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the Court of Appeals reversed Matter of S—, however, we were unwilling to take the step from our reasoning in that case to a similar action in respondent's case. Our order of January 15, 1963 distinguished Piperkoff and Matter of S-, as well as Matter of ArellanoFlores.

The Service says Piperkoff and Matter of S- should not be distinguished on the grounds that they concerned nonnarcotic offenses. In those cases, however, the claims of nondeportability were based upon judicial recommendations against deportation. In view of the amendment of section 241 (b) that issue cannot be present in a narcotics case. The Service thus tries to reason analogously from situations which could not themselves be reproduced in a case like that of respondent. We think the gap between the cases is too great to be bridged by analogy, although the Service, in its preoccupation with Congress' restrictive measures against alien narcotics offenders, bridges it easily.

The Service in effect says judicial and administrative decisions have disregarded certain procedures of the courts whose sole purpose was to enable a recommendation against deportation. Congress has made the deportation provisions for narcotics violators more stringent than for other criminal aliens. Therefore in amending section 241(b) of the Act to make it inapplicable to persons deportable under section 241 (a) (11), Congress intended any judicial process, even though otherwise a valid exercise of the court's authority, to be without effect, if designed solely to prevent deportation of an alien convicted of a narcotics violation.

This conclusion does not necessarily follow, however. It overlooks the effect of any judicial authority in areas which Congress has not specifically restricted. It also fails to appreciate that a federal standard for the term "conviction" in deportation cases has been found only to a very limited extent.

8

Our prior decision pointed out that Congress has limited to pardons and judicial recommendations against deportation its prohibition against measures preventing deportation of alien narcotics violators.

The motion notes in its opening discussion that section 241(b) is inapplicable here.

8

Discussing the Government's contention that, if a judgment of conviction is vacated for the purpose of avoiding deportation, a subsequent recommendation against deporation is ineffective, the court in Sawkow says, "This argument misses the mark, for no contention is made that the state court either exceeded its jurisdiction or abused its discretion in vacating the plea of non vult together with the judgment of conviction, and subsequently dismissing the indictment. Thus, the action of the state court is concededly valid. That being so, the original judgment is as much a nullity as if the grand jury had never returned an indictment." Supra at 37.

The Service says this approach is no help. We quite agree. The statute does not give any specific aid here. The statutory language should not be readily extended, however. We cannot assume that Congress intended that any procedure lying ordinarily within the power of the courts, which a court deems warranted in a particular case, should be nullified if the court's action obstructs the deportation provisions of the statute and is designed solely for that purpose. Statutory deportation provisions should be construed strictly against the Government. Moreover, a court has reversed an attempt by us to disregard judicial action in a case squarely within section 241 (b).o

III. Did the trial judge exceed his authority under the state law? In addition to arguing that there is a controlling federal standard here, the Service again questions the authority of the trial court to grant a new trial and then to dismiss the proceedings on the prosecuting attorney's motion. The motion states that no Michigan authority has been specified as authorizing the procedure in this case, after a conviction and after the sentence had been served. It notes that we commented in our order of January 15, 1963 on this fact, which the Service had brought out at oral argument.

We think the Service's failure to specify any authority which indicates the court exceeded its jurisdiction is more significant. We made a diligent search of Michigan authorities and discovered no indication that the trial judge lacked authority either to grant the motion for new trial or, on motion of the prosecuting attorney, to dismiss the proceedings without holding a new trial. In fact our review of Michigan law indicates that the trial judge here probably acted within his authority.10 In any event, the court's action may not be held ineffective

'Sawkow v. Immigration and Naturalization Service, supra.

10 Compare People v. Barrows, 358 Mich. 267, 99 N.W. 2d 347 (1959). The Supreme Court of Michigan reversed an order denying a new trial. The appellant had been originally sentenced on a plea of guilty to three years' probation. Before the probationary period expired appellant was convicted of another offense in New York. (The terms of the Michigan probation provided for appellant to leave Michigan and to reside with his father in New York.) Almost ten years thereafter appellant moved for a new trial in the Michigan proceeding with leave to withdraw his plea of guilty. Appellant was then still serving his New York sentence. Although pointing out that Michigan courts do not look with favor upon long-delayed motions for new trials, the court said that under Michigan law there is no final time limitation upon the power of the trial court to grant a motion for new trial-such motions being within the inherent power of the court where leave to file the motion is first obtained. The court cited People v. Hurwich, 259 Mich. 361, 243 N.W. 230 (1932), which we cited in our order of January 15, 1963, and People v. Burnstein, 261 Mich. 534, 246 N.W. 217 (1933).

merely because its authority to so act might be questionable. Lack of jurisdiction must be affirmatively shown. Therefore, the motion also fails because of the Service's failure to show that the trial court exceeded its authority.

IV.

