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States for permanent residence on August 18, 1905. He was deported from this country on February 8, 1955, and last entered the United States about March 1956 without inspection. At that time he intended to remain indefinitely; he did not have an immigrant visa; and he had not been granted permission to reapply after arrest and deportation.

The issues to be determined are whether the respondent is deportable, and whether he is eligible for discretionary relief in addition to voluntary departure. For the reasons hereinafter stated, we hold that the respondent is deportable and that discretionary relief, other than voluntary departure, cannot be granted in this proceeding.

In the first proceeding, which culminated in the respondent's expulsion on February 8, 1955, he was found deportable under 8 U.S.C. 1251(a) (4) because of a conviction in 1917 for unlawfully entering a building, and a conviction in 1919 for grand larceny, second degree. After a hearing on counsel's motion coram nobis in the criminal proceeding relating to the 1919 conviction, the court entered an order on October 25, 1957, granting counsel's motion to vacate the plea and sentence imposed. The respondent then pleaded not guilty. On April 22, 1959, the 1919 indictment was dismissed. On the same date, a 1918 indictment was dismissed but it was not one of the convictions on which the respondent's deportation was predicated.

The first lodged charge is based on the allegation that the respondent is deportable because he was excludable in March 1956 under 8 U.S.C. 1182(a) (17) as an alien who had been arrested and deported and who did not have permission to reapply for admission to the United States. In this proceeding, the respondent conceded that he had been deported from the United States on February 8, 1955, and that he had not received permission to reapply for admission to the United States. We said in our previous order that counsel had not cited any judicial or other authority for his contentions that the granting of the motion coram nobis completely removed the conviction from the record and that this differed from an absolute executive pardon. None of the cases now cited by counsel indicates to us that the granting of a motion coram nobis has greater obliterating effect than a pardon. As stated in Ex parte Garland, 71 U.S. 333, 380 (1866), “* * * when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense."

Counsel is correct, however, in his contention that a conviction is void, as contravening the Sixth Amendment to the Constitution, where the defendant was not represented by counsel and had not competently and intelligently waived this right (United States v. Morgan, 346 U.S. 502 (1954); Johnson v. Zerbst, 304 U.S. 458 (1938)). Exhibit R-3 shows that on October 25, 1957, the judge hearing the motion coram nobis found, with respect to indictment 34,469-A of the year 1919, that the respondent was not represented by counsel at the trial, and that the trial court had not informed him of his right to such representation. In view of this finding and in accordance with the decisions cited, the respondent's 1919 conviction was void. In United States v. Morgan, 222 F.2d 673 (C.A. 2, 1955), it was said by way of dictum (p. 674, note 3): “Of course, the conviction is not void in the sense that the defendant may disregard the conviction before it has been judicially declared invalid."

In referring to the retroactive effect of coram nobis, counsel has cited certain cases holding that a man serving a sentence as a second offender, whose prior conviction was then set aside, may thereafter be resentenced as a first offender on the sentence being served. However, we actually do give retroactive effect to the order revoking the 1919 conviction. When the respondent entered the United States in March 1956, he was, in fact, excludable under 8 U.S.C. 1182(a) (9) because of the 1917 and 1919 convictions, the 1919 conviction not having been removed until October 25, 1957. Nevertheless, the respondent is not charged in this proceeding with being excludable in March 1956 because of the 1919 conviction. On the authority of the Supreme Court's decisions in United States v. Morgan and Johnson v. Zerbst, supra, we hold that the respondent is to be regarded as never having been convicted of the 1919 offense. In other words, as of October 25, 1957, the 1919 conviction was wiped out ab initio.

