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MATTER OF TAFOYA-GUTIERREZ

In Deportation Proceedings

A-8935449

Decided by Board July 18, 1969

Where the court's recommendation against deportation was not made within

30 days of first imposing sentence pursuant to section 241(b) (2) of the Immigration and Nationality Act, it is ineffective to avert deportation, notwithstanding the motion to amend sentence was filed, and hearing thereon scheduled, within 30 days of the original sentencing.

CHARGE:

Order: Act of 1952-Section 241 (a) (4) (8 U.S.C. 1251 (a) (4)]-Convicted

of a crime involving moral turpitude within five

years after entry. ON BEHALF OF RESPONDENT:

ON BEHALF OF SERVICE: R. Stanley Ditus, Esquire

R. A. Vielhaber P. O. Box 463

Appellate Trial Attorney Burlington, Colorado 80807

The proceedings are before us on appeal from the decision of the special inquiry officer who found respondent deportable as charged and ordered his deportation to Mexico.

The respondent is a 38-year-old single male alien, a native and citizen of Mexico, who was admitted to the United States for permanent residence on March 7, 1960. He returned to Mexico on November 15, 1964, remaining there approximately six months. When he returned to the United States on May 12, 1965, he was admitted as a returning resident alien upon presenting his alien registration receipt card.

The record shows that on November 4, 1966 in the Superior Court for the State of Alaska, Third Judicial District, the respondent was convicted on his plea of guilty of the offense of rape as charged in the second count of the indictment, and sentenced to serve a term of three years, which sentence was suspended and the respondent placed on probation for a period of two years (Ex. 4, p. 2). He was thus found guilty of a crime in

volving moral turpitude committed within five years after entry, for which he was sentenced to confinement for a period of more than a year. He is deportable under section 241 (a) (4), Immigration and Nationality Act.

Counsel's first contention is that his client did not make an entry when he returned to the United States on May 12, 1965, citing the case of Rosenberg v. Fleuti, 374 U.S. 449 (1963). We do not think that the circumstances of the respondent's departure and extended stay outside the United States bring him within the rule enunciated in the Rosenberg v. Fleuti case. His absence was a meaningful and intended absence from the United States and was not a brief and casual visit which might, under the Fleuti rule, exempt him from the requirements of an "entry" when he returned. The respondent in this case definitely made an entry within the meaning of section 101 (a) (13), Immigration and Nationality Act (8 U.S.C. 1101 (a) (13)).

Counsel contends that since the court which found respondent guilty and sentenced him has made a recommendation to the Attorney General that he be not deported, these proceedings be terminated because of the provisions of section 241 (b) (2), Immigration and Nationality Act (8 U.S.C. 1251 (b) (2)). The facts surrounding this recommendation of the court are as follows.

Respondent was found guilty and was sentenced on November 4, 1966, which sentence was entered into the record on November 17, 1966. On December 2, 1966, counsel filed a motion to have the court amend its order by adding a recommendation against deportation. The hearing was held on this same date, and the record indicates that the District Director of the Service testified. It does not appear that any action was taken by the court at that time. On December 16, 1966, counsel filed a "Motion for Reconsideration”. The record is not clear why it was necessary to move the court to reconsider the original motion, unless the court originally had denied the motion on December 2, 1966. Be that as it may, the hearing on this motion, scheduled for January 6, 1967, was continued until January 13, 1967, and continued again until January 27, 1967, at which time the court granted the motion to amend its original order to the extent of incorporating a recommendation to the Attorney General that the respondent not be deported.

Section 241 (b) (2) of the Act specifically provides that the court sentencing an alien must make the recommendation at the time of first imposing judgment or passing sentence or within 30 days thereafter. This clearly did not occur in this case. A timely

recommendation has not been made. It is true the motion to amend the order was filed within 30 days and the hearing scheduled within 30 days, but the court's recommendation was not made within 30 days of the original sentencing. The court has no power to enlarge its order or to enter a nunc pro tunc order granting the relief after the expiration of the time provided by statute. Such an action is a nullity and the courts have so held.2 To hold otherwise would be to defeat the plain command of the statute, which limits the time within which the extraordinary power vested in the trial court must be exercised. We have followed the court's interpretation of the statute in this respect. Thus, on the basis of the evidence presented, the court's order of January 27, 1967 does not afford the respondent relief from deportation under section 241 (b) (2) of the Immigration and Nationality Act.

