sentenced to imprisonment for a term of 1 to 3 years. Execution of the sentence was suspended and he was placed on probation for 3 years. On October 17, 1958, probation was revoked and the sentence previously imposed was ordered into effect. In May 1959 the respondent through counsel filed a motion to vacate the judgment of conviction and the sentence imposed. Thereafter, he moved the court to recommend to the Attorney General that he be not deported, and notice of the motion was forwarded to the United States Attorney and to the Service on July 2, 1959. On July 17, 1959, while the respondent was still serving the sentence imposed on June 30, 1958, the judgment of conviction and the sentence were vacated; he was convicted and sentenced to a term of imprisonment of 3 months to 1 year and 11 months; and the court recommended against his deportation.

Under 8 U.S.C. 1251(b) (2), a conviction is eliminated as a basis for deportation "*** if the court sentencing such alien for such crime shall make, at the time of first imposing judgment or passing sentence, or within thirty days thereafter, a recommendation to the Attorney General that such alien not be deported * * *" Prior notice must also be given, but the Service does not question the sufficiency of the notice in this respondent's case.

Counsel is correct in his assertion that under Pino v. Landon, 349 U.S. 901 (1955), a conviction must have attained finality in order to support an order of deportation. Matter of D—, 7 I. & N. Dec. 670, which counsel cited in this connection, was overruled in Matter of AF A-2904545, Int. Dec. No. 1024 (Atty. Gen., 1959). However, counsel apparently concedes that the judgment of conviction on July 17, 1959, attained finality and we do not consider that the respondent's case involves the question of finality of conviction but rather the question of when there first occurred the imposition of judgment or passing of sentence.

It is true that on July 17, 1959, the court vacated the judgment of conviction entered on June 30, 1958, as being null and void and, insofar as the criminal proceeding is concerned, that judgment was superseded by the judgment of July 17, 1959. In the deportation proceeding against the respondent, on the other hand, the question is not whether one judgment of conviction is valid and another judgment of conviction is invalid, but instead we have only the question as to whether, for deportation purposes, sentence was first imposed on June 30, 1958, or on July 17, 1959. It is our opinion that, in truth and in fact, judgment was first imposed and sentence was first passed on June 30, 1958, and the question resolves itself into whether this action of the court can be disregarded in order to make the subsequent action on July 17, 1959, the first imposing of judgment and passing of sentence.

In United States ex rel. Piperkoff v. Esperdy, 267 F.2d 72 (C.A. 2, 1959), the court said (p. 75):

We hold that § 1251 (b) [of Title 8, United States Code] announces a federal standard for the determination of what constitutes the first entry of judgment or the passing of sentence. While we may assume that in many or even most cases that standard incorporates and adopts the relevant state law, we hold that it does not do so where the sole basis for the vacation and reentry of judgment is to repair the omission to make the statutory recommendation against deportation permitted by § 1251 (b). To hold otherwise would be to defeat the plain command of the statute, which strictly, and for good purpose, limits the time within which the extraordinary power vested in the trial court must be exercised. ***

In the motion to vacate the judgment of conviction and the sentence imposed, it was asserted that the failure of trial counsel to advise the court that the defendant (this respondent) was an alien and to request from the court a recommendation that he not be deported deprived this respondent of such a substantial right as to render the assistance of trial counsel ineffective. It is our considered opinion that the motion itself shows clearly that the sole purpose for vacating and reentering the judgment of conviction in the respondent's case on July 17, 1959, was to repair the omission to make the statutory recommendation against deportation when sentence was first imposed on June 30, 1958. Since the facts in the respondent's case bring it within the quoted language of the Piperkoff decision, we consider that case to be controlling. In view of the foregoing, the appeal will be dismissed.

Order: It is ordered that the appeal be and the same is hereby dismissed.

MATTER OF P——

In DEPORTATION Proceedings

A-8421656

Decided by Board June 21, 1960

Recommendation against deportation-Ineffective when made at time of resentencing-Notice from court not required where attorney had notified Service recommendation would be requested.

(1) Court's recommendation against deportation not timely when made upon resentencing on October 2, 1959, following retrial as result of coram nobis proceedings alleging respondent did not comprehend the nature of the complaint when he originally pleaded guilty to disorderly conduct on March 19, 1959. Respondent again pleaded guilty at new trial; hence, sole purpose was to obtain recommendation against deportation not previously made. (2) "Notice" requirement in section 241(b) (2) of the 1952 act is satisfied when respondent's counsel has furnished Service with notice of intention to move the court for a recommendation against deportation.

CHARGE:

Order: Act of 1952-Section 241(a) (4) [8 U.S.C. 1251(a)(4)]—Convicted of two crimes involving moral turpitude, to wit, disorderly conduct, in violation of section 722, subdivision 8, of the New York Penal Law, on two occasions.

BEFORE THE BOARD

Discussion: The case comes forward to this Board pursuant to certification by the special inquiry officer of his order dated December 8, 1959, terminating the deportation proceedings.