While the conviction has now been removed ab initio, and although it does not seem that the respondent could be deported under 8 U.S.C. 1251(a) (4) upon a new proceeding instituted at this time, there still remains the question as to the legal effect of the respondent's deportation on February 8, 1955. On that date, he was, in truth and in fact, an alien who had been convicted of two crimes involving moral turpitude and he was actually subject to deportation under 8 U.S.C. 1251(a) (4). Counsel asserts that most of the previous cases in which attempts were made to attack the validity of deportation orders after they had been executed involved a change in the interpretation of the law. He contends that the respondent's case involved a change of facts and that it is distinguishable for that reason. However, he has cited no case in which there was a change of facts and the executed order of deportation was considered a nullity.

We do not perceive any logical reason why, following deportation, one rule should be followed where a change of facts thereafter occurred and another rule where there subsequently took place a change in the judicial construction of the law. If anything, it would seem that the case would be stronger on behalf of the alien who had been erroneously deported because of a mistaken interpretation of the law than in the case of this respondent whose deportation was strictly in


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accordance with the law and facts as they existed at the time of deportation.

A statement was quoted by counsel from section 522 of the Civil Practice Act of New York which permits the making of a motion to

a set aside a final judgment for error in fact not arising upon the trial. However, the accomplished deportation here is not a judgment and counsel himself does not allege that there was an error in fact, but contends there was a change of fact. Section 522 is entirely irrelevant to this respondent's case and the same is true with respect to Federal Rules of Civil Procedure 59 and 60, Title 28, United States Code.

Counsel has sought to draw an analogy between the respondent's case and cases in which a marriage or naturalization has been annulled or revoked ab initio. Apparently counsel claims that the invariable rule was to deport aliens who entered the United States on the basis of such marriages or naturalizations. Although some aliens have been deported under the ab initio doctrine, we did not apply the doctrine blindly and the question of whether such an alien should be deported depended upon the facts of the particular case. For example, the administrative interpretation of the 1937 act, as indicated in Matter of B-3 I. & N. Dec. 102, 104 (1947), and the specific language of 8 U.S.C. 1251(c) show that deportation does not follow in every case where the marriage is annulled retroactively to the date of marriage. We held that the aliens were not deportable in Matter of B-, supra, and in Matter of M—, 3 1. & N. Dec. 25 (1947). Revocation of naturalization also does not necessarily result in deportation of that person or his wife or minor child (Matter of C 3 I. & N. Dec. 275 (Atty. Gen., 1950); Matter of P- 4 I. & N. Dec. 373 (1951); 8 U.S.C. 1451; 8 CFR 101.1(j)). Since there was no invariable rule that deportation must follow under the ab initio doctrine, we reject counsel's contention that this doctrine requires us to hold that the respondent was erroneously deported in 1955.

To summarize, we hold that on and after October 25, 1957, the respondent's 1919 conviction must be considered as having been revoked ab initio, but we are not persuaded that the conviction must now be considered as nonexistent on February 8, 1955, when the respondent was deported. The warrant of arrest which resulted in that deportation was served on the respondent on August 6, 1953, and deportation did not occur until February 8, 1955. No reason has been suggested for the respondent's failure to institute the coram nobis proceeding prior to his deportation, and he made no attempt to attack the validity of the deportation order through judicial proceedings. Where an alien thus sleeps on his rights and deportation has been accomplished, we see no reason why he should then be permitted to challenge the validity of the executed warrant of deportation. The


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situation is somewhat similar to the doctrine of res judicata which requires a defendant to present all his defenses at the time of trial or. be foreclosed from subsequently asserting them.

The following cases have established the rule that after deportation has been accomplished the alien will not be permitted to attack the validity of that deportation order in a subsequent expulsion or exclusion proceeding (United States ex rel. Steffner v. Carmichael, 183 F.2d 19 (C.A. 5, 1950), cert. den. 340 U.S. 829; Daskaloff v. Zurbrick, 103 F.2d 579 (C.C.A. 6, 1939); United States ex rel. Koehler v. Corsi, 60 F.2d 123 (C.C.A. 2, 1932); Matter of S—, 3 I. & N. Dec. 83 (1949); Matter of R-,3 1. & N. Dec. 605 (1949); Matter of P- , 3 I. & N. Dec. 818 (1950); Matter of C-R

-R-, 41. & N. Dec. 126 (1950); Matter of RM, 4 I. & N. Dec. 173 (1950)). We hold that these decisions are controlling in the respondent's case and that he cannot, in this proceeding, attack the validity of the executed order of deportation.