For the above reasons, the appeal will be dismissed.

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

1 Matter of S-, 9 I. & N. Dec. 613 (BIA, 1962).

2 Piperkoff v. Murff, 267 F.2d 72 (2 Cir., 1959); Ex parte Eng, 77 F. Supp. 74 (N.D. Cal., 1949). See also Matter of s-, supra.

MATTER OF SS. CAPTAIN DEMOSTHENES

In Fine Proceedings

LOS-10/2.283

Decided by Board July 11, 1969

(1) Liability to fine does not lie under section 254 (a) (2) of the Immigration

and Nationality Act for failure to detain on board two alien crewmen denied conditional landing privileges who were apprehended while attempting to swim ashore from the vessel, since, within the meaning of section 254, they did not effect a landing, the element essential to establish a vio

lation of that section. (2) Where reasonable precautions were taken by the responsible parties, a

vessel's unduly prolonged port call because of the necessity for extensive repairs warrants a more generous mitigation of the fine arising under sec

tion 254 of the Act than in the usual case. IN RE: SS. CAPTAIN DEMOSTHENES, which arrived at the port of Los

Angeles, California, from foreign via another United States port, on August 25, 1968. Alien crewmen involved: Nicolaos Buras,

Georgios Cavril, Constantinos Koumoutsos and Dimitrios Kefalinso
BASIS FOR FINES: Act of 1952—Section 254 (a) (2) [8 U.S.C. 1284].
ON BEHALF OF APPELLANT: Michael D. Dempsey, Esquire

600 South Spring Street
Los Angeles, California 90014

The District Director at Los Angeles, in a decision dated April 10, 1969, held that W. H. Wickersham & Co., as agents for the vessel, had incurred liability to administrative penalties of $4,000, $1,000 as to each of the alien crewmen named above, for failure to detain them aboard the vessel at all times despite the fact that they had not been granted conditional landing privileges. However, the District Director found present herein factors which, in his opinion, merited mitigation of the fines to the extent of $2,000, $600 as to each of the first two crewmen named above, and $400 as to each of the other two crewmen. Thus, he permitted to stand herein a penalty of $2,000, $400 as to each of the first two named crewmen and $600 as to each of the other two crewmen.

It appears from the record before us that the following material facts exist without substantial controversy. The vessel made its first United States port call on this trip at Baltimore, Maryland, on August 1, 1968. Immigration inspection, which was then and there accorded its crew, resulted in the refusal of conditional landing privileges to ten alien members of the crew, Greek nationals, including the four named above. They remained aboard the vessel at all times while it was in the port of Baltimore.

The vessel cleared Baltimore bound for the Far East. After transiting the Canal Zone, the crankshaft for the main engines broke and the vessel put into the port of Los Angeles on August 25, 1968, for extensive repairs. It remained in that port for approximately four months thereafter.

On the night of November 17, 1968, while the vessel was anchored just within the breakwater marking the boundary of Los Angeles harbor, the crewmen Nicholaos Buras and Georgios Cavril attempted to swim ashore from the vessel. They were apprehended before reaching land by local police, turned over to immigration officers, placed under deportation proceedings and deported to Greece.

On December 3, 1968, the vessel then being at dock side, the crewman Constantinos Koumoutsos left the ship and made his way ashore in the United States. At the time the District Director considered the case, he was still at large in this country. However, information has now been received by this Board that he was eventually apprehended by immigration authorities in Boston, Massachusetts, and deported to Greece at the expense of the vessel's owners.'

On December 8, 1968, the crewman Dimitrios Kefalinso succeeded in leaving the ship and making his way ashore in the United States. Insofar as the record shows, he is still at large in this country. The only additional comment required in this connection is that professional guards were on duty at all times at the gangway while the vessel was at dock side, but it was riding low in the water so that anyone could step from the ship to the pier, and there was a heavy fog on the night he escaped.

On the basis of the foregoing facts, we conclude that the Dis

1 Ordinarily, we would remand the case to have this information introduced into evidence and considered by the District Director, but we will not do so here because of the unavoidable administrative delay involved; because the authenticity of the information does not appear to be subject to question; and because the present posture of the case calls for final resolution of all aspects of the problems presented, at one and the same time.

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