The record relates to a native of Germany, a citizen of Israel and Germany, 38 years old, male, who was last admitted to the United States on June 25, 1958, as a returning resident. He had originally been admitted for permanent residence on December 25, 1952. Thereafter, he was temporarily absent from the United States from September 1955 to March 20, 1956, May 1957 to September 1957, March 1958 to June 25, 1958. He was readmitted upon each occasion as a returning resident.

Deportation proceedings were instituted by service of an order to show cause and notice of hearing upon the respondent on June 18, 1959. At the hearing, it was established that the respondent was first convicted on September 30, 1954, in the City Magistrates Court

of the City of New York of the offense of disorderly conduct in violation of section 722(8) of the Penal Law of the State of New York, committed September 30, 1954. He was next convicted on March 17, 1959, in the same court of the same offense committed March 16, 1959. On each occasion the respondent pleaded guilty and was fined the sum of $25. It is not controverted that these offenses involve moral turpitude (Matter of G—, 7 I. & N. Dec. 520).

The case was previously before us on appeal from the decision entered by the special inquiry officer on July 10, 1959, directing the respondent's deportation on the charge contained in the order to show cause. In view of representations that the disorderly conduct conviction of September 14th had been vacated pursuant to a writ of coram nobis and a new trial had been scheduled in the Magistrates Court, we ordered the proceedings to be reopened.

At the reopened hearing it was established that the motion to vacate the judgment of conviction of March 17, 1959, was granted on September 11, 1959, and the City Magistrates Court directed that the case be retried on September 25, 1959. On September 14, 1959, the respondent's counsel notified the District Attorney of New York County, the District Director of the Immigration and Naturalization Service at New York, and the Attorney General at Washington, D.C., of the action taken by the City Magistrates Court, including in such notification the advice that pursuant to the provisions of section 241(b) of the Immigration and Nationality Act,1 in the event of a judgment of conviction against the respondent, an application would then and there be made to the court for recommendation to the Attorney General that the alien not be deported.

The new trial in the City Magistrates Court was adjourned until October 2, 1959, appropriate notice being given to the Service by counsel, and at the trial on October 2, 1959, the respondent pleaded guilty to the charge, was fined $25 or 5 days, execution of the sentence was suspended and after imposition of sentence the City Magistrates Court expressly recommended that the respondent not be deported as a result of such conviction.

There is no dispute as to the facts. The legal issue to be deter

1 The pertinent portion of section 241(b) of the Immigration and Nationality Act (8 U.S.C. 1251(b)) provides that the provisions of subsection (a) (4) of this section "respecting the deportation of an alien convicted of a crime or crimes shall not apply * * (2) if the court sentencing such alien for such crime shall make, at the time of first imposing judgment or passing sentence, or within thirty days thereafter, a recommendation to the Attorney General that such alien not be deported, due notice having been given prior to making such recommendation to representatives of the interested State, the Service, and prosecution authorities, who shall be granted an opportunity to make representations in the matter."

mined is whether the court's recommendation against deportation was made at the time of first imposing judgment or passing sentence or within 30 days thereafter as required by section 241 (b) of the act, 8 U.S.C. 1251(b). A corollary issue is whether the notice furnished by counsel constitutes compliance with the provisions of section 241(b).

It is believed that a careful examination of the various steps in the coram nobis proceedings is appropriate at this point. The petition in the coram nobis proceedings sets forth that at the time of pleading guilty on March 17, 1959, the petitioner was not represented by counsel but was so represented at the time of sentencing; that counsel arrived after the petitioner had been arraigned and pleaded guilty and was present at the time of sentencing; that the petitioner did not understand the complaint when it was read to him in court and he asked it be translated into German which was not done; that the petitioner was too embarrassed and ashamed to say that he did not read English well enough to understand the complaint and to repeat his request that it be translated into German; that the petitioner pleaded guilty without comprehending the charge against him; that the petitioner's counsel at the criminal proceeding did not discover what had occurred until the minutes were transcribed at the request of the petitioner's counsel in the present deportation proceedings; that the petitioner has been ordered deported; wherefore the petitioner prayed that a writ of error coram nobis be granted, vacating the plea of guilty, the conviction and sentence and that the petitioner be rearraigned. The motion to vacate the judgment was granted on September 11, 1959, and a new trial date set. The minutes of the court hearing which led to the order vacating the judgment indicate that counsel entered a plea of "not guilty." However, when the respondent was again before the court on October 2, 1959, for rearraignment counsel had the respondent plead guilty and the court sentenced him to $25 or 5 days, execution of sentence suspended; then, after hearing counsel's representations that the respondent would be deported under the McCarran Act unless a recommendation against deportation be made, the court so recommended.

It is believed that the situation regarding coram nobis cases in New York and its application to 8 U.S.C. 1251(b) is governed by the decision of the Second Circuit in the case of United States ex rel. Piperkoff v. Esperdy, 267 F.2d 72 (May 18, 1959). That case likewise involved coram nobis proceedings. The court there held:

We hold that § 1251 (b) announces a federal standard for the determination of what constitutes the first entry of judgment or the passing of sentence. While we may assume that in many or even most cases that standard incor

2 See footnote 1, supra.