The further consideration which we have given to this matter in response to the Service motion for reconsideration leads us to deny that motion insofar as it seeks reversal of our order of January 15, 1963 and entry of an order of deportation.

ORDER: It is ordered that the motion for reconsideration and withdrawal of our order of January 15, 1963, which approved the decision of the special inquiry officer terminating these proceedings, and for entry of an order of deportation be and hereby is denied.

It is further ordered that these proceedings be terminated in accordance with the order of the special inquiry officer, dated July 9, 1962, approved by our order of January 15, 1963.

MATTER OF CARDENAS-PINEDO

In DEPORTATION Proceedings

A-10720991

Decided by Board August 12, 1963

A lawful permanent resident, upon return to the U.S. following an innocent, casual absence to Mexico for a few hours to visit relatives did not make an entry upon which to predicate a ground of deportation [Rosenberg v. Fleuti, 374 U.S. 449 (1963)]. (See also, Matter of Yoo, Int. Dec. No. 1305.)

CHARGES:

Order: Act of 1952-Section 241(a) (1) [8 U.S.C. 1251(a)(1)]—Excludable as alien convicted of crime involving moral turpitude, theft. Lodged: Act of 1952-Section 241 (a) (1) [8 U.S.C. 1251(a)(1)]—Excludable as alien who admits commission of crime involving moral turpitude, theft.

The case comes forward pursuant to certification by the special inquiry officer of his order dated June 28, 1963 terminating the proceedings.

The record relates to a native and citizen of Mexico, 25 years old, male, married, who was admitted to the United States for permanent residence as a nonquota immigrant on June 25, 1958. Although the record of conviction shows that the respondent was convicted on January 18, 1962, it was found that the respondent was in fact convicted on November 22, 1961 in the 34th Judicial District Court, El Paso, Texas, upon his plea of guilty on the charge of theft of property of the value of $50 and over and received a suspended sentence for a period of three years. Although the charge in the order to show cause was abandoned because of the decision in Matter of L-R-, 7 I. & N. Dec. 318 (Attorney General 1957) the lodged charge based upon the admission of the commission of the crime because of the plea of guilty was sustained. For the purposes of this case, we shall consider the lodged charge as sustained and shall pass on to a consideration of the primary issue raised by the certification.

The respondent had the status of a resident alien in the United States, having been admitted as a nonquota immigrant on June 25,

1958. Following that admission he resided in the United States and has continued to reside in this country until the present time. His wife is a United States citizen and he has three children all of whom are United States citizens. He has had the same employment in the United States since his entry as an immigrant. Following the date of his admission as an immigrant, the respondent has made brief visits to Mexico. Subsequent to his plea of guilty the respondent has made visits of brief duration not exceeding a few hours to visit relatives in Mexico, returning thereafter to his home and family here in the United States. Inasmuch as the respondent experienced no difficulty in entering the United States upon the occasion of each return, it is assumed for the purpose of this discussion that he presented the required document, namely, a Form I-151 Alien Registration Receipt Card.

The Supreme Court in the recent case of Rosenberg v. Fleuti, 374 U.S. 449, 10 L. ed. 2d 1000 (June 17, 1963), considered the definition of the term "entry" as set out in section 101(a) (13) of the Immigration and Nationality Act in connection with the case of a resident alien who returned to the United States after a brief visit in Mexico and who it was contended was excludable as an alien afflicted with psychopathic personality under section 212 (a) (4) by reason of the fact that he was a homosexual. As defined in section 101(a)(13) of the Immigration and Nationality Act, 8 U.S.C. 1101 (a) (13), "the term 'entry' means any coming of an alien into the United States, from a foreign port or place or from an outlying possession, whether voluntarily or otherwise, except that an alien having a lawful permanent residence in the United States shall not be regarded as making an entry into the United States for the purposes of the immigration laws if the alien proves to the satisfaction of the Attorney General that his departure to a foreign port or place or to an outlying possession was not intended or reasonably to be expected by him or his presence in a foreign port or place or in an outlying possession was not voluntary; ***”

The court reviewed the history of the judicial definition of the term "entry” as expressed most restrictively in U.S. ex rel. Volpe v. Smith, 289 U.S. 422, and as relaxed by the holdings in Di Pasquale v. Karnuth, 158 F. 2d 878 (New York) and Delgadillo v. Carmichael, 333 U.S. 338;1 and referred to the House and Senate Committee Reports preceding enactment of the bill containing the definition. The court quoted the decisions in Di Pasquale v. Karnuth, and Delgadillo v.

'Followed in Yukio Chai v. Bonham, 165 F. 2d 207 (9th Cir. 1947) and Carmichael v. Delaney, 170 F. 2d 239 (9th Cir. 1948).

"H.R. No. 1365, 82nd Cong., 2d Sess. 32, 1952; S.R. No. 1137, 82nd Cong., 2d Sess. 4 (1952).

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