A-1776931.
Decided by Board February 3, 1955.
Recommendation against deportation made by court prior to December 24, 1952 — Effect on deportability under section 241 (a) (11) of Immigration and Nationality Act.
The recommendation of a court in 1949 that the defendant not be deported on the basis of his conviction and sentence for a narcotic violation bars his deportation under section 241 (a) (11) of the Immigration and Nationality Act. The effectiveness of such recommendation was preserved by section 405 (a) of that act ( Matter of I----, 5 IN Dec. 343, overruled).
CHARGES:
Warrant: Act of 1952 — Violation of law or regulation relating to illicit traffic of narcotic drugs.
Lodged: Act of 1952 — Convicted of violation of any law or regulation governing or controlling the taxing of marijuana.
BEFORE THE BOARD
Discussion: This case is before us on appeal from the order of the special inquiry officer of April 12, 1954, directing the respondent's deportation on the charges stated above. Exceptions have been taken to the finding of deportability.
The record relates to a native and citizen of Mexico, male, married, 54 years of age, who last entered the United States on or about May 15, 1945, as a returning resident alien. Respondent had been lawfully admitted to the United States for permanent residence on January 11, 1945.
The respondent, on May 4, 1949, entered a plea of guilty to the second count of an indictment returned on May 2, 1949, in the Federal District Court at San Antonio, Texas. The count in the indictment upon which the respondent was convicted states that in the course of a narcotic transaction, he was a transferee. Respondent was sentenced to serve a two-year term of imprisonment on May 10, 1949. The special inquiry officer sustains the charge contained in the warrant of arrest and the charge lodged during the course of the hearings on the basis of the identified record of conviction and respondent's entry into the United States subsequent to that conviction.
The sentencing court recommended that the respondent be not deported for the offense which forms the basis of these proceedings. The special inquiry officer, relying upon our decision in Matter of I----, E-25308, 5 IN Dec. 343, concluded that the recommendation of the court as a bar to deportation is confined to persons who are deportable under section 241 (a) (4) of the Immigration and Nationality Act of 1952 and not to those who are deportable under section 241 (a) (11) of the same act.
Since our decision in Matter of I----, ( supra), the issue of whether a nondeportable status created by a judicial recommendation in a narcotic case prior to the effective date of the Immigration and Nationality Act of 1952 continues to relieve the alien from deportation under that act, has been before the courts on two separate occasions. The United States District Court for the Northern District of California, Southern Division, in the case of Ex parte Robles-Rubio, held that the savings clause of the 1952 act (section 405 (a)) was of sufficient breadth to encompass a previous recommendation against deportation and continues to relieve the narcotic offender.
119 F. Supp. 610 (January 21, 1954).
This same issue was before the Court of Appeals for the Eighth Circuit in the case of United States ex rel. De Luca v. O'Rourke. The Circuit Court in the De Luca case ( supra) reasoned that notwithstanding the uncertainty created by the statutory provisions of the 1952 act concerned with judicial recommendations in behalf of aliens deportable for crimes involving moral turpitude as distinguished from those deportable as narcotic violators, the savings clause of the 1952 act is broad enough to preserve the efficacy of the recommendation of the sentencing judge and to prevent the deportation of the alien because of the conviction.
213 F. (2d) 759 (January 17, 1954), rehearing denied July 14, 1954.
Sections 241 (a) (4), 241 (a) (11) and 241 (b) of the Immigration and Nationality Act of 1952.
Since the position we took in Matter of I----, ( supra), has been overruled by judicial authority, we find that the recommendation against deportation with which we are here concerned continues to relieve the respondent from deportation as a narcotic violator. The appeal will be sustained.
Counsel contends that the statute under which these proceedings have been conducted (section 241 (a) (11)) is invalid because it is retrospective and ex post facto. Although this contention is now moot in light of the conclusion stated above, we note that the court in both the Robles-Rubio and the De Luca cases, ( supra), affirmed our ruling in Matter of M----, A-2669541, 5 IN Dec. 261, that legislation providing for deportation of aliens is not invalid because retrospective in operation. An appropriate order will be entered.
Order: It is ordered that the appeal be and the same is hereby sustained; the proceedings under the warrant of arrest issued October 1, 1953, are hereby terminated.