There was quoted by counsel, with the emphasis indicated, the following sentence appearing on page 20 of United States ex rel. Steffner v. Carmichael, supra: “Where an alien has been deported from the United States pursuant to a warrant of deportation, we do not think it permissible to allow a collateral attack on the previous deportation order in a subsequent deportation proceeding, unless we are convinced that there was a gross miscarriage of justice in the former proceedings." There, the contention of the alien was that the first deportation order in 1936 was illegal and void ad initio. Since the court was of the opinion that Steffner could not attack the previous deportation order, the language which counsel emphasized was dictum. The statutory provision, under which Steffner was deported, was subsequently construed by the Supreme Court in another case in such a way that Steffner would not have been deportable. In the cited case, the Court of Appeals said that if it conceded that the original order of deportation should be examined, Steffner would not be in any better position because it was of the opinion that the original order was valid when entered. As we have previously indicated, the original deportation order against this respondent was clearly valid at the time it was entered. Hence, the prior deportation of this respondent was obviously not “a gross miscarriage of justice,” and under the Steffner decision cannot now be attacked.

In discussing United States ex rel. Koehler v. Corsi, supra, counsel stated that when the findings of fact have been outmoded, the law of the case should be reexamined and set aside. That decision does not show whether the alien claimed there had been an error of fact or of law. In the first proceeding, the alien filed a petition for a writ of habeas corpus but the District Court's decision was adverse to him and he later withdrew his appeal from that decision. In the

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subsequent exclusion proceeding, where he attempted to show that -his previous deportation was unlawful, the court said that the law of the case became fixed when the decision of the District Court became final and it was then too late to attack the deportation as not in pursuance of law. In Matter of R-3 I & N. Dec. 605, and in

. Matter of P-3I & N. Dec. 818, both of which were cited above, there were statements that the law of the case becomes fixed at the time of deportation. However, we do not base our decision on any such concept but solely on the primary proposition for which all of the cited cases stand, that is, that an alien who has been deported will not be permitted to attack the validity of that deportation order in subsequent proceedings. The law of the case doctrine arises when a court has rendered a decision. Hence, it did arise in the Koehler case but does not appear to be pertinent in this respondent's case since the validity of the previous deportation order was not passed upon by any court.

Although the doctrine of law of the case is technically not applicable here, the situation is somewhat analogous. A certain finality does attach when a warrant of deportation has been executed by the expulsion of the alien. The question of whether an alien is or is not deportable should not be subject to relitigation after deportation has been accomplished. At that point, judicial review would no longer be possible because the case would be moot. Similarly, the regulations [8 CFR 3.2, 3.3(a) and 3.4] provide that departure prior to taking an appeal shall constitute a waiver of the right to appeal; that departure after making a motion to reopen or reconsider is to be understood as a withdrawal of the motion; and that departure subsequent to the taking of an appeal but prior to a decision thereon shall constitute a withdrawal of the appeal.

Daskaloff v. Zurbrick, supra, is particularly pertinent to the respondent's case. There, the alien was deported in 1921 on the ground that she was a prostitute and she reentered the United States in 1928. Later a deportation proceeding was instituted which resulted in the issuance of a warrant of deportation. In the subsequent habeas corpus proceeding, the alien claimed that the accusations made against her in the first deportation proceeding were untrue. The court said that irrespective of the guilt or innocence of the alien of the charge upon which she was first deported, the inquiry under the statutory provision then in effect was solely whether the alien had, in fact, been deported as a prostitute. The court also said that the alien could not collaterally attack the validity of the prior proceedings. Hence, this case did not involve a change in the interpretation of the law but related to an effort on the part of the alien to show that the facts were not as they had been found originally.

For the reasons stated above, we hold that the respondent is pre

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