digest of International Law, vol. III, page 360 (1942).
Section 2, A of of March 2, 1907 (14 Stat. 1225), provided in pertinent part:
That any American citizen shall be deemed to have expatriated himself
when he has been naturalized in any foreign state in conformity with its laws,
or when he has taken an oath of allegiance to any foreign state.
" And provided also, That no American citizen shall be allowed to expatriate himself when this country is at war.

The applicant's father, after reaching his twenty-first birthday,
took an unqualified oath of allegiance to the Brtish Crown on three
separate occasions. The first on September 7, 1917, was the only one
taken prior to applicant's birth and at a period during which this
country was at war. He took that oath, which was an unqualified
one, to enlist in the Canadian Expeditionary Force.
The fact that the father was a dual national does not diminish
the expatriating effect of an oath since the performance of the expatriating act results in loss of United States nationality. It has
been held that the taking of an oath of allegiance to the British
Crown by a dual national of the United States and Canada in connection with enlistment in the Canadian Army effects expatriation
under the provisions of the Act of March 2, 1907 (Matter of
5 1, & N. Dec. 678 (1954); as to the expatriative effect of an oath,
see also, Hackworth, Digest of International Law, vol. III, §244
(1942)). The court in Reaunbe v. United States, 124 F. Supp. 851
(1954), held that a dual national of this country and Canada would
lose United States citizenship by taking such an oath when entering
Canadian military service. This same means of expatriation was
clearly recognized by the case of Handal. v. Aehoson, 144 U S_ 133
(1952), as pointed out by the dissenting opinion, although in that
case the majority had accepted the Government's position that the
oath taken was involuntary. Kawakita v. United States, 343 U.S.
717 (1952), also acknowledged that an oath of allegiance taken by
a dual national would expatriate.
To the extent that Jalbisena v. Dulles, 254 F.2d 379 (1958), may
605

give some indication of a contrary view, the Service is not in accord
with it. The taking of an unqualified oath of allegiance to a foreign
state in the present ease Was not a bare assertion of a right or the
acceptance of a benefit of nationality. It was an overt and solemn

acceptance, binding in conscience, of an obligation to a state to which
prior thereto allegiance was owing as an accident of birth. As such
it was an expatriating act under section 2, supra, and the only remaining question is the extent to which the proviso to that section
affected its consequences.
The oath of allegiance on September 7, 1917, was taken during
wartime. Under the proviso to section 2, Act of March 2, 1907,
expatriation could not occur during wartime which extended from
Aril
• 0, 1917, to July 2, 1921. Had the father done nothing thereafter to indicate a continued allegiance to Canada, he would not

have lost his United States citizenship as a result of taking the 1917
oath (Matter of C , 2 I. & N. Dec. 263 (1946) ; 39 Op. Atty. Gen.
474 (1940)). However, an oath taken during minority may have
expatriating effect if confirmed during majority by clear and unequivocal acts, denoting a continued allegiance to the foreign state
and an intention to relinquish United States citizenship (Di Girolame v. Acheson, 101 F. Supp. 380 (1951)). An oath taken during
the period of World War I may be similarly confirmed with like
effect upon the termination of the conflict (39 Up. Atty. Gen. 414,
481 (1940) ).
If acts are performed confirming an expatriating oath, it is necessary to determine the effective date of the nationality loss. In a
case involving the involuntary acquisition of a foreign nationality,
it has been held that the act manifesting acceptance of the foreign
nationality, involuntarily argnirpri, related hack to the date of acquisition of foreign nationality (Matter of V—, 3I. & N. Dec. 671
(1949) ; Matter of M , 6 I. & N. Dec. 70 (1953) ). In a case
involving election of United States nationality, it was also held that
the act of election related back (Matter of G , 1 I. & N. Dec. 329
(1942)).
In the instant case, therefore, if acts are shown confirmatory of
the wartime oath of allegiance, expatriation would have been effective as of July 2, 1921, the date of termination of the war period.
The evidence presented in this case establishes that on July 8, 1924,
the father applied for a soldier grant of land which was 1,,,,Lied to
him on July 24, 1928. In a sworn statement on June 11, 1928, in
support of his application for patent for the land, he stated that he
was a British subject by birth. Thereafter he became a member of
the school board at Coronach, Canada, and on January 12, 1935, took
a second oath of allegiance to the British Crown. He became employed as a Canadian Customs Excise Enforcement Officer on April

606

27, 1938, and once more took an oath of allegiance to the British
Crown. He also voted in provincial, dominion, and other Canadian elections beginning in 1927, and taught school for a short time
but took no oath in connection therewith.
The facts in this case, in view of the applicable law, show that
the applicant's father, acquiring United States and British nation
ality at birth, took an oath of allegiance to the British Crown during wartime, that such an oath was effectively confirmed after the
wartime period by repeated acts consistent only with a relinquishment of his United States nationality, and that such confirmatory
acts related back to July 2, 1921, prior to applicant's birth. Consequently applicant did not acquire United States citizenship. The
denial of her application by the district director was proper.
Order: It is ordered that the denial of the application of D

for a certificate of citizenship by the District Director,
St. Paul, Minnesota, on October 6, 1959, be affirmed.

607