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 make 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 prosecuting 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 coram 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 nolle prosequi 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

Cf. Matter of Plaut, 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 he had not been represented by counsel and did not understand the charges against him at the time of first convictionand 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.

3 The Board so found on almost identical facts in Matter of S-, Int. Dec. No. 1206 and Matter of H—, Int. Dec. No. 1170.

action need not be given full faith and credit. (Matter of H—, Int. Dec. No. 1170.)

However; again assuming the action valid in the State of Michigan as a nolle 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, 66 ... 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 Plaut, Int. Dec. 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). 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, H. Rep. 2546, 84th Congress, 2nd Session.

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 prosequi. 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 Arellano-Flores, supra, expungement under lawful state process would be without effect. Under Piperkoff, 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 S-, 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.

I. 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.1 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.

II. 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 cases 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. Piperkoff v. Esperdy. 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.

2267 F.2d 72 (C.A. 2, 1959), cited by the Service.

recognized for certain narcotic cases in Matter of Arellano-Flores.3 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.*

5

The concluding reasoning urged by the Service motion suggests that under Arellano-Flores expungement under lawful state process would be without effect, that under Piperkoff 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 effect. 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 nolle 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 S- have been judicially overruled. Thus the Service's argument breaks down at a crucial point. Even before

38 I. & N. Dec. 429.

4 Matter of G-, Int. Dec. No. 1119, approved by the Attorney General; Matter of H-, Int. Dec. No. 1159.

* Matter of Arellano-Flores, supra3; U.S. ex. rel. Piperkoff v. Esperdy, supra1; Matter of S-, Int. Dec. No. 1206.

4

The Service notes Arellano-Flores v. Hoy, 262 F. 2d 667 (C.A. 9, 1958) cert. den. 362 U.S. 921, as a parallel citation for Matter of Arellano-Flores. 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 Matter of G.-, supra demonstrated the inapplicability of Arellano-Flores v. Hoy to his decision in Matter of Arellano-Flores. Our order of January 15, 1963 gives the subsequent judicial history of the Arellano-Flores case. We noted also in our prior decision that in Giova v. Rosenberg, 308 F. 2d 347 (C.A. 9, 1962) the court indicates that it questions the soundness of Matter of Arellano-Flores.

The Service refers to Matter of H-, Int. Dec. No. 1170, along with Matter of S-, as an instance in which we have found that the court acted to defeat deportation. In Matter of H-, we did mention that it was difficult to conclude 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.

* Sawkow v. Immigration and Naturalization Service, 314 F. 2d 34 (C.A. 3, 1963). This case is a further indication that the principle in Piperkoff has restricted application.

337