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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. 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


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.

· 267 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.

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


$81. & N. Dec. 429.

* Matter of GM, Int. Dec. No. 1119, approved by the Attorney General ; Matter of 14 Int. Dec. No. 1159.

Matter of Arellano-Flores, supra'; U.S. ex. rel. Piperkoff v. Esperdy, supra”; Matter of 8–, Int. Dec. No. 1206.

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.


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 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).'

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

* 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 o at 37.

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


. Sawkoro v. Immigration and Naturalization Service, supra.

Compare People v. Barrows, 358 Mich. 267, 99 N.W. 20 347 (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.


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